AMENDMENT NO. 1 TO PURCHASE AND SALE AGREEMENT
Exhibit
2.1
AMENDMENT
NO. 1 TO
This
AMENDMENT NO. 1 TO PURCHASE AND SALE AGREEMENT (this "Amendment"), dated
October 18, 2007, is by and among Boise Cascade, L.L.C., a Delaware limited
liability company ("Seller"), Boise Paper Holdings, L.L.C., a Delaware
limited liability company (the "Company"), Boise Packaging &
Newsprint, L.L.C., a Delaware limited liability company ("Boise
P&N"), Boise White Paper, L.L.C., a Delaware limited liability company
("Boise White Paper"), Boise Cascade Transportation Holdings Corp., a
Delaware corporation ("Boise Transportation"), Aldabra 2 Acquisition
Corp., a Delaware corporation ("Buyer"), and Aldabra Sub LLC, a Delaware
limited liability company agreement and a wholly owned subsidiary of Buyer
("Buyer Sub"), and amends that certain Purchase and Sale Agreement, dated
September 7, 2007 (and as may be further amended, modified and/or supplemented
from time to time, the "Purchase Agreement"), by and among Seller, the
Company, Boise P&N, Boise White Paper, Boise Transportation, Buyer and Buyer
Sub. Any capitalized term used in this Amendment which is not
otherwise defined herein shall have the meaning assigned to such term in the
Purchase Agreement.
WHEREAS,
each of the undersigned parties wish to amend the Purchase Agreement as set
forth herein.
NOW,
THEREFORE, in consideration of the agreements herein contained, the parties
hereto agree to amend the Purchase Agreement as follows:
1. Amendment
to Section 1F(i). The parenthetical "(such number of shares of
Buyer Common Stock that would cause Buyer to hold more than 49.00% of the Buyer
Post-Closing Common, as determined by Seller in good faith, the "Cash Pay
Shares")" contained in Section 1F(i) of the Purchase Agreement is
hereby deleted in its entirety and replaced with the following:
"(such
number of shares of Buyer Common Stock that would cause Seller to hold more
than
49.00% of the Buyer Post-Closing Common, as determined by Seller in good faith,
the "Cash Pay Shares")"
2. Amendment
to Section 2A(vi). Section 2A(vi) of the Purchase Agreement is hereby
deleted in its entirety and replaced with the following:
"Buyer
and/or Buyer Sub shall have received debt financing in an aggregate amount
of
$946,000,000 (in addition to borrowings to fund any original issue discount
and
in addition to borrowings that arise, in accordance with the Debt Commitment
Letters, from the exercise of Conversion Rights) on terms not materially less
favorable to Buyer and Buyer Sub than those set forth in the Debt Commitment
Letters (assuming full exercise of the "flex" provisions thereof), which debt
financing shall allow for the Support Obligations of Seller in respect of the
Business to be substituted by Buyer at or promptly after Closing and allow
for
Buyer and its Domestic Subsidiaries to issue an Acceptable Note to Seller (if
applicable)."
3. Amendment
to Section 2C(xxi). Section 2C(xxi) of the Purchase Agreement is
hereby deleted in its entirety and replaced with the following:
"The
Cash
Portion to be delivered to Seller at the Closing under Section 1C(i)
shall not be less than an amount equal to (x) $1,210,000,000, plus (y)
the aggregate Debt Financing Fee Amount which
is
paid directly by Seller (e.g., as opposed to by reduction from the Cash Portion
and remittance by Buyer) to lenders and/or agents providing the debt financing
to Buyer and/or Buyer Sub in connection with the Purchase and Sale Transaction,
minus (z) the Shared Expense Amount."
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4. Amendment
to Section 8I(iii). Section 8I(iii) of the Purchase Agreement is
hereby amended by adding the following sentence after the first sentence
thereof:
"All
fees
and expenses incurred in connection with the preparation of the Allocation
shall
be treated as a Shared Expense Amount and paid when due, with each of Seller
and
Buyer responsible for its Responsible Share Percentage multiplied by fees and
expenses incurred in connection with the preparation of the
Allocation."
