Exhibit 2.3
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
This Amending Agreement (the "Amending Agreement"), is made by
and among XXXXX FOREST PRODUCTS LIMITED, a British Columbia company ("Xxxxx"),
LOUISIANA-PACIFIC CANADA ENGINEERED WOOD PRODUCTS LTD., a British Columbia
company ("L-P Engineered Wood"), LOUISIANA-PACIFIC CANADA XXXXXX CREEK LTD., a
British Columbia company ("X-X Xxxxxx Creek") and LOUISIANA-PACIFIC CANADA LTD.,
a British Columbia company ("L-P Canada").
RECITALS
A. The parties hereto have entered into an asset purchase agreement (the "Asset
Purchase Agreement") dated August 23, 1999 providing for the acquisition by L-P
Engineered Wood and X-X Xxxxxx Creek of certain Assets and Operations (as those
terms are defined in the Asset Purchase Agreement) of Xxxxx on the terms and
subject to the conditions set out therein; and
B. The parties wish to amend the Asset Purchase Agreement as hereinafter
provided.
NOW, Therefor, in consideration of the premises and the
representations, warranties and agreements herein contained, the parties hereby
agree as follows:
1. INTERPRETATION
1.1 DEFINED TERMS. Unless the context otherwise requires, all terms used in this
Amending Agreement which are defined in the Asset Purchase Agreement have the
respective meanings given to them in the Asset Purchase Agreement.
1.2 SECTION REFERENCES. All references in this Amending Agreement to a
particular Section, paragraph or Schedule shall be deemed to be references to a
particular Section, paragraph or Schedule of the Asset Purchase Agreement.
1.3 SCHEDULES. The Schedules to this Amending Agreement are as follows:
Schedule A Amended Schedule 3.2(a) - Working Capital Liabilities
Schedule B Amended Schedule 3.2(c)(i) - Lands
Schedule C Equipment Inventory
Schedule D New Schedule 13.24 - Employee Transfer Agreement
Schedule E New Appendix B to Schedule 2.1(b) - Foreign Encumbrances
[The Schedules listed above are not being filed with this Amending Agreement. A
copy of any such Schedule will be furnished supplementally to the Commission
upon request.]
2. FOREST TENURES
2.1 AMENDMENT TO SECTION 2.1. Section 2.1(az)(iv) is amended by deleting the
number "T0587" and substituting therefor the number "T0597".
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2.2 AMENDMENT TO SCHEDULE 11.3(a). Schedule 11.3(a) is amended by deleting the
letters and numbers "FLA A18669" in each instance where they occur and
substituting therefor the letters and numbers "FLA 18669".
3. WORKING CAPITAL SCHEDULE
3.1 SCHEDULE 3.2(a) - WORKING CAPITAL ASSETS AND LIABILITIES. Schedule 3.2(a) is
deleted and the Schedule attached hereto as Schedule A is substituted therefor.
4. INTANGIBLE ASSETS SCHEDULE
4.1 Schedule 3.2(b) - Intangible Assets. Schedule 3.2(b) is amended by:
(a) deleting the reference to COFI ROOF & Design Certification Xxxx
registered in the United States under registration number 1,637,975 on
page 1; and
(b) deleting the words ", the only one of which is registered in the
Canadian Trademark Database or the U.S. Patent and Trademark Office is
"COFI FLOOR" on page 2.
The parties acknowledge and agree that the "CANPLY" Certification Xxxx referred
to in the last paragraph on page 3 of Schedule 3.2(b) was registered in Canada
on October 19, 1999 under registration number TMA518,115.
5. LANDS SCHEDULE
5.1 SCHEDULE 3.2(c)(i) - LANDS. Schedule 3.2(c)(i) is deleted and the Schedule
attached as Schedule B hereto substituted therefor.
6. SCHEDULE 3.2(C)(II)
6.1 Schedule 3.2(c)(ii) - Aquatic Lands Licenses. Schedule 3.2(c)(ii) is amended
by:
(a) the deletion of Aquatic Lands License No. 702846;
(b) the amendment of Aquatic Lands License No. 402757 to Aquatic Lands
License No. 402755;
(c) the amendment of Aquatic Lands License No. 401247 to Aquatic Lands
License No. 401747.
