Exhibit 2.2
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT is made as of December 21, 2004, by
and among Boise Land & Timber Corp., a Delaware corporation ("BL&T"), Boise
Cascade, L.L.C., a Delaware limited liability company ("BC", and collectively
with the BL&T, the "SELLERS"), Xxxxxxxxxx Investments LLC, a Delaware limited
liability company (the "PURCHASER"), solely for purposes of SECTION 1D of this
Agreement, Forest Products Holdings, L.L.C., a Delaware limited liability
company ("FPH"), and, solely for purposes of Section 8H of this Agreement,
Forest Capital Partners, LLC ("FCP").
WHEREAS, BL&T owns all of the outstanding equity interests of each of
the limited liability companies listed on SECTION 1.1 of the Seller Disclosure
Letter (the "TARGET COMPANIES");
WHEREAS, the Target Companies own, lease or have timber rights over
certain real property for the purpose of growing and harvesting timber, as more
specifically set forth on Section 1.2 of the Seller Disclosure Letter (the
"TIMBERLANDS PROPERTIES"); and
WHEREAS, the Purchaser desires to purchase, and the Sellers desire to
sell, (i) the Timberlands Properties through the acquisition of all of the
issued and outstanding equity interests of the Target Companies (the "TARGET
COMPANIES EQUITY INTERESTS") and (ii) the other Timberlands Assets used in the
Timberlands Business (the "ADDITIONAL TIMBERLANDS ASSETS").
NOW, THEREFORE, in consideration of the promises and the mutual
representations, warranties and covenants herein contained, and intending to be
legally bound, the parties hereto hereby agree as follows:
ARTICLE 1
PURCHASE AND SALE
1A. PURCHASE AND SALE OF THE TARGET COMPANIES EQUITY INTERESTS AND
CERTAIN TIMBERLANDS ASSETS. On the terms and conditions set forth in this
Agreement, at the Closing (as defined below) and upon payment of the Purchase
Price by the Purchaser in accordance with SECTION 1B hereof, the Purchaser shall
purchase and accept from the Sellers or their Subsidiaries, and the Sellers
shall, or shall cause their Subsidiaries to, sell, (i) all of the issued and
outstanding Target Companies Equity Interests and (ii) the Additional
Timberlands Assets.
1B. PAYMENT OF PURCHASE PRICE. At the Closing, the Purchaser agrees
to pay to the Sellers, by wire transfer of immediately available funds to an
account designated by the Sellers at least one business day prior to the Closing
Date, an amount in cash equal to the Purchase Price.
1C. THE CLOSING. The closing of the purchase and sale of the Target
Companies Equity Interests and the Additional Timberlands Assets in exchange for
the Purchase Price (the "CLOSING") shall occur at the offices of Xxxxxxxx &
Xxxxx LLP, 000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, at 9:00 a.m. on the
second business day following satisfaction or waiver of each of the conditions
to Closing specified in Article II hereof, other than conditions to Closing
which by their terms require performance at the Closing. The date and time of
the
Closing are herein referred to as the "CLOSING DATE." At the Closing, (i) the
Purchaser shall deliver to the Sellers the Purchase Price in accordance with
SECTION 1B, (ii) the Sellers shall deliver the certificates representing the
Target Companies Equity Interests, duly endorsed in blank or otherwise together
with a transfer power executed in favor of the Purchaser, and (iii) the Sellers
shall deliver to the Purchaser, and the Purchaser shall counter-execute, special
or limited warranty deeds, bills of sale, assignment and assumption agreements
and other instruments executed by the Sellers or their Subsidiaries (including
the Target Companies) necessary for the transfer of the Additional Timberlands
Assets to the Purchaser, in each case in form and substance reasonably
satisfactory to the parties.
1D. ASSIGNMENT OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
Effective as of the Closing, FPH, on behalf of itself and its Subsidiaries
(other than the Target Companies), does hereby assign to the Purchaser, to the
fullest extent permitted under the Original Agreement, all of its rights
(including in respect of representations, warranties, covenants and
indemnification agreements) under the Original Agreement to the extent (but only
to the extent) relating to the Timberlands (as defined in the Original
Agreement) and the Timberlands Business (as defined in the Original Agreement).
After the date hereof and prior to Closing, Sellers and FPH shall use
commercially reasonable efforts to obtain from the Forest Products Sellers a
letter acknowledgment in substantially the form attached hereto as EXHIBIT 1D
(the "OMX ACKNOWLEDGMENT"). The Purchaser agrees on behalf of itself, the Target
Companies, its Affiliates and their respective successors and assigns that in
the event that any such Person has a claim with respect to the transactions
contemplated hereby for which the Purchaser or such Person also has a claim
against any of the Forest Products Sellers pursuant to the Original Agreement,
the Purchaser shall pursue remedies directly and exclusively against the Forest
Products Sellers. For the avoidance of doubt, the assignment contemplated by the
immediately foregoing sentence shall be effective only upon the consummation of
the Closing and in the event that this Agreement is terminated for any reason
prior the Closing, no assignment hereunder shall be deemed to have been made.
ARTICLE 2
CONDITIONS TO CLOSING
2A. CONDITIONS TO ALL PARTIES' OBLIGATIONS. The obligation of each
of the Sellers and the Purchaser to consummate the Closing is subject to the
satisfaction of the following conditions as of immediately prior to the Closing:
(i) No temporary restraining order or injunction or other order of
any court, administrative agency or other Governmental Authority of
competent jurisdiction shall be in effect as of the Closing which restrains
or prohibits the consummation of the purchase and sale of the Target
Companies Equity Interests and the Additional Timberlands Assets to the
Purchaser;
(ii) All waiting period requirements shall have expired or been
terminated under the HSR Act (the "HSR APPROVAL"); and
(iii) This Agreement shall not have been terminated in accordance
with SECTION 6A.
