WOOD PRODUCTS SUPPLY AGREEMENT
WOOD PRODUCTS SUPPLY AGREEMENT, dated as of October 18, 1996 (the
"Agreement"), between PLUM CREEK TIMBER COMPANY, L.P., a Delaware limited
partnership ("Plum Creek"), and RIVERWOOD INTERNATIONAL CORPORATION, a Delaware
corporation ("Riverwood").
RECITALS
Plum Creek, Riverwood and New River Timber, LLC, a Delaware limited
liability company and an affiliate of Riverwood ("New River"), are parties to
the Asset Purchase Agreement dated as of August 6, 1996 (the "Asset Purchase
Agreement").
Pursuant to the Asset Purchase Agreement, Plum Creek is purchasing
from Riverwood and New River certain assets of their line of business known as
the "Wood Products Division" (the "Division"). The assets of the Division
include a sawmill located in Huttig, Arkansas (the "Huttig Facility"), a sawmill
and plywood plant in Joyce, Louisiana (the "Joyce Facility"), and an aggregate
of approximately 538,000 fee and leasehold acres of timber property located in
the States of Arkansas, Louisiana and Texas, including a nursery located in
Texas, being more particularly described on the Description of the Owned
Timberlands and the Description of the Timberland Leases attached hereto
(collectively, the "Timberlands").
The Division has been and is a significant source of wood fiber
products for Riverwood, consisting of pine pulpwood ("Pine Pulpwood"), chips
("Chips") and hardwood pulpwood ("Hardwood Pulpwood," and together with Pine
Pulpwood, "Pulpwood," and together with Pine Pulpwood and Chips, "Products"),
all of which have been used in connection with the production of paper products
by Riverwood at its West Monroe, Louisiana paper mill (the "West Monroe
Facility"). Following the sale of the Division's assets, Riverwood will need a
long-term, assured source of supply of the Products in order to meet its paper
production requirements and the demands of its customers.
This Agreement is an essential part of the transactions contemplated
by the Asset Purchase Agreement. Without this Agreement, Riverwood, New River
and Plum Creek would not have entered into the Asset Purchase Agreement.
Capitalized and other terms defined in Section 8.1(c), or in
the provisions hereof referenced therein, are used herein as defined therein.
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, Plum Creek and Riverwood agree as
follows:
ARTICLE I
PURCHASE OF PRODUCTS
Section 1.1 PURCHASE OF PINE PULPWOOD. Plum Creek shall sell and
Riverwood shall purchase each calendar year the quantity of Pine Pulpwood
specified in Annex A. All Pine Pulpwood purchased pursuant to this Agreement
shall satisfy the specifications for Pine Pulpwood set forth in Riverwood's
Specification Nos. RI-3696 and RI-3697, copies of which are set forth in Annex
B, as the same may be modified from time to time in accordance with Section 1.4
(as the same may be so modified, the "Pulpwood Quality Specifications"). For
purposes of this Agreement, each cord of Pine Pulpwood shall weigh not less than
five thousand two hundred (5,200) pounds.
Section 1.2 PURCHASE OF WOOD CHIPS. Plum Creek shall sell and
Riverwood shall purchase each calendar year the quantity of Chips specified in
Annex A. All Chips purchased pursuant to this Agreement shall satisfy the
specifications for chips as set forth in Riverwood's Chip Specification No. RI-
3695, a copy of which is set forth in Annex C, as the same may be modified from
time to time in accordance with Section 1.4 (as the same may be so modified, the
"Chip Quality Specifications," and together with the Pulpwood Quality
Specifications, the "Product Specifications"). For the purposes of this
Agreement, a ton shall weigh two thousand (2,000) pounds.
Section 1.3 PURCHASE OF HARDWOOD PULPWOOD. Plum Creek shall sell and
Riverwood shall purchase each calendar year the quantity of Hardwood Pulpwood
specified for such year in Annex A. Riverwood shall have an option to purchase
in each calendar year any quantity of Hardwood Pulpwood produced by Plum Creek
in excess of such quantity thereof so specified in Annex A. All Hardwood
Pulpwood purchased pursuant to this Agreement shall satisfy the specifications
for Hardwood Pulpwood set forth in the Pulpwood Quality Specifications. For the
purposes of this Agreement, each
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cord of Hardwood Pulpwood shall weigh not less than five thousand seven hundred
(5,700) pounds.
Section 1.4 MODIFICATION OF SPECIFICATIONS. Riverwood may, from time
to time, and upon at least ninety (90) days' prior written notice to Plum Creek,
modify any of the Pulpwood Quality Specifications or Chip Quality Specifications
that Riverwood applies to all of its Product suppliers to the West Monroe
Facility or any other Facility (as defined below). Riverwood shall not
discriminate against Plum Creek in modifying the Product Specifications. All
Products sold by Plum Creek to Riverwood following such notice shall satisfy
such modified Product Specifications. Notwithstanding anything herein to the
contrary, if such modification would cause an effective decrease in Plum Creek's
production of any Products, Plum Creek's obligations to provide such Products
under Section 1.1, 1.2 or 1.3, as applicable, shall be reduced pro rata and
Riverwood shall pay to Plum Creek an increase in Product price as a result of
any increased costs in production or volume loss necessary to satisfy such
modified Product Specifications until expiration of the current Price Period (as
defined below). Thereafter, the determination of Product prices pursuant to
Section 2.1 shall reflect such modified Product Specifications.
Section 1.5 VARIATION OF QUANTITIES. Plum Creek may not substitute
any type of Product for any other type of Product without Riverwood's prior
written consent (such consent not to be unreasonably withheld).
Section 1.6 ANNUAL PLAN. (a) The parties shall each use their
respective best commercially reasonable efforts to agree upon and complete, not
later than October 1 of each calendar year during the Term (as defined below), a
written production and delivery plan with respect to the Products to be made
available for purchase by Riverwood during the next calendar year as provided in
Sections 1.1, 1.2 and 1.3 (the "Annual Plan"), including a schedule for delivery
of Products to the West Monroe Facility or to other Facilities as designated by
Riverwood. Such Annual Plan may reflect any substitution of Products upon which
the parties shall have agreed as provided in Section 1.5.
(b) Following adoption of each Annual Plan, the parties shall each use
their respective best commercially reasonable efforts to implement such Annual
Plan in accordance with its terms. Products shall be delivered throughout the
calendar year in accordance with the Annual
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Plan for such year, PROVIDED that during any one or more consecutive calendar
quarters of any calendar year, Plum Creek may vary its deliveries, and Riverwood
may vary its purchases, of Pine Pulpwood or Chips above or below the relevant
Cumulative Quarterly Quantity (as defined below) therefor by up to five percent
(5%) of the Yearly Quantity (as defined below) therefor, and of Hardwood
Pulpwood above or below the relevant Cumulative Quarterly Quantity therefor by
up to ten percent (10%) of the Yearly Quantity therefor, as long as delivery and
purchase obligations are reconciled, and the Yearly Quantity of such Product
shall have been delivered and purchased, by the end of each calendar year. Any
other fluctuations in deliveries during any calendar quarter will be reconciled
by the end of such quarter. The term "Yearly Quantity" means, for any calendar
year, the annual quantity for the relevant Product to be purchased and sold
hereunder during such year as specified in Annex A. The term "Cumulative
Quarterly Quantity" means, for any one or more consecutive quarters in any
calendar year, the Yearly Quantity for the relevant Product for such year,
multiplied by the number of such quarters, and divided by four.
(c) A failure in good faith of the parties to agree on an Annual Plan
shall not constitute a breach of this Agreement entitling a party to exercise
its termination rights under Article VII or affect the parties' obligations to
comply with all other terms and conditions of this Agreement.
Section 1.7 FORCE MAJEURE; NON-DISCRIMINATION. (a) For the purposes
of this Agreement, (1) the term "Force Majeure" means any cause, condition or
event beyond a party's reasonable control that delays or prevents such party's
performance of its obligations hereunder, including war, acts of government,
acts of public enemy, riots, civil strife, lightning, fires, explosions, storms,
floods, power failures, other acts of God or nature, labor strikes, lockouts or
other disputes, and other similar events or circumstances; PROVIDED, HOWEVER,
that adverse financial or market conditions shall not constitute Force Majeure,
and (2) the term "Affected Party" means the party that becomes subject to Force
Majeure, and (3) the term "Non-Affected Party" means the party that is not the
Affected Party.
