Exhibit 10.6
FIBER SUPPLY AGREEMENT
by and between
ESCANABA TIMBER LLC
and
WICKLIFFE PAPER COMPANY
May 2, 2005
FIBER SUPPLY AGREEMENT
FIBER SUPPLY AGREEMENT, dated as of May 2, 2005 (this “Agreement”), by and between ESCANABA TIMBER LLC, a Delaware limited liability company, (“Seller”) and WICKLIFFE PAPER COMPANY, a Delaware corporation (“Buyer”).
RECITALS
Seller desires to sell and Buyer desires to purchase, on the terms and conditions hereinafter set forth, certain quantities and types of wood fiber located on certain timberlands owned by Seller.
NOW, THEREFORE, in consideration of the mutual covenants described in this Agreement and other good and valuable consideration the receipt and sufficiency of which are acknowledged, Seller and Buyer hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following terms shall have the respective meanings given to them in the provisions thereof indicated below:
“AAA” shall have the meaning provided in Section 10.l4(a).
“AF&PA” shall have the meaning provided in the definition of “Sustainable Forest Practice Standards”.
“Agreement” shall have the meaning provided in the opening paragraph of this Agreement.
“Annual Plan” shall have the meaning provided in Section 2.3(a).
“Annual Volumes” shall have the meaning provided in Section 2.3(c).
“Assumed Volume” shall have the meaning provided in Section 10.2(b).
“Calendar Year” means a full year beginning on January 1 and continuing through December 31 thereof.
“Delivery Distance” means the trucking distance between Seller’s harvest site and the Buyer’s delivery location (which delivery location is within the Market Region).
“Force Majeure” shall have the meaning provided in Section 2.4(a).
“Force Majeure Period” shall have the meaning provided in Section 2.4(c).
“Hardwood Pulpwood” means pulpwood from hardwood species of timber.
“Liens” shall have the meaning provided in Section 6.2(b).
“Losses” shall have the meaning provided in Section 6.2(b).
“Market Region” shall mean all areas which are located within one hundred forty (140) miles of the Mill.
“Mill” shall mean Buyer’s pulp and paper mill located in Wickliffe, Kentucky.
“Minimum Volumes” shall have the meaning provided in Section 2.3(b).
“Natural Hardwood” means Hardwood Pulpwood from timber stands that are naturally regenerated.
“New Owner” shall have the meaning provided in Section 10.2(b).
“Objection Notice” shall have the meaning provided in Section 10.2(b).
“Past Due” shall have the meaning provided in Section 4.4.
“Person” shall have the meaning provided in Section 10.1(b).
“Pine Pulpwood” shall mean pulpwood from pine species of timber.
“Plantation Hardwood” means Hardwood Pulpwood from timber stands that are artificially regenerated.
“Price Period” shall have the meaning provided in Section 4.1 (b).
“Products” means Pine Pulpwood and Hardwood Pulpwood.
“Product Specifications” shall have the meaning provided in Section 2.1.
“Pulpwood” means Hardwood Pulpwood and Pine Pulpwood.
“Sustainable Forest Practice Standards” shall mean practices substantially in compliance with standards substantially similar to the Sustainable Forestry Initiative of the American Forest and Paper Association (the “AF&PA”) as those standards may be modified by AF&PA from time to time.
“Term” shall have the meaning provided in Section 5.1.
“Timberlands” shall mean all timberland properties now or hereafter owned by Seller and located in the States of Illinois, Missouri, Tennessee, Arkansas and Ballard, Carlisle, Crittendon, Fulton, Hickman, Livingston, Lyon and Trigg Counties, Kentucky.
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“TMS” shall mean the publication known as Timber Mart South, or in the event TMS is no longer published, a comparable publication mutually acceptable to Seller and Buyer.
“Transfer” shall mean any sale, lease, conveyance, exchange, assignment, hypothecation, disposition, foreclosure or other transfer (excluding the granting of a mortgage or other security agreement), directly or indirectly (whether by agreement, operation of law or otherwise), of all or any portion of the Timberlands.
“Valuation Consultant” shall mean either Sizemore & Sizemore of Tallassee, Alabama or Larson & McGowin of Mobile, Alabama, or if such firms are no longer in existence, another reputable, professionally qualified Person meeting all of the following criteria. Such Person (i) is not an Affiliate of either Seller or Buyer, (ii) during the past two (2) years has not transacted substantial business with either Seller or Buyer, and (iii) dotes not have less than five (5) years experience relating to sales of timber within the Market Region. If Seller and Buyer are unable to agree on the Valuation Consultant, an arbitrator selected pursuant to Section 10.14 below shall select such Valuation Consultant. Seller and Buyer shall provide to the Valuation Consultant such information as the Valuation Consultant shall reasonably request to facilitate the determinations to be made by the Valuation Consultant hereunder.
“Zone” shall mean the zone designated in TMS as Tennessee Area 2.
ARTICLE II
PURCHASE OF PRODUCTS
Section 2.1 Purchase of Softwood Pulpwood, Hardwood Pulpwood and Aspen Pulpwood. Seller agrees to sell, and Buyer agrees to purchase, receive and pay for, in each calendar year (a “Calendar Year”), the Annual Volumes, as defined herein, of Pine Pulpwood and Hardwood Pulpwood. All Pine Pulpwood and Hardwood Pulpwood purchased pursuant to this Agreement shall satisfy, respectively, the specifications for the Products set forth in Schedule 2.1, as may be modified from time to time in accordance with Section 2.2 (the “Product Specifications”). For the purposes of this Agreement, a ton shall weigh two thousand (2,000) pounds.
Section 2.2 Modification of Specifications. Buyer may, from time to time, and upon at least two (2) months prior written notice to Seller, reasonably modify any of the Product Specifications that Buyer applies to substantially all of its Product suppliers to the Mill. Buyer shall not modify the Product Specifications to set higher standards for Seller than for any such other Products suppliers. All Products sold by Seller to Buyer following the date the new specifications become effective shall satisfy such modified Product Specifications. If Product Specifications are modified to set higher standards, the Annual Volumes shall be adjusted downward as deemed reasonably necessary by Seller, and subject to Buyer’s reasonable approval, as a result of said higher standards.
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Section 2.3 Annual Plan.
(a) Seller shall on the date hereof and prior to September 1 of each Calendar Year during the Term, complete and submit to Buyer a written delivery plan with respect to the Products to be made available for purchase by Buyer during the next Calendar Year (the “Annual Plan”). Said Annual Plan shall include estimates of delivery of the Products by Delivery Distances, month and accumulated into estimated quarterly deliveries. The Annual Plan shall set forth the quantity of Products Seller intends to make available to Buyer during the next Calendar Year, said quantities to be subject to the terms of Article III.
(b) Subject to Seller’s obligation to offer at least the minimum volumes required to be offered to Buyer pursuant to Section 3.1 below (the “Minimum Volumes”): (i) all Pulpwood volumes projected to be harvested from the Timberlands in the applicable Calendar Year shall be made available in said Annual Plan for Calendar Years 2006 through 2010; (ii) ninety percent (90%) of all Pulpwood volumes projected to be harvested from the Timberlands in the applicable Calendar Year shall be made available in said Annual Plan for Calendar Years 2011 through 2013; and (iii) eighty-five percent (85%) of all Pulpwood volumes projected to be harvested from the Timberlands in the applicable Calendar Year shall be made available in said Annual Plan for Calendar Years 2014 through 2016, and, if the Term is extended pursuant to Section 5.2 below, for Calendar Years 2017 through 2019.
(c) Buyer shall within 30 days of receipt of said Annual Plan confirm with Seller the volumes of the Products Buyer agrees to purchase from Seller during the next Calendar Year; provided, however, that unless Seller agrees otherwise, Buyer must agree to purchase at least ninety percent (90%) of the volumes set forth in the Annual Plan. Said agreed upon volumes shall then become in the aggregate the “Annual Volumes” Buyer agrees to purchase and Seller agrees to deliver in the next Calendar Year.
(d) Following adoption of each Annual Plan (or as adjusted according to Section 2.3(c) above), the parties shall act in good faith and each use their respective reasonable best efforts to implement such Annual Plan in accordance with its terms. Products shall be delivered throughout the Calendar Year in accordance with the Annual Plan for such year; provided, however, that during any Calendar Year, Seller may vary its deliveries, and Buyer may vary its purchases of Products, subject to Section 4.2 herein, as long as variations in delivery are immaterial and will not impair the operations of the Mill or the operations of Seller on the Timberlands.
Section 2.4 Force Majeure.
(a) For the purposes of this Agreement, the term “Force Majeure” means any cause, condition or event beyond Buyer’s and/or Seller’s reasonable control that delays or prevents either party’s performance of its obligations hereunder, including war, acts of terrorism (which shall not include civil demonstrations), acts of government, acts of public enemy, riots, lightning, fires, explosions, storms, floods,
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infestation, power failures, other acts of God or nature, labor strikes or lockouts by employees, or other disputes involving either party, adverse financial or market conditions, an involuntary ceasing of operations at the Mill for a minimum of thirty (30) consecutive days, and other similar events or circumstances; provided, however, that “Force Majeure” shall not include (i) a party’s financial inability to perform (unless such inability is caused by a general suspension of payments by banks in the United States), or (ii) an act, omission or circumstance arising from the negligence or willful misconduct of the party claiming that a Force Majeure event has occurred. The parties shall use reasonable best efforts to mitigate the effects of the Force Majeure, and if the cause of Force Majeure can be minimized or remedied, both parties shall use reasonable best efforts to do so promptly.
(b) Subject to the provisions of this Section 2.4, neither party shall be liable hereunder for a delay in or failure of performance of its obligations hereunder that is caused by Force Majeure. If Force Majeure results in a reduction, but not a complete cessation, of Buyer’s operations in connection with this Agreement, Buyer shall not reduce its purchases of any Product from Seller in greater proportion than the reduction in Buyer’s purchases of any such Products from all its suppliers of pulpwood to the Mill. Notwithstanding anything contained in this Agreement to the contrary, Force Majeure (other than a general suspension of payments by banks in the United States) shall not excuse Buyer from its obligation to pay, pursuant to the terms of this Agreement, Seller for any quantity of Product delivered by Seller.
(c) The quantity of any Product otherwise required to be purchased or delivered hereunder shall be reduced as a result of Force Majeure for the period during which such Force Majeure is in effect and continuing (such period, the “Force Majeure Period”), based on the respective quantity for each Calendar Year in which such Force Majeure is in effect, prorated (if applicable) for the portion of such year constituting all or part of such Force Majeure Period. If the Force Majeure Period is less than 15 days, (i) Buyer shall be required to purchase the volume of Products not purchased during the Force Majeure Period within the next 180 days following the end of the Force Majeure Period, and (ii) Seller shall be required to make available the volume of Products not delivered during the Force Majeure Period within the next 180 days following the end of the Force Majeure Period. If the Force Majeure Period is more than 14 days, Buyer shall not be required to purchase the volume of Products not purchased during the Force Majeure Period, and Seller shall not be required to make available the volume of Products not delivered during the Force Majeure Period. Notwithstanding anything contained in this Agreement to the contrary, Seller shall have the right, but not the obligation, to sell that quantity of the Product Buyer is unable to purchase because of Force Majeure to any third party purchaser or purchasers in the event Force Majeure prevents Buyer from performing hereunder.
(d) Force Majeure shall not relieve a party of its obligations or liability hereunder unless such party shall give notice (including a reasonable description of such Force Majeure) to the other party as soon as reasonably possible and in any event within fifteen (15) days of the occurrence of such Force Majeure. Upon request, the party whose obligations were suspended shall provide the other party with a plan for
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remedying the effects of such Force Majeure. The party prevented from performing by Force Majeure shall keep the other party advised by written notice of all matters affecting such Force Majeure, and the extent of the delay by reason thereof. Such party shall notify the other party in writing of the termination of such Force Majeure within ten (10) days after such termination.
ARTICLE III
QUANTITY AND PRODUCT MIX
Section 3.1 Minimum Volumes by Calendar Year. With respect to the Products to be purchased by Buyer hereunder, Seller shall make available to Buyer in the applicable Annual Plan the following Minimum Volumes of Products for each Calendar Year during the Term of this Agreement:
(a) 2005. For the Calendar Year beginning May 2, 2005, and ending December 31, 2005:
(i) | | Plantation Hardwood: | | not less than 33,000 tons | |
(ii) | | Pine Pulpwood: | | not less than 20,000 tons | |
(iii) | | Natural Hardwood: | | not less than 47,000 tons | |
(b) 2006 – 2016. For the Calendar Years beginning January 1, 2006 and ending December 31, 2016:
(i) | | Plantation Hardwood: | | not less than 50,000 tons | |
(ii) | | Pine Pulpwood: | | not less than 40,000 tons | |
(iii) | | Natural Hardwood: | | not less than 50,000 tons | |
(c) 2017 – 2019 - To the extent Buyer exercises its option to extend the Term pursuant to Section 5.2 below, for Calendar Years beginning January 1, 2017 and ending December 31, 2019, the mix of Products Seller shall make available to Buyer shall be as follows:
| | Pine Pulpwood: | | not less than 40,000 tons | |
Section 3.2 Adjustments to Product Mix.