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Any condition specified in this SECTION 2A may be waived prior to Closing only
by a written instrument signed by the Sellers and the Purchaser.
2B. CONDITIONS TO THE PURCHASER'S OBLIGATIONS. The obligation of
the Purchaser to consummate the Closing is subject to the satisfaction of each
of the following additional conditions as of immediately prior to the Closing:
(i) The representations and warranties of the Sellers made in
ARTICLE 4 hereof (other than the representations and warranties in SECTION
4E(vi) hereof to the extent relating to the period between the date of this
Agreement and the Closing Date) shall be true and correct in all material
respects (except for such representations and warranties that are qualified
by their terms by a reference to materiality, which representations and
warranties as so qualified, shall be true and correct in all respects) on
and as of the Closing Date, as though made on and as of the Closing Date,
except for representations and warranties that speak as of a specific date
or time (which need only be true and correct as of such date or time), and
the Sellers shall have performed or complied with all obligations and
covenants required by this Agreement to be performed or complied with by
the Sellers by the time of the Closing; and the Sellers shall have
delivered to the Purchaser a certificate in the form of EXHIBIT 2B(i)
attached hereto dated the Closing Date and signed by a senior executive
officer of each of the Sellers on behalf of the Sellers confirming the
foregoing;
(ii) BC and/or one or more of its Subsidiaries (as designated by BC)
shall have executed and delivered to the Purchaser each of the supply
agreements referenced in EXHIBIT 2B(ii) attached hereto (the "SUPPLY
AGREEMENTS"), and each of the Supply Agreements shall be in full force and
effect;
(iii) [intentionally omitted];
(iv) All guarantees to which any of the Target Companies is party
under the Senior Credit Facility, the Indenture or otherwise shall be
released effective as of the Closing (including by operation of the terms
of any such guarantee), all Liens on the Target Companies Equity Interests
shall have been released effective as of the Closing, and all Liens (other
than Permitted Encumbrances) on the Timberlands Assets owned by the Target
Companies being transferred hereunder and the Additional Timberlands Assets
shall have been released effective as of the Closing; PROVIDED that, if the
Asset Purchase Option is elected, it shall not be a condition that the
guarantees of Boise Louisiana Land & Timber, L.L.C. under the Senior Credit
Facility and the Indenture be released (with it being understood that, from
and after the date that the sublessor elects to acquire or BL&T elects to
sell, Boise Louisiana Land & Timber, L.L.C. to the sublessor or its
designee, in accordance with the La Bokay Sublease, the Sellers shall cause
that such guarantees under the Senior Credit Facility and the Indenture be
released);
(v) The other parties to the Material Contracts listed on SECTION
2B(v) of the Seller Disclosure Letter shall have consented to the
assignment of such Material Contracts to the Purchaser or the Target
Companies;
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(vi) Each of the Sellers shall have delivered a duly executed
affidavit of non-foreign status under Section 1445 of the Code;
(vii) Sellers shall have delivered to the Purchaser the original
minute books and equity transfer records of each of the Target Companies
being transferred hereunder;
(viii) Since the date of this Agreement, there shall not have
occurred any damage, destruction or casualty loss ("CASUALTY LOSSES") in
excess of $32,000,000 with respect to the Timberlands Properties that is
not covered by insurance; PROVIDED that if the Purchaser hereunder
determines that the conditions set forth in this SECTION 2B(viii) have not
been satisfied, at least two (2) business days prior to terminating this
Agreement, the Purchaser shall give written notice of such fact to the
Sellers and the Purchaser may not terminate this Agreement (and the
conditions set forth in this SECTION 2B(viii) shall be deemed satisfied),
if, prior to 11:59 p.m. on the second business day after receipt of such
notice, the Sellers agree to reduce the Purchase Price in an aggregate
amount equal to the amount by which the Casualty Losses arising since the
date of this Agreement exceeds $32,000,000; PROVIDED further that for
purposes of this SECTION 2B(viii), (A) in determining the amount of
Casualty Losses, the Timberlands Properties and the Timberlands Inventories
shall be valued on a basis consistent with the valuation methodology used
by the parties in determining the Purchase Price hereunder and (B) in no
event shall Purchaser be obligated to consummate the Closing if such
Casualty Losses arising since the date of this Agreement exceed
$100,000,000 in the aggregate;
(ix) Purchaser shall have received from the Title Company (and
Sellers shall provide the Title Company such affidavits or other
instruments as the Title Company may reasonably require to issue) ALTA
Owner's Title Insurance Policies, 1992 Form (which may be in the form of a
xxxx-up or a pro forma of the Title Commitments, signed by the Title
Company), with gap coverage through the Closing Date and extended coverage
over each of the general exceptions (other than the survey exceptions),
subject only to Permitted Encumbrances, in the amount of the Purchase
Price, in accordance with the Title Commitments, insuring the fee simple
title of the Target Companies to each of the Owned Timberlands Properties
or the leasehold interest of the Target Companies in each of the Leased
Timberlands Properties (as the case may be), as of the Closing Date,
together with a copy of all documentary exceptions referenced therein and
the following endorsements to the extent available in the applicable
jurisdiction: "Fairway" endorsements, modified "Comprehensive"
endorsements, tax lot, "tie-in" and non-imputation endorsements (the Title
Commitments, together with the foregoing endorsements, being referred to
herein as the "TITLE POLICIES");
(x) Sellers (or Affiliates thereof, as applicable) shall have
executed an agreement providing for an easement in favor of the applicable
Target Company, its Affiliates, successors and assigns over roads on
property owned by Sellers (or Affiliates thereof, as applicable) on terms
reasonably satisfactory to Purchaser and Sellers. The easement shall
provide that the grantee thereunder shall (i) promptly repair, in a good
and workmanlike and lien-free manner, any damage to the easement area
caused by the actions or omissions of the grantee, its agents, contractors,
employees or representatives, and (ii) indemnify and hold harmless the
grantor for all losses, costs, expenses or claims
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(including reasonable attorneys' fees) suffered or incurred by the grantor
and which arise in any manner from the actions or omissions of the grantee,
its agents, contractors, employees or representatives in connection with
the exercise of the grantee's rights thereunder;
(xi) Purchaser shall have received from FPH and the Sellers, that
certain indemnification side letter substantially in the form of EXHIBIT
2B(xi) attached hereto (the "INDEMNIFICATION SIDE LETTER"); and
(xii) Purchaser shall have received from the Sellers good standing
certificates for each of the Target Companies from the Secretary of State
for the State of Delaware.