5. Amendment
to Definitions Section. The definition of "Shared Expense Amount" in Annex I
of the Purchase Agreement is hereby deleted in its entirety and replaced with
the following:
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""Shared
Expense Amount" means, without duplication, the sum of (i) the
aggregate Transfer Taxes related to the transactions contemplated
hereby,
plus (ii) the aggregate fees and expenses of the environmental
consultants for the Phase I Reports and Phase II Investigations,
in each
case determined as of the Closing, plus (iii) the aggregate filing
fees under the HSR Act and for foreign antitrust filings, plus (iv)
the aggregate consent fees to third parties and Governmental Entities
in
connection with the transactions contemplated hereby, plus (v) the
aggregate fees and expenses incurred in connection with the preparation
of
the Allocation."
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6. Debt
Commitment Letters; Related Matters.
(a) Each
of
the undersigned parties acknowledges and agrees that the commitment letter
and
the associated fee letter (together with the annexes and exhibits thereto),
each
dated on or about the date hereof (each as amended, modified, supplemented
and/or waived from time to time in accordance with the terms of this letter
agreement and the Purchase Agreement, collectively, the "Xxxxxxx Commitment
Letter") between Xxxxxxx Sachs Credit Partners L.P. ("GSCP") and
Buyer Sub shall be the "Debt Commitment Letters" for all purposes under the
Purchase Agreement.
(b) In
addition, each of the undersigned parties acknowledges and agrees that, solely
for purposes of determining (1) which fees and expenses relating to the Debt
Financing contemplated by the Xxxxxxx Commitment Letter (such Debt Financing
contemplated by the Xxxxxxx Commitment Letter, the "Xxxxxxx Debt
Financing") Seller is responsible for under the Purchase Agreement and (2)
which fees and expenses relating to the Xxxxxxx Debt Financing shall be included
within the definition of "Debt Financing Fee Amount", Seller shall be
responsible only for the following fees and expenses with respect to the Xxxxxxx
Debt Financing:
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(i)
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the
First Lien Facility Fee (as such term is defined in the Xxxxxxx Commitment
Letter) regardless of when paid;
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(ii)
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the
Second Lien Facility Fee (as such term is defined in the Xxxxxxx
Commitment Letter) regardless of when
paid;
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(iii)
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the
out-of-pocket expenses of GSCP that are reimbursable pursuant to
the
Xxxxxxx Commitment Letter, including expenses associated with GSCP's
syndication of the Facilities (as such term is defined in the Xxxxxxx
Commitment Letter) and the fees and disbursements of GSCP's attorneys
and
advisors, in each case to the extent such expenses,
fees and
disbursements relate to services provided, or expenses incurred,
prior to
or in connection with the closing of the Xxxxxxx Debt Financing on
the
Closing Date, and, subject to the provisions of the Purchase Agreement
regarding the treatment of the Shared Expense Amount, any sales,
use or
similar taxes (including additions to such taxes, if
any) arising in connection with any matter referred to in the
Xxxxxxx Commitment Letter to the extent incurred in connection with
the
closing of the Xxxxxxx Debt Financing on the Closing Date (but excluding,
for the avoidance of doubt, any tax or other Liability in respect
of any
original issue discount or similar obligation with respect to any
of the
Facilities (as such term is defined in the Xxxxxxx Commitment Letter));
and
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(iv)
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without
waiving or otherwise limiting any rights of Seller under the Purchase
Agreement (including any rights to approve any replacement debt
financing), the fees payable to GSCP described in the second paragraph
under the "Other" Section of the fee letter contained in the Xxxxxxx
Commitment Letter, but only to the extent (i) Buyer Sub's and/or
any of
its Affiliates' failure to close all or any part of the Facilities
(as
such term is defined in the Xxxxxxx Commitment Letter) is expressly
approved in writing by Seller and (ii) the completion of any replacement
bank or similar financing which would give rise to any obligation
of Buyer
Sub under such paragraph to pay any such fees to GSCP is also expressly
approved in writing by Seller.
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(c) For
the
avoidance of doubt, each of Buyer and Buyer Sub acknowledge and agree that
(i)
Seller's obligations with respect to the foregoing fees and expenses shall
be
deemed satisfied at the Closing to the extent any such fees and expenses
described above are deducted from the Equity Value Amount (including through
the
calculation of Debt Financing Fee Amount), in which case Buyer and Buyer Sub
shall be responsible for paying such fees and expenses that are deducted from
the Equity Value Amount and (ii) Seller shall not be required to pay and/or
otherwise bear any Liability for any such fees and expenses prior to the
consummation of the Closing; provided, however, that the foregoing shall not
limit Seller’s obligation to pay for such fees and expenses that are due and
payable if the Closing does not occur.