Seller and Buyer acknowledge and agree that Seller may from time to time request modifications to the Product mix set forth above during any Calendar Year as a result of its temporary inability to satisfy such Product mix due to adverse weather or similar conditions. So long as the aggregate total volume of all Products required to be delivered for the Calendar Year is not reduced, and so long as the Buyer’s operations would not be adversely affected in any material respect as a result thereof, Buyer agrees to grant such requests.
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ARTICLE IV
PRICE AND DELIVERY TERM
Section 4.1 Prices.
(a) The initial prices for the Products shall be as set forth in Schedule 4.1(a). Products delivered by Seller to Buyer will be paid for at the prices outlined in Schedule 4.1(a), or as adjusted pursuant to Section 4.1(b), based on the Delivery Distance. Such prices for the Pulpwood Products shall be adjusted on a quarterly basis throughout the Term beginning as of January 1, 2006 based on the adjustment mechanism set forth in Section 4.l(b).
(b) The prices for the Products set forth on Schedule 4.1 shall be adjusted beginning on January 1, 2006 and each subsequent April 1, July 1, October 1 and January 1 of each Calendar Year of the Term based upon the percentage change in the published TMS average delivery prices for the applicable Product in the Zone, and based on the formula set forth on Schedule 4.1(b) attached hereto.
(c) In addition to the other amounts payable hereunder, in the event Buyer pays any amounts to any pulpwood supplier to the Mill for fuel adjustments or snow bonuses, Buyer shall make comparable and contemporaneous payments to Seller.
Section 4.2 Pay or Take.
(a) Seller agrees to sell and deliver, subject to Force Majeure, and Buyer agrees to purchase, subject to Force Majeure, the Annual Volumes of Products to be produced under the direction of Seller during each Calendar Year as determined in Section 2.3(c). If for any Calendar Year, Seller fails for any reason other than Force Majeure to tender to Buyer at least ninety percent (90%) of the designated Annual Volumes of Products, Seller will pay Buyer at a rate of $15.00 per ton multiplied by the difference between (x) ninety percent (90%) of the Annual Volumes of Products for the applicable Calendar Year minus (y) the volume of Products actually tendered by Seller during such Calendar Year, as liquidated damages and not as a penalty, and Buyer shall have no further claim for damages on account of such shortfall in the delivery of the Annual Volumes. Payment shall be made by Seller to Buyer on demand no later than fifteen (15) days from Buyer’s written request for such payment. Notwithstanding the foregoing: (i) if adverse weather conditions during the last ninety (90) days of any Calendar Year prevent Seller from delivering the Annual Volumes of Natural Hardwood or Pine Pulpwood for said Calendar Year, the payments provided for in this Section 4.2(a) shall not apply unless and to the extent said volumes (together with any volumes required with respect to the first quarter of the following Calendar Year) are not delivered on or before March 31 of the following Calendar Year, and (ii) if adverse weather conditions during any Calendar Year prevent Seller from delivering the Annual Volumes of Plantation Hardwood for said Calendar Year, the payments provided for in this Section 4.2(a) shall not apply unless and to the extent said volumes (together with
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any volumes required with respect to the following Calendar Year) are not delivered on or before December 31 of the following Calendar Year. Seller shall keep Buyer advised of any such adverse weather conditions and Buyer’s need for additional time to deliver said volumes.
(b) If for any Calendar Year, Buyer fails for any reason other than Force Majeure to purchase at least ninety percent (90%) of the Annual Volumes of Products from Seller, then Buyer shall pay Seller for the shortage at a rate of $15.00 per ton multiplied by the difference between (x) ninety percent (90%) of the Annual Volumes of Products for the applicable Calendar Year minus (y) the volume of Products actually purchased by Buyer hereunder during such Calendar Year, as liquidated damages and not as a penalty, and Seller shall have no further claim for damages on account of Buyer’s failure to purchase the Annual Volumes. Payment shall be made by Buyer to Seller on demand no later than fifteen (15) days from Seller’s written request for such payment.
(c) Subject to the terms of Section 3.2 above, any payments made pursuant to this Section 4.2 shall be calculated separately for Pine Pulpwood and Hardwood Pulpwood. If this Agreement is in termination at a time other than the beginning or end of a calendar year, the Annual Volumes for purposes of calculating such shortage payment for either party will be prorated equitably.
Section 4.3 Delivery Terms. All Pulpwood Products covered by this Agreement shall be delivered to Buyer F.O.B. to the Mill or to such other locations in the Market Region as Buyer may direct upon reasonable advance notice to Seller. Risk of loss and title shall pass when the Products are unloaded at the Mill or the applicable delivery location.
Section 4.4 Payment. Buyer shall pay Seller within fifteen (15) days after the date of delivery for any Products delivered to Buyer, based upon the volume of the Products delivered, as determined by the weight of such Products at the time of delivery. Payments made after fifteen (15) days from the date of delivery shall be considered past due (“Past Due”). For payments that are Past Due, Buyer shall pay interest at a rate per annum equal to the daily prime rate as reported in the Wall Street Journal plus four percent (4%) for each day that the payments are Past Due. Such interest shall be calculated daily on the basis of a year of 365 days and the actual number of days for which interest is due. If at any time during the Term there are any payments outstanding to Seller that are Past Due, then, in addition to any other remedies it may have hereunder, Seller may suspend deliveries to Buyer until such time as all Past Due payments have been paid in full. In such event, Seller shall have no obligation to supply or make up any portion of the Annual Volumes scheduled for delivery and not delivered during such suspension and shall in no way be liable to Buyer for any Losses (as defined below in Section 6.2(b)) or payments pursuant to Section 4.2(a) related to any shortfall in delivered volumes of Products arising out of said suspension.
Section 4.5 Disputes. If the personnel designated by Buyer and Seller with operational responsibility for implementing this Agreement are unable to agree as to any matter set forth in this Article IV then such matter shall be addressed by the
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executives responsible for timberland management for Seller and wood procurement for Buyer. If such executives are unable to agree, then such matter shall be determined by an arbitrator pursuant to Section 10.14.
Section 4.6 Compliance with Product Specifications. If any shipment of any Product fails to satisfy the applicable Product Specifications, Buyer shall have the right to reject such shipment. Buyer shall notify Seller of any such rejection as soon as reasonably possible.
Section 4.7 Limitation of Warranties. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PRODUCTS ARE BEING SOLD “AS IS,” AND SELLER IS NOT MAKING ANY OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, IN PARTICULAR, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (AS DEFINED IN THE DELAWARE UNIFORM COMMERCIAL CODE), ALL OF WHICH ARE HEREBY EXPRESSLY EXCLUDED, DISCLAIMED AND WAIVED BY BUYER.
ARTICLE V
TERM
Section 5.1 Term. This Agreement shall expire on December 31, 2016, unless this Agreement is sooner terminated for cause pursuant to Section 9.1 hereof, or unless this Agreement is extended as provided in Section 5.2 (the “Term”).
Section 5.2 Extension of Term. Provided that Buyer shall not then be in default under this Agreement, the Term of this Agreement may be extended at the option of Buyer for one (1) additional three (3) year term, which extension term shall commence concurrently with the expiration of the initial term, upon the same terms and conditions as contained in this Agreement. In the event that Buyer desires to extend this Agreement pursuant to the above extension option, it shall give written notice of such desire to extend the Term to Seller no later than January 1, 2016.
ARTICLE VI
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.1 Warranty of Quality. Seller warrants and covenants that it will act in good faith and use its reasonable best efforts to cause all Products to meet the Product Specifications.
Section 6.2 Ownership of Products. (a) Seller warrants and covenants that all Products delivered to Buyer will be free and clear of all Liens (as defined in Section 6.2(b) below). Seller shall protect, indemnify, defend and hold harmless Buyer against any Losses (as defined in Section 6.2(b) below) incurred or sustained by Buyer
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arising out of or resulting from any Liens applicable to any of the Products at the time delivered by Seller.
(b) The term “Liens” means any and all liens, charges, mortgages, deeds to secure debt, pledges, security interests, options of record, adverse claims or other encumbrances of a liquidated amount or which are otherwise statutorily enforceable, other than liens for ad valorem taxes not yet due and payable; provided, however, none of the aforementioned shall constitute a “Lien” in the event the same fails to prevent Seller from performing any of its obligations hereunder. The term “Losses” means any and all claims, liabilities, obligations, losses, fines, costs, royalties, proceedings, deficiencies or damages (whether absolute, accrued, conditional or otherwise and whether or not resulting from third party claims) including, but not limited to, out-of-pocket expenses and reasonable actual attorneys’ and actual accountants’ fees incurred in the investigation or defense of any of the same or in enforcing any of their respective rights hereunder.
Section 6.3 Power and Authority; Enforceability. Seller represents and warrants that it is a limited liability company duly organized and validly existing under the laws of the State of Delaware, and that it has all requisite corporate authority to enter into this Agreement and to perform its obligations hereunder. Seller represents and warrants that this Agreement has been duly authorized, executed and delivered by Seller and constitutes the legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, except as may be limited by (i) bankruptcy, reorganization, insolvency, moratorium, receivership or other similar laws affecting or relating to the enforcement of creditors’ rights or remedies generally, and (ii) general principles of equity (whether considered at law or in equity).
Section 6.4 Compliance with Laws; Maintenance of Timberlands. Seller agrees that its performance of this Agreement shall comply in all material respects with applicable state and federal laws and regulations, including, but not limited to, all environmental laws and the Fair Labor Standards Act of 1938, as amended.
Section 6.5 Seller as Independent Contractor. No relationship of employer and employee, or master and servant, is intended to exist, nor shall any be construed to exist, between Buyer and Seller, or between Buyer and any servant, agent, employee, subcontractor or supplier of or to Seller as a result of the parties entering into or performing this Agreement. Each party hereto shall select and pay its own servants, agents, employees, subcontractors and suppliers, and neither such party nor any of its servants, agents, employees, subcontractors and suppliers shall be subject to any orders, supervision or control of the other party hereto. The parties acknowledge that this Agreement does not create a partnership, joint venture or any relationship other than a contract between independent parties.
Section 6.6 Buyer Power and Authority; Enforceability. Buyer represents and warrants that it is a corporation duly organized and validly existing under the laws of the State of Delaware, and that it has all requisite corporate authority to enter into this Agreement and to perform its obligations hereunder. Buyer represents and
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warrants that this Agreement has been duly authorized, executed and delivered by Buyer and constitutes the legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, except as may be limited by (i) bankruptcy, reorganization, insolvency, moratorium, receivership or other similar laws affecting or relating to the enforcement of creditors’ rights or remedies generally; and (ii) general principles of equity (whether considered at law or in equity).
ARTICLE VII
DEFAULT AND INDEMNIFICATION
Section 7.1 Indemnity.
(a) Buyer shall in no way be liable for any personal injuries (including death), property damage or other Losses caused by, resulting from, or attributable to, Seller’s performance under this Agreement, the operation of the business of Seller or the acts of any servant, agent, employee, subcontractor or supplier of Seller in connection with this Agreement, except to the extent such Loss is finally judicially determined to have arisen out of or resulted from the negligence or intentional misconduct of any of Buyer, its subsidiaries and other affiliates (other than Seller), or any of its or their respective servants, agents, officers, partners, directors, employees, subcontractors or suppliers. Seller shall protect, defend, indemnify and hold harmless NewPage Holding Corporation, NewPage Corporation, Buyer, and their respective subsidiaries and affiliates (other than Seller), and each of its and their respective agents, officers, partners, directors, employees, successors and assigns, from and against any claim, demand, cause of action, lawsuit or other Loss arising out or resulting from performance of this Agreement by Seller, or of any servant, agent, employee, subcontractor or supplier of or to Seller, including any Loss based on the strict liability of Buyer except to the extent such Loss is finally judicially determined to have arisen out of or resulted from the negligence or intentional misconduct of any of Buyer, its subsidiaries and other affiliates (other than Seller), or any of its or their respective servants, agents, officers, partners, directors, employees, subcontractors or suppliers.
(b) Seller shall in no way be liable for any personal injuries (including death), property damage or other Losses caused by, resulting from, or attributable to, Buyer’s performance under this Agreement, the operation of the business of Buyer or the acts of any servant, agent, employee, subcontractor or supplier of Buyer in connection with this Agreement, except to the extent such Loss is finally judicially determined to have arisen out of or resulted from the negligence or intentional misconduct of any of Seller, its subsidiaries and other affiliates (other than NewPage Holding Corporation and its subsidiaries), or any of its or their respective servants, agents, officers, partners, directors, employees, subcontractors or suppliers. Buyer shall protect, defend, indemnify and hold harmless Seller, and its subsidiaries and other affiliates (other than NewPage Holding Corporation and its subsidiaries), and each of its and their respective agents, officers, partners, directors, employees, successors and assigns, from and against any claim, demand, cause of action, lawsuit or other Loss arising out or resulting from performance of this Agreement by Buyer, or of any servant,
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agent, employee, subcontractor or supplier of or to Buyer, including any Loss based on the strict liability of Seller, except to the extent such Loss is finally judicially determined to have arisen out of or resulted from the negligence, or intentional misconduct of any of Seller, its subsidiaries and other affiliates (other than NewPage Holding Corporation and its subsidiaries), or any of its or their respective servants, agents, officers, partners, directors, employees, subcontractors or suppliers.