Any condition specified in this SECTION 2B may be waived prior to
Closing only by a written instrument signed by the Purchaser.
2C. CONDITIONS TO THE SELLERS' OBLIGATIONS. The obligation of the
Sellers to consummate the Closing is subject to the satisfaction of each of the
following additional conditions as of immediately prior to the Closing:
(i) The representations and warranties of the Purchaser made in
this Agreement shall be true and correct in all material respects (except
for such representations and warranties that are qualified by their terms
by a reference to materiality, which representations and warranties as so
qualified shall be true and correct in all respects) as of the date hereof
and on and as of the Closing Date, as though made on and as of the Closing
Date, except for representations and warranties that speak as of a specific
date or time (which need only be true and correct in all material respects
as of such date or time), and the Purchaser shall have performed or
complied in all material respects with the obligations and covenants
required by this Agreement to be performed or complied with by the
Purchaser by the time of the Closing; and the Purchaser shall have
delivered to the Sellers a certificate in the form of EXHIBIT 2C(i)
attached hereto dated the Closing Date and signed by a senior executive
officer of each of the Purchaser confirming the foregoing;
(ii) Monarch Timber LLC and the purchaser or owner of each of the
Timberlands Properties shall have executed and delivered to BC and/or one
or more of its Subsidiaries (as designated by BC) each of the Supply
Agreements and each of the Supply Agreements shall be in full force and
effect;
(iii) [intentionally omitted];
(iv) FPH and the Sellers shall have received from the Purchaser and
each Purchaser Designated Entity an executed counterpart of the
Indemnification Side Letter; and
(v) The appropriate Target Company shall have executed an agreement
providing for an easement in favor of the applicable Sellers (or an
Affiliate, if applicable), its successors and assigns over roads on
property owned by the applicable Target Company or its Affiliates, on terms
reasonably acceptable to Purchaser and
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Sellers. The easement shall provide that the grantee thereunder shall (i)
promptly repair, in a good and workmanlike and lien-free manner, any damage
to the easement area caused by the actions or omissions of the grantee, its
agents, contractors, employees or representatives, and (ii) indemnify and
hold harmless the grantor for all losses, costs, expenses or claims
(including reasonable attorneys' fees) suffered or incurred by the grantor
and which arise in any manner from the actions or omissions of the grantee,
its agents, contractors, employees or representatives in connection with
the exercise of the grantee's rights thereunder.
Any condition specified in this SECTION 2C may be waived prior to Closing only
by a written instrument signed by the Sellers.
2D. WAIVER OF CONDITION. All conditions to the Closing shall be
deemed to have been satisfied or waived as of immediately after the Closing.
ARTICLE 3
COVENANTS PRIOR TO THE CLOSING
3A. ACCESS. During the period from the date of this Agreement to
the Closing, the Sellers shall grant to the Purchaser or cause to be granted to
the Purchaser and its financing sources and their authorized Representatives
reasonable access, during normal business hours and upon reasonable notice, to
the personnel, properties, books and records of the Sellers, their Subsidiaries
and the Target Companies relating to the Timberlands Assets (including the
Additional Timberlands Assets); PROVIDED THAT such access does not unreasonably
interfere with the normal operations of the Sellers or their Affiliates;
PROVIDED FURTHER that all requests for access shall be directed to individuals
as the Sellers may designate in writing from time to time; and PROVIDED FURTHER
that no Purchaser is authorized to, and no Purchaser shall (and no Purchaser
shall permit any of its employees, Representatives or Affiliates to) contact any
officer, director, employee, supplier, distributor or other material business
relation of the Sellers or any of their Affiliates in connection with or that
makes any reference to the transactions contemplated hereby prior to the Closing
without the prior written consent of the Sellers. The Purchaser shall, and shall
cause its Affiliates, financing sources and Representatives to, abide by the
terms of the Confidentiality Agreement with respect to such access and any
information furnished to it or its representatives pursuant to this SECTION 3A.
Notwithstanding anything herein to the contrary, neither the Purchaser nor any
of its Affiliates, financing sources or Representatives shall be permitted to
perform any invasive testing of any of the Timberlands Properties without
specific additional authorization from the Sellers or to perform any testing
which would cause a breach of any lease agreement to which any of the Target
Companies is a party.