7. ALLOCATION OF PURCHASE PRICE
7.1 ALLOCATION OF THE PURCHASE PRICE. Section 3.5 is amended by deleting the
words "October 11, 1999" and substituting "November 24, 1999" therefor.
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8. PREFERRED SHARES
8.1 PAYMENT OF ADJUSTED XXXXX EQUIPMENT PURCHASE PRICE. Section 4.4 is deleted
and the following substituted therefor:
"4.4 PAYMENT OF ADJUSTED XXXXX EQUIPMENT PURCHASE PRICE . The
Adjusted Xxxxx Equipment Purchase Price shall be payable by
the allotment, issuance and delivery by L-P Engineered Wood
to Xxxxx of a number of Preferred Shares (the "Preferred
Shares") which:
(i) will be issued for a price equal to the Canadian Dollar
equivalent of US $1,000 per share;
(ii) have no par value;
(iii) have an aggregate redemption price equal to the
Adjusted Xxxxx Equipment Purchase Price converted into
Canadian Dollars in accordance with Section 13.20; and
(iv) have attached thereto the rights and restrictions set
forth in Schedule 4.4."
8.2 SPECIAL RIGHTS AND RESTRICTIONS. Schedule 4.4 is amended by:
(a) deleting Section 27.1 and substituting the following therefor:
"27.1 DEFINITIONS
In this Part, "Class A Preferred Redemption Price"
means, with respect to a Class A Preferred Share, the Canadian
Dollar equivalent to One Thousand (US $1,000.00) U.S. Dollars
converted in accordance with the preferred volume currency
conversion rates as declared by the Royal Bank of Canada at
its Main Branch in Vancouver, British Columbia on the last day
prior to the issue date of such Class A Preferred Share or
which such branch is open for business.";
(b) in Section 27.5(a), adding the words "on or after the day which
is 8 months and one day after the date of issue of the Class A
Preferred Shares," after the word "time" in the 2nd line;
(c) deleting Section 27.5(f)(ii) and substituting the following
therefor:
"(ii) by delivery to the holders thereof of that promissory
note dated the date of issue of the Class A Preferred
Shares and issued by Xxxxx Forest Products Limited
(as the borrower) to Louisiana-Pacific Canada Ltd.
(as the lender), in an amount equal to the aggregate
Class A Preferred Redemption Price of all of the
Class A Preferred Shares outstanding on the date of
issue of such promissory note, duly endorsed by the
lender for assignment, without recourse, to the
holders, in which case such delivery shall discharge
all liability of the Company for the Class A
Preferred Redemption Price.";
(d) deleting Section 27.6(a) and substituting the following therefor:
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"(a) The holders of all of the issued Class A Preferred
Shares may, at the holders' option, at any time on or
after the day which is 8 months and one day after the
date of issue of the Class A Preferred Shares, upon
giving notice as provided in Article 27.6(b), require
the Company to redeem at any time the whole, but not
part, of the issued Class A Preferred Shares by
payment of the Class A Preferred Redemption Price for
each share to be redeemed."; and
(e) deleting Section 27.6(e)(ii) and substituting the following
therefor:
"(ii) by delivery to the holders thereof of that promissory
note dated the date of issue of the Class A Preferred
Shares and issued by Xxxxx Forest Products Limited
(as the borrower) to Louisiana-Pacific Canada Ltd.
(as the lender), in an amount equal to the aggregate
Class A Preferred Redemption Price of all of the
Class A Preferred Shares outstanding on the date of
issue of such promissory note, duly endorsed by the
lender for assignment, without recourse, to the
holders, in which case such delivery shall discharge
all liability of the Company for the Class A
Preferred Redemption Price."
9. PAYMENT FOR EQUIPMENT INVENTORY
9.1 PAYMENT OF EQUIPMENT INVENTORY PURCHASE PRICE. Notwithstanding the
provisions of the Asset Purchase Agreement, L-P Engineered Wood shall pay the
purchase price (the "Equipment Inventory Purchase Price") for the "Inventory"
listed on the attached Schedule C hereto (the "Equipment Inventory"), being Cdn.