Section 7.2 Certain Remedies. Notwithstanding anything in this Agreement to the contrary, Buyer’s sole and exclusive remedies against Seller (following the expiration of any applicable cure period) in the event that Seller breaches its obligation to provide the Annual Volumes of Products required under this Agreement shall be (a) to receive the payment provided pursuant to Section 4.2(a) of this Agreement, and (b) to terminate this Agreement pursuant to Section 9.1 of this Agreement.
ARTICLE VIII
CONSENT TO JURISDICTION
Section 8.1 Consent to Jurisdiction. In connection with any proceeding initiated by either party under or with respect to this Agreement and the transactions contemplated hereby, each party hereby consents to the jurisdiction of any United States Federal Court sitting in the State of Kentucky having jurisdiction in the matter. Each party acknowledges and agrees that any controversy that may arise under this Agreement is likely to involve complicated and difficult issues, and therefor it hereby irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any litigation directly or indirectly arising out of or relating to this Agreement, or the breach, termination or validity of this Agreement, or the transactions contemplated by this Agreement.
ARTICLE IX
TERMINATION
Section 9.1 Termination for Cause. This Agreement shall immediately terminate if any one of the following events (each, a “default”) has occurred and is continuing on the tenth (10th) day after receipt of notice of an intent to cancel by reason of such default (each, an “Event of Default”):
(a) Breach of any term of this Agreement, which breach is not cured within sixty (60) days after receipt of written notice thereof;
(b) Insolvency or the filing by or against Seller or Buyer of a petition in bankruptcy (which, in the event of an involuntary bankruptcy, is not dismissed within ninety (90) days from the date of its commencement), or appointment by a court of a temporary or permanent receiver, trustee or custodian; or
(c) If the Mill for any reason ceases all pulping operations for a period that exceeds twelve (12) consecutive months at any time during the Term.
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Section 9.2 Effect of Termination. Termination shall not relieve a defaulting party of any liability to the nondefaulting party for breach of its obligations hereunder.
ARTICLE X
MISCELLANEOUS
Section 10.1 Definitions.
(a) The words “hereby,” “herein,” “hereof,” “hereunder” and words of similar import refer to this Agreement as a whole and not merely to the specific section, paragraph or clause in which such word appears. The word “party” or “parties” means a party or the parties to this Agreement, unless preceded by the word “third” or unless the context shall otherwise expressly require. All references herein to Articles, Sections, Annexes and Exhibits shall be deemed references to Articles and Sections of, and Annexes and Exhibits to, this Agreement unless the context shall otherwise require. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation,” unless already expressly followed by such phrase or the phrase “but not limited to.” The definitions given for terms in this Section 10.1 or in Article I shall apply equally to both 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.
(b) Whenever used in this Agreement, the following terms shall have the respective meanings given to them below.
“Affiliate” of a Person means any other Person directly, or indirectly through one or more intermediaries, controlling, controlled by or under common control with the first Person. As used in this definition of the term “affiliate,” and elsewhere herein with respect to any affiliate of any Person, “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of a Person, whether through the ownership of voting securities, by voting trust, contract or similar arrangement, as trustee or executor, or otherwise.
“Person” means any individual, sole proprietorship, trust, estate, executor, legal representative, unincorporated association, association, institution, corporation, company, partnership, limited liability company, limited liability partnership, joint venture, government (whether national, Federal, state, county, city, municipal or otherwise, including, without limitation, any instrumentality, division, agency, body or department thereof) or other entity.
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Section 10.2 Assignment by Seller.
(a) Except as provided in this Section 10.2, this Agreement may not be assigned by Seller in whole or in part. Notwithstanding the foregoing, at any time during the Term, Seller may assign this Agreement (i) to any lender or lenders as security for obligations to such lender or lenders in respect to financing arrangements of Seller or any Affiliate thereof with such lender or lenders, or (ii) upon prior written notice to Buyer, to any Person that is and at all times remains an Affiliate of Seller or that merges or consolidates with or into Seller or that acquires all or substantially all of the Timberlands.
(b) Notwithstanding any other provision of this Agreement to the contrary, Buyer and Seller acknowledge and agree that Seller shall not be prohibited from selling all or any portion of the Timberlands, provided that any such sale of the Timberlands shall be made subject to the terms of this Agreement and the obligation to supply the applicable portion of timber volumes required hereunder. Upon any sale of a portion of the Timberlands, the purchaser of said portion of the Timberlands (“New Owner”) shall assume the obligation to supply a portion of the timber volumes to be supplied hereunder, said portion of the timber volumes (“Assumed Volume”) to be agreed to by Seller and said New Owner, subject to Buyer’s consent to such volume allocation, which consent shall not be unreasonably withheld or delayed. Upon such assumption by said New Owner, Seller’s obligations to supply Products hereunder shall be reduced by the volumes assumed by said New Owner, and Seller shall thereafter have no obligation or liability with respect to said assumed volumes or with respect to the portion of the Timberlands so conveyed. At the request of Seller, upon any such sale to a New Owner Buyer shall execute an amendment to this Agreement acknowledging the foregoing. Furthermore, upon request of Seller or Buyer, upon such sale to a New Owner, Buyer and such New Owner shall enter into a separate fiber supply agreement on the same terms and conditions as contained in this Agreement (or such other terms as Buyer and such New Owner shall mutually agree) except for the portion of the Timberlands covered thereby and the volume of Products to be supplied thereunder. In the event Buyer objects to any proposed Assumed Volume, Buyer shall provide written notice of the same to Seller within fifteen (15) days of notice to Buyer of said proposed Assumed Volume (“Objection Notice”), said Objection Notice to include a detailed explanation of the basis for said objection. Failure by Buyer to timely provide said Objection Notice shall be deemed to constitute the consent of Buyer to said proposed Assumed Volume. In the event Buyer timely provides an Objection Notice, Seller shall have the option of (i) revising said proposed Assumed Volume, in which case Buyer shall have the further right to object by providing a new Objection Notice as provided above or (ii) retaining the Valuation Consultant to determine whether the proposed Assumed Volume is reasonable. In the event the Valuation Consultant is so retained and determines that said proposed Assumed Volume is reasonable, Buyer shall be deemed to have consented to said Assumed Volume and shall pay all costs and expenses of said Valuation Consultant. Otherwise, said costs and expenses shall be paid by Seller. Notwithstanding the foregoing, Seller may convey during the Term hereof up to 15,000 acres of the Timberlands free and clear of the obligations of this Agreement (the “Exempt Acres”), provided that Seller is able to supply the volume of Products required to be
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supplied hereunder from the remaining portion of the Timberlands. Buyer agrees to execute any and all documentation requested by Seller in order to evidence the release of the Exempt Acres from this Agreement.
Section 10.3 Assignment by Buyer.
Except as provided in this Section 10.3, this Agreement may not be assigned by Buyer in whole or in part. Notwithstanding the foregoing, at any time during the Term, Buyer may assign this Agreement (a) to any lender or lenders as security for obligations to such lender or lenders in respect of financing arrangements of Buyer or any affiliate thereof with such lender or lenders, or (b) upon prior written notice to Seller, to any Person that is and at all times remains an Affiliate of Buyer or that merges or consolidates with or into Buyer or that acquires all or substantially all of the assets or stock of Buyer.
Section 10.4 Notices. All notices, requests, demands and other communications provided for hereunder shall be in writing and personally delivered or sent by regular U.S. certified mail, telecopy or Federal Express (or similar type of overnight delivery) to the applicable party at the address indicated below:
If to Buyer: | | Wickliffe Paper Company |
| | 1724 Westvaco Road |
| | Wickliffe. Kentucky 42087 |
| | |
With a copy to: | | Bernie F. Coyle |
| | 3901 Mayfield Road |
| | Wickliffe, Kentucky 42087 |
| | Telecopier No. 270-335-6240 |
| | Telephone No. 270-335-6241 |
| | |
and | | Greg Hansrote |
| | 1724 Westvaco Road |
| | Wickliffe, Kentucky 42087 |
| | Telecopier No. 270-335-4110 |
| | Telephone No. 270-335-4587 |
| | |
If to Seller: | | Escanaba Timber LLC |
| | c/o NewPage Corporation |
| | Courthouse Plaza N.E. |
| | Dayton, Ohio 45463 |
or, as to each party, at such other address as shall be designated by such party in a written notice to the other party complying as to delivery with the terms of this Section. Notice shall be deemed received when (i) hand delivered; (ii) sent, after receipt of confirmation or answer back if sent by telecopy; (iii) five Business Days after deposit in the U.S. mails, postage prepaid, for certified mail; and (iv) one Business Day after delivery to
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Federal Express (or similar type of overnight delivery), properly addressed to the applicable party.
Section 10.5 Amendment; Waiver. No amendment, modification or discharge of this Agreement, and no waiver hereunder, shall be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of the amendment, modification, discharge or waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. The failure of either party to insist in any one or more instances upon strict performance of any of the provisions of this Agreement or take advantage of any of its rights hereunder shall not be construed as a waiver of any such provisions or the relinquishment of any such rights, but the same shall continue and remain in full force and effect.
Section 10.6 Entire Agreement. This instrument constitutes the entire agreement between the parties relating to the subject matter hereof, and there are no agreements, understandings, conditions, representations, or warranties not expressly set forth herein.
Section 10.7 Sovereign Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Kentucky, without reference to the conflicts of laws or choice of law provisions thereof.
Section 10.8 Binding Agreement. Subject to the provisions of Sections 10.2 and 10.3, this Agreement shall bind and inure to the benefit of the parties and their respective successors and assigns.
Section 10.9 Headings. The section and other headings in this Agreement are inserted solely as a matter of convenience and for reference, are not a part of this Agreement, and shall not be deemed to affect the meaning or interpretation of this Agreement.
Section 10.10 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
Section 10.11 Annexes and Exhibits. All annexes, attachments, schedules and exhibits to this Agreement referenced herein are incorporated herein by reference.
Section 10.12 Severability, etc. Any term or provision of this Agreement that is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability, without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or unenforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any term or provision of this Agreement is so broad as to be invalid or unenforceable, the provision shall be interpreted to be only so broad as is valid or
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enforceable. Subject to the foregoing provisions of this Section 10.12, if any term or provision of this Agreement is invalid or unenforceable for any reason, such circumstances shall not have the effect of rendering such term or provision invalid or unenforceable in any other case or circumstance.
Section 10.13 No Presumption Against Drafter. Each of the parties hereto has jointly participated in the negotiation and drafting of this Agreement. In the event of an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by each of the parties hereto and no presumptions or burdens of proof shall arise favoring any party by virtue of the authorship of any of the provisions of this Agreement.
Section 10.14 Arbitration.
(a) All controversies, disputes, or claims arising among the parties in connection with, or with respect to, any provision of this Agreement which have not been resolved within twenty (20) days after either Buyer, on the one hand, or Seller, on the other hand, has notified the other in writing of such controversy, dispute or claim, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Notwithstanding anything contained in this Section 10.14 or the AAA Commercial Arbitration Rules to the contrary, any arbitrator appointed hereunder to resolve disputes shall be an attorney licensed to practice law in the United States with experience in commercial real estate and the timber and paper industries and shall have expertise appropriate to the dispute. In addition to the aforementioned qualifications, any arbitrator appointed hereunder to resolve disputes arising out of any Article IV matter shall have a familiarity with the factors taken into account in pricing wood fiber products and shall otherwise be qualified to make the pricing determinations required by Article IV.
(b) Nothing herein contained shall bar the right of any of the parties to seek and obtain temporary injunctive relief from a court of competent jurisdiction in accordance with applicable law against threatened conduct that will cause loss or damage, pending completion of the arbitration, and the prevailing party therein shall be entitled to an award of its reasonable attorneys’ fees and costs.
(c) Notwithstanding anything contained in this Agreement to the contrary, in the event that any controversy, dispute, or claim exceeds $10,000,000, this Section 10.14 shall not apply.
Except as otherwise provided in this Agreement, this Section shall be interpreted, governed by and enforced in accordance with the United States Arbitration Act, 9 U.S.C. Section 1-14.
Section 10.15 Sustainable Forestry Initiative. Seller shall continue to manage the Timberlands in accordance with the Sustainable Forestry Initiative during the
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Term of this Agreement. From time to time it may be necessary to agree upon a recognized successor or alternative standard to the Sustainable Forestry Initiative, which shall be negotiated in good faith to reflect changes or developments in the evolution of widely accepted industry standards.