3B. ORDINARY CONDUCT OF TARGET COMPANIES. During the period from
the date hereof to the Closing, except as set forth on SECTION 3B of the Seller
Disclosure Letter, or as otherwise consented to by the Purchaser in writing
(which consent shall not be unreasonably withheld) or as otherwise contemplated
by this Agreement, the Sellers shall cause each of the Target Companies to:
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(i) operate its business in all material respects in the Ordinary
Course of Business (including with respect to maintenance of roads and
drainage systems, and fire protection and prevention);
(ii) not enter into or amend any Material Contract or any Material
Lease Agreement;
(iii) not amend its Certificate of Formation or Limited Liability
Company Agreement;
(iv) comply in all material respects with the Harvest Plan with
respect to the disturbance, cutting or removal of any timber, pulpwood or
trees from the Timberlands Properties;
(v) not sell, lease, sublease, mortgage, pledge or otherwise
encumber or dispose of any material portion of the Timberlands Assets
(including the Additional Timberlands Assets);
(vi) not enter into commitments for capital expenditures in excess
of $3,000,000 in the aggregate that cannot be terminated and not incur any
indebtedness for borrowed money (other than indebtedness for borrowed money
under the Senior Credit Facility and the Indenture in respect of which the
Target Companies are being released at Closing);
(vii) not acquire (by merger, exchange, consolidation, acquisition of
stock or assets or otherwise) any Person or division or material assets
thereof;
(viii) not issue or sell any membership interests in any of the
Target Companies or any options, warrants or other rights to purchase any
such membership interests or any securities convertible into or
exchangeable for such membership interests;
(ix) not pay any dividend or make any distribution, or redeem or
exchange any membership interests, except as contemplated pursuant to
SECTION 3C of this Agreement; or
(x) not enter into any agreement regarding the foregoing.
3C. DISTRIBUTION OF CASH AND OTHER ASSETS. Notwithstanding any
other provision to the contrary contained in this Article III or elsewhere in
this Agreement, on and prior to the Closing Date, the Sellers and its Affiliates
shall be entitled to receive from the Target Companies by way of dividends,
distributions, return of capital or otherwise all Retained Assets owned or held
by or for the benefit of any of the Target Companies prior to and as of the
Closing. The Purchaser acknowledges that all such Retained Assets are the
exclusive property of the Sellers and their Affiliates. To the extent any
Retained Asset is not paid or distributed to the Sellers or its Affiliates and,
after the Closing, any amount is paid to or received by the Purchaser or any of
the Target Companies in respect of such Retained Asset, the Purchaser shall, or
shall cause the Target Companies to, pay to the Sellers or their designees the
amount so received.
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3D. CANCELLATION OF INTERCOMPANY ACCOUNTS AND SERVICES. Except as
contemplated by SECTION 3J, from and after the Closing, all services (including
cash management and treasury, accounting, tax, insurance, environmental,
banking, legal, data network and other services) provided to the Target
Companies by the Sellers or any of their Affiliates, including any agreements or
understandings (written or oral) with respect thereto, will terminate without
any further action or liability on the part of the parties thereto and
intercompany accounts from the Sellers or any of their Affiliates to any of the
Target Companies shall be terminated without liability to the Seller or such
Affiliates.
3E. EXCLUSIVE TRANSACTION. In consideration of the substantial
expenditures of time, effort and expense to be undertaken by the Purchaser in
connection with its due diligence review and the preparation and negotiation of
this Agreement with the Sellers, the Sellers agree that from the date of this
Agreement and until the earlier of the Closing Date and the date that this
Agreement is terminated in accordance with its terms, the Sellers shall not (and
will cause the Target Companies and each of their officers, directors, employees
and agents not to) solicit or enter into any discussions or negotiations with,
or furnish or cause to be furnished any information concerning the Target
Companies to, any person (other than Purchaser and its officers, directors,
employees and agents) in connection with any proposed acquisition of the Target
Companies or the Timberlands Assets, whether by merger, purchase of the equity
interests, sale of all or substantially all of the assets or other acquisition
or business combination involving Sellers or the Target Companies or the
Timberlands Assets (such transaction, an "ALTERNATIVE TRANSACTION"). If Seller,
any of the Target Companies, or any of their officers, directors, employees or
agents receive any bona fide proposal for an Alternative Transaction, then the
Sellers will (and will cause the Target Companies and their officers, directors,
employees and agents to) promptly notify Purchaser of such and of any material
developments that occur thereafter.
3F. INTER-COMPANY OBLIGATIONS. Prior to Closing, and except with
respect to the Supply Agreements, any other agreement contemplated hereby or as
set forth on SECTION 3F of the Seller Disclosure Letter, Sellers shall, and
shall cause the Target Companies to, cause all inter-company indebtedness,
liabilities and other obligations owed by any of the Target Companies to Sellers
or its Affiliates or by Sellers or its Affiliates to any of the Target
Companies, to be eliminated, without liability (including Tax liability) to the
Target Companies, so that at Closing there will be no inter-company
indebtedness, liabilities, or other obligations between Sellers or its
Affiliates on the one hand and any of the Target Companies on the other hand.
3G. ENVIRONMENTAL MATTERS. Purchaser acknowledges that Seller has
heretofore delivered to Purchaser the Environmental Assessments and the Phase I
Reports. Prior to the Closing, Seller will deliver reliance letters from URS in
favor of the Target Companies and Purchaser, and shall use commercially
reasonable efforts to obtain URS's cooperation in answering questions and, at
Purchaser's sole cost and expense, doing additional work if needed. Purchaser
shall accept the property with no additional rights of "carve-out" or objection
on account of environmental issues arising prior to the Acquisition Date;
PROVIDED, HOWEVER, that if prior to Closing, in the event that a recognized
environmental condition ("REC") is identified to have occurred solely after the
Acquisition Date and such REC (i) was not previously identified in the
Environmental Assessments or the Phase I Reports (whether as a REC or other
potential
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environmental liability), (ii) is not subject to the indemnity provided for by
Forest Products Sellers pursuant to the Original Agreement, and (iii) would
reasonably be expected to result in liabilities under environmental laws greater
than $5,000,000, then the Purchaser may, without adjustment to the Purchase
Price, elect to delete the minimum area affected by such REC from the
Timberlands Properties being transferred hereunder, and such affected area shall
be retained by Sellers and shall be part of the Retained Assets.