(b) Subject to the provisions of this Section 1.7, the Affected Party
shall not be liable hereunder to the Non-Affected Party for a delay in or
failure of performance by the Affected Party of its obligations hereunder that
is
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caused by Force Majeure. If Force Majeure results in a reduction, but not a
complete cessation, of the Affected Party's production or operations in
connection with this Agreement, the Affected Party (i) shall use its best
efforts to meet its obligations hereunder to the extent commercially reasonable
(including, in the case of Plum Creek, substituting Pulpwood for Chips if
Riverwood elects to accept such substitution in its reasonable discretion), (ii)
shall treat the Non-Affected Party on a preferred basis as and to the extent
provided in Section 1.7(c) with respect to its purchase or sale hereunder, as
the case may be, of the respective quantities of Products set forth in Annex A
under the heading "Preferred Quantity" (the "Preferred Quantities"), and (iii)
otherwise shall treat the Non-Affected Party no less favorably than the Affected
Party treats all of its other customers (if Plum Creek is the Affected Party) or
suppliers (if Riverwood is the Affected Party) during the period of such reduced
production or operations.
(c) If Riverwood becomes subject to Force Majeure, Plum Creek shall be
the preferred supplier of Products in Preferred Quantities to Riverwood at the
West Monroe Facility and the Other Facilities, and accordingly Riverwood shall
not reduce its purchases of any Product from Plum Creek below the respective
Preferred Quantity thereof unless Riverwood shall have previously suspended its
purchases of such Product from all other suppliers to the West Monroe Facility
and the Other Facilities. If Plum Creek becomes subject to Force Majeure,
Riverwood shall be Plum Creek's preferred customer for Products in Preferred
Quantities, and accordingly Plum Creek shall not reduce its sales of any Product
to Riverwood below the respective Preferred Quantity thereof unless Plum Creek
shall have previously suspended its sales of such Product to all other
customers.
(d) The amount by which the quantity of any Product otherwise required
to be purchased or sold hereunder shall be permitted to be reduced as a result
of Force Majeure shall be prorated for the period during which such Force
Majeure is in effect and continuing (such period, the "Force Majeure Period"),
based on the respective Yearly 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. The Affected Party
shall not be required to make up the volume not purchased or produced during the
Force Majeure Period. The Affected Party shall be entitled to
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make up such volume to the extent of Product delivery or purchase variations
otherwise permitted by Section 1.6(b), subject to Section 1.7(e).
(e) If the Affected Party reduces the volume of any Product to be
purchased or sold due to Force Majeure (the amount of such reduction, the
"Reduction Amount"), the Affected Party shall give written notice to the Non-
Affected Party of such reduction and the effective date thereof. If such
reduction continues in effect for a period of 60 days or more, the Non-Affected
Party shall then have the right, in the case of Plum Creek, to sell all or part
of the Reduction Amount of such Product not purchased by Riverwood to another
buyer or buyers, and in the case of Riverwood, to purchase all or part of the
Reduction Amount of such Product not sold by Plum Creek 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.
(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 such
Product as specified in Section 1.1, 1.2 or 1.3 (as applicable) and Annex A
shall be reduced by such volume sold or purchased under such contract for
the duration thereof.
(iv) The Affected Party may, at any time, increase the volume of such
Product to be purchased or sold hereunder by all or part of the Reduction
Amount, provided the amount of such increase shall not exceed an amount
equal to the Reduction Amount minus the volume of such Product that the
Non-Affected Party has already committed to sell or purchase to or from any
third party as provided in and in compliance with this Section 1.7(e).
ARTICLE II
PRICE AND DELIVERY TERMS
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Section 2.1 PRICES. (a) The initial prices for the Products shall be
as has been separately agreed between the parties. Such prices shall remain in
effect until December 31, 1996. Beginning on January 1, 1997 and at the
beginning of every calendar quarter thereafter (each such calendar quarter
period, a "Price Period"), the prices to be paid for the Products to be
delivered during such Price Period shall be adjusted in accordance with the
provisions of this Section 2.1. Riverwood and Plum Creek shall negotiate in
good faith to determine the prices for Products for the next Price Period prior
to expiration of the current Price Period. If the parties cannot agree on such
prices at least ten (10) days prior to expiration of the current Price Period,
the parties shall submit the issue to arbitration as provided in Section 2.4.
(b) The price of each Product for any Price Period shall be equal to
the then current fair market value of such Product in the Region (as defined
below), including exports from the Region. The determination of fair market
value for any Product shall take into account all relevant factors, including
quality specifications, prices for such Product paid by Riverwood to other
suppliers to the West Monroe Facility or the Other Facilities, prices for such
Product obtained for sales by Plum Creek from the Region, published prices for
such Product in the Region in any industry publications, and delivery costs.
Volume may be considered as a factor in determining the fair market value of any
Product but shall not be used to impute any price premium or discount.
Notwithstanding the foregoing, the fair market value of Pine Pulpwood or
Hardwood Pulpwood shall be calculated by determining the Stumpage Price (as
defined below) of such Product and adding to such amount the amount of Delivery
Cost (as defined below).
(c) The term "Region" means the region consisting of (1) the portion of
Arkansas south of a line running xxx xxxx to due east and intersecting the city
of Little Rock, Arkansas, (2) Louisiana, (3) the portion of Mississippi south of
Interstate 20, and (4) the portion of Texas east of a line running due north to
due south and intersecting the town of Tyler, Texas. The term "Stumpage Price"
means, for Pine Pulpwood or Hardwood Pulpwood, the fair market price paid "at
the xxxxx" for such Product in the Region. The term "Delivery Cost" means, for
Pine Pulpwood or Hardwood Pulpwood, the fair market delivery cost for cutting
such Product and hauling such Product a distance of twenty-five (25) miles in
northern Louisiana; PROVIDED that for any Price Period ending on or prior to
December 31, 1997, such
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fair market delivery cost shall be deemed to be an amount equal to the lesser of
(i) the actual cost then being incurred by Plum Creek for cutting such Product
and hauling such Product a distance of twenty-five (25) miles in northern
Louisiana, excluding any cost attributable to silvicultural or forest management
activities, including clearing brush, and (ii) the actual cost being incurred by
Riverwood as of the date hereof for cutting such Product and hauling such
Product a distance of twenty-five (25) miles in northern Louisiana, excluding
any cost attributable to silvicultural or forest management activities,
including clearing brush.
(d) A failure in good faith of the parties to agree on the prices to be
paid for any Product shall not constitute a breach of this Agreement entitling a
party to exercise its termination rights under Article VII or affect the
parties' obligations to comply with all other terms and conditions of this
Agreement.
Section 2.2 DELIVERY TERMS. All Products covered by this Agreement
shall be delivered to Riverwood F.O.B. to the West Monroe Facility or to
Riverwood's Farmerville, Wild Spur or Xxxxxx xxxx mill facilities located in
northern Louisiana (the "Other Facilities"), pursuant to the delivery
requirements in the Annual Plan. In addition, Riverwood may, from time to time,
acquire or construct one or more additional chip or paper mill facilities within
ten (10) miles of the West Monroe Facility or any Other Facility, and Products
shall be delivered to Riverwood F.O.B. to any such additional facility (such
additional facilities, together with the West Monroe Facility and the Other
Facilities, the "Facilities"). Riverwood may direct that Plum Creek deliver
Products not in accordance with the Annual Plan or that Plum Creek deliver
Products to other facilities owned by Riverwood or any affiliate of Riverwood,
in addition to the Facilities, as long as (i) Riverwood gives Plum Creek at
least thirty (30) days' prior written notice, and (ii) Riverwood pays Plum Creek
for the increased costs of delivery (if any) resulting from such a redirection
of Products. Risk of loss and title shall pass when Products are unloaded at
the designated facility.
Section 2.3 PAYMENT. Riverwood shall pay Plum Creek within twenty
(20) days after Riverwood's receipt of each invoice for any Products delivered
to Riverwood, based upon the volume of the Products delivered, as determined by
the weight of such Products at the time of delivery. Such
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invoices shall not be delivered by Plum Creek to Riverwood more frequently than
weekly.
Section 2.4 DISPUTES. (a) If Riverwood and Plum Creek do not agree on
the prices for all Products for the next Price Period at least ten (10) days
prior to the expiration of the current Price Period, the fair market price for
any Product as to which the parties shall not have so agreed shall be determined
by an arbitrator selected by the parties. If the parties fail to agree on the
selection of an arbitrator by the end of the current Price Period, the parties
shall each select an arbitrator within five (5) days thereafter and the two
arbitrators shall select a third arbitrator within five (5) days of their
selection. Any arbitrator shall be independent and shall have no affiliation
with either party or any affiliate of either party. The arbitrators shall be
experienced in the timber and paper industries, familiar with the factors taken
into account in pricing wood fiber products in such industries, and otherwise
qualified to make the pricing determinations required by this Section 2.4. If
one of the parties does not select an arbitrator within five (5) days after the
end of the current Price Period, the arbitrator chosen solely by the other party
shall be responsible for determining the fair market price for any Product as to
which the parties shall not have previously agreed.