Section 10.16 Option to Convert to Stumpage Agreement. At any time during the Term of this Agreement, upon not less than one hundred twenty (120) days prior written notice from Seller to Buyer, Seller shall have the one-time option to convert this Agreement from a delivered wood agreement to a stumpage agreement. Upon such conversion (the “Conversion Date”), the parties shall enter into a new agreement substantially in the form of the agreement attached hereto as Schedule 10.16 (the “Stumpage Agreement”). The Base Prices for such Stumpage Agreement shall be the fair market value of the Products on the Conversion Date, as reasonably and mutually agreed to by Buyer and Seller. If the parties are unable to agree on said Base Prices, said Base Prices shall be determined by the Valuation Consultant.
Section 10.17 Memorandum of Contract. At the request of any party hereto, a Memorandum of this Agreement shall be recorded in the recording offices of each and every County in which the Timberlands are located.
Section 10.18 Publicity. This Agreement is confidential and no party shall issue press releases or engage in other types of publicity of any nature dealing with the commercial and legal details of this Agreement without the other party’s prior written approval. However, approval of such disclosure shall be deemed to be given to the extent such disclosure is required to comply with applicable laws, governmental rules, regulations or other governmental requirements, or in connection with any financing arrangements of such party. In such event, the publishing party shall, to the extent reasonably practicable, furnish, in advance, a copy of such proposed disclosure, to the other party.
Section 10.19 Estoppel Certificates. Either party shall, at no cost to the requesting party, from time to time, upon twenty (20) days prior request by the other party, execute, acknowledge and deliver to the requesting party a certificate signed by an officer of the certifying party stating that this Agreement is unmodified and in full force and effect (or, if there have been modifications, that this Agreement is in full force and effect as modified, and setting forth such modifications) and the dates through which payments have been made, and either stating that to the knowledge of the signer of such certificate no default exists under this Agreement or specifying each such default to which the signer has knowledge.
Section 10.20 Prevailing Party. If either party brings any proceeding for the judicial or other interpretation, enforcement, termination, cancellation or rescission of this Agreement, or for damages for the breach thereof, the prevailing party in any such proceeding or appeal thereon shall be entitled to its reasonable attorneys’ fees and court and other reasonable costs incurred, to be paid by the losing party as fixed by the court in the same or a separate proceeding, and whether or not such proceeding is pursued to decision or judgment.
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ARTICLE XI
WICKLIFFE WILDLIFE MANAGEMENT AREA
Section 11.1 Notice of Proposed Sale. The portion of the Timberlands identified on Schedule 11.1 attached hereto is commonly referred to as the Wickliffe Wildlife Management Area (the “WWMA Tract”). If Seller desires to sell the fee title to all or any portion of the WWMA Tract (the “Timberlands Interest”), Buyer shall have a right of first offer to acquire all, but not less than all, of such Timberlands Interest, and Seller shall not transfer such Timberlands Interest without first complying with the provisions of this Article XI. Seller shall give written notification to Buyer, by certified mail or personal delivery, of Seller’s desire to sell the Timberlands Interest at issue (the “RFO Notice”). In order to be effective, the RFO Notice must contain the following information: (i) a detailed description of the Timberlands Interest to be sold, (ii) the cash price of the Timberlands Interest to be sold and (iii) the Assumed Volume proposed to be allocated to said Timberlands Interest (the “Offer Terms”).
Section 11.2 Response to Notice. Buyer shall have the right to purchase all (but not less than all) of the Timberlands Interest proposed to be sold by Seller upon the same terms and conditions as stated in the aforesaid RFO Notice by giving written notification to Seller, by certified mail or personal delivery, of its intention to do so within thirty (30) days after receiving the RFO Notice (the “RFO Response”).
Section 11.3 Waiver of Right. Except as hereinafter provided, the failure of Buyer to timely provide the RFO Response shall result in the termination of its right to purchase the Timberlands Interest covered by such RFO Notice. In such event, Seller shall be entitled to sell the Timberlands Interest to a third party purchaser consistent with the Offer Terms, or for a cash price which is more favorable to Seller than as set forth in the Offer Terms. In the event Seller does not close the proposed transaction consistent with the Offer Terms, or for a cash price which is more favorable to Seller than as set forth in the Offer Terms, within six (6) months, or if Seller desires to consummate a sale of the applicable Timberlands Interest for a cash price which is less favorable to Seller than as set forth in the Offer Terms, then Buyer’s right of first offer shall be reinstated as to such Timberlands Interest in accordance with the terms and procedures set forth above. No sale of a Timberlands Interest shall be valid unless Seller has complied with the provisions of this Article XI prior to consummation of such sale. In the event Buyer fails to timely provide the RFO Response, Buyer shall promptly execute any and all documentation requested by Seller in order to evidence the waiver of Buyer’s right of first offer with respect to said Timberlands Interest.
Section 11.4 Closing. In the event Buyer gives written notice to Seller in compliance with Section 11.2 above of its desire to exercise its right to purchase all of the Timberlands Interest which Seller desires to sell, Seller shall designate the time, date and place of closing, provided that the date of closing shall be no earlier than ninety (90) days, and no later than one hundred eighty (180) days, after receipt by Seller of the RFO Response. In such event, the purchase and sale of the Timberlands Interest shall be effected pursuant to the Offer Terms and otherwise in accordance with the terms of
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Seller’s proposed real estate sales contract (which contract shall be subject to Buyer’s reasonable review and approval).
Section 11.5 Applicability of Right of First Offer. The right of first offer set forth herein shall not apply to: (a) any condemnation of any portion of the WWMA Tract, or any sale in lieu thereof; or (b) any easement, cutting contract, hunting license or lease of any portion of the WWMA Tract.
Section 11.6 Title to WWMA Tract. Buyer’s rights set forth in this Article XI are subject and subordinate to all matters of record on the date hereof, including but not limited to the rights of others to purchase the WWMA Tract pursuant to a pre-existing option or right of first refusal, if any. During the term of this Agreement, Seller shall not grant any mortgage, deed of trust or similar encumbrance on the WWMA Tract without the prior written consent of Buyer.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
| ESCANABA TIMBER LLC |
| |
| |
| By: | /s/ Linda Sheffield | |
| | Name: Linda Sheffield |
| | Title: Treasurer |
| |
| |
| WICKLIFFE PAPER COMPANY |
| |
| |
| By: | /s/ Linda Sheffield | |
| | Name: Linda Sheffield |
| | Title: Treasurer |
SCHEDULE 2.1 - PRODUCT SPECIFICATIONS
October 10, 2002
MEADWESTVACO CORPORATION – WICKLIFFE MILL
SPECIFICATIONS FOR ROUNDWOOD DELIVERIES
1. All species except cedar and walnut are acceptable.
2. Wood that is forked, charred or burned, dead or decayed, or that contains metal is not acceptable.
3. The maximum diameter for wood is 28 inches at the widest point on the stem. The minimum top diameter is 3 inches.
4. Wood with crooks or forks must be cut or trimmed so that each stem would fit in a 28 inch diameter cylinder.
5. Trim pieces that have a sharp crook or that are heavily weighted at one end. These cause major problems in the mill conveyor system.
6. Wood hauled on tandem trucks or double bunked on tractor trailers must be a minimum of 12 feet to a maximum of approximately 25 feet in length. (Short wood)
6a. Triple bunk trailers shall be loaded so that the crane grapple shall have access to the center of gravity of each stack of wood on the trailer. The front stack will not have any wood which exceeds 14 feet in length. The rear stack may have longer wood, but it should not be indexed to either end. This will insure that the center of gravity will be between the standards of the rear bunk. Tree length wood must also be loaded so that the grapple has access to the center of gravity.
Center of Gravity not | | Center of Gravity |
accessible to grapple. | | accessible to grapple. |
LOAD NOT ACCEPTABLE | | ACCEPTABLE LOAD |
Center of Gravity | |
accessible to grapple. | |
ACCEPTABLE LOAD | |
7. There must be a minimum 8 inches of clearance between the bottom of the load and the truck or trailer frame.
8. There must be at least 7 feet between sets of standards for crane grapple access.
9. Standards must be smooth and straight, constructed of metal only, with no wooden extensions. Metal extensions must be securely attached.
Loads of Wood
10. Pine and hardwood cannot be mixed in the same load.
11. Loads of long, trailer length wood must not contain pieces of wood shorter than approximately 20 feet. Any piece shorter than trailer length must be loaded so that the middle of the piece is over the middle of the trailer. The ends of the shorter pieces must extend past the two center standards of the trailer.
12. Short wood that is double bunked on trailers must have at least 1 foot of distance between racks of wood.
13. For short wood, no piece of wood should have more than half its diameter above the height of the standards, and must be fully held by the adjoining stems or the standards.
14. For trailer length wood, at least half the diameter of each stem must be below the height of at least three standards on the trailer.
15. The sides of the load should be fully secured by the standards and pieces of wood should not stick out from behind the standards.
16. On trailer length loads of longwood, most of the stems should be butt indexed to the front. Up to 12 stems may be loaded with the butt toward the rear of the trailer to increase payloads. Stems loaded with the butt end to the rear of the trailer must be long enough that they will not break or fall out when the truck is unloaded. They should also not have swelled butts.
Delivering Wood
17. Trucks should follow the designated route for delivering wood (See the attached diagram).
18. No riders past the scalehouse.
19. Speed limit is 15 miles per hour.
20. Safety glasses with side shields are required to be worn inside the truck scale gate.
21. Drivers are required to wear hard hats inside the truck scale gate when not in a vehicle.
22. Load binders should only be removed in the designated area.
23. Pull up to the painted line near the spare grapple and stop. Proceed into the unloading area when the crane operator flashes the green light under the infeed deck. Stop at the painted line along the crane rail.
24. Drivers must leave the truck before being unloaded and stay in the designated safe area until the crane grapple is clear of the truck unloading area. Under no circumstances should drivers walk between their truck and the infeed deck to the drum.
25. Drivers should watch as the crane unloads and look for potential problems. Use the two-way radio to assist the crane operator and avoid damage to equipment.
26. When the front-end loader is unloading trucks, follow the operator’s directions to position the truck. Stand away from the truck and the loader, and where you can clearly view the load of wood and the loader operator. As the loader approaches, positions its forks and grabs the load, use hand signals to help the loader operator. Signal the operator to stop if problems develop that could damage equipment.
27. In the event that there is damage from unloading to a truck or trailer, make sure that the crane operator or loader operator is aware of the damage. Do not leave the mill property until the pulpmill tour foreman inspects the damage.
SCHEDULE 10.16
STUMPAGE AGREEMENT
Between
ESCANABA TIMBER LLC
and
WICKLIFFE PAPER COMPANY
STUMPAGE AGREEMENT
This Agreement is made as of , 20 , by and between , a (“Seller”) and �� ,a (“Buyer”).
Recitals
Seller desires to sell and Buyer desires to purchase, on the terms and conditions hereinafter set forth, certain quantities and types of wood fiber located on certain timberlands owned by Seller.
Therefore, in consideration of the mutual covenants and agreements set forth herein, the parties hereto agree as follows:
Agreement
1. Definitions. For the purposes of this Agreement the capitalized terms set forth below shall have the meanings set forth after them.
1.1 “Affiliate” shall mean with respect to any Person, any Person controlling, controlled by, or under common Control with, such Person.
1.2 “Annual Buyer Harvesting Notice” shall mean a written notice from Buyer to Seller to be given not later than October 1 of each Harvesting Year during the Term of this Agreement (beginning with Harvesting Year 2005) specifying which of the Actual Designated Tracts Buyer will harvest during the upcoming calendar year.
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1.3 “Annual Purchase Amount” shall mean (a) for the Harvesting Year beginning May 2, 2005, a minimum of One Hundred Thousand (100,000) tons of Qualifying Timber; (b) for each Harvesting Year from January 1, 2006 through the Harvesting Year beginning January1, 2016, a minimum of One Hundred Forty Thousand (140,000) tons of Qualifying Timber; and (c) to the extent Buyer exercises its option to extend the Term pursuant to Section 9.2 below, for each Harvesting Year from January 1, 2017 through the Harvesting Year beginning January 1, 2019, a minimum of Forty Thousand (40,000) tons of Qualifying Timber.
1.4 “Annual Seller Notice” shall mean the annual notice provided by Seller to Buyer in accordance with the provisions of Section 3.1.2.1 of this Agreement.
1.5 “Applicable Laws” shall mean, with respect to any Person, all laws, ordinances, judgments, decrees, injunctions, writs, orders, rules, regulations, determinations, licenses and permits of any Governmental Authority applicable to or binding upon such Person or any of its property.
1.6 “Base Price Adjustment Date” shall mean the second anniversary of the date of this Agreement, and each subsequent second anniversary during the Term of this Agreement.
1.7 “Business Day” shall mean any day other than a Saturday, Sunday, or other day on which banks are authorized to be closed in Kentucky.