$2,666,000, by the issuance of additional Preferred Shares pursuant to Section
4.4, and accordingly:
(a) the Equipment Inventory Purchase Price shall be subtracted from
the payment due by L-P Engineered Wood to Xxxxx on account of the
Estimated Residual Xxxxx Assets Purchase Price pursuant to
Section 5.4;
(b) the number of Preferred Shares issued pursuant to Section 4.4
shall be increased by a number of Preferred Shares having an
aggregate Class A Redemption Price (as defined in Schedule 4.4)
equal to the Equipment Inventory Purchase Price;
(c) the amount of the Loan granted by L-P Canada to Xxxxx pursuant to
Section 13.14 shall be increased by the U.S. equivalent to the
Equipment Inventory Purchase Price; and
(d) the amount of the Promissory Note to be issued by Xxxxx to L-P
Canada pursuant to Section 13.14 shall be increased by the amount
of the Equipment Inventory Purchase Price.
10. CONTRACTS AND CONSENTS
10.1 SCHEDULE 11.2 - XXXXX CONSENTS. Schedule 11.2 is amended by the addition
under the heading "CONSENTS TO BE OBTAINED" of the following items 23 and 24:
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"23 Consent of Forest Renewal BC to the assignment to L-P
Engineered Wood of the Multi-Year Agreements between
Forest Renewal BC and Xxxxx dated June 19, 1998, as
amended, and May 29, 1998.
24 Consent of Beaumont Timber Company Ltd. to the
assignment to L-P Engineered Wood of the Road use
License agreement dated as of May 15, 1996."
10.2 SCHEDULE 11.2 - XXXXX CONSENTS. Schedule 11.2 is further amended by the
change of number "23" to number "25" under the heading "CONSENTS WHICH WILL NOT
BE OBTAINED".
10.3 SCHEDULE 11.3(a) - CONTRACTS. Schedule 11.3(a) is amended by the addition
under the heading "PART 1 - ASSUMED CONTRACTS, MISCELLANEOUS AGREEMENTS" of the
following items 8, 9 and 10:
"8 Multi-Year Agreement number 0000077 between Forest
Renewal BC and Xxxxx dated June 19, 1998, as amended
June 25, 1998, September 28, 1998 and September 15,
1999.
9 Multi-Year Agreement number 0000207 between Forest
Renewal BC and Xxxxx dated May 29, 1998.
10 Road Use License granted by Beaumont Timber Company
Ltd. to Xxxxx and dated as of May 15, 1996."
11. PENSION PLAN AND SUPPLEMENTAL PENSION
11.1 EFFECTIVE DATE OF VALUATIONS. Section 13.6 is amended by:
(a) deleting the words "the Closing Date" in the fourth line of
paragraph (a) and substituting therefor "August 31, 1999"; and
(b) deleting the words "the Closing Date" in the fifth line of
paragraph (b) and substituting therefor "August 31, 1999".
11.2 PENSION TRANSFER. Section 13.9 is amended by:
(a) deleting the words "the Closing Date" in the first line of
Section 13.9 and substituting therefor "January 1, 2000 at 12:00
a.m.";
(b) inserting the words "as of January 1, 2000 at 12:00 a.m."
immediately following the word "limitation" in the fifth line of
Section 13.9; and
(c) deleting the last sentence of Section 13.9 and substituting
therefor:
"On the Closing Date, Xxxxx and L-P Engineered Wood shall
execute all documents as are necessary to amend and transfer
the Pension Plan to L-P Engineered Wood and shall forthwith
make all such applications for registration or regulatory
approval as are required to implement the terms of
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this Section. Xxxxx and L-P Engineered Wood shall use
reasonable efforts to ensure that all such regulatory
approvals are obtained."
11.3 INVESTMENTS CONSISTENT WITH PAST PRACTICE. The following is added as
Section 13.23:
"13.23 INVESTMENTS CONSISTENT WITH PAST PRACTICE. Between
August 31, 1999 and the Closing Date, Xxxxx shall make all
investment decisions in respect of the Pension Plan and the
Supplemental Pension in a manner which is consistent with the
past practice of Xxxxx."