3H. ACCESS TO FINANCING SOURCES. From time to time, at the request
of the Sellers, Purchaser shall provide updates to Sellers on the status of the
financing contemplated by the Commitment Letters. Upon the request of, and after
reasonable advance notice from, the Sellers, Purchaser shall use commercially
reasonable efforts to provide the Sellers with reasonable access to the
providers of such financing (as set forth in the Commitment Xxxxxxx).
0X. CERTAIN MATTERS RELATED TO LA BOKAY LEASE.
(i) Notwithstanding anything herein to the contrary, during the
30-day period from and after the date of this Agreement (the "CONSENT
PERIOD"), the Purchaser shall be entitled to contact La Bokay Corporation
to seek consent from, or agreement of, La Bokay Corporation that the
transfer of the Target Companies Equity Interests of Boise Louisiana Land &
Timber, L.L.C. does not cause a breach or default under the La Bokay Lease
as such consent or agreement may be obtained on terms satisfactory to the
Purchaser in its sole and absolute discretion (the "LA BOKAY CONSENT"). To
the extent that prior to the expiration of the Consent Period, the
Purchaser receives the La Bokay Consent from La Bokay Corporation, the
transactions contemplated hereby shall proceed without amendment to the
terms of this Agreement (including, for the avoidance of doubt, no
reduction in the Purchase Price). The Purchaser shall deliver notice to the
Sellers promptly, but in any event within two business days, after the La
Bokay Consent has been received by the Purchaser.
(ii) If, prior to the expiration of the Consent Period, the Purchaser
determines that it will not receive the La Bokay Consent, or upon
expiration of the Consent Period, the Purchaser has not obtained the La
Bokay Consent, the Purchaser shall promptly, but in any event not later
than the second business day after expiration of the Consent Period,
deliver written notice (the "ELECTION NOTICE") to the Sellers that either
(A) the Purchaser is electing to acquire the Timberlands Assets of Boise
Louisiana Land & Timber, L.L.C. indirectly through the acquisition of the
Target Companies Equity Interests of Boise Louisiana Land & Timber, L.L.C.
(clause (A), the "EQUITY PURCHASE OPTION") or (B) the Purchaser (or an
Affiliate) is electing to (x) enter into a sublease agreement with Boise
Louisiana Land & Timber, L.L.C. with respect to the La Bokay Lease
containing the material terms set forth on the term sheet attached hereto
as EXHIBIT 3I(ii) and otherwise in form and substance reasonably
satisfactory to the Purchaser and the Sellers (together with a separate
assignment related to the Natural Resources Agreement, the "LA BOKAY
SUBLEASE") and (y) otherwise acquire the Owned Timberlands Properties,
Leased Timberlands Properties and other Timberlands Assets of Boise
Louisiana Land & Timber, L.L.C. through the acquisition of Boise Louisiana
Land & Timber, L.L.C.'s ownership and leasehold interest in the Owned
Timberlands Properties, Leased
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Timberlands Properties and other Timberlands Assets of Boise Louisiana Land
& Timber, L.L.C. (clause (B), the "ASSET PURCHASE OPTION").
(iii) If the Purchaser elects the Equity Purchase Option, the
transactions contemplated hereby shall proceed without amendment to the
terms of this Agreement (including, for the avoidance of doubt, no
reduction in the Purchase Price); PROVIDED that, if the Equity Purchase
Option is elected, the Purchaser may require in the Election Notice that,
as a condition to Closing, the Purchaser has received from the Title
Company a special endorsement to the Title Policies with respect to the La
Bokay Lease in the form of EXHIBIT 3I(iii) attached hereto (the "LA BOKAY
ENDORSEMENT"). If the Purchaser elects the Asset Purchase Option,
notwithstanding anything herein to the contrary, there shall be no
amendment to the terms of this Agreement (including, for the avoidance of
doubt, no reduction in the Purchase Price); PROVIDED that if the Asset
Purchase Option has been elected by the Purchaser, (I) at Closing, Seller
shall cause Boise Louisiana Land & Timber, L.L.C. to transfer all of its
Owned Timberlands Properties, all of its Leased Timberlands Properties
(other than Timberlands Properties subject to the La Bokay Lease), and all
other Timberlands Assets (other than the La Bokay Lease) of Boise Louisiana
Land & Timber, L.L.C. to Purchaser (or an Affiliate) by appropriate limited
warranty instruments of transfer and assignment and assumption agreements
in form and substance reasonably satisfactory to the Purchaser and the
Sellers, subject only to the Permitted Encumbrances, (II) BL&T shall not
transfer the Target Companies Equity Interests of Boise Louisiana Land &
Timber, L.L.C. to Purchaser at Closing, (III) the Purchaser and the Sellers
shall, in the period prior to Closing, negotiate in good faith the terms of
the La Bokay Sublease, and (IV) as a condition to Purchaser's obligations
at Closing, Boise Louisiana Land & Timber, L.L.C. shall execute and deliver
to the Purchaser (or an Affiliate) the La Bokay Sublease as agreed to by
the parties; PROVIDED further that, subject to compliance by the Sellers
with clause (III) foregoing, if all conditions to the obligations of
Purchaser are satisfied (other than conditions which by their terms are to
be satisfied at the Closing), and the parties have not agreed to the terms
of the La Bokay Sublease, the Closing shall nonetheless occur as though the
Equity Purchase Option was elected by the Purchaser (including, for the
avoidance of doubt, no reduction in the Purchase Price) and the Election
Notice with respect thereto required delivery of the La Bokay Endorsement
to the Purchaser at Closing. Sellers hereby acknowledge and agree that in
no event shall the rights of the Purchaser under this Agreement (or any
Affiliate which takes title to the assets of Boise Louisiana Land & Timber,
L.L.C. hereunder and/or enters into the La Bokay Sublease) be diminished as
a result of Purchaser having elected the Asset Purchase Option and not the
Equity Purchase Option.