1.8 “Control” shall mean, with respect to any Person, the power to direct or cause the direction of the management of such Person, directly or indirectly, whether through the ownership of voting securities or otherwise.
1.9 “Event of Default” shall have the meaning set forth in Section 9.3 hereof.
1.10 “Fair Market Timber Value” shall mean the then current fair market value of a Product as mutually determined by Buyer and Seller. If Buyer and Seller are unable to reach
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mutual determination, then the applicable Fair Market Timber Value shall be determined in accordance with the Fair Market Timber Value Mechanism.
1.11 “Fair Market Timber Value Mechanism” shall mean the following procedure used to determine the Fair Market Timber Value of each type of Qualifying Timber hereunder. Either Seller or Buyer may initiate commencement of the Fair Market Timber Value Mechanism by notice to the other (a “Mechanism Notice”). Not later than ten (10) days following receipt of a Mechanism Notice, Seller and Buyer shall agree on the Valuation Consultant. Not later than thirty (30) days following selection of the Valuation Consultant, each of Seller, Buyer and the Valuation Consultant shall submit to the others not less than six (6) Qualifying Sales relating to the then applicable Fair Market Timber Value determination. The Fair Market Timber Value of the Qualifying Timber at issue shall be (a) the sum of (i) the average price per ton of all Qualifying Sales submitted by Seller, plus (ii) the average price per ton of all Qualifying Sales submitted by Buyer, plus (iii) the average price per ton of all Qualifying Sales submitted by the Valuation Consultant, (b) divided by three.
1.12 “Force Majeure Event” shall mean any act, omission or circumstance occasioned by or resulting from any acts of God, acts of the public enemy, wars, blockades, insurrections, riots, epidemics, infestation, disease, landslides, lightning, earthquakes, tornadoes, windstorms, volcanoes, fires, storms, floods, disasters, civil disturbances, explosions, sabotage, governmental actions, the failure to act of any Governmental Authority, strikes or other labor disputes, failures or partial failures of any equipment, failure of transportation, an involuntary ceasing of operations at the Mill for a minimum of thirty (30) consecutive days, or any other events or circumstances not within the control of a party hereto which prevents such party from performing its obligations hereunder; provided, however, that “Force Majeure Event” shall not
3
include (i) a party’s financial inability to perform, or (ii) an act, omission or circumstance arising from the negligence or willful misconduct of the party claiming that a Force Majeure Event has occurred.
1.13 “Governmental Authority” shall mean any federal, state, local or foreign government, political subdivision, agency, board, court, regulatory body or commission, any arbitrator with authority to bind a party at law, or any Person acting lawfully on behalf of any of the foregoing.
1.14 “Hardwood Pulpwood” shall mean pulpwood from hardwood species of timber.
1.15 “Harvesting Plan” shall mean a description of the type of harvest (such as clear cuts or thins), together with diameter limits and residual basal area, as applicable.
1.16 “Harvesting Year” shall mean the period from May 2, 2005 through December 31, 2005 for calendar year 2005 and January 1 through December 31 of each year thereafter during the Term of this Agreement.
1.17 “Natural Hardwood” means Hardwood Pulpwood from timber stands that are naturally regenerated.
1.18 “Market Region” shall mean all areas which are located within one hundred forty (140) miles of the Mill.
1.19 “Mechanism Notice” shall have the meaning set forth in Section 1.11 hereof.
1.20 “Mill” shall mean Buyer’s pulp and paper mill located in Wickliffe, Kentucky.
1.21 “Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or Governmental Authority.
1.22 “Pine Pulpwood” shall mean pulpwood from pine species of timber.
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1.23 “Plantation Hardwood” means Hardwood Pulpwood from timber stands that are artificially regenerated.
1.24 “Preliminary Designated Tract” shall have the meaning set forth in Section 3.1.2.1 hereof.
1.25 “Product” shall mean the individual types of Timber listed in Section 1.32 below.
1.26 “Product Price” shall mean the per ton price for each Product as set forth on Schedule 1.26(a) attached hereto (the “Base Price”) adjusted up or down on a quarterly basis beginning January 1, 2006 by the percentage change in the published TMS average stumpage prices for the applicable Product in the Zones, initially from the previous eight quarterly reporting periods and then on a rolling average based on the eight most recent quarterly reporting periods. An example of the quarterly price adjustment mechanism is set forth on Schedule 1.26(b) to this Agreement. On each Base Price Adjustment Date during the Term of this Agreement, the Base Price for the applicable Product shall be adjusted to equal the Fair Market Timber Value for such Product on the applicable Base Price Adjustment Date. On each such Base Price Adjustment Date a new rolling average shall commence and shall continue until the next Base Price Adjustment Date.
1.27 “Pulpwood” shall mean Hardwood Pulpwood and Pine Pulpwood.
1.28 “Qualifying Sales” shall mean per unit (as opposed to lump sum) sales of the type of Qualifying Timber at issue made during the six months immediately prior to the six month period in which the applicable Base Price Adjustment Date occurs, provided such sales (i) are made within the Market Region, and (ii) involve not less than 2,000 tons of the type of Qualifying Timber at issue as to each such sale.
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1.29 “Qualifying Timber” shall mean Timber which meets or exceeds the specifications set forth in Schedule 1.29 to this Agreement.
1.30 “SMZ’s” shall mean Streamside Management Zones, designated as such by Seller, and any similar environmentally protected zones so designated during the Term of this Agreement.
1.31 “Sustainable Forest Practice Standards” shall mean practices substantially incompliance with standards substantially similar to the Sustainable Forestry Initiative of the American Forest and Paper Association (the “AF&PA”) and as that standard may be modified by AF&PA from time to time.
1.32 “Timber” shall mean the following types of timber now or hereafter located on the Timberlands: [LIST ALL SPECIES WHICH ARE LOCATED ON THE TIMBERLANDS.]
1.33 “Timberlands” shall mean the land and leasehold interests purchased by [Seller] from Escanaba Paper Company pursuant to that certain Equity and Asset Purchase Agreement by and between MeadWestvaco Corporation and Maple Acquisition LLC dated January 14, 2005.
1.34 “TMS” shall mean the publication known as Timber Mart-South, or in the event TMS is no longer published, a comparable publication mutually acceptable to Seller and Buyer.
1.35 “Valuation Consultant” shall mean either Sizemore & Sizemore of Tallassee, Alabama or Larson & McGowin of Mobile, Alabama, or if such firms are no longer in existence, another reputable, professionally qualified Person meeting all of the following criteria. Such person (i) is not an Affiliate of either Seller or Buyer, (ii) during the past two (2) years has not transacted substantial business with either Seller or Buyer, and (iii) does not have less than five (5) years experience relating to sales of Timber within the Market Region. If Seller and Buyer
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are unable to agree within thirty (30) days, then an arbitrator selected pursuant to Subsection 10(b) below shall select such reputable, professionally qualified Person meeting the foregoing criteria. Seller and Buyer shall provide to the Valuation Consultant such information as the Valuation Consultant shall reasonably request to facilitate the determinations to be made by the Valuation Consultant hereunder.
1.36 “Zones” shall mean the Zone designated in TMS as Tennessee Area 2.
2. Agreement to Sell and Purchase.
2.1 Quantities to be Sold and Purchased. Subject to the terms and conditions of this Agreement, Seller agrees to sell and Buyer agrees to purchase for each Harvesting Year during the Term of this Agreement all Qualifying Timber harvested from the Actual Designated Tracts (as hereinafter defined).
2.2 Required Product Mix. With respect to the Timber to be purchased by Buyer hereunder, Seller shall make available to Buyer the following product mix for each Harvesting Year during the Term of this Agreement:
2.2.1 2005. For the Harvesting Year beginning May 2, 2005, the mix of Timber Seller shall make available to Buyer shall be as follows:
(a) | Plantation Hardwood: | | not less than 33,000 tons |
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(b) | Pine Pulpwood: | | not less than 20,000 tons |
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(c) | Natural Hardwood: | | not less than 47,000 tons |
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(d) | All Other Products: | | no minimum requirement |
2.2.2 2006 – 2016. For the Harvesting Years beginning January 1, 2006 and ending December 31, 2016, the mix of Timber Seller shall make available to Buyer shall be as follows:
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(a) | Plantation Hardwood: | | not less than 50,000 tons |
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(b) | Pine Pulpwood: | | not less than 40,000 tons |
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(c) | Natural Hardwood: | | not less than 50,000 tons |
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(d) | All Other Products: | | no minimum requirement |
2.2.3 2017 – 2019 - To the extent Buyer exercises its option to extend the Term pursuant to Section 9.2 below, for Harvesting Years beginning January 1, 2017 and ending December 31, 2019, the mix of Timber Seller shall make available to Buyer shall be as follows:
(a) | Pine Pulpwood: | | not less than 40,000 tons |
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(b) | All Other Products: | | no minimum requirement |
3. Designation of Tracts and Determination of Volumes.
3.1 Designation of Tracts to Be Harvested. During the Term of this Agreement, Seller shall designate the portions of the Timberlands which Seller shall make available to Buyer for harvesting during each of the next two Harvesting Years. A sufficient number of tracts shall be made available so as to satisfy the obligations of Seller herein to sell to Buyer and Buyer to purchase from Seller the applicable Annual Purchase Amount. Seller shall follow the procedure for designating such tracts hereinafter set forth in this Section 3.
3.1.1 Initial Designation of Tracts to be Harvested. Schedule 3.1.1 attached hereto and made a part hereof sets forth the portions of the Timberlands which Seller shall make available to Buyer for the Harvesting Year commencing May 2, 2005 and the Harvesting Year commencing January 1, 2006.
3.1.2 Subsequent Designation of Tracts to be Harvested. For the Harvesting Year commencing January 1, 2007, and for all subsequent Harvesting Years during the Term of
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this Agreement, the portions of the Timberlands which Seller shall make available for harvesting shall be determined in accordance with the following procedure.
3.1.2.1 Designation of Potential Harvesting Areas. On or before the November 1 prior to the applicable Harvesting Year (e.g. November 1, 2006 for the Harvesting Year commencing January 1, 2007), Seller shall designate in a notice to Buyer those portions of the Timberlands which it proposes to make available to Buyer for harvesting during the subsequent two Harvesting Years (the “Preliminary Designated Tracts”). To the extent practicable and not inconsistent with the silvicultural and long-term management objectives of Seller, the land which Seller designates as the Preliminary Designated Tracts shall be distributed relatively uniformly over the four geographical quadrants (north, south, east and west) of the Timberlands.
3.1.2.2 Selection of Actual Harvesting Areas. During the thirty (30)day period following receipt by Buyer of the applicable Annual Seller Notice, Seller and Buyer shall meet to discuss any proposed modification to the Preliminary Designated Tracts which may be reasonably requested by Buyer. At the end of said thirty (30) day period, Seller shall notify Buyer of the actual tracts which Buyer will harvest to satisfy the volume requirements of this Agreement for the applicable Harvesting Year, taking into account said proposed modifications reasonably requested by Buyer, to the extent practicable (the “Actual Designated Tracts”), and Seller shall simultaneously therewith deliver to Buyer a Harvesting Plan for each of the Actual Designated Tracts.
3.2 Boundary and Timber Markings. Within fifteen (15) Business Days prior to the scheduled commencement of harvesting activities on the applicable Actual Designated Tract, Seller and Buyer will proceed with the designation of boundary lines consistent with past
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practices of Mead Westvaco Corporation, but Seller reserves the right to designate on the ground (using bright timber-marking paint) the boundary lines of all such Actual Designated Tracts. The boundary lines shall clearly delineate the boundaries of the Actual Designated Tracts from the boundaries of adjacent land not owned or leased by Seller, and from the boundaries of other Timberlands not constituting Actual Designated Tracts for such Harvesting Year. Seller shall also designate on the ground (using bright timber-marking paint) all SMZ’s within the Actual Designated Tracts and any Timber to be removed from such designated SMZ’s.
4. Harvesting Procedures.
4.1 Harvesting Schedule. Following determination of the Actual Designated Tracts, Buyer shall provide a harvesting schedule to Seller setting forth approximate start and completion dates relating to harvesting Timber within each of the Actual Designated Tracts. Buyer shall modify said harvesting schedule based upon any reasonable objections raised by Seller with respect to any of said harvesting dates, said reasonable objections may be for reasons which include, but are not limited to, (a) a violation of Sustainable Forestry Certification Requirements, (b) potential logging damage to the site, such as rutting, or (c) failure to comply with Sustainable Forestry Initiative regeneration requirements applicable to harvesting on adjacent lands. Notwithstanding the foregoing, Buyer shall harvest the Actual Designated Tracts on the basis of the Annual Buyer Harvesting Notices provided by Buyer to Seller each calendar year during the Term of this Agreement, subject to a Force Majeure Event, and subject to the provisions of Section 4.3 below.