11.4 CONDITION PRECEDENT REGARDING PENSION PLAN INVESTMENTS. Section 17.1 is
amended by adding the following as paragraph (o):
"(o) Between August 31, 1999 and the Closing Date, Xxxxx shall
not, in the opinion of L-P Engineered Wood, acting
reasonably, have made any investment decisions in respect of
the Pension Plan or the Supplemental Pension which are
inconsistent with the past practice of Xxxxx and which have
not been approved by L-P Engineered Wood in writing. In the
event that the parties do not, on the Closing Date, agree on
whether any particular investment decision is consistent
with the past practice of Xxxxx, the matter shall be
referred to the Independent Accountant who shall make a
final and binding determination within 14 days of the
referral and whose fees and expenses shall be paid equally
by Xxxxx and L-P Engineered Wood. In the event that a matter
is referred to the Independent Accountant pursuant to this
Paragraph, the Closing Date shall be delayed until the
Independent Accountant's decision is rendered."
12. LOAN AND PROMISSORY NOTE
12.1 LOAN AND PROMISSORY NOTE IN CANADIAN CURRENCY. Section 13.14 is deleted and
the following substituted therefor:
"13.14 LOAN AND PROMISSORY NOTE. L-P Canada covenants to
advance to Xxxxx an amount, in US Dollars, equal to the
Adjusted Xxxxx Equipment Purchase Price (the "Loan") by bank
draft or certified cheque and Xxxxx covenants to issue and
deliver to L-P Canada at Closing a promissory note in the form
attached hereto as Schedule 13.14 (the "Promissory Note")
representing the amount of the Loan converted into Canadian
Dollars in accordance with Section 13.20."
12.2 AMENDMENT TO PROMISSORY NOTE. Schedule 13.14 is amended by deleting "US"
wherever it appears and substituting "Cdn." therefor.
13. XXXXX NAME
13.1 CHANGE OF NAME. The following is added as Section 13.22:
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"13.22 CHANGE OF NAME. Forthwith after the Closing Date Xxxxx
shall change its corporate name to a name which does not
include any of the words "Xxxxx Forest Products" and shall, on
the Closing Date, specifically authorize L-P Engineered Wood
to carry on business under all or any of the words "Xxxxx
Forest Products".
14. EMPLOYEE TRANSFER
14.1 DEFINITION OF AGREEMENT. Section 2.1 is amended by adding the following as
Paragraph (dk):
"(dk) "EMPLOYEE TRANSFER AGREEMENT" shall have the meaning
ascribed to it in Section 13.24."
14.2 TRANSFER OF EMPLOYEES. Section 13.5 is amended by:
(a) deleting the words "the Closing Date" in the 6th, 9th and 20th
lines and substituting therefor "January 1, 2000"; and
(b) adding the words "As of January 1, 2000 and in accordance with
the Employee Transfer Agreement," at the beginning of the
sentence commencing in the third to last line of the first
paragraph.
14.3 EMPLOYEE TRANSFER AGREEMENT. The following is added as Section 13.24:
"13.24 EMPLOYEE TRANSFER AGREEMENT. On the Closing Date, L-P
Engineered Wood and Xxxxx shall enter into an Employee
Transfer Agreement in the form attached hereto as Schedule
13.24 (the "Employee Transfer Agreement") whereby Xxxxx shall
agree to provide L-P Engineered Wood with the services of
Xxxxx' employees for the period from the Closing Date to
December 31, 1999 for the purpose of running the Assets and
Operations."
14.4 ADDITION OF SCHEDULE 13.24. The Employee Transfer Agreement attached as
Schedule D hereto is added as Schedule 13.24 to the Asset Purchase Agreement.
14.5 DELETION OF CONDITION PRECEDENT. Section 17.2(f) is deleted in its
entirety.
14.6 XXXXX CLOSING DELIVERIES. The closing deliveries of Xxxxx set out in
Section 18.2(a) are amended by:
(a) deleting the word "and" in paragraph (xi);
(b) adding as paragraph (xii), "an executed copy of the Employee
Transfer Agreement; and"; and
(c) renumbering paragraph (xii) as paragraph (xiii).