3J. TRANSITION SERVICES. Prior to the Closing, the Sellers and
Purchaser shall negotiate in good faith to enter into an agreement pursuant to
which the Sellers will provide, and will cause their Affiliates to provide, to
the Target Companies and Purchaser, to the extent agreed upon by the parties and
for a period not to exceed six months following the Closing, services (including
the provision of office space, log accounting, information services, data
management and other services) provided to the Target Companies by the Seller
and its Affiliates prior to Closing. Purchaser or the Target Companies, as the
case may be, shall pay Seller for such services at such prices and upon such
terms and conditions as the parties may
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agree. Sellers shall not have any liability to the Purchaser or the Target
Companies with respect to any such services provided, except as may result from
the willful misconduct of Sellers.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
As an inducement to the Purchaser to enter into this Agreement, the
Sellers hereby represent and warrant that except as set forth in the Seller
Disclosure Letter:
4A. ORGANIZATION AND POWER.
(i) Each of the Target Companies is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State of Delaware and is qualified to do business as a foreign limited
liability company and is in good standing in each jurisdiction in which
such qualification is required to permit them to own their respective
assets and to conduct their business as it is currently being conducted,
each of which such jurisdictions is listed on SECTION 4A of the Seller
Disclosure Letter, except where the failure to be so qualified or be in
good standing would not result in material liability to the Target
Companies. Each of the Target Companies was formed for the purpose of, or
in connection with, the acquisition of the Timberlands Properties and
certain other assets from the Forest Products Sellers. The Target Companies
have all limited liability company power and authority necessary to own and
operate their properties and to carry on their businesses as now conducted.
(ii) BL&T is a corporation organized, validly existing and in good
standing under the laws of the State of Delaware and is qualified to do
business as a foreign corporation and is in good standing in each
jurisdiction in which the failure to so qualify would result in a material
liability to BL&T. BL&T has all corporate power and authority necessary to
enter into this Agreement and consummate the transactions contemplated
hereby.
(iii) BC is a limited liability company organized, validly existing
and in good standing under the laws of the State of Delaware and is
qualified to do business as a foreign limited liability and is in good
standing in each jurisdiction in which the failure to so qualify would
result in a material liability to BC. BC has all limited liability company
power and authority necessary to enter into this Agreement and consummate
the transactions contemplated hereby.
4B. TARGET COMPANIES EQUITY INTERESTS. All of the Target Companies
Equity Interests have been duly authorized and are validly issued and are owned
by BL&T free and clear of any Liens, except for Liens arising pursuant to the
Senior Credit Facility or the Indenture, restrictions on transfer under
applicable securities laws and other Liens set forth on SECTION 4B of the Seller
Disclosure Letter and are not subject to or issued in violation of any
preemptive right, right of first refusal or similar restriction. SECTION 4B of
the Seller Disclosure Letter sets forth, for each of the Target Companies, the
issued and outstanding equity securities of each such Target Company. There are
no rights, subscriptions, warrants, put or call rights or
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options to purchase or otherwise acquire any equity interests of any of the
Target Companies or securities or obligations of any kind convertible into or
exchangeable for any equity interests of any of the Target Companies.
4C. SUBSIDIARIES. None of the Target Companies owns or holds the
right to acquire any shares of stock or any other security or interest in any
other Person.
4D. AUTHORIZATION; NO BREACH. >>This Agreement has been duly
executed and delivered by each of the Sellers, and constitutes a valid and
binding obligation of the Sellers, enforceable in accordance with its terms,
except as limited by the application of bankruptcy, moratorium and other laws
affecting creditors' rights generally and as limited by the availability of
specific performance and the application of equitable principles. Except as set
forth on SECTION 4D of the Seller Disclosure Letter, assuming receipt of the HSR
Approval, the execution and delivery of this Agreement by the Sellers do not,
and the consummation of the transactions contemplated hereby will not, (i)
result in any material breach of any of the provisions of, (ii) conflict with or
constitute a material default under, (iii) give any third party the right to
terminate under, (iv) result in the creation of any Lien upon any of the Target
Companies Equity Interests or result in the creation of any Lien (other than
Permitted Encumbrances) upon any assets of the Target Companies under, or (v)
except as has been obtained or as contemplated in this Agreement, require any
authorization, consent, approval, exemption or other action by or notice to any
court, other Governmental Authority or (in respect of Material Contracts or
Material Lease Agreements) any other Person party thereto under (a) the
provisions of the Certificate of Formation or Limited Liability Company
Agreement of any of the Target Companies, (b) the provisions of the Certificate
of Incorporation or Bylaws of BL&T, (c) the provisions of the Certificate of
Formation or Limited Liability Company Agreement of BC, (d) any judgment, order
or decree to which either Seller or any of the Target Companies is subject, (e)
any law, statute, rule or regulation, to which either Seller or any of the
Target Companies is subject, or (f) any Material Contract or Material Lease
Agreement to which any of the Target Companies is subject, except in the cases
of clauses (d), (e) and (f) foregoing, as would not materially impair the
ability of the Sellers to consummate the transactions contemplated hereby or as
do not have a material adverse effect on the Timberlands Business, taken as a
whole.