4.2 Timber Roads. Seller shall construct, or cause to be constructed, at Seller’s sole cost and expense, haul roads (including temporary, winter haul roads when appropriate) to the Actual Designated Tracts necessary to provide Buyer in a timely manner with proper access to
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such Actual Designated Tracts for its harvesting operations. Construction of such roads shall be accomplished in a good and workmanlike manner in compliance with all Applicable Laws so that Buyer is provided with effective and functional access to all Actual Designated Tracts for its logging practices. Following the construction of said roads, Buyer shall at its sole cost and expense maintain and repair said roads for so long as it is harvesting on the relevant Actual Designated Tracts. Upon completion of harvesting on the relevant Actual Designated Tracts, Buyer shall leave such roads in a condition equal to or better than their condition prior to the start of the operation. All such road maintenance and repair shall be performed in a manner so as not to violate any Applicable Laws, or with respect to SMZ’s, so as to comply with best management practices sanctioned by the State of Michigan.
4.3 Timber Harvesting. Buyer shall harvest (i.e. cut and remove) in each Harvesting Year, all merchantable Timber as identified in the Harvesting Plan for the Actual Designated Tracts for such Harvesting Year, subject to a Force Majeure Event. Such harvesting operations shall be conducted in accordance with all Applicable Laws, in a manner consistent with established industry logging practices, and in compliance with any reasonable additional guidelines which may be established from time to time by Seller. Buyer shall repair all fences or structures damaged by its harvesting operations and shall leave all roads, fire breaks, property lines, lakes, streams, and drainage ditches clear of logs, timber, limbs or other debris. All oil drums, cans, bottles, cartons, delimbing bars, loading decks, abandoned equipment and other debris resulting from Buyer’s operations shall be removed from the applicable portions of the Timberlands upon completion of the harvesting operations at Buyer’s expense. If repairs are not made or if the debris is not removed and cleared within thirty (30) days after notice from Seller to Buyer, then Seller may undertake such repair or removal for Buyer’s account, and Buyer shall
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be liable to Seller for any expense incurred in repairing or removing same. Buyer shall not, under any circumstance, bury any material underground nor discharge, release or otherwise cause the Timberlands or any portion thereof to be affected by hazardous wastes or hazardous substances. Buyer shall use normal and customary care while conducting its harvesting operations so as not to materially damage the Timberlands. Buyer acknowledges that a higher degree of care is required when the site is abnormally wet and that such circumstances may require Buyer to halt all harvesting activities. Seller reserves the right to suspend Buyer’s harvesting operations when Seller deems site damage will result from continued operations; provided, however, that in the event of such suspension, Buyer shall be entitled to an extension of the time allotted for its harvesting operations equal to the number of days that the suspension continues. Seller also reserves the right to suspend Buyer’s harvesting operations on an Actual Designated Tract when Seller determines, in the exercise of its reasonable discretion, that Buyer is not conducting harvesting operations on the Actual Designated Tract in accordance with the relevant Harvesting Plan. In the event Buyer conducts harvesting operations in violation of the relevant Harvesting Plan or outside the scope of the relevant Harvesting Plan, then Seller shall be entitled to pursue all remedies available at law for timber trespass.
5. Prices and Payment.
5.1 Prices. Buyer shall pay Seller for all Timber purchased by Buyer in an amount equal to the then current applicable Product Price.
5.2 Payment. Promptly after harvest all Qualifying Timber shall be weighed (or, with respect to sawtimber, scaled in board feet Scribner) at the Mill. Buyer shall provide Seller on a weekly basis (with photocopies of scale tickets if requested by Seller) and a settlement statement, and shall pay Seller each week for all Timber weighed-in or scaled during the previous week.
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The equipment used for the weighing of Timber shall be maintained by Buyer in good and accurate working order in accordance with all applicable laws and regulations and prudent practice. Seller shall have the right to check and audit said equipment at any time upon reasonable notice to Buyer. Personnel scaling sawtimber in board feet shall be qualified according to regional standards. Seller shall have the right to check and audit sawtimber board feet scaling practices at any time upon reasonable notice to the Buyer. Payments made after twenty (20) days from the date of delivery shall be considered past due (“Past Due”). For payments that are Past Due, Buyer shall pay interest at a rate per annum equal to the daily prime rate as reported in the Wall Street Journal plus four percent (4%) for each day that the payments are Past Due. Such interest shall be calculated daily on the basis of a year of 365 days and the actual number of days for which interest is due. If at any time during the Term there are any payments outstanding to Seller that are Past Due, then, in addition to any other remedies it may have hereunder, Seller may suspend harvesting by Buyer (or deliveries by Seller to the Mill, if applicable) until such time as all Past Due payments have been paid in full.
6. Indemnity.
6.1 Indemnification by Seller. Seller shall defend, indemnify and hold Buyer harmless from and against any and all claims, liabilities, costs or damages (including without limitation reasonable attorneys fees and court costs through all appeals) arising out of personal injury, death or property damage arising from (i) Seller’s ownership, operation and/or maintenance of the Timberlands, and (ii) the performance or non-performance by Seller of its obligations hereunder.
6.2 Indemnification by Buyer. Buyer shall defend, indemnify and hold Seller harmless from and against any and all claims, liabilities, costs or damages (including without
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limitation reasonable attorneys fees and court costs through all appeals) arising out of personal injury, death or property damage arising from (i) Buyer’s harvesting operations on the Timberlands, and (ii) the performance or non-performance by Buyer of its obligations hereunder.
(a) Survival. The provisions of this Section 6 shall survive the expiration or earlier termination of this Agreement.
7. Force Majeure.
7.1 Effect of Force Majeure. Except for the obligation of a party to make payments required hereunder, the parties shall be excused from performing any of their respective obligations under this Agreement and shall not be liable in damages or otherwise on account of the non-performance of any such obligation, for so long as and to the extent that such party is unable to perform such obligation as a result of any Force Majeure Event.
7.2 Mitigation and Notice. The occurrence of a Force Majeure Event shall not relieve a party of its obligations and liability hereunder to the extent such party fails to use commercially reasonable efforts to remove the cause and remedy or mitigate the effects of the Force Majeure Event if, with commercially reasonable efforts, such party could have removed such cause or remedied or mitigated such effects. In addition, no Force Majeure Event shall relieve a party of its obligations or liability hereunder unless such party shall give notice (including a reasonable description of such Force Majeure Event) to the other party as soon as reasonably possible and in any event within twenty (20) days of the occurrence of such Force Majeure Event. Upon request, the party whose obligations were suspended shall provide the other party with a plan for remedying the effects of such Force Majeure Event.
7.3 Failure to Give Notice. A failure to give notice under Section 7.2 above “as soon as reasonably possible” will not affect the rights and obligations of the party whose obligations
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are suspended except if, and only to the extent that, the party which was entitled to receive such notice was actually and materially prejudiced as a result of such failure.
7.4 Force Majeure Event Affecting Actual Designated Tracts. If either party becomes aware of a Force Majeure Event that makes a portion of any Actual Designated Tract unavailable for harvesting by Buyer in accordance with the schedule contemplated by the parties, then it shall promptly notify the other party and Seller shall promptly designate and make available for harvesting such other portions of the Timberlands as shall be necessary to satisfy its obligations under this Agreement. If the Seller is unable to designate sufficient portions of the Timberlands to satisfy its obligations under this Agreement, then the provisions of Section 7.5 shall apply to the unsatisfied obligations occasioned by such Force Majeure Event.
7.5 Volume Reduction Based on Force Majeure Event. If the party that becomes subject to a Force Majeure Event (the “Affected Party”) reduces the volume of Timber to be purchased or sold due to a Force Majeure Event (the amount of such reduction, the “Reduction Amount”), the Affected Party shall give written notice to the other party (the “Non-Affected Party”) of such reduction and the effective date thereof. If such reduction continues in effect for a period of sixty (60) days or more, the Non-Affected Party shall then have the right, in the case of Seller, to sell all or part of the Reduction Amount of such Timber not purchased by Buyer to another buyer or buyers, and in the case of Buyer, to purchase all or part of the Reduction Amount of Timber not sold by Seller from another seller or sellers, subject to the following:
(i) The Non-Affected Party shall not enter into any contract for any such sale or purchase for a term longer than one (1) year’s duration.
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(ii) The Non-Affected Party shall give the Affected Party written notice of each such contract, including the volume sold or purchased thereunder and the term thereof.
(iii) The annual volume commitment of the Non-Affected Party for Timber as specified herein shall be reduced by such volume sold or purchased under such contract for the duration thereof.
8. [Intentionally Left Blank]
9. Term and Termination.
9.1 Term. This Agreement shall expire on December 31, 2016, unless this Agreement is sooner terminated for cause pursuant to Section 9.3 hereof, or unless this Agreement is extended as provided in Section 9.2 (the “Term”).
9.2 Extension of Term. Provided that Buyer shall not then be in default under this Agreement, the Term of this Agreement may be extended at the option of Buyer for one (1) additional three (3) year term, which extension term shall commence concurrently with the expiration of the initial term, upon the same terms and conditions as contained in this Agreement. In the event that Buyer desires to extend this Agreement pursuant to the above extension option, it shall give written notice of such desire to extend the Term to Seller no later than January 1, 2016.
9.3 Termination for Cause. This Agreement shall immediately terminate if any one of the following events (each, a “default”) has occurred and is continuing on the tenth (10th) day after receipt of notice of an intent to cancel by reason of such default (each, an “Event of Default”):
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(a) Breach of any other term of this Agreement, which breach is not cured within twenty (20) days after receipt of written notice thereof; or
(b) Insolvency or the filing by or against Seller or Buyer of a petition in bankruptcy (which, in the event of an involuntary bankruptcy, is not dismissed within sixty (60) days from the date of its commencement), or appointment by a court of a temporary or permanent receiver, trustee or custodian.
9.4 Effect of Termination. Termination shall not relieve a defaulting party of any liability to the nondefaulting party for breach of its obligations hereunder.
10. Dispute Resolution. Disputes under this Agreement shall be resolved as follows, it being understood that each party shall work in good faith at each step of the process to try to resolve the dispute as expeditiously and fairly as possible:
(a) The appropriate responsible persons from Seller and Buyer shall meet and seek amicably to resolve all differences.
(b) If any material difference remains unresolved ten (10) Business Days after the start of the process referenced in Subsection 10(a), or such longer period as the persons referenced in Subsection 10(a) shall have agreed, then the parties shall submit such matter to arbitration, pursuant to the Rules of Commercial Arbitration of the American Arbitration Association. Any such arbitration shall be conducted by a single arbitrator, whose decision shall be final. The parties shall first attempt to agree on the selection of the arbitrator, and, if they cannot agree within fourteen (14) days after it becomes necessary to submit the dispute to arbitration, either party may request the American Arbitration Association to appoint the
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arbitrator. In all cases, the arbitrator shall be a person knowledgeable about sales of timber in the Market Region. The arbitrator shall be instructed to schedule all proceedings so that, if possible, a decision may be reached and communicated to the parties within forty-five (45) days after the appointment of the arbitrator. All expenses of the arbitration shall be divided equally between the parties, except that each party shall bear the expense of its own counsel and the expense of the preparation of its presentation. Seller and Buyer shall provide to the arbitrator such information as the arbitrator shall reasonably request to facilitate the determinations to be made by the arbitrator hereunder.
(c) Notwithstanding the existence of a dispute or the progress of the arbitration proceeding, but subject to the terms of Section 5.2 above, the parties shall continue to perform their respective obligations under this Agreement during such period. To the extent that this Agreement provides for specific performance or other equitable remedies for a particular violation, and with respect to the ability of Seller to suspend Buyer’s harvesting operations pursuant to Section 4.3 and the ability of Seller to suspend Buyer’s harvesting operations (or deliveries by Seller to the Mill, if applicable) pursuant to Section 5.2, this Section 10 shall not apply, it being the intent that the aggrieved party be able to bring the matter to court to seek enforcement as soon as possible. Further, this Section 10 shall not preclude any party from seeking injunctive relief or such other interim equitable remedies as may be required to preserve any claims hereunder.
11. Assignment.
11.1 Assignment by Seller.
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(a) Except as provided in this Section 11.1, this Agreement may not be assigned by Seller in whole or in part. Notwithstanding the foregoing, at any time during the Term, Seller may assign this Agreement (i) to any lender or lenders as security for obligations to such lender or lenders in respect to financing arrangements of Seller or any Affiliate thereof with such lender or lenders, or (ii) upon prior written notice to Buyer, to any Person that is and at all times remains an Affiliate of Seller or that merges or consolidates with or into Seller or that acquires all or substantially all of the Timberlands.