(b) Each party shall each submit to the arbitrator or arbitrators and
to the other party within ten (10) days of the date of selection of the
arbitrator or arbitrators, as applicable, the last price proposal made to the
other party prior to initiating the arbitration proceedings. Each party may
submit information in support of its price proposal, consistent with the fair
market value analysis described in Section 2.1. Within ten (10) days of the
date the parties have submitted their price proposals, the arbitrator or
arbitrators shall, with respect to each Product for which the price is in
dispute, select either the proposed price submitted by Plum Creek or the
proposed price submitted by Riverwood. The arbitrator or arbitrators, in making
such decision, shall select the proposed price that most accurately reflects the
fair market price for such Product, taking into account all of the factors set
forth in Sections 2.1(b) and 2.1(c). If a party has failed to timely submit its
price proposal for any Product, the arbitrator or arbitrators shall select the
other party's price proposal for such Product. During the pendency of the
arbitration proceedings, the price for any Product in dispute shall be the price
for such Product that was in effect at the end of
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the Price Period in which the dispute arose. Once the price for such Product
has been determined by such arbitration, such price shall be retroactive to the
beginning of the Price Period for which such price is applicable. The
arbitration decision shall be final, binding and conclusive upon both parties
for such Price Period. The expenses of any arbitration hereunder shall be borne
equally by the parties.
Section 2.5 TESTING AND VERIFICATION; NON-CONFORMING PRODUCT. (a)
Riverwood shall be entitled to sample and test Products in accordance with the
procedures described in Annex D, as such procedures may be modified or changed
by Riverwood from time to time in accordance with this Section 2.5 (as so
modified or changed, the "Test Procedures"). Riverwood may from time to time
modify any of the Test Procedures as to any Product that Riverwood applies to
all of its suppliers of such Product to the West Monroe Facility or any other
Facility. Riverwood shall not discriminate against Plum Creek in modifying the
Test Procedures. Plum Creek shall have the right to inspect at all reasonable
times Riverwood's method of measurement of weight and quality specification
compliance in order to verify accuracy in such measurements. Riverwood shall
modify its measurement practices if Plum Creek reasonably demonstrates that
existing practices have produced material errors in measurement. Riverwood
shall pay any underpayments, and Plum Creek shall reimburse any overpayments,
for discrepancy in Product measurements for the period of time for which the
parties agree such procedural error is reasonably estimated to have occurred.
(b) If any shipment of any Product fails to satisfy the applicable
Product Specifications, as determined by Riverwood pursuant to the Test
Procedures, Riverwood shall have the right to reject such shipment. Riverwood
shall notify Plum Creek of any such rejection as soon as is reasonably possible.
If such rejected shipment is of Pulpwood, Riverwood shall have the options
respecting non-conforming Pulpwood set forth in Annex E. If such rejected
shipment is of Chips, Riverwood shall either return the rejected Product to Plum
Creek at Plum Creek's expense or, in Riverwood's sole discretion, offer to
accept such rejected Chips as wood fuel, provided Riverwood then has a need for
wood fuel. If Plum Creek elects to sell the rejected product to Riverwood as
wood fuel, Riverwood will pay to Plum Creek a reasonable price for such product,
equal to the then-current average price paid for such wood fuel by Riverwood to
unaffiliated third parties.
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ARTICLE III
TERM
Section 3.1 INITIAL TERM. This Agreement shall remain in full force
and effect for twenty (20) years from the date hereof (the "Initial Term"),
unless sooner terminated as provided in Section 7.1.
Section 3.2 EXTENDED TERM. Either party may, at its sole option,
extend the Initial Term of this Agreement by written notice to the other party
for a period of up to ten (10) additional years upon written notice to such
other party delivered not later than twelve (12) months prior to the expiration
of the Initial Term (the Initial Term, as the same may be extended pursuant to
this Section 3.2, the "Term"). If both parties exercise such option, the Initial
Term shall be extended by the longer of the two periods so elected.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 4.1 WARRANTY OF QUALITY. Plum Creek warrants and covenants
that it will use its best commercially reasonable efforts to cause all Chips to
meet the Chip Quality Specifications, and to cause all Pine Pulpwood and
Hardwood Pulpwood to meet the Pulpwood Quality Specifications.
Section 4.2 OWNERSHIP OF PRODUCTS. (a) Plum Creek represents and
warrants that it is, and at all times during the Term will be, the owner of all
Products, and that it shall sell such Products to Riverwood free and clear of
any and all Liens (as defined below). Plum Creek shall protect, indemnify,
defend and hold harmless Riverwood against any Losses (as defined below)
incurred or sustained by Riverwood arising out of or resulting from any Liens
affecting any Products.
(b) The term "Liens" means any and all liens, charges, mortgages, deeds
to secure debt, pledges, security interests, options, adverse claims or other
encumbrances of any nature whatsoever. The term "Losses" means any and all
claims, liabilities, obligations, losses, fines, costs, royalties, proceedings,
deficiencies or damages (whether
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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 attorneys' and accountants' fees incurred in the investigation or
defense of any of the same or in enforcing any of their respective rights
hereunder.
Section 4.3 PLUM CREEK POWER AND AUTHORITY; ENFORCEABILITY. Plum
Creek represents and warrants that it is a limited partnership duly organized
and validly existing under the laws of the State of Delaware, and that it has
all requisite partnership authority to enter into this Agreement and to perform
its obligations hereunder. Plum Creek represents and warrants that this
Agreement has been duly authorized, executed and delivered by Plum Creek and
constitutes the legal, valid and binding obligation of Plum Creek, enforceable
against Plum Creek in accordance with its terms, except as enforceability 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 4.4 COMPLIANCE WITH LAWS; MAINTENANCE OF TIMBERLANDS. (a)
Plum Creek 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.
(b) Plum Creek agrees to cultivate, manage and maintain the Timberlands
in accordance with the Sustainable Forestry Principles of the American Forest
and Paper Association (the "AFPA"), as modified by the AFPA from time to time
(and in the event that the AFPA at any time in the future ceases to exist or to
establish such principles, then the principles of any successor entity
performing a similar function shall apply) and with the Best Forestry Management
Practices published by the Louisiana and Arkansas Forestry Associations,
respectively, and in a manner which will enable it to perform all of its
obligations hereunder.
Section 4.5 PLUM CREEK 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 Riverwood and Plum Creek, or between
Riverwood and any servant, agent, employee, subcontractor or supplier of or to
Plum Creek. Each party hereto shall
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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 4.6 INDEMNITY BY PLUM CREEK. Riverwood shall in no way be
liable for any personal injuries (including death), property damage or other
Losses caused by, resulting from, or attributable to, the negligence,
intentional misconduct or bad faith of Plum Creek, or of any servant, agent,
employee, subcontractor or supplier of or to Plum Creek, in performing Plum
Creek's obligations under this Agreement, or in the operation of the business of
Plum Creek or any such servant, agent, employee, subcontractor or supplier in
connection with this Agreement. Plum Creek shall protect, defend, indemnify and
hold harmless each of Riverwood, its parents Riverwood Holding, Inc. and RIC
Holding, Inc., and its subsidiaries and other affiliates, 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 any such negligence, intentional
misconduct or bad faith of Plum Creek, or of any servant, agent, employee,
subcontractor or supplier of or to Plum Creek, except solely to the extent such
Loss is finally judicially determined to have arisen out of or resulted from the
negligence, intentional misconduct or bad faith of any of Riverwood, its parents
Riverwood Holding, Inc. and RIC Holding, Inc., and its subsidiaries and other
affiliates, or any of its or their respective servants, agents, officers,
partners, directors, employees, subcontractors or suppliers.
Section 4.7 RIVERWOOD POWER AND AUTHORITY; ENFORCEABILITY. Riverwood
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. Riverwood represents and warrants that this Agreement has been duly
authorized, executed and delivered by Riverwood and constitutes the legal, valid
and binding obligation of Riverwood, enforceable against Riverwood in accordance
with its terms, except as enforceability may be limited by (I) bankruptcy,
reorganization, insolvency, moratorium,
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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 4.8 INDEMNITY BY RIVERWOOD. Plum Creek shall in no way be
liable for any personal injuries (including death), property damage or other
Losses caused by, resulting from, or attributable to, the negligence,
intentional misconduct or bad faith of Riverwood, or of any servant, agent,
employee, subcontractor or supplier of or to Riverwood, in performing
Riverwood's obligations under this Agreement, or in the operation of the
business of Riverwood or any such servant, agent, employee, subcontractor or
supplier in connection with this Agreement. Riverwood shall protect, defend,
indemnify and hold harmless each of Plum Creek, its general partner Plum Creek
Management Company, L.P., and its subsidiaries and other affiliates, 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 any such negligence,
intentional misconduct or bad faith of Riverwood, or of any servant, agent,
employee, subcontractor or supplier of or to Riverwood, except solely to the
extent such Loss is finally judicially determined to have arisen out of or
resulted from the negligence, intentional misconduct or bad faith of any of Plum
Creek, its general partner, and its subsidiaries and other affiliates, or any of
its or their respective servants, agents, officers, partners, directors,
employees, subcontractors or suppliers.