14.7 L-P ENGINEERED WOOD CLOSING DELIVERIES. The closing deliveries of L-P
Engineered Wood set out in Section 18.3(a) are amended by:
(a) deleting the "and" in paragraph (vi);
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(b) adding as paragraph (vii), "an executed copy of the Employee
Transfer Agreement; and"; and
(c) renumbering paragraph (vii) as paragraph (viii).
15. PERMITTED ENCUMBRANCES
15.1 AMENDMENT TO SCHEDULE 2.1(by). Paragraph (k) in Schedule 2.1(by) is amended
by inserting "and Appendix B" immediately after the words "Appendix A";
15.2 SCHEDULE OF FOREIGN ENCUMBRANCES. The Appendix of foreign personal property
security registrations attached as Schedule E hereto is added as Appendix B to
Schedule 2.1(by).
15.3 DISCHARGE OF FOREIGN ENCUMBRANCES. Section 13.16 is amended by adding the
following at the end of the Section:
"Xxxxx covenants to obtain and register discharges of all
security interests affecting the Assets or Operations which
are registered outside of British Columbia (the "Foreign
Encumbrances"), including without limitation those security
interests set out in Appendix B of Schedule 2.1(by)."
15.4 AMENDMENT TO APPENDIX A OF SCHEDULE 2.1(by). Appendix A of Schedule 2.1(by)
is amended by deleting the designation (2) preceding item 25;
16. COMPETITION MATTERS
16.1 DELETION OF SECTION 1.1(bd). Section 1.1(bd) is deleted.
16.2 DELETION OF SECTION 15.1. Section 15.1 is deleted.
16.3 COMPETITION ACT. Section 15.2 is amended by deleting the words and figures
"90 calendar days" and substituting therefor "120 calendar days".
16.4 AMENDMENT TO SECTION 17.3(b). Section 17.3(b) is deleted and the following
substituted therefor:
"17.3 MUTUAL CONDITIONS PRECEDENT TO PARTIES' OBLIGATIONS. The
applicable waiting period, including any extensions, under the
Competition Act shall have expired or been terminated and the
Competition Bureau shall not have taken any action to enjoin
or delay the consummation of the transactions contemplated."
17. CLOSING DATE
17.1 CLOSING DATE. Section 18.1 is amended by deleting the date "October 31,
1999" and substituting "November 30, 1999" therefor.
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18. TERMINATION
18.1 EVENTS OF TERMINATION. Section 19.1(b) is amended by deleting the date
"November 30, 1999" and substituting therefor "December 30, 1999".
19. CONTINUANCE OF XXXXX IN NORTHWEST TERRITORIES
19.1 CONTINUANCE. The following is added as Section 20.19:
"20.19 CONTINUANCE. The Purchasers and L-P Canada acknowledge
and agree that Xxxxx may continue into the Northwest
Territories after the Closing Date and shall not be in breach
of any of the terms of the Asset Purchase Agreement as a
result thereof provided that Xxxxx is duly organized, validly
existing and in good standing under the laws of the Northwest
Territories."