(b) Notwithstanding any other provision of this Agreement to the contrary, Buyer and Seller acknowledge and agree that Seller shall not be prohibited from selling all or any portion of the Timberlands, provided that any such sale of the Timberlands shall be made subject to the terms of this Agreement and the obligation to supply the applicable portion of Timber volumes required hereunder. Upon any sale of a portion of the Timberlands, the purchaser of said portion of the Timberlands (“New Owner”) shall assume the obligation to supply a portion of the Timber volumes to be supplied hereunder, said portion of the Timber volumes (“Assumed Volume”) to be agreed to by Seller and said New Owner, subject to Buyer’s consent to such volume allocation, which consent shall not be unreasonably withheld or delayed. Upon such assumption by said New Owner, Seller’s obligations to supply Timber hereunder shall be reduced by the volumes assumed by said New Owner, and Seller shall thereafter have no obligation or liability with respect to said assumed volumes or with respect to the portion of the Timberlands so conveyed. At the request of Seller, upon any such sale to a New Owner Buyer shall execute an amendment to this Agreement acknowledging the foregoing. Furthermore, upon request of Seller or Buyer, upon such sale to a New Owner, Buyer and such New Owner shall enter into a separate Stumpage Agreement on the same terms and conditions as contained in this
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Agreement (or such other terms as Buyer and such New Owner shall mutually agree) except for the portion of the Timberlands covered thereby and the volume of Timber to be supplied thereunder. In the event Buyer objects to any proposed Assumed Volume, Buyer shall provide written notice of the same to Seller within fifteen (15) days of notice to Buyer of said proposed Assumed Volume (“Objection Notice”), said Objection Notice to include a detailed explanation of the basis for said objection. Failure by Buyer to timely provide said Objection Notice shall be deemed to constitute the consent of Buyer to said proposed Assumed Volume. In the event Buyer timely provides an Objection Notice, Seller shall have the option of (i) revising said proposed Assumed Volume, in which case Buyer shall have the further right to object by providing a new Objection Notice as provided above or (ii) retaining the Valuation Consultant to determine whether the proposed Assumed Volume is reasonable. In the event the Valuation Consultant is so retained and determines that said proposed Assumed Volume is reasonable, Buyer shall be deemed to have consented to said Assumed Volume and shall pay all costs and expenses of said Valuation Consultant. Otherwise, said costs and expenses shall be paid by Seller. Notwithstanding the foregoing, Seller may convey during the Term hereof up to 15,000 acres of the Timberlands free and clear of the obligations of this Agreement (the “Exempt Acres”), provided that Seller is able to supply the volume of Timber required to be supplied hereunder from the remaining portion of the Timberlands. Buyer agrees to execute any and all documentation requested by Seller in order to evidence the release of the Exempt Acres from this Agreement.
11.2 Assignment by Buyer. Except as provided in this Section 11.2, this Agreement may not be assigned by Buyer in whole or in part. Notwithstanding the foregoing, at any time during the Term, Buyer may assign this Agreement (a) to any lender or lenders as security for
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obligations to such lender or lenders in respect of financing arrangements of Buyer or any affiliate thereof with such lender or lenders, or (b) upon prior written notice to Seller, to any Person that is and at all times remains an affiliate of Buyer or that merges or consolidates with or into Buyer or that acquires all or substantially all of the assets or stock of Buyer.
12. Publicity. This Agreement is confidential and no party shall issue press releases or engage in other types of publicity of any nature dealing with the commercial and legal details of this Agreement without the other party’s prior written approval. However, approval of such disclosure shall be deemed to be given to the extent such disclosure is required to comply with Applicable Laws, governmental rules, regulations or other governmental requirements, or in connection with any financing arrangements of such party. In such event, the publishing party shall, to the extent reasonably practicable, furnish, in advance, a copy of such proposed disclosure, to the other party.
13. Headings. The headings contained in this Agreement are for convenience only and should not be construed to limit or expand any terms otherwise provided.
14. Notices. All notices, requests, demands and other communications provided for hereunder shall be in writing and personally delivered or sent by regular U.S. certified mail, telecopy or Federal Express (or similar type of overnight delivery) to the applicable party at the address indicated below:
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If to Buyer, to: | |
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or, as to each party, at such other address as shall be designated by such party in a written notice to the other party complying as to delivery with the terms of this Section. Notice shall be deemed received when (i) hand delivered; (ii) sent, after receipt of confirmation or answer back if sent by telecopy; (iii) five Business Days after deposit in the U.S. mails, postage prepaid, for certified mail; and (iv) one Business Day after delivery to Federal Express (or similar type of overnight delivery), properly addressed to the applicable party.
15. Partial Illegality. If any provision, or part of a provision, of this Agreement is held to be invalid or unenforceable under any Applicable Law, then the parties shall use all commercially reasonable efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by Applicable Law, achieves the purposes intended under the original provision and to allow the parties to have the intended benefit of their bargain. If it cannot be so reformed, it shall be omitted. The balance of this Agreement shall remain valid and unchanged and in full force and effect.
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16. Waiver of Compliance. Any delay or omission on the part of either party to this Agreement in requiring performance by the other party hereunder or in exercising any right hereunder shall not operate as a waiver of any provision of this Agreement or of any right or rights hereunder. Further, any failure by either party to enforce at any time any term or condition under this Agreement shall not be considered a waiver of that party’s right thereafter to enforce each and every term and condition of this Agreement.
17. Amendments and Waivers. This Agreement may not be terminated, amended, supplemented, waived or modified orally, but only by a document in writing signed by the party against which the enforcement of such termination, amendment, supplement, waiver or modification is sought.
18. Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same document. All signatures need not be on the same counterpart.
19. Estoppel Certificates. Either party shall, at no cost to the requesting party, from time to time, upon twenty (20) days prior request by the other party, execute, acknowledge and deliver to the requesting party a certificate signed by an officer of the certifying party stating that this Agreement is unmodified and in full force and effect (or, if there have been modifications, that this Agreement is in full force and effect as modified, and setting forth such modifications) and the dates through which payments have been made, and either stating that to the knowledge of
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the signer of such certificate no default exists under this Agreement or specifying each such default to which the signer has knowledge.
20. Prevailing Party. If either party brings any proceeding for the judicial or other interpretation, enforcement, termination, cancellation or rescission of this Agreement, or for damages for the breach thereof, the prevailing party in any such proceeding or appeal thereon shall be entitled to its reasonable attorneys’ fees and court and other reasonable costs incurred, to be paid by the losing party as fixed by the court in the same or a separate proceeding, and whether or not such proceeding is pursued to decision or judgment. The terms and provisions of this Section 20 shall survive the expiration or earlier termination of this Agreement.
21. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and merges all prior discussions and negotiations between the parties. None of the parties shall be bound by any conditions, definitions, representations, or warranties with respect to the subject matter of this Agreement other than as expressly set forth above.
22. Third Party Beneficiaries. Except as hereinafter provided, this Agreement is intended to be solely for the benefit of the parties thereto and their permitted assigns and is not intended to and shall not confer any rights or benefits on any third party not a signatory hereto.
23. Memorandum of Contract. At the request of any party hereto, a Memorandum of this Agreement shall be recorded in the recording offices of each and every County in which the Timberlands are located.
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24. Insurance. In the event that Buyer retains any third party contractor to conduct harvesting operations on the Timberlands, said third party contractor shall, before conducting any operations, obtain and maintain the following types of insurance, in addition to any other insurance required by law: (a) Worker’s Compensation and, to the extent the same is reasonably commercially obtainable, Employer’s Liability Insurance, fully covering all operations; (b) Comprehensive Vehicle Liability Insurance, including owned, hired and non-owned vehicles, with limits of not less than $1,000,000 single occurrence and $1,000,000 cumulative bodily injury liability; and (c) Comprehensive General Liability Insurance, including all contractual liability hereunder, with limits of not less than $1,000,000 single occurrence and $1,000,000 cumulative bodily injury liability. Prior to the beginning of any harvesting operations hereunder, evidence of all such insurance shall be furnished to Seller, and such insurance shall provide for at least thirty (30) days notice to Seller of cancellation of such insurance policies. All such insurance policies shall name Seller as an additional insured.
25. Sustainable Forestry Initiative. Seller shall continue to manage the Timberlands in accordance with the Sustainable Forestry Initiative during the Term of this Agreement. From time to time it may be necessary to agree upon a recognized successor or alternative standard to the Sustainable Forestry Initiative, which shall be negotiated in good faith to reflect changes or developments in the evolution of widely accepted industry standards. In the future, Seller agrees to provide from time to time at Buyer’s request third-party verification of its compliance with such a standard on the portion of the Actual Designated Tracts from which Timber is then being harvested.
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26. Wickliffe Wildlife Management Area.
26.1 Notice of Proposed Sale. The portion of the Timberlands identified on Schedule 26 attached hereto is commonly referred to as the Wickliffe Wildlife Management Area (the “WWMA Tract”). If Seller desires to sell the fee title to all or any portion of the WWMA Tract (the “Timberlands Interest”), Buyer shall have a right of first offer to acquire all, but not less than all, of such Timberlands Interest, and Seller shall not transfer such Timberlands Interest without first complying with the provisions of this Section 26. Seller shall give written notification to Buyer, by certified mail or personal delivery, of Seller’s desire to sell the Timberlands Interest at issue (the “RFO Notice”). In order to be effective, the RFO Notice must contain the following information: (i) a detailed description of the Timberlands Interest to be sold, (ii) the cash price of the Timberlands Interest to be sold and (iii) the Assumed Volume proposed to be allocated to said Timberlands Interest (the “Offer Terms”).
26.2 Response to Notice. Buyer shall have the right to purchase all (but not less than all) of the Timberlands Interest proposed to be sold by Seller upon the same terms and conditions as stated in the aforesaid RFO Notice by giving written notification to Seller, by certified mail or personal delivery, of its intention to do so within thirty (30) days after receiving the RFO Notice (the “RFO Response”).
26.3 Waiver of Right. Except as hereinafter provided, the failure of Buyer to timely provide the RFO Response shall result in the termination of its right to purchase the Timberlands Interest covered by such RFO Notice. In such event, Seller shall be entitled to sell the Timberlands Interest to a third party purchaser consistent with the Offer Terms, or for a cash price which is more favorable to Seller than as set forth in the Offer Terms. In the event Seller does not close the proposed transaction consistent with the Offer Terms, or for a cash price which is more favorable to Seller than as set forth in the Offer Terms, within six (6) months, or if
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Seller desires to consummate a sale of the applicable Timberlands Interest for a cash price which is less favorable to Seller than as set forth in the Offer Terms, then Buyer’s right of first offer shall be reinstated as to such Timberlands Interest in accordance with the terms and procedures set forth above. No sale of a Timberlands Interest shall be valid unless Seller has complied with the provisions of this Section 26 prior to consummation of such sale. In the event Buyer fails to timely provide the RFO Response, Buyer shall promptly execute any and all documentation requested by Seller in order to evidence the waiver of Buyer’s right of first offer with respect to said Timberlands Interest.
26.4 Closing. In the event Buyer gives written notice to Seller in compliance with Section 26.2 above of its desire to exercise its right to purchase all of the Timberlands Interest which Seller desires to sell, Seller shall designate the time, date and place of closing, provided that the date of closing shall be no earlier than ninety (90) days, and no later than one hundred eighty (180) days, after receipt by Seller of the RFO Response. In such event, the purchase and sale of the Timberlands Interest shall be effected pursuant to the Offer Terms and otherwise in accordance with the terms of Seller’s proposed real estate sales contract (which contract shall be subject to Buyer’s reasonable review and approval).
26.5 Applicability of Right of First Offer. The right of first offer set forth herein shall not apply to: (a) any condemnation of any portion of the WWMA Tract, or any sale in lieu thereof; or (b) any easement, cutting contract, hunting license or lease of any portion of the WWMA Tract.
26.6 Title to WWMA Tract. Buyer’s rights set forth in this Section 26 are subject and subordinate to all matters of record on the date hereof, including but not limited to the rights of others to purchase the WWMA Tract pursuant to a pre-existing option or right of first refusal, if
28
any. During the term of this Agreement, Seller shall not grant any mortgage, deed of trust or similar encumbrance on the WWMA Tract without the prior written consent of Buyer.
Executed under seal as of the date first set forth above.
29
Schedule 1.26(a)
Base Price Per Product
Product | | Base Price Per Ton | |
Plantation Hardwood: | | $ | 5.00 | * |
: | | $ | |
: | | $ | |
| | | | |
*not subject to price adjustment
Schedule 1.26(b)
Wood Supply Calculation Formula for Price Indexing
For January 1, 2006 Adjustment:
| (1/05 + 4/05 + 7/05 + 10/05) | |
Base Price X | (1/04 + 4/04 + 7/04 + 10/05) | = Price – January 16, 2006 |
For April, 2006 Adjustment:
Price from | (4/05 + 7/05 + 10/05 + 1/06) | |
previous Period X | (4/04 + 7/04 + 10/05 + 1/05) | = Price – April 16, 2006 |
Timber Mart South publications are typically available before the 15th day following end of the applicable quarterly period. Price adjustment will be made and become effective on the later of the 16th calendar day following the end of said period or the first Monday following said 16th calendar day.