4E. ABSENCE OF CERTAIN DEVELOPMENTS. Except as set forth in
SECTION 4E of the Seller Disclosure Letter or as otherwise contemplated by this
Agreement, since the Acquisition Date, the Target Companies have operated the
Timberlands Business in the Ordinary Course of Business and none of the Target
Companies has:
(i) issued or sold any of its membership interests or equity
securities, securities convertible into its membership interests or equity
securities or warrants, options or other rights to acquire its membership
interests or equity securities;
(ii) mortgaged, pledged or subjected to any Lien any portion of the
Timberlands Assets (including the Additional Timberlands Assets), except
Permitted Encumbrances;
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(iii) sold, assigned or transferred any material portion of the
Timberlands Properties or other Timberlands Assets (including the
Additional Timberlands Assets), except in the Ordinary Course of Business;
(iv) disturbed, cut or removed any timber, pulpwood or trees from
the Timberlands Properties, except in a manner that is consistent in all
material respects with the Harvest Plan;
(v) failed to comply in all material respects with any law, rule,
regulation or Governmental Authorization to which the Timberlands
Properties are subject, except where failures to comply do not have a
material adverse effect on the Timberlands Business acquired hereunder;
(vi) suffered any material Casualty Loss with respect to property
owned by any of the Target Companies that is not covered by insurance; or
(vii) taken any other action or failed to take any action which, if
taken or failed to be taken after the date of this Agreement and prior to
Closing, would require the consent of Purchaser pursuant to SECTION 3B.
4F. TIMBERLANDS PROPERTIES.
(i) SECTION 4F(i) of the Seller Disclosure Letter sets forth a
true, correct and complete list of marked title commitments as of the
Acquisition Date received by the Target Companies from the Title Company
with respect to the Timberlands Properties pursuant to the Original
Agreement (the "TITLE COMMITMENTS"). The Sellers have made available to the
Purchaser accurate copies of the Title Commitments. The Target Companies
have good title (fee simple, leasehold or timber rights) to the Timberlands
Properties, subject only to the Permitted Encumbrances.
(ii) SECTION 4F(ii) of the Seller Disclosure Letter sets forth a
list of (A) environmental site assessments prepared in accordance with a
modified version of ASTM 1528-00 for the Timberlands Properties (the
"ENVIRONMENTAL ASSESSMENTS") and (B) environmental site assessments which,
when taken together with the Environmental Assessments, were prepared in
accordance with ASTM E 2247-02 Standard Practice for Environmental Site
Assessments (E 2247-02): Phase I Environmental Site Assessment (ESA)
Process for Forestland or Rural Property (the "PHASE I REPORTS"). The
Sellers have made available to the Purchaser accurate copies of the
Environmental Assessments and the Phase I Reports.
(iii) SECTION 4F(iii) of the Seller Disclosure Letter sets forth an
accurate list of (A) each Material Contract and (B) each lease agreement
for the Leased Timberlands Properties (each, a "MATERIAL LEASE AGREEMENT").
To the knowledge of the Sellers, since the Acquisition Date, none of the
Target Companies is in default of its obligations under any such Material
Contract or any such Material Lease Agreement; PROVIDED that this
representation and warranty shall not be deemed to include any
representation or warranty regarding any default that arises or is deemed
to arise from execution, delivery or performance of this Agreement or
consummation of the transactions contemplated
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hereby. None of the Target Companies has received written notice from any
lessor under any Material Lease Agreement or from any counterparty to a
Material Contract that such Target Company is in default thereunder, except
defaults that have been fully cured within any applicable cure period since
the date of receipt of such written notice. To the knowledge of Sellers, no
lessor under any Material Lease Agreement and no counterparty to any
Material Contract is in default under such Material Lease Agreement or
Material Contract.
(iv) Except for Permitted Encumbrances or except as set forth on
SECTION 4F(iv) of the Seller Disclosure Letter, the Sellers or a Subsidiary
of one of the Sellers (including the Target Companies) owns, free and clear
of all Liens, or has a contract, license or lease to use, all of the
Timberlands Assets being transferred hereunder (either directly or
indirectly through the sale of the Target Companies Equity Interests);
PROVIDED that in no event shall the representation and warranty set forth
in this SECTION 4F(iv) apply or be deemed to apply to the Timberlands
Properties.
4G. LIABILITIES AT THE ACQUISITION DATE. Prior to the Acquisition
Date, the Target Companies did not have any liabilities or obligations and, on
the Acquisition Date, the Target Companies did not assume any liabilities or
obligations, in each case other than (i) liabilities (including environmental
liabilities and defects in title, including as disclosed in the Environmental
Assessments, the Phase I Reports, the Title Commitments and/or the Title
Policies) and obligations that arise from ownership of or operation of the
Timberlands Properties, the other Timberlands Assets and/or the Timberlands
Business, (ii) liabilities and obligations pursuant to contracts that were
assigned to the Target Companies pursuant to the Original Agreement and
instruments of transfer executed in connection therewith, (iii) liabilities and
obligations in respect of indebtedness issued under or governed by the Senior
Credit Facility or Indenture (which liabilities will be released in full at or
prior to Closing), (iv) liabilities (including environmental liabilities and
defects in title, including as disclosed in the Environmental Assessments, the
Phase I Reports, the Title Commitments and/or the Title Policies) and
obligations for which the Forest Products Sellers have agreed in the Original
Agreement, subject to the limitations specified in the Original Agreement, to
provide indemnification or be responsible for, (v) liabilities and obligations
for which the Sellers have agreed to be responsible pursuant to this Agreement,
(vi) liabilities and obligations disclosed in any section of the Seller
Disclosure Letter, and (vii) other liabilities (including environmental
liabilities and defects in title, including as disclosed in the Environmental
Assessments, the Phase I Reports, the Title Commitments and/or the Title
Policies) and obligations that individually or in the aggregate have not
resulted in a material adverse effect on the Timberlands Business acquired
hereunder, taken as a whole. Except for environmental liabilities and defects in
title (including as disclosed in the Environmental Assessments, the Phase I
Reports, the Title Commitments and/or the Title Policies) and matters disclosed
pursuant to SECTIONS 4J, 4L, 4N and 4O hereof or pursuant to which any of clause
(ii) through (vii) of this SECTION 4G apply, to the knowledge of Seller, the
material liabilities and obligations of the Target Companies referenced in
clause (i) of the preceding sentence are identified on SECTION 4G of the Seller
Disclosure Letter. To the knowledge of Sellers, the liabilities and obligations
referenced in clause (ii) of this SECTION 4G do not include any material
liabilities or obligations for breach of or default under any such contract
arising prior to the date of assignment.