20. BOOKS AND RECORDS
20.1 DISPOSAL OF BOOKS AND RECORDS. Section 20.15 is deleted and the following
substituted therefor:
"20.15 DISPOSAL OF BOOKS AND RECORDS. The Purchasers agree
that they shall, unless otherwise required by order of a court
or regulatory authority having jurisdiction or unless
prevented by any act beyond their reasonable control, keep all
of the accounting and financial books and records and employee
books and records of Xxxxx (the "Financial Records") that are
in existence as at the Closing Date in their possession at the
Golden Facility and/or the Malakwa Facility and/or at any
other facility in the Province of British Columbia for a
period of 7 years after the Closing Date and, subject to the
terms of this Section, shall use reasonable efforts to
maintain the confidentiality of the Financial Records. The
Purchasers will allow access to the Financial Records to Xxxxx
(or any successor thereto), SLEC and to those persons who are
authorized by written notice from either Xxxxx (or any
successor thereto) or SLEC to have access to the Financial
Records, provided that, subject to the terms of Section 20.14,
such access is only for the purpose of preparing or amending
financial statements or reports of Xxxxx or of responding to
requests, demands, actions or claims made against Xxxxx by any
person or regulatory authority, including the Department of
National Revenue. The Purchasers shall not destroy any of the
Financial Records within a period of 7 years following the
Closing Date without giving to Xxxxx at least 90 days written
notice of its intention to destroy and Xxxxx shall be
entitled, at its cost, to remove and retain all or any part of
such Financial records as Xxxxx may select. Each of the
Purchasers jointly and severally agree to indemnify the Xxxxx
Indemnified Parties with respect to any and all losses,
damages, liabilities, costs, expenses and deficiencies
including interest, penalties and reasonable attorney's fees
incurred by Xxxxx Indemnified Parties by reason of or arising
out of the breach or non-fulfilment of the terms of this
Section. Such obligation to indemnify is to terminate with
respect to such Financial Records that are
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either acquired by Xxxxx or destroyed by the Purchasers in
accordance with this Section, on the date of such acquisition
or destruction, but otherwise is to survive the Closing and to
remain in effect for a period of 7 years after the Closing
Date notwithstanding Section 13.13(d)." Notwithstanding the
terms of this Section, Xxxxx and SLEC shall upon giving
reasonable prior written notice to the Purchasers, be entitled
at their own cost to obtain copies of any of the Financial
Records for any purpose whatsoever.
21. SALE OF SLEC ASSETS
21.1 AMENDMENT TO SECTION 8.1. Section 8.1 is deleted and the following
substituted therefor:
"8.1 SALE OF SLEC ASSETS. Subject to and upon the terms and
conditions set forth in this Agreement, on the Closing Date
but after the sale by Xxxxx to L-P Engineered Wood of the
Xxxxx Assets, Xxxxx shall sell, transfer, convey and assign to
X-X Xxxxxx Creek, and X-X Xxxxxx Creek shall purchase or
acquire from Xxxxx all of Xxxxx' right, title and interest in
and to the SLEC Assets as at the Closing Date free and clear
of all Liens save as provided in Section 8.2."
21.2 AMENDMENT TO SECTION 8.2. Section 8.2 is deleted and the following
substituted therefor:
"The SLEC Assets to be transferred or otherwise conveyed to
X-X Xxxxxx Creek at the Closing Date pursuant to Section 8.1
shall be free and clear of all Liens, excepting only the
Permitted Encumbrances affecting the SLEC Assets to be
assigned to X-X Xxxxxx Creek at the Closing Date."
22. BOILER ADJUSTMENT
22.1 Xxxxx covenants and agrees to reimburse L-P Engineered Wood with respect to
the cost and loss incurred by L-P Engineered Wood in repairing the boiler in the
power house at the Golden Facility (the "Boiler") as a result of damage which
occurred November 18, 1999 by failed refractory causing a tube failure in the
Boiler with consequent damage to the roof of the power house and insulation
(the"Damage"). For purposes of this covenant, the Parties acknowledge and agree
that the cost and loss incurred by L-P Engineered Wood in connection with such
repairs shall be deemed to be equal to the aggregate of:
(a) the actual out of pocket costs incurred by L-P Engineered Wood in
repairing the Damage; and
(b) the sum of Cdn. $55,000 per day for each day or part of a day
that the Boiler is out of service for the purpose of effecting
such repairs.
22.2 L-P Engineered Wood covenants and agrees with Xxxxx that it will use
reasonable efforts to ensure that the repairs to the Damage are made at a time
when the Boiler is shut down for normal overhaul, that the repairs are made in
an expeditious manner and that all repairs are made by qualified personnel. L-P
Engineered Wood shall give not less than 10
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days written notice to Xxxxx of its intention to commence the repairs and will
provide to Xxxxx all such information in connection with the repairs as Xxxxx
may reasonably request for the purpose of satisfying itself that both the
repairs done and the time required were reasonable in relation to the Damage. To
the extent that the repairs to the Damage are made during a normal overhaul
period and while such normal overhaul work is being performed and to the extent
that any subsequent period of normal overhaul is avoided as a result of other
maintenance work which is completed while the Damage is being repaired, such
periods of time will not be included in the calculation of the amounts owing
pursuant to section 22.1(b) above.