1st Quarterly Period | | January 16 – April 15 |
| | |
2nd Quarterly Period | | April 16 – July 15 |
| | |
3rd Quarterly Period | | July 16 – October 15 |
| | |
4th Quarterly Period | | October 16 – January 15 |
Schedule 1.29
General Product Specifications
October 10, 2002
MEADWESTVACO CORPORATION – WICKLIFFE MILL
SPECIFICATIONS FOR ROUNDWOOD DELIVERIES
27. Wood Specifications
1. All species except cedar and walnut are acceptable.
2. Wood that is forked, charred or burned, dead or decayed, or that contains metal is not acceptable.
3. The maximum diameter for wood is 28 inches at the widest point on the stem. The minimum top diameter is 3 inches.
4. Wood with crooks or forks must be cut or trimmed so that each stem would fit in a 28 inch diameter cylinder.
5. Trim pieces that have a sharp crook or that are heavily weighted at one end. These cause major problems in the mill conveyor system.
6. Wood hauled on tandem trucks or double bunked on tractor trailers must be a minimum of 12 feet to a maximum of approximately 25 feet in length. (Short wood)
6a. Triple bunk trailers shall be loaded so that the crane grapple shall have access to the center of gravity of each stack of wood on the trailer. The front stack will not have any wood which exceeds 14 feet in length. The rear stack may have longer wood, but it should not be indexed to either end. This will insure that the center of gravity will be between the standards of the rear bunk. Tree length wood must also be loaded so that the grapple has access to the center of gravity.
Center of Gravity not | | Center of Gravity |
accessible to grapple. | | accessible to grapple. |
LOAD NOT ACCEPTABLE | | ACCEPTABLE LOAD |
|
| |
Center of Gravity | |
accessible to grapple. | |
ACCEPTABLE LOAD | |
27.1 Trucks and Trailers
7. There must be a minimum 8 inches of clearance between the bottom of the load and the truck or trailer frame.
8. There must be at least 7 feet between sets of standards for crane grapple access.
9. Standards must be smooth and straight, constructed of metal only, with no wooden extensions. Metal extensions must be securely attached.
27.2 Loads of Wood
10. Pine and hardwood cannot be mixed in the same load.
11. Loads of long, trailer length wood must not contain pieces of wood shorter than approximately 20 feet. Any piece shorter than trailer length must be loaded so that the middle of the piece is over the middle of the trailer. The ends of the shorter pieces must extend past the two center standards of the trailer.
12. Short wood that is double bunked on trailers must have at least 1 foot of distance between racks of wood.
13. For short wood, no piece of wood should have more than half its diameter above the height of the standards, and must be fully held by the adjoining stems or the standards.
14. For trailer length wood, at least half the diameter of each stem must be below the height of at least three standards on the trailer.
15. The sides of the load should be fully secured by the standards and pieces of wood should not stick out from behind the standards.
16. On trailer length loads of longwood, most of the stems should be butt indexed to the front. Up to 12 stems may be loaded with the butt toward the rear of the trailer to increase payloads. Stems loaded with the butt end to the rear of the trailer must be long enough that they will not break or fall out when the track is unloaded. They should also not have swelled butts.
Delivering Wood
17. Trucks should follow the designated route for delivering wood (See the attached diagram).
18. No riders past the scalehouse.
19. Speed limit is 15 miles per hour.
20. Safety glasses with side shields are required to be worn inside the truck scale gate.
21. Drivers are required to wear hard hats inside the truck scale gate when not in a vehicle.
22. Load binders should only be removed in the designated area.
23. Pull up to the painted line near the spare grapple and stop. Proceed into the unloading area when the crane operator flashes the green light under the infeed deck. Stop at the painted line along the crane rail.
24. Drivers must leave the truck before being unloaded and stay in the designated safe area until the crane grapple is clear of the truck unloading area. Under no circumstances should drivers walk between their truck and the infeed deck to the drum.
25. Drivers should watch as the crane unloads and look for potential problems. Use the two-way radio to assist the crane operator and avoid damage to equipment.
26. When the front-end loader is unloading trucks, follow the operator’s directions to position the truck. Stand away from the truck and the loader, and where you can clearly view the load of wood and the loader operator. As the loader approaches, positions its forks and grabs the load, use hand signals to help the loader operator. Signal the operator to stop if problems develop that could damage equipment.
27. In the event that there is damage from unloading to a truck or trailer, make sure that the crane operator or loader operator is aware of the damage. Do not leave the mill property until the pulpmill tour foreman inspects the damage.
MEADWESTVACO WICKLIFFE MILL
Schedule 3.1.1
FY 2005 Available Wickliffe Timber Harvests
State | | Tract | | Type Harvest | | Acres |
KY | | Isl. #3 04 A | | Hdwd. Plntn. CCUT | | 65 |
KY | | Isl. #3 04 B | | Hdwd. Plntn. CCUT | | 68 |
KY | | Isl. #3 05 A | | Hdwd. Plntn. CCUT | | 65 |
KY | | Isl. #3 05 B | | Hdwd. Plntn. CCUT | | 68 |
KY | | WMA 03 S & G | | Hdwd. Plntn. CCUT | | 24 |
KY | | WMA 05 A | | Hdwd. Plntn. CCUT | | 76 |
KY | | WMA 05 B | | Hdwd. Plntn. CCUT | | 74 |
KY | | Chalk Bluff 05 A | | Hdwd. Plntn. CCUT | | 24 |
KY | | Chalk Bluff 05 B | | Hdwd. Plntn. CCUT | | 82 |
KY | | Chalk Bluff 05 C | | Hdwd. Marked SEL | | 82 |
KY | | Choate 05A | | Hdwd. Plntn. CCUT | | 34 |
KY | | Choate 05B | | Hdwd. Plntn. CCUT | | 58 |
MO | | Hunter 05 | | Hdwd. Plntn. CCUT | | 125 |
| | | | | | |
MO | | Isl. #10 04 A | | Hdwd. Plntn. CCUT | | 104 |
MO | | Isl. #10 04 B | | Hdwd. Plntn. CCUT | | 85 |
MO | | Isl. #10 05A | | Hdwd. Plntn. CCUT | | 65 |
MO | | Isl. #10 05B | | Hdwd. Plntn. CCUT | | 66 |
MO | | Isl. #10 05C | | Hdwd. Plntn. CCUT | | 31 |
MO | | Isl. #10 05D | | Hdwd. Plntn. CCUT | | 65 |
MO | | Isl.#10 05E | | Hdwd. Plntn. CCUT | | 28 |
MO | | Wolf Isl. 05A | | Hdwd. Plntn. CCUT | | 74 |
MO | | Wolf Isl. 05B | | Hdwd. Plntn. CCUT | | 74 |
| | | | | | |
KY | | Cullom 03 HB | | Hdwd. CCUT | | 34 |
KY | | Helfrich 04 HA | | Hdwd. CCUT/SEL | | 32 |
KY | | Helfrich 04 HC | | Hdwd. CCUT/SEL | | 29 |
KY | | Helfrich 04 HD | | Hdwd. SEL | | 21 |
KY | | Marion Conn 02 HA | | Hdwd. CCUT | | 44 |
KY | | Marion Conn 02 HD | | Hdwd. CCUT | | 37 |
KY | | Adrian 03 A PT | | Pine THIN | | 52 |
KY | | Cullom 04 B PT | | Pine THIN | | 39 |
KY | | Trigg 04 PTB | | Pine THIN | | 55 |
KY | | Cullom 05 A | | Pine CCUT | | 60 |
KY | | Cullom 05 B | | Pine CCUT | | 40 |
KY | | Dunn/Hooks | | Pine THIN | | 200 |
KY | | Dunn/Hooks 05 B | | Pine CCUT/THIN | | 67 |
KY | | Dismore 05A | | Pine THIN | | 65 |
KY | | Helfrich 05 A | | Pine THIN | | 177 |
KY | | Helfrich 05 B | | Pine THIN | | 68 |
KY | | Marion Conn 05 A | | Pine THIN | | 31 |
State | | Tract | | Type Harvest | | Acres |
KY | | Salem Conn 05 A | | Pine THIN | | 50 |
KY | | Salem Conn 05 B | | Pine THIN | | 71 |
KY | | Salem Conn 05 ROW | | Pine/Hdwd. CCUT | | 10 |
KY | | Trigg West 05 A | | Pine THIN | | 46 |
KY | | Trigg West 05 B | | Pine THIN | | 45 |
KY | | Trigg West 05 C | | Pine THIN | | 59 |
KY | | Trigg West 05 D | | Pine THIN | | 9 |
| | | | | | |
TN | | Brigham 05 A | | Hdwd. CCUT | | 48 |
TN | | Grizzard 03-10 | | Hdwd. CCUT | | 38 |
TN | | Hurricane 05 B | | Hdwd. CCUT | | 31 |
TN | | Indian Mound 05 | | Hdwd. CCUT – In progress | | 88 |
TN | | Iron Mtn. East 04 | | Hdwd. CCUT – In progress | | 95 |
TN | | Iron Mtn. East 05 | | Hdwd. CCUT – In progress | | 94 |
TN | | Iron Mtn. West 05 | | Hdwd. CCUT | | 34 |
TN | | McKinnon 04 A | | Hdwd. CCUT | | 62 |
TN | | McKinnon 05 B | | Hdwd. CCUT – In progress | | 70 |
TN | | McKinnon 05 C | | Hdwd. CCUT | | 85 |
TN | | North Fork 05 | | Hdwd. CCUT | | 72 |
TN | | Pafford 05 | | Hdwd. CCUT – In progress | | 66 |
TN | | Rough & Ready 03-12 | | Hdwd. CCUT | | 74 |
TN | | Rough & Ready 03-50 | | Hdwd. CCUT | | 35 |
TN | | South Lory 02-62 | | Hdwd. CCUT | | 59 |
TN | | South Lory 04 B | | Hdwd. CCUT | | 55 |
TN | | South Lory 05 | | Hdwd. CCUT | | 45 |
TN | | Anglin 05 SEL | | Hdwd. Marked SEL | | 38 |
TN | | Grizzard 05 SEL | | Hdwd. Marked SEL | | 137 |
TN | | Hurricane 05 SEL | | Hdwd. Marked SEL | | 248 |
TN | | Iron Mtn. East 05 A SEL | | Hdwd. Marked SEL | | 42 |
TN | | Iron Mtn. East 05 B SEL | | Hdwd. Marked SEL | | 51 |
TN | | Iron Mtn. West 04 SEL | | Hdwd. Marked SEL | | 166 |
TN | | McKinnon 05 SEL | | Hdwd. Marked SEL | | 187 |
TN | | Pafford 05 SEL | | Hdwd. Marked SEL | | 86 |
TN | | South Lory 05 SEL | | Hdwd. Marked SEL | | 187 |
TN | | Standing Rock 04 SEL LWF | | Hdwd.Marked SEL – In prog. | | 75 |
TN | | Standing Rock 05 SEL | | Hdwd. Marked SEL | | 37 |
| | | | | | |
TN | | Iron Mtn. East 02 Thin | | Pine THIN – In progress | | 50 |
TN | | South Lory 04 | | Pine THIN | | 151 |
TN | | Standing Rock 04 | | Pine THIN | | 128 |
TN | | Eighteen 05 A | | Pine THIN | | 94 |
TN | | Hurricane 05 A | | Pine THIN | | 136 |
TN | | Indian Mound 05 A | | Pine THIN | | 40 |
State | | Tract | | Type Harvest | | Acres |
TN | | Indian Mound 05 B | | Pine THIN | | 80 |
TN | | Iron Mtn. East 05 A | | Pine THIN | | 13 |
TN | | Iron Mtn. West 05 A | | Pine THIN | | 57 |
TN | | McKinnon 05 A | | Pine THIN | | 96 |
TN | | McKinnon 05 B | | Pine THIN | | 90 |
TN | | North Fork 05 A | | Pine THIN | | 67 |
TN | | Rough & Ready 05 A | | Pine THIN | | 81 |
TN | | Rough & Ready 05 B | | Pine THIN | | 50 |
TN | | Rough & Ready 05 C | | Pine THIN | | 74 |
TN | | South Fork 05 A | | Pine THIN | | 59 |
SCHEDULE 11.1
DESCRIPTION OF
WICKLIFFE WILDLIFE MANAGEMENT AREA
STATE | | TRACT NAME | | TRACT ACRES | |
KY | | Armstrong Cork | | 671 | |
KY | | Byassee, M. | | 509 | |
KY | | Conn, Terry | | 485 | |
KY | | Jackson, Alice (1) | | 174 | |
KY | | Hogancamp | | 46 | |
KY | | Holmes, James | | 107 | |
KY | | Jackson, Alice (2) | | 168 | |
KY | | Milner, Judith | | 391 | |
KY | | Morgan, M. | | 182 | |
KY | | Morrison | | 5 | |
KY | | Rogers, Anna | | 70 | |
KY | | Rolwing, Judith | | 100 | |
KY | | Rothchild, R. | | 101 | |
KY | | Shadoan, W.L | | 1,035 | |
KY | | Shields, Bobby | | 74 | |
KY | | Wilson, Bobby | | 34 | |
| | Total Acres | | 4,152 | |