ARTICLE V
REMEDIES
Section 5.1 ALTERNATIVE PURCHASE OR SALE RIGHTS. (a) In the event
Plum Creek fails or is unable for any reason other than Force Majeure to deliver
the quantities of any of the Products required by this Agreement, then, in
addition to any other remedies available to Riverwood, Riverwood may purchase an
equivalent quantity of such Products from any other source or sources, and Plum
Creek shall reimburse Riverwood for the reasonable difference between
Riverwood's costs in purchasing such Products and the costs that Riverwood would
have incurred had Plum Creek delivered such Products in accordance with this
Agreement. Riverwood shall use its reasonable efforts to obtain the
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Products at reasonable prices and delivery costs and to mitigate its damages
accordingly.
(b) In the event Riverwood fails or is unable for any reason other than
Force Majeure to purchase the quantities of any of the Products required by this
Agreement, then, in addition to any other remedies available to Plum Creek, Plum
Creek may sell an equivalent quantity of such Products to any other buyer or
buyers, and Riverwood shall reimburse Plum Creek for the reasonable difference
between Plum Creek's price in selling such Products to such third party and the
price that Plum Creek would have received had Riverwood purchased such Products
in accordance with this Agreement. Plum Creek shall use its reasonable efforts
to sell the Products at reasonable fair market prices and to mitigate its
damages accordingly.
Section 5.2 EQUITABLE RELIEF. Each party understands and acknowledges
that monetary damages will not be a sufficient remedy for breach of this
Agreement by such party, and that the other party shall be entitled to
injunctive relief and for specific performance as remedies for any such breach.
Such remedies shall not be deemed to be such other party's exclusive remedies
for any such breach of this Agreement, but shall be in addition to any other
remedies provided herein or available at law, in equity or otherwise.
Section 5.3 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
Louisiana having jurisdiction in the matter and to the jurisdiction of the
Fourth Judicial District Court, Ouachita Parish, Louisiana. 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. Each party certifies and
acknowledges that (A) no representative, agent or attorney of any other party
has represented expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver, (B) it understands
and has considered the implications of this
15
waiver, (C) it makes this waiver voluntarily, and (D) it has been induced to
enter into this Agreement by, among other things, the mutual waivers and
certifications in this Section 5.3.
Section 5.4 WAIVER OF CONSEQUENTIAL DAMAGES. Each party hereby waives
any right to recover consequential, punitive, exemplary or similar damages in
any arbitration, lawsuit, litigation or proceeding arising out or resulting from
this Agreement. Each party certifies and acknowledges that (A) no
representative, agent or attorney of any other party has represented, expressly
or otherwise, that such other party would not, in the event of arbitration,
litigation or other proceeding, seek to enforce the foregoing waiver, (B) it
understands and has considered the implications of this waiver, (C) it makes
this waiver voluntarily, and (D) it has been induced to enter into this
Agreement by, among other things, the mutual waivers and certifications in this
Section 5.4.
ARTICLE VI
RIGHT OF FIRST OFFER OR REFUSAL
Section 6.1 LIMITS ON CERTAIN TRANSFERS OF TIMBERLANDS. As indicated
in the Recitals, Riverwood and New River have transferred and conveyed their
right, title and interest in and to the Timberlands to Plum Creek. So long as
this Agreement is in effect and subject to the terms and conditions hereof, Plum
Creek agrees not to effect, cause or permit any Transfer (as defined below) to
any other Person except in compliance with the terms of this Article VI. The
term "Transfer" means any sale, lease, conveyance, exchange, grant of usufruct,
disposition or other transfer, directly or indirectly (whether by agreement,
operation of law, or otherwise), of all or any portion of the Timberlands or all
or any portion of Plum Creek's interest in the Timberlands.
Section 6.2 LIMITATION ON TRANSFERS FOR THREE YEARS. (a) During the
period beginning on the date hereof and ending on the third anniversary of the
date hereof (such three-year period, the "Initial Period"), Plum Creek agrees
not to effect, cause or permit any Transfer to any other Person, except pursuant
to Permitted Transfers (as defined below). The term "Permitted Transfer" means
any Transfer (whether during the Initial Period or after the Initial Period):
16
(i) that is a transfer to any one or more Persons, in one or a series
of transactions, of up to an aggregate of fifty thousand (50,000) acres of
the Timberlands on any terms and conditions (the "Initial 50,000 Acres");
(ii) to any Person (other than a natural person) that is an affiliate
of Plum Creek controlled by Plum Creek and that assumes all liabilities and
obligations of Plum Creek under this Agreement in accordance with Section
8.2, PROVIDED that such Person shall not be a Specified Entity and at all
times prior to the end of the Initial Period shall be and remain an
affiliate of Plum Creek controlled by Plum Creek;
(iii) to any Person that merges or consolidates with or into Plum
Creek, or acquires all or substantially all of the assets of Plum Creek,
and that assumes all liabilities and obligations of Plum Creek under this
Agreement in accordance with Section 8.2;
(iv) in connection with a land exchange, swap or similar arrangement
involving Plum Creek's acquisition of replacement timbered property located
in northern Louisiana or southern Arkansas ("Replacement Property"),
PROVIDED that (1) Plum Creek shall have demonstrated to Riverwood's
reasonable satisfaction that Plum Creek's obligations under this Agreement
can be satisfied by use and exploitation of such Replacement Property,
(2) such Replacement Property shall be and become subject to this
Agreement, and Plum Creek's liabilities and obligations and Riverwood's
rights hereunder, including under this Article VI, (3) such Replacement
Property shall be made subject to the recorded memorandum described in
Section 6.9, and (4) such Replacement Property shall be deemed to
constitute a part of the Timberlands for purposes of this Article VI; or
(v) consisting of operating leases for hunting or other recreational
or other operational purposes entered into by Plum Creek, or stumpage sales
made by Plum Creek, in each case in the ordinary course of business.
(b) Any Permitted Transfer of all or part of the Initial 50,000 Acres
pursuant to and in compliance with Section 6.2(a)(i) (a "Permitted 50,000 Acre
Transfer") shall be free of any right of Riverwood granted under this
17
Agreement, subject to compliance with the provisions of Sections 6.2 and 6.10.
(c) Any Permitted Transfer to any affiliate of Plum Creek pursuant to
and in compliance with Section 6.2(a)(ii) (a "Permitted Controlled Affiliate
Transfer") shall be free of any right of first offer or refusal of Riverwood
under this Article VI, but shall be subject to the provisions of Sections 6.2,
6.4, 6.9 and 8.2. Plum Creek agrees to cause such affiliate of Plum Creek to be
and remain an affiliate of Plum Creek that is controlled by Plum Creek, at all
times prior to the end of the Initial Period. If at any time after the end of
the Initial Period, such Person is not, or will not be, an affiliate of Plum
Creek that is controlled by Plum Creek, Plum Creek shall comply with the
provisions of Section 6.4.
(d) Any Permitted Transfer pursuant to and in compliance with Section
6.2(a)(iii) shall be free of any right of first offer, purchase or first refusal
of Riverwood under this Article VI, but shall be subject to the provisions of
Section 6.2, 6.9 and 8.2.
(e) Any Permitted Transfer pursuant to and in compliance with Section
6.2(a)(iv) (a "Permitted Land Swap Transfer") shall be free of any right of
Riverwood granted under this Agreement, subject to compliance with the
provisions of Sections 6.2, 6.9 (with respect to the relevant Replacement
Property) and 6.10.
(f) Except as provided in Sections 6.2(b), 6.2(c), 6.2(d) and 6.2(e),
all Transfers shall be subject to Riverwood's rights under this Agreement,
including Riverwood's rights of first offer, purchase or first refusal as and to
the extent described in this Article VI, and shall be subject to the provisions
of Section 6.9. Any purported Transfer that does not comply with all of the
requirements of this Article VI shall be null and void and shall be of no force
or effect.
(g) Any Person to which a Permitted Controlled Affiliate Transfer, or
any Transfer pursuant to and in compliance with Section 6.2(a)(iii), is made,
shall be entitled to effect any Permitted Transfer pursuant to and in compliance
with Section 6.1(a)(i), subject to the requirement thereof that not more than an
aggregate of the Initial 50,000 Acres shall be permitted to be transferred
pursuant thereto. Any such Person, and any Person to which a Transfer referred
to in Section 6.2(f) is made, shall be
18
subject to and shall comply with the provisions of this Article VI to which Plum
Creek is subject.