22.3 At Closing, L-P Engineered Wood shall deduct from the Estimated Residual
Xxxxx Assets Purchase Price the sum of Cdn $575,000 (the "Boiler Holdback"). The
Boiler Holdback shall be delivered to the Escrow Agent with joint instructions
from Xxxxx and L-P Engineered Wood to the Escrow Agent to hold the Boiler
Holdback and interest accrued thereon, in trust, on the terms set forth in the
Escrow Agreement with respect to the Indemnity Holdback and the Adjustment
Holdback, MUTATIS MUTANDIS, save as provided below:
(a) The Escrow Agent shall disburse the Boiler Holdback and interest
accrued thereon only in accordance with the following:
(i) a written direction given to the Escrow Agent jointly by L-P
Engineered Wood and Xxxxx; or
(ii) on or before November 1, 2000, upon receipt by the Escrow
Agent of a certificate (the "Boiler Certificate") signed by
a director or officer of L-P Engineered Wood certifying
that:
A. a payment is required to be made by Xxxxx to L-P
Engineered Wood pursuant to section 22.1 of this
Amending Agreement, and
B. a copy of such certificate has been delivered to Xxxxx;
on the tenth Business Day following receipt by the Escrow
Agent of a Boiler Certificate (the "Payment Date"), the
Escrow Agent shall pay to L-P Engineered Wood out of the
Boiler Holdback, the amount of the payment referred to in
such Boiler Certificate and shall pay to Xxxxx the remainder
of the Boiler Holdback and interest accrued thereon. If on
any Payment Date sufficient funds are not available in the
Boiler Holdback to make any payment required in accordance
with the foregoing (due to the inability of the Escrow Agent
to liquidate any investment in which the Boiler Holdback is
then held), such payment shall be made forthwith upon
sufficient funds becoming available for such payment; or
(iii) on November 15, 2000, the Escrow Agent shall pay to Xxxxx,
or as Xxxxx may direct, the full amount of the Boiler
Holdback and interest accrued thereon.
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23. FOREST RENEWAL BC
23.1 REPRESENTATION AND WARRANTIES OF XXXXX. The following is added as Section
11.28:
"11.28. FOREST RENEWAL BC. Xxxxx has performed all obligations
required to be performed by it and is not in default under, or
in breach of, nor in receipt of any claim of default or breach
under, either of its contracts with Forest Renewal BC and no
event has occurred which, with the passage or time or the
giving of notice or both, would result in a default or breach.
In particular, Xxxxx' has fully complied with all of its
obligations and duties specified in section 6 of such
contracts."
23.2 COVENANTS. The following is added as Section 13.25:
"13.25. FOREST RENEWAL BC. Xxxxx covenants and agrees with
the Purchasers:
(a) to deliver to L-P Engineered Wood within 5 Business Days
following receipt by Xxxxx from L-P Engineered Wood of
written notice of the establishment by L-P Engineered Wood
of an appropriate bank account, all monies received by Xxxxx
from Forest Renewal BC and held by it for the purpose of
paying for work performed under its contracts with Forest
Renewal BC, either to itself or to others;
(b) to deliver to L-P Engineered Wood, in sufficient time and
sufficient detail to allow L-P Engineered Wood to perform
its obligations under contracts to report to Forest Renewal
BC, such information and materials with respect to the work
performed under such contracts prior to the Closing Date as
may be required;
(c) that the balance of the monies held by it and to be
delivered to L-P Engineered Wood in accordance with this
Agreement are sufficient to pay:
A. all costs and expenses remaining unpaid in respect of
work performed under such contracts prior to the
Closing Date; and
B. the costs of all work for which such funding was
provided and which remains to be performed."
24. PAYMENT OF GST
24.1 Pursuant to Section 9.3 X-X Xxxxxx Creek is responsible for the payment of
any goods and services tax ("GST") payable in respect of the conveyance of the
SLEC Assets to X-X Xxxxxx Creek and, in the event that the joint election
referred to in Section 3.6 is not made, pursuant to Section 3.6 L-P Engineered
Wood is responsible for any GST which may be
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payable in respect of the conveyance of the Xxxxx Assets to L-P Engineered Wood
under the Agreement (collectively the "Preliminary GST Amount").
