AMENDMENT TO ASSET PURCHASE AGREEMENT
This AMENDMENT, dated as of October 16, 1996 (this "Amendment"), among
PLUM CREEK TIMBER COMPANY, L.P., a Delaware limited partnership (the "Buyer"),
RIVERWOOD INTERNATIONAL CORPORATION, a Delaware corporation (the "Seller
Parent"), and NEW RIVER TIMBER, LLC, a Delaware limited liability company (the
"Company" and, together with the Seller Parent, the "Sellers") and a wholly
owned subsidiary of the Seller Parent, to the Asset Purchase Agreement (the
"Asset Purchase Agreement"), dated as of August 6, 1996, among the Buyer and the
Sellers,
WITNESSETH:
WHEREAS, the Buyer and the Sellers have executed and delivered the
Asset Purchase Agreement;
WHEREAS, Section 12.4 of the Asset Purchase Agreement provides that no
amendment or modification of the Asset Purchase Agreement shall be valid or
binding unless set forth in writing;
WHEREAS, the Buyer and the Sellers have agreed to amend certain
provisions of the Asset Purchase Agreement, as provided in this Amendment;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements hereinafter set forth, the parties hereto hereby
agree as follows:
1. DEFINITIONS. Capitalized terms used herein without definition
are used as defined in the Asset Purchase Agreement.
2. AMENDMENT TO SECTION 1.1. Section 1.1 of the Asset Purchase
Agreement is hereby amended by amending the definition of the term "Forestry
Consultant" to read in its entirety as follows:
"FORESTRY CONSULTANT" shall mean such firm as may be mutually
acceptable to the Sellers and the Buyer in their reasonable judgment."
3. AMENDMENT TO SECTION 2.3. Section 2.3 of the Asset Purchase
Agreement is hereby amended by inserting the
phrase ", and subject to adjustment following the Closing pursuant to Section
2.4(d)" immediately prior to the semicolon at the end of clause (i) thereof.
2. AMENDMENT TO SECTION 2.4(d)(i). Section 2.4(d)(i) of the Asset
Purchase Agreement is hereby amended to read in its entirety as follows:
"(d) ADJUSTMENT FOR EXCESS HARVESTING. (i) In the event that,
after the date hereof and prior to the Closing, (x) the respective amounts
of pine sawlogs, pine pulpwood and hardwood pulpwood harvested for the
portion of calendar 1996 preceding the Closing Date exceed by more than
five percent (5%) the respective Scheduled Amounts thereof (which
harvesting may in any event include cutting diseased or insect-infested
trees), or (y) the amount of hardwood sawlogs harvested for the portion of
calendar 1996 preceding the Closing Date exceeds an amount equal to the
Scheduled Amount of hardwood sawlogs PLUS an amount equal to five percent
(5%) of such Scheduled Amount PLUS 1,500 ccf (one hundred cubic feet of
solid wood) of hardwood sawlogs, or (z) the aggregate amount of pine
sawlogs, hardwood sawlogs, pine pulpwood and hardwood pulpwood harvested
for the portion of calendar 1996 preceding the Closing Date exceeds 505,000
ccf, the Base Purchase Price shall be adjusted after the Closing to reflect
such excess harvesting, to the extent of such excess (without duplication
among any such excess amounts). The amount of any such adjustment to the
Base Purchase Price under this Section 2.4(d)(i) shall be mutually
determined by the parties hereto based on the books and records of the
Sellers related to the harvesting prior to the Closing of pine sawlogs,
hardwood sawlogs, pine pulpwood and hardwood pulpwood (collectively, the
"Harvesting Records"). Each party will make the Harvesting Records in such
party's possession available for inspection by any other party at such
other party's reasonable request. If the parties are unable to agree on
the amount of any such adjustment within thirty (30) days from the Closing
Date, such amount shall be determined by the Forestry Consultant, whose
determination shall be conclusive and binding upon the Sellers and the
Buyer."
4. AMENDMENT TO SECTION 2.4(d)(i). Section 2.4(e) of the Asset
Purchase Agreement is hereby amended by
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adding immediately after words "Section 2.4(a)" in the first sentence thereof
the words "and Section 2.4(d)".
5. AMENDMENT TO SECTION 5.1. Section 5.1 of the Asset Purchase
Agreement is hereby amended by adding the following clause to the end of the
second sentence thereof:
", PROVIDED that prior to the Closing the Sellers shall be entitled to
harvest an additional amount of hardwood sawlogs not to exceed 1,500 ccf
(one hundred cubic feet of solid wood) as long as the aggregate amount of
pine sawlogs, hardwood sawlogs, pine pulpwood and hardwood pulpwood
harvested for the portion of calendar 1996 preceding the Closing Date does
not exceed 505,000 ccf".
6. AMENDMENT TO SECTION 6.1(a). The second sentence of Section
6.1(a) of the Asset Purchase Agreement is hereby amended by replacing the phrase
"twelve (12)" with the phrase "thirteen (13)".
7. AMENDMENT TO SECTION 10.4(d)(iii). Section 10.4(d)(iii) of the
Asset Purchase Agreement is hereby amended by inserting the words "and
management" after the phrase "proper and adequate defense" where the same
appears therein, and by inserting the following sentences as the second and
third sentences thereof:
"Whether or not a Third Party Claim has been made or commenced with respect
to any Excluded Liability, the Buyer shall cooperate with each Seller in
all reasonable respects in connection with the defense and management of
such Excluded Liability, and render such assistance to each Seller as may
be reasonably requested in order to ensure the proper and adequate defense
and management thereof, including making available records relating to such
Excluded Liability and furnishing, without expense to the Sellers, such
employees of the Buyer and its Affiliates as may be reasonably necessary
for the preparation of such defense and management or for testimony as
witnesses. Whether or not a Third Party Claim has been made or commenced
with respect to any Assumed Liability, the Sellers shall cooperate with the
Buyer in all reasonable respects in connection with the defense and
management of such Assumed Liability, and render such assistance to the
Buyer as may be reasonably requested in order to ensure the proper and
adequate defense and management thereof, including making available records
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relating to such Assumed Liability and furnishing, without expense to the
Buyer, such employees of the Sellers and their respective Affiliates as may
be reasonably necessary for the preparation of such defense and management
or for testimony as witnesses."
8. MISCELLANEOUS. Except as expressly amended and modified hereby,
the Asset Purchase Agreement is hereby ratified and reaffirmed in all respects
and all the terms and provisions thereof shall be and remain in full force and
effect. The section and other headings in this Amendment are inserted solely as
a matter of convenience and for reference, are not a part of this Amendment, and
shall not be deemed to affect the meaning or interpretation of this Amendment.
This Amendment 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. This Amendment shall be governed by and construed in
accordance with the internal laws of the state of New York applicable to
agreements made and to be performed entirely within such state, without regard
to the conflict of laws principles or rules of such state.
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IN WITNESS WHEREOF, each party hereto has executed or caused this
Amendment to be executed on its behalf, all on the day and year first above
written.
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management
Company, L.P., its
General Partner
By:
-------------------------
Name:
Title:
RIVERWOOD INTERNATIONAL CORPORATION
By:
-------------------------
Name:
Title:
NEW RIVER TIMBER, LLC
By:
-------------------------
Name:
Title:
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