Section 6.3 TRANSFERS SUBJECT TO RIGHT OF FIRST OFFER. (a) Subject to
the terms and conditions of this Section 6.3, Riverwood shall have a right of
first offer (the "First Offer Right") with respect to any proposed Transfer,
other than (I) a Specified Transfer (as defined below) to which Section 6.5
applies and for which Plum Creek has given a Specified Transfer Notice (as
defined below), (II) a Permitted 50,000 Acre Transfer, (III) a Permitted Land
Swap Transfer, or (IV) a Permitted Controlled Affiliate Transfer.
(b) If, at any time following the expiration of the Initial Period
during the Term, Plum Creek desires to effect, cause or permit a Transfer (other
than a Specified Transfer to which Section 6.5 applies and for which Plum Creek
has given a Specified Transfer Notice, a Permitted 50,000 Acre Transfer, a
Permitted Land Swap Transfer, or a Permitted Controlled Affiliate Transfer),
Plum Creek shall, prior to effecting, causing or permitting any such Transfer,
give to Riverwood written notice of such desire (a "Transfer Notice"). Such
Transfer Notice shall specify the acreage and interest proposed to be
transferred (the "Notice Acreage"), and the proposed purchase price for the
Notice Acreage (the "Notice Price"), which price shall be an all-cash price.
Any purported Transfer Notice that does not comply with all of the requirements
of this Article VI shall be null and void and shall be of no force or effect.
(c) Following receipt of such Transfer Notice, Riverwood may exercise
its First Offer Right to purchase the Notice Acreage by giving written notice
thereof (a "Notice of Election") to Plum Creek not later than the date that is
thirty (30) days after the date on which Riverwood receives such Transfer Notice
(such date of receipt, the "Notice Date").
(d) In the event that Riverwood does not give a Notice of Election to
Plum Creek within the applicable period specified in Section 6.3(c), Plum Creek
shall be free to effect a Transfer of all (but not less than all) of the Notice
Acreage to one (but not more than one) Person in one (but not more than one)
transaction, without further restriction under this Section 6.3 (but subject to
Section 6.4 and Section 6.9(b)), within one hundred eighty (180) days of the
Notice Date, at a price that is not less than the Notice Price, and otherwise
upon the terms specified in
19
the Transfer Notice. If Plum Creek does not consummate any such Transfer within
such time period or upon such terms, such Notice Acreage shall become and remain
subject to all of the rights of Riverwood under this Article VI.
Section 6.4 INDIRECT TRANSFERS SUBJECT TO RIGHT OF PURCHASE. (a)
Subject to the terms and conditions of this Section 6.4, Riverwood shall have a
right of purchase (the "Purchase Right") with respect to the Timberlands and any
interest therein, in the event of any Transfer Event (as defined below). The
term "Transfer Event" means any Transfer, transaction, occurrence or event
pursuant to which any affiliate of Plum Creek that acquires Timberlands or any
interest therein in a Permitted Controlled Affiliate Transfer shall no longer be
an affiliate of Plum Creek controlled by Plum Creek (such Person, a "Former
Affiliate").
(b) If, at any time following the expiration of the Initial Period
during the Term, Plum Creek desires to effect, cause or permit a Transfer Event,
or any other Transfer Event shall occur, Plum Creek shall, prior to effecting,
causing or permitting any such Transfer Event, and concurrently with the
occurrence of any other Transfer Event, give to Riverwood written notice of such
desire or of such occurrence (a "Transfer Event Notice"). Such Transfer Event
Notice shall provide reasonably detailed information concerning such Transfer
Event, including its status and the identity of the Persons involved therein.
Any purported Transfer Event Notice that does not comply with all of the
requirements of this Article VI shall be null and void and shall be of no force
or effect.
(c) Following receipt of such Transfer Event Notice, Riverwood may
exercise its Purchase Right to purchase the Timberlands and interest therein
held by the Former Affiliate (the "Subject Property"), for a price equal to the
fair market value of such Subject Property, by giving written notice thereof (a
"Transfer Event Notice of Election") to Plum Creek not later than the date that
is thirty (30) days after the date on which such fair market value shall have
been determined in accordance with Section 6.4(d).
(d) Within fifteen (15) days of the date on which Riverwood receives
such Transfer Event Notice (such date of receipt, the "Transfer Event Notice
Date"), Plum Creek shall choose a nationally recognized investment banking firm
(the "Plum Creek Firm") and Riverwood shall choose a nationally
20
recognized investment banking firm (the "Riverwood Firm"). Such firms shall
jointly determine the method of evaluating the fair market value of the Subject
Property, and such fair market value. If such firms are unable to agree on such
method of evaluation or such fair market value, such firms shall jointly
designate a third nationally recognized investment banking firm (the "Third
Firm"), which shall determine the fair market value of the Subject Property, and
such determination shall be final and binding on the parties. Any such fair
market value determination, whether by the Plum Creek Firm and Riverwood Firm
jointly or by the Third Firm, shall be on the basis of the most likely sales
price for such Subject Property or similar property in an arms length
transaction in the then current market, and shall take into account the form of
conveyance and any Liens to which the Subject Property is then subject. Plum
Creek shall bear the fees and expenses of the Plum Creek Firm, and Riverwood
shall bear the fees and expenses of the Riverwood Firm. The fees and expenses
of the Third Firm shall be borne equally by the parties.
Section 6.5 TRANSFERS SUBJECT TO RIGHT OF FIRST REFUSAL. (a) Subject
to the terms and conditions of this Section 6.5, Riverwood shall have a right of
first refusal (the "First Refusal Right") with respect to any proposed Transfer
to any Specified Entity (as defined below), other than a Permitted 50,000 Acre
Transfer. Riverwood shall have such First Refusal Right regardless of whether
it has previously elected not to exercise any First Offer Right with respect to
the acreage or interest proposed to be transferred pursuant to such Transfer.
(b) If, at any time following the expiration of the Initial Period
during the Term, Plum Creek desires to effect, cause or permit a Transfer to a
Specified Entity (a "Specified Transfer"), other than a Permitted 50,000 Acre
Transfer, Plum Creek shall, prior to effecting, causing or permitting any such
Specified Transfer, give to Riverwood written notice of such desire (a
"Specified Transfer Notice"). Plum Creek shall not give such Specified Transfer
Notice, or effect, cause or permit any such Specified Transfer, unless and until
it shall have received a bona fide, legally binding offer in writing from a
Specified Entity with respect to a Transfer that includes all the material
economic terms on which such Specified Transfer would occur (a "Transfer
Offer"), which Plum Creek desires to accept and pursuant to which Plum Creek
would effect, cause or permit such Specified Transfer. Such Specified Transfer
Notice shall specify the acreage and interest
21
proposed to be transferred (the "Specified Acreage"), the identity of the
proposed transferee Specified Entity, the purchase price for the Specified
Acreage (the "Specified Price"), and the terms for payment of such price, the
date agreed on by Plum Creek and such proposed transferee for the closing of
such Specified Transfer, and the other terms of the Transfer Offer. The
Specified Transfer Notice shall be accompanied by a copy of any document
evidencing the Transfer Offer and, if the terms of the proposed Specified
Transfer have been reduced to a written contingent purchase agreement (a
"Contract"), a copy of such Contract. Any purported Specified Transfer Notice
that does not comply with all of the requirements of this Article VI shall be
null and void and shall be of no force or effect.
(c) Following receipt of such Specified Transfer Notice, Riverwood may
exercise its First Refusal Right to purchase the Specified Acreage by giving
written notice thereof (a "Specified Notice of Election") to Plum Creek as
follows:
(i) If the Specified Price is an all-cash price, or other price
acceptable to Riverwood, such Specified Notice of Election shall be given
not later than the date that is thirty (30) days after the date on which
Riverwood receives such Specified Transfer Notice (such date of receipt,
the "Specified Notice Date").
(ii) In the event that the Specified Price contains terms (including
such terms as a "like-kind" exchange under Section 1031 of the Internal
Revenue Code) that Riverwood in its reasonable judgment determines that it
cannot meet, then Riverwood may, within five (5) days of the Specified
Notice Date, propose a reasonable cash equivalent in lieu of such terms to
Plum Creek, and if Plum Creek agrees with such proposal, such Specified
Notice of Election shall be given not later than the date that is thirty
(30) days after the date on which Plum Creek so notifies Riverwood in
writing.
(iii) If Plum Creek does not accept Riverwood's proposal, any dispute as
to the amount of such reasonable cash equivalent shall be settled by
arbitration in accordance with the provisions of Section 6.6, and such
Specified Notice of Election shall be given not later than the date that is
thirty (30) days after the date on which the parties shall
23
have been notified in writing of the final arbitration determination of
such cash equivalent.