24.2 If on the date on which the Residual Xxxxx Assets Adjustment Payment is
required to be paid as provided elsewhere in this Agreement the Adjusted
Residual Xxxxx Assets Purchase Price exceeds the Estimated Residual Xxxxx Assets
Purchase Price, then pursuant to Section 3.6 L-P Engineered Wood is responsible
for any GST payable as a consequence of the increase in the purchase price for
the Residual Xxxxx Assets (the "Additional GST Amount").
24.3 Forthwith after the Closing (and at the election and the cost of the
Purchasers), Xxxxx, Xxxxx Solicitors and the Purchasers and the Purchasers'
Solicitors or other tax advisors of the Purchasers, shall jointly make
application to the Canada Customs and Revenue Agency for a waiver (the"Waiver"),
in form and substance satisfactory to Xxxxx and Xxxxx' Solicitors, of the
obligation of Xxxxx to collect and remit the Preliminary GST and the Additional
GST Amount (collectively the "Aggregate GST Amount").
24.4 Notwithstanding any other provision of this Agreement, the Escrow Agent
shall hold the Indemnity Holdback, the Adjustment Holdback and the Boiler
Holdback (collectively the "Holdbacks"), in trust, as provided below:
(a) Prior to December 28, 1999, the Escrow Agent shall disburse the
Holdbacks and interest accrued thereon only in accordance with
the following:
(i) a written direction given to the Escrow Agent jointly by
Xxxxx and the Purchasers; or
(ii) on December 27, 1999, to pay to Xxxxx the Aggregate GST
Amount if, prior to that date, the Purchasers have not paid
to Xxxxx the Aggregate GST Amount or the Escrow Agent has
not received a certificate (the "GST Certificate") signed by
a director or officer of each of the Purchasers attaching a
copy of the Waiver together with a written confirmation from
Xxxxx' Solicitors that the Waiver is in form and substance
satisfactory to Xxxxx and Xxxxx' Solicitors.
(b) After the earlier of December 28, 1999, the date the Purchasers
pay to Xxxxx the Aggregate GST Amount and the date on which the
Escrow Agent receives the GST Certificate, the Escrow Agent shall
hold and disburse the Holdbacks as provided elsewhere in this
Agreement.
24.5 If the funds held by the Escrow Agent and paid to Xxxxx are less that the
Aggregate GST Amount, the Purchasers shall forthwith upon demand pay to Xxxxx
such sum as is required to equal the Aggregate GST Amount.
24.6 Forthwith after any payment being made by the Escrow Agent to Xxxxx
pursuant to Section 24.4(a)(i) or (ii), L-P Engineered Wood and X-X Xxxxxx Creek
shall pay to the Escrow Agent an amount equal to the payment so made, which
funds shall thereafter be held and disbursed by the Escrow Agent as the
Holdbacks.
-14-
25. GENERAL
25.1 COUNTERPARTS. This Amending Agreement may be signed in as many counterparts
as may be necessary, each of which so signed shall be deemed to be an original,
and such counterparts together shall constitute one and the same instrument and
notwithstanding the date of execution shall be deemed to bear the date set forth
below. Executed copies of this Amending Agreement may be delivered by facsimile
transmission and it shall not be necessary to confirm execution by delivery of
originally executed documents.
IN WITNESS WHEREOF each of the parties hereto have executed
this Agreement by its duly authorized officers on the 30th day of November,
1999.
LOUISIANA-PACIFIC CANADA XXXXX FOREST PRODUCTS LIMITED.
ENGINEERED WOOD PRODUCTS LTD.
By: Xxxxxxx X. Xxxxxx By: Xxxxxx St. Laurent
--------------------------------- ---------------------------
Title: Vice President Title: Chairman
------------------------------ ------------------------
LOUISIANA-PACIFIC CANADA LOUISIANA-PACIFIC CANADA LTD.
XXXXXX CREEK LTD.
By: Xxxxxxx X. Xxxxxx By: Xxxxxxx X. Xxxxxx
---------------------------------- ---------------------------
Title: Vice President Title: Vice President
------------------------------ ------------------------