(d) Without
limiting any obligations of Buyer and/or Buyer Sub under the Purchase Agreement,
Buyer and Buyer Sub covenant and agree that neither of them will (individually
or collectively) amend, modify, supplement, terminate or waive any provisions
under the Xxxxxxx Commitment Letter without the prior written consent of Seller;
provided that if GSCP proposes to amend the Xxxxxxx Commitment Letter to
provide for additional debt financing to Buyer and/or Buyer Sub at the Closing
on terms not materially less favorable than those set forth in the Xxxxxxx
Commitment Letter, Buyer and Buyer Sub shall agree to amend the Xxxxxxx
Commitment Letter to allow for such additional debt financing (in which case
such Xxxxxxx Commitment Letters, as amended, shall be the "Debt Commitment
Letters" for all purposes of the Purchase Agreement and the debt financing
contemplated by such amended Debt Commitment Letters shall be the "Debt
Financing" for all purposes of the Purchase Agreement and any additional fees
(to the extent they are of the type described in Sections 6(b)(i) -
(iv)) incurred by Buyer and/or Buyer Sub in respect of such additional
debt financing shall be included within the definition of "Debt Financing Fee
Amount").
(e) Each
of
Buyer and Buyer Sub acknowledge and agree that no portion of the Trust Fund
and/or any cash in the Trust Fund (including any cash released from the Trust
Fund in connection with the transactions contemplated by the Purchase
Agreement), the aggregate amount of cash on hand of Buyer and its Subsidiaries
as of immediately prior to the Closing and/or the aggregate cash proceeds
received by Buyer and/or Buyer Sub on or prior to the Closing Date in respect
of
the Debt Financing shall be used to pay or otherwise satisfy any Liability
of
Buyer, Buyer Sub and/or any of their post-Closing Affiliates in respect of
any
original issue discount or similar obligation under the Facilities (as such
term
is defined in the Xxxxxxx Commitment Letter).
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7. Amendment
to Section 1F(iii). Section 1F(iii) of the Purchase
Agreement is hereby deleted in its entirety and replaced with the
following:
"Promptly
after Buyer and/or Buyer Sub have received Debt Commitment Letters executed
by
the counterparties thereto or have otherwise received the debt financing for
the
transactions contemplated hereby, at the request of either Buyer or Seller,
the
parties shall work together in good faith to develop a form of Acceptable Note
that is consistent with this Section 1F and otherwise reasonably
satisfactory to each of them. Buyer and Buyer Sub shall be jointly
and severally responsible for Buyer's payment obligations under this Section
1F."
8. No
Other Amendments. Except as otherwise provided herein, the terms
and conditions of the Purchase Agreement shall remain unchanged and the Purchase
Agreement shall be construed in a manner consistent with this
Amendment.
9. Miscellaneous;
Counterparts; Effectiveness. Section and other headings are for
reference purposes only and shall not affect the interpretation or construction
of this Amendment. This Amendment may be executed in counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument. Delivery of an executed counterpart of a signature page
of this Amendment by facsimile transmission or electronic pdf shall be effective
as delivery of a manually executed counterpart of this
Amendment. This Amendment is governed by the laws of the State of
Delaware. The provisions of this Amendment may not be amended without
the prior written consent of each of Seller and Buyer. This Amendment
is binding on and shall inure to the benefit of the parties hereto and their
successors and permitted assigns.
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to Purchase
and Sale Agreement to be executed by their respective officers hereunto duly
authorized as of the day and year first written above.
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BOISE
CASCADE, L.L.C.
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By: /s/
Xxxxx X. Xxxxx
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Its: Vice
President, Legal
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BOISE
PAPER HOLDINGS, L.L.C.
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By: /s/
Xxxxx X. Xxxxx
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Its: Vice
President, Legal
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BOISE
WHITE PAPER, L.L.C.
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By: /s/
Xxxxx X. Xxxxx
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Its: Vice
President, Legal
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BOISE
PACKAGING & NEWSPRINT, L.L.C.
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By: /s/
Xxxxx X. Xxxxx
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Its: Vice
President, Legal
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BOISE
CASCADE TRANSPORTATION HOLDINGS CORP.
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By: /s/
Xxxxx X. Xxxxx
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Its: Vice
President, Legal
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By: /s/
Xxxxx Xxxxx
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Its: Chief
Executive Officer
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ALDABRA
SUB LLC
By: Aldabra
2 Acquisition Corp., its sole member
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By: /s/
Xxxxx Xxxxx
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Its: Chief
Executive Officer
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