(d) In the event that Riverwood does not give such Specified Notice of
Election to Plum Creek within the applicable period specified in Section 6.5(c),
Plum Creek shall be free to effect the Specified Transfer of all (but not less
than all) the Specified Acreage, without further restriction under this Section
6.5 (but subject to Section 6.9), to the proposed transferee Specified Entity
within one hundred twenty (120) days of the Specified Notice Date, at a price
equal to the Specified Price, and otherwise upon the terms specified in the
Specified Transfer Notice, any accompanying document evidencing the Transfer
Offer, and any accompanying Contract. If Plum Creek does not consummate such
Specified Transfer within such time period or upon such terms, such Specified
Acreage shall again become and remain subject to all of the rights of Riverwood
under this Article VI.
(e) The term "Specified Entity" shall mean any of (X) Georgia-Pacific
Corporation, International Paper Company, Weyerhaeuser Company, Willamette
Industries, Inc., Boise Cascade Corporation or Stone Container Corporation, (Y)
any other timber products company having an integrated paper division consisting
in whole or in part of a paper plant within 100 miles of the West Monroe
Facility, and having assets valued in excess of the Specified Amount (as defined
below) at the time of the proposed Specified Transfer, or (Z) any successor,
subsidiary or affiliate of any Person specified in either of the foregoing
clauses (x) and (y). The term "Specified Amount" shall mean an amount equal to
$100,000,000, plus or minus, for each then elapsed year in the Term,
$100,000,000 multiplied by the percentage increase or decrease in such year, if
any, in the Consumer Price Index for All Urban Consumers (CPI-U), U.S. City
Average, All Items (1982-84=100), as published from time to time by the U.S.
Department of Labor, Bureau of Labor Statistics. If the referenced index (1982-
1984=100) of the CPI-U is revised, the base index will be converted to a new
base reference index in accordance with the conversion table published by the
Bureau of Labor Statistics.
Section 6.6 ARBITRATION TO DETERMINE CASH EQUIVALENT PRICE. (a)
Either party may initiate arbitration to determine the reasonable cash
equivalent of the Specified Price (or portion thereof), if Riverwood has
proposed a cash equivalent in accordance with Section 6.5(c), and Plum Creek has
not accepted such proposal within
23
ten (10) days after the Specified Notice Date. The party desiring to initiate
such arbitration shall give notice to the other party of such desire (an
"Arbitration Notice") within fifteen (15) days of such Specified Notice Date.
Upon the giving of such Arbitration Notice, all other time periods specified in
Sections 6.5 and 6.7 relating to a Specified Transfer shall be extended until
the arbitration provided for in this Section 6.6 has been completed.
(b) The reasonable cash equivalent of the Specified Price (or portion
thereof) shall be determined (I) by an arbitrator selected by the parties, or
(II) if the parties fail to agree on the selection of such arbitrator within
five (5) days of date of delivery of the applicable Arbitration Notice, by a
majority of a committee of three (3) arbitrators consisting of one arbitrator
chosen by Plum Creek, one arbitrator chosen by Riverwood, and a third chosen by
the first two arbitrators, or (III) if either party fails to notify the other
party of its choice of an arbitrator for such committee within ten (10) days of
the date of delivery of the applicable Arbitration Notice, solely by the
arbitrator so chosen by the other party.
(c) All arbitrators chosen hereunder shall have at least ten (10)
years' experience in the timber and paper industries, and the arbitration shall
be conducted in accordance with the rules of the American Arbitration
Association as then in effect. Such arbitration shall be held within the state
of Louisiana at such location as the arbitrator or arbitrators shall determine.
The final determination of the arbitrator or arbitrators shall be made within
five (5) days after the appointment thereof, and shall be final and binding on
the parties. The expenses of the arbitration shall be borne equally by the
parties.
Section 6.7 CLOSING TERMS. (a) If Riverwood provides a Specified
Notice of Election to purchase any Specified Acreage pursuant to Section 6.5 and
the related Specified Transfer Notice was accompanied by a definitive Contract
that had been executed and delivered by Plum Creek and the applicable Specified
Entity, Riverwood and Plum Creek shall close such purchase in substantial
accordance with the material economic terms of such Contract, subject to
Sections 6.5(c) and 6.6.
(b) If such Specified Transfer Notice was not so accompanied by such a
definitive Contract, Riverwood and Plum Creek shall close such purchase of such
Specified Acreage in substantial accordance with the material economic
24
terms of the Transfer Offer, subject to Sections 6.5(c) and 6.6, and to the
extent consistent therewith the following terms and conditions. The following
terms and conditions shall also apply to the consummation of any purchase by
Riverwood of any Notice Acreage pursuant to an exercise of any First Offer Right
in respect thereof in accordance with Section 6.3, or of any Subject Property
pursuant to an exercise of any Purchase Right in respect thereof in accordance
with Section 6.4. Plum Creek shall, and cause any Former Affiliate to, comply
with the following terms and conditions.
(i) Riverwood shall pay one-half, and Plum Creek (or the Former
Affiliate, as applicable) shall pay one-half, of all real estate and other
similar transfer taxes on the deed or deeds given by Plum Creek (or the
Former Affiliate, as applicable). Riverwood shall pay the costs of
recording all documents to be recorded and all costs of examining and
insuring title. Each party shall pay its own attorney's fees. There shall
be a proration of any applicable ad valorem taxes. Each party shall pay
all other expenses of the transaction incurred by it, including all
brokers' commissions.
(ii) Plum Creek (or the Former Affiliate, as applicable) shall convey
the property to Riverwood by limited warranty deed, subject only to
Permitted Exceptions (as defined below). In no event shall the property be
subject to any deed to secure debt, or any mortgage, Lien or judgment, held
by a person claiming by, through or under Plum Creek (or the Former
Affiliate, as applicable). The obligation of Plum Creek (or the Former
Affiliate, as applicable) to convey title to any property in accordance
with this Section 6.7(b) shall not be affected by whether or not Riverwood
examined title or gives any notice to Plum Creek with respect to title. If
Riverwood notifies Plum Creek of the existence of any objections to Plum
Creek's title other than the Permitted Exceptions, Plum Creek shall cause
such objections to be cured prior to Closing (as defined below) or shall
indemnify Riverwood against such items; PROVIDED, HOWEVER, that Plum
Creek's obligation to cure or indemnify hereunder shall be limited to the
removal of any and all mortgages, deeds to secure debt and similar monetary
Liens evidencing indebtedness of Plum Creek (or the Former Affiliate).
Riverwood, at its expense, may obtain title insurance in connection with
its purchase. The term "Permitted Exceptions" means (X) any and all
25
Permitted Encumbrances (as defined in the Asset Purchase Agreement) in
existence immediately prior to the consummation of the closing of the
transactions provided for in the Asset Purchase Agreement on the date
hereof, (Y) liens and encumbrances incurred by Plum Creek (or the Former
Affiliate, as applicable) in the ordinary course of its business consistent
with Riverwood's current operation of the relevant property or with
standard industry practice in the Region and (Z) other liens and
encumbrances that in the aggregate do not materially impair the use or
value of the Notice Acreage, Subject Property or Specified Acreage, as
applicable.
(iii) Plum Creek shall make representations and warranties to Riverwood
at the time of Riverwood's delivery of the Notice of Election, Transfer
Event Notice of Election or Specified Notice of Election, as applicable,
and at the time of Closing, that are similar in scope and duration to those
given by Riverwood to Plum Creek pursuant to the Asset Purchase Agreement.
Plum Creek shall make assignments to Riverwood at the time of Closing
relating to the Notice Acreage, Subject Property or Specified Acreage, as
applicable, that are similar in scope and effect to those given by
Riverwood to Plum Creek pursuant to the Asset Purchase Agreement (including
assignments of related contracts and insurance proceeds).
(iv) The closing (the "Closing") of any transaction contemplated by
this Section 6.7 shall be held on or before (X) in the case of a Specified
Transfer, the latest of (1) the date specified for closing under the
Contract, if any, (2) the date specified for closing in the Specified
Notice of Transfer, or (3) the date that is one hundred twenty (120) days
after Riverwood delivers its Specified Notice of Election, and (Y) in the
case of any other Transfer or Transfer Event, the date that is one hundred
twenty (120) days after Riverwood delivers its Notice of Election or
Transfer Event Notice of Election, as applicable. The exact time, place,
and date of Closing will be selected by Riverwood at least ten (10) days
prior to Closing. At Closing, Plum Creek (or the Former Affiliate, as
applicable) shall execute and deliver to Riverwood one or more limited
warranty deeds in proper form for recording, an affidavit that Plum Creek
(or the Former Affiliate, as applicable) is not a foreign person as defined
in and in compliance
26
with Section 1445 of the Internal Revenue Code of 1986, satisfactory
evidence of the power and authority of Plum Creek (or the Former Affiliate,
as applicable) to perform hereunder, and a settlement statement. Subject
only to the Permitted Exceptions, possession of the property shall be given
to Riverwood at Closing.
(c) Any purchase of property by Riverwood pursuant to any right granted
under this Article VI shall include all necessary or appropriate rights of
access to such property.
Section 6.8 ACCESS. From the Notice Date, the Transfer Event Notice
Date or Specified Notice Date (as applicable) until the later of (X) the date
that is thirty (30) days thereafter and (Y) if a Notice of Election, a Transfer
Event Notice of Election or Specified Notice of Election (as applicable) has
been timely given, the date of the Closing pursuant to Section 6.7, Plum Creek
and its affiliates shall allow the Buyer and its representatives reasonable
access at reasonable times to all the employees, books, records, files,
documents (including title commitments, title policies, and surveys), assets,
properties, contracts and agreements of Plum Creek or any of its affiliates
related to the Notice Acreage, the Subject Property or Specified Acreage (as
applicable), as Riverwood may reasonably request, and shall furnish Riverwood
and its representatives with such copies of such documents (at Riverwood's sole
cost and expense), and such other information, concerning the Notice Acreage,
the Subject Property or Specified Acreage (as applicable), as Riverwood may
reasonably request; PROVIDED that (X) such access will not materially interfere
with the operation of the Notice Acreage, the Subject Property or Specified
Acreage (as applicable), and (Y) Plum Creek shall not be obligated to obtain any
information requiring the initiation or conduct of sampling or analysis of
soils, groundwater or other environmental media at or from any of the Notice
Acreage, the Subject Property or Specified Acreage (as applicable).
Section 6.9 MEMORANDA OF RIGHTS; TRANSFEREES TO ASSUME THIS AGREEMENT.
(a) Plum Creek acknowledges and agrees that one or more memoranda of the rights
of Riverwood granted in this Agreement, including the rights of Riverwood
granted in this Article VI, in the customary forms used in the States of
Louisiana and Arkansas, or consisting of this Agreement in recordable form, or
both (and including a complete legal description of the Timberlands), may be
placed of record in all jurisdictions where any portion
27
of the Timberlands is located, and Plum Creek shall execute and record each such
memorandum in all jurisdictions where any portion of the Timberlands is located
prior to recording any mortgage, deed of trust or other document of any kind.
(b) Plum Creek further agrees to cause any transferee of all or any
portion of the Timberlands or Plum Creek's interest therein, other than a
transferee in a Permitted 50,000 Acre Transfer, to assume the liabilities and
obligations of Plum Creek under this Agreement as they relate to the Timberlands
or interest therein so transferred and to execute and record evidence of such
assumption in the jurisdictions affected.
(c) This Agreement, Riverwood's rights hereunder (including under this
Article VI) and Plum Creek's liabilities and obligations hereunder (including
under this Article VI) shall be a covenant that runs with the land and shall
bind all successors and assigns to or of the property comprising all or any
portion of the Timberlands or any Replacement Property.
Section 6.10 RELEASES OF RIGHTS. (a) Riverwood shall provide a
written release of its First Offer Right and First Refusal Right under this
Article VI for any proposed Permitted 50,000 Acre Transfer within five (5)
business days of the date on which Riverwood receives a written request by Plum
Creek for such release, accompanied by a form of such release in form and
substance reasonably acceptable to Plum Creek and Riverwood and in proper form
for recording to Plum Creek, and by evidence reasonably satisfactory to
Riverwood that such Transfer complies with the provisions of Sections 6.2(a) and
8.2. Such release shall also release any memoranda of the rights of Riverwood
granted in this Agreement that shall have been recorded pursuant to Section 6.9
against the portion of the Initial 50,000 Acres that is the subject of such
Permitted 50,000 Acre Transfer.
(b) Riverwood shall provide a written release of its First Offer Right
and First Refusal Right under this Article VI for any Permitted Land Swap
Transfer within ten (10) business days of the date on which Riverwood receives a
written request by Plum Creek for such release, accompanied by a form of such
release in form and substance reasonably acceptable to Plum Creek and Riverwood
and in proper form for recording to Plum Creek, and by evidence reasonably
satisfactory to Riverwood that such Transfer complies with the provisions of
Sections 6.2(a) and 8.2 (including all agreements and instruments necessary or
appropriate to
28
comply with and carry out the requirements of the proviso to Section 6.2(a)(iv),
in form and substance satisfactory to Riverwood in its reasonable judgment).
Such release shall also release any memoranda of the rights of Riverwood granted
in this Agreement that shall have been recorded pursuant to Section 6.9 against
the portion of the Timberlands that is the subject of such Permitted Land Swap
Transfer.
(c) All release requests pursuant to this Section 6.10 shall be made to
Riverwood in accordance with Section 8.4. All such releases shall be sent by
overnight mail to Plum Creek in accordance with Section 8.4. Plum Creek shall
pay any recording charges for recording of any such releases but shall not be
obligated to pay Riverwood any fees or other consideration for the releases.
ARTICLE VII
TERMINATION
Section 7.1 TERMINATION. This Agreement may be terminated in the
following manner:
(a) at any time by the mutual written agreement of the parties;
(b) at the expiration of the Term;
(c) by either party following a material breach by the defaulting party
of any of its monetary obligations hereunder, written notice of such breach
to the defaulting party, and the continued failure by the defaulting party
to cure such breach in all material respects for a period of thirty (30)
days, following which the nondefaulting party will have no further
obligations hereunder;
(d) by either party at any time following a material breach by the
defaulting party of any of its other obligations hereunder, written notice
of such breach to the defaulting party, and the continued failure by the
defaulting party to cure such breach in all material respects for a period
of ninety (90) days, provided that if the breach is not reasonably
susceptible of cure within ninety (90) days, such defaulting party shall
have such additional time as is necessary as long as the defaulting party
initiates
29
cure within the ninety (90) day period and diligently pursues completion of
the cure, following which the nondefaulting party shall have no further
obligations hereunder.
Termination shall not relieve a defaulting party of any liability to the
nondefaulting party for breach of its obligations hereunder. The provisions of
Sections 4.2, 4.5, 4.6, 4.8, 5.3, 5.4 and 7.1 and Article VIII shall survive any
termination of this Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 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 8.1 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. Except as
otherwise expressly provided herein, all references to "Dollars," "dollars" or
"$" shall be deemed references to the lawful money of the United States of
America.
(b) To the extent this Agreement describes property located in
Louisiana, or rights therein, the terms "real property," "real estate" and words
of similar import shall include immovable property; the term "personal property"
and words of similar import shall include movable property; and the term
"easements" and words of similar import shall include servitudes.
30
(c) Whenever used in this Agreement, the following terms shall have the
respective meanings given to them below, and the terms listed in Annex F shall
have the respective meanings given to them in the provisions hereof indicated in
Annex F.
"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. For purposes hereof, Xxxxxxx,
Dubilier & Rice Fund V Limited Partnership, a Cayman Islands exempted
limited partnership, and Xxxxxxx, Dubilier & Rice, Inc., a Delaware
corporation, each shall be deemed to be an affiliate of Riverwood. 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.
Section 8.2 ASSIGNMENT BY PLUM CREEK. Except as provided in this
Section 8.2, this Agreement may not be assigned by Plum Creek in whole or in
part. Notwithstanding the foregoing, at any time during the Term, Plum Creek
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
Plum Creek or any affiliate thereof with such lender or lenders, or (B) upon
prior written notice to Riverwood, to any Person (X) that is and at all times
remains an affiliate of Plum Creek controlled by Plum Creek, or that merges or
consolidates with or into Plum Creek, or that acquires all or substantially all
of the assets of Plum Creek, and (Y) that assumes all liabilities and
obligations of Plum Creek under
31
this Agreement pursuant to an instrument in form and substance reasonably
satisfactory to Riverwood. Plum Creek shall cause any Person that merges or
consolidates with or into Plum Creek, or that acquires all or substantially all
of the assets of Plum Creek, so to assume all liabilities and obligations of
Plum Creek under this Agreement. No such assignment or assumption pursuant to
the two preceding sentences shall in any way affect the liabilities or
obligations of Plum Creek under this Agreement, and in the event of any such
assignment or assumption, Plum Creek shall remain fully liable for its
liabilities and obligations under this Agreement. Any purported assignment or
transfer of this Agreement in violation of this Section 8.2 shall be void and of
no force or effect.
Section 8.3 ASSIGNMENT BY RIVERWOOD. Except as provided in this
Section 8.3, this Agreement may not be assigned by Riverwood in whole or in
part. Notwithstanding the foregoing, at any time during the Term, Riverwood 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 Riverwood or
any affiliate thereof with such lender or lenders, or (B) upon prior written
notice to Plum Creek, to any Person (X) that is and at all times remains an
affiliate of Riverwood controlled by Riverwood, or that merges or consolidates
with or into Riverwood, or that acquires all or substantially all of the assets
of Riverwood or the West Monroe Facility, and (Y) that assumes all liabilities
and obligations of Riverwood under this Agreement pursuant to an instrument in
form and substance reasonably satisfactory to Plum Creek. Riverwood shall cause
any Person that merges or consolidates with or into Riverwood, or that acquires
all or substantially all of the assets of Riverwood or the West Monroe Facility,
so to assume all liabilities and obligations of Riverwood under this Agreement.
No such assignment or assumption pursuant to the two preceding sentences shall
in any way affect the liabilities or obligations of Riverwood under this
Agreement, and in the event of any such assignment or assumption, Riverwood
shall remain fully liable for its liabilities and obligations under this
Agreement. Any purported assignment or transfer of this Agreement in violation
of this Section 8.3 shall be void and of no force or effect.
Section 8.4 NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing or by electronic means producing a
written record (facsimile machine, telex, telecopier or telegraph),
32
personally-delivered or mailed by registered or certified United States mail,
return receipt requested, first-class postage prepaid, or by nationally-
recognized overnight courier, effective upon delivery, or one (1) day after
mailing if by overnight courier, or three (3) days after mailing if by United
States mail, addressed as follows:
If to Riverwood: Riverwood International Corporation
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Telecopy No. (000) 000-0000
Attention: Xx. Xxxxx XxXxxxxx
with a copy to: Riverwood International Corporation
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Telecopy No. (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
with a copy to: Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No. (000) 000-0000
Attention: Xxxxx Xxxxxxxxxx, Esq.
and prior to Closing provide a copy to:
Riverwood International Corporation
0000 Xxxxxxxxx Xxxx
Xxxx Xxxxxx, Xxxxxxxxx 00000
Telecopy No. (000) 000-0000
Attention: Mr. C. Xxxxxx Xxxxx
If to Plum Creek: Plum Creek Timber Company, L.P.
000-00xx Xxxxxx X.
X.X. Xxx 0000
Xxxxxxxx Xxxxx, Xxxxxxx 00000
Telecopy No. (000) 000-0000
Attention: Xxxxxxx Xxxxxxx/
Xxxxxxx Xxxxxxxx
with a copy to: Plum Creek Timber Company, L.P.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Telecopy No. (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
33
with a copy to: Cairncross & Hempelmann, P.S.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Telecopy No. (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Any party may change its address or the addressee specified for notices by
designating a new address or addressee by notice in accordance with this Section
8.4.
Section 8.5 AMENDMENT; WAIVER. No amendment, modification or
discharge of 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 8.6 ENTIRE AGREEMENT. This instrument, together with the
Asset Purchase Agreement, 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 8.7 SOVEREIGN LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Louisiana, without
reference to the conflicts of laws or choice of law provisions thereof, except
to the extent that the laws of the State of Arkansas or the State of Texas may
govern the rights of the parties with respect to real estate located therein.
Notwithstanding the foregoing, any arbitration pursuant to Section 2.4, 6.4(d)
or 6.6 shall be governed by the Federal Arbitration Act, 9 U.S.C. Section 1 ET
SEQ. and any determination in any such arbitration shall be an arbitration award
enforceable in accordance with such Act.
Section 8.8 BINDING AGREEMENT. Subject to the limitations of Sections
8.2 and 8.3, this Agreement shall bind and inure to the benefit of the parties
and their
34
respective successors and assigns, and to the benefit of each Person entitled to
indemnification under Section 4.6 or 4.8.
Section 8.9 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 8.10 COUNTERPARTS; RECORDATION. 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. For
purposes of recording this Agreement in the counties and parishes where the
Timberlands are located, (A) a complete copy of this Agreement and the
Description of the Owned Timberlands and the Description of the Timberland
Leases attached hereto will be recorded in Union Parish, Louisiana and (B)
counterparts of this Agreement recorded in other counties and parishes may
contain only Descriptions of the Owned Timberlands and Descriptions of the
Timberland Leases located in said county or parish; provided that the foregoing
shall not be construed to limit or otherwise affect the rights and obligations
of the parties under Section 6.9.
Section 8.11 ANNEXES AND EXHIBITS. All annexes and exhibits to this
Agreement referenced herein are incorporated herein by reference.
Section 8.12 SEVERABILITY, ETC. (a) 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 enforceable. Subject to the foregoing provisions of this Section 8.12,
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.
35
(b) The parties acknowledge and agree that (I) the rights granted to
Riverwood under Article VI are granted in connection with a contract that gives
rise to obligations of continuous or periodic performance, and are granted only
for so long a period as required for the performance of those obligations, and
(II) the ten year limitation provided for in Article 2628 of the Civil Code of
the State of Louisiana shall not apply to the rights granted to Riverwood under
Article VI.
(c) If, under applicable law at any time, any right granted to
Riverwood under any provision of Article VI would (absent the provisions of this
Section 8.12(c)) be void or unenforceable (under the so-called "Rule against
Perpetuities" or any comparable rule of law, statute or constitutional
provision) by reason of the fact that, under the other terms and conditions of
this Agreement, such right will continue in effect beyond, or might be exercised
at a time after the expiration of, a fixed period of years in excess of 21 years
(or such other number of years as may be prescribed by such rule of law, statute
or constitutional provision) after the date hereof, then, notwithstanding any
other provision of this Agreement to the contrary, such right shall not continue
in effect beyond, and may not be exercised at any time after, the earlier of (X)
the date that is 21 years after the date of death of the last to survive of the
descendants of Xxxxxx X. Xxxxxxx who are living on the date hereof and (Y) such
earlier date after which such right cannot in any lawful manner whatsoever be
validly continued in effect or exercised. The foregoing provisions of this
Section 8.12(c) relating to rights of Riverwood are not intended to extend the
duration of any such right, but are intended to impose a limit on the duration
thereof, or time within which any such right may be exercised, to the extent
(and only to the extent) necessary to avoid such right being held void or
unenforceable.
36
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of 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:
00
XXXXX XX
---------------------
XXXXXX (XXXXXX) XX
-----------
Xx this _____ day of ___________, 1996, before me, the undersigned
authority in and for the above stated jurisdiction, personally appeared
__________________, the __________________ of PLUM CREEK MANAGEMENT COMPANY,
L.P., a Delaware limited partnership, which is the general partner of PLUM CREEK
TIMBER COMPANY, L.P., a Delaware limited partnership, to me personally known,
who, after being by me duly sworn, declared that he executed the above and
foregoing instrument for and on behalf of PLUM CREEK MANAGEMENT COMPANY, L.P.,
as the general partner of PLUM CREEK TIMBER COMPANY, L.P., for the purposes,
intents and consideration therein contained, as the free act and deed of each
said limited partnership.
In Witness Whereof, I have hereunto signed this acknowledgment with the
said appearer and the two undersigned competent witnesses at
_______________________, on the date set forth above, after reading of the
whole.
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management
WITNESSES: Company, L.P.,
its General Partner
By:
----------------------- -----------------------
APPEARER
----------------------- -----------------------
Notary Public
Printed Name:
----------------
My Commission Expires:
-------
00
XXXXX XX
---------------------
XXXXXX (XXXXXX) XX
-----------
Xx this _____ day of ___________, 1996, before me, the undersigned
authority in and for the above stated jurisdiction, personally appeared
__________________, the __________________ of RIVERWOOD INTERNATIONAL
CORPORATION, a Delaware corporation, to me personally known, who, after being by
me duly sworn, declared that he executed the above and foregoing instrument for
and on behalf of RIVERWOOD INTERNATIONAL CORPORATION, for the purposes, intents
and consideration therein contained, as the free act and deed of said
corporation.
In Witness Whereof, I have hereunto signed this acknowledgment with the
said appearer and the two undersigned competent witnesses at
_______________________, on the date set forth above, after reading of the
whole.
WITNESSES: RIVERWOOD INTERNATIONAL
CORPORATION
By:
----------------------- -----------------------
APPEARER
----------------------- -----------------------
Notary Public
Printed Name:
----------------
My Commission Expires:
-------
39
Omitted Annexes to the Wood Products Supply
Agreement, dated as of October 18, 1996,
between Plum Creek Timber Company, L.P. and
Riverwood International Corporation
-----------------------------------
Annex A Quantity
Annex B Pine and Hardwood Quality Specifications
Annex C Chip Quality Specifications
Annex D Chip Sampling and Testing Procedures
Annex E Pulpwood Deduct Codes and Penalties
Annex F Definitions
In lieu of filing these annexes to the Wood Products Supply Agreement,
the Registrant agrees to furnish supplementally a copy of any such omitted annex
to the Securities and Exchange Commission upon request.