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4H. LIABILITIES SINCE THE ACQUISITION DATE. Solely since October
30, 2004, the Target Companies have not first incurred or become subject to any
liabilities (including in respect of debt for borrowed money) or obligations
other than (i) liabilities (including environmental liabilities and defects in
title, including as set forth in the Environmental Assessments, the Phase I
Reports, the Title Commitments and/or the Title Policies) and obligations
arising from, related to or incurred in connection with any state of facts or
conditions or transactions (or series of facts, conditions or transactions)
related to the Timberlands Business (as defined in the Original Agreement) that
existed on or before the Acquisition Date, (ii) liabilities and obligations
incurred in the Ordinary Course of Business, (iii) liabilities and obligations
pursuant to contracts entered into by the Target Companies in the Ordinary
Course of Business or pursuant to which the Target Companies assumed obligations
in connection with the transactions contemplated by the Original Agreement, (iv)
liabilities and obligations in respect of indebtedness issued under or governed
by the Senior Credit Facility or Indenture (which liabilities and obligations
will be released in full at or prior to Closing), (v) liabilities (including
environmental liabilities and defects in title, including as disclosed in the
Environmental Assessments, the Phase I Reports, the Title Commitments and/or the
Title Policies) and obligations for which the Forest Products Sellers have
agreed in the Original Agreement, subject to the limitations specified in the
Original Agreement, to provide indemnification or be responsible for, (vi)
liabilities and obligations for which the Sellers have agreed to be responsible
pursuant to this Agreement, (vii) liabilities and obligations disclosed in any
section of the Seller Disclosure Letter, and (viii) other liabilities (including
environmental liabilities and defects in title, including as set forth in the
Environmental Assessments, the Phase I Reports, the Title Commitments and the
Title Policies) and obligations that individually or in the aggregate would not
result in a material adverse effect on the Timberlands Business acquired
hereunder, taken as whole. Except for environmental liabilities and defects in
title (including as disclosed in the Environmental Assessments, the Phase I
Reports, the Title Commitments and/or the Title Policies) and matters disclosed
pursuant to SECTIONS 4J, 4L, 4N and 4O hereof or pursuant to which any of clause
(iii) through (viii) of this SECTION 4H apply, to the knowledge of Seller, the
material liabilities and obligations of the Target Companies referenced in
clauses (i) and (ii) of the preceding sentence are identified on SECTION 4H of
the Seller Disclosure Letter. To the knowledge of Sellers, the liabilities and
obligations referenced in clause (iii) of this SECTION 4H do not include any
material liabilities or obligations for breach of or default under any such
contract arising prior to the date of this Agreement or the Closing Date.
4I. TRANSACTION DOCUMENTS. Attached as SECTION 4I of the Seller
Disclosure Letter is an accurate copy of the Original Agreement; PROVIDED that
the Sellers have redacted therefrom exhibits and portions of the disclosure
schedules referred to therein that, in Sellers' reasonable judgment, do not
reasonably relate to the Timberlands Properties or the Timberlands Business or
rights of any indemnified party thereunder in respect of the Timberlands
Properties or the Timberlands Business being transferred hereunder. The redacted
portions of the Original Agreement referenced in the preceding sentence do not
contain any provision under or with which the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby would (i)
constitute a material breach of, (ii) conflict with or constitute a material
default under, (iii) give any Forest Product Seller the right to terminate, or
(iv) grant any Forest Product Seller the right to consent to the transactions
contemplated hereby under, any provision of the Original Agreement.
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4J. ERISA. The Target Companies do not maintain or contribute to,
nor have they in the preceding five years maintained or contributed to, any
bonus, deferred compensation, severance pay, pension, profit-sharing,
retirement, insurance, stock purchase, stock option, or other fringe benefit
plan, arrangement or practice, written or otherwise, or any other "employee
benefit plan," as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, whether formal or informal (collectively, "PLANS"). Except
as set forth in Article 8 hereof, the Target Companies have no agreement or
commitment to create any Plan, enter into any additional employment agreement,
or to modify or change any existing Plan or employment agreement. Except as set
forth in Article 8 hereof, the Target Companies do not now and never have had
any employees and have no obligation to hire anyone.
4K. NON-FOREIGN PERSON. Neither Seller is a "foreign person"
within the meaning of Section 1445 of the Internal Revenue Code of 1986, as
amended.
4L. CERTAIN TAX MATTERS. For United States federal and any state
and local income tax purposes, each Target Company has been classified as a
disregarded entity for all periods since formation of such Target Company
through the Closing Date and no Target Company has elected to be taxed as an
association taxable as a corporation under Section 7701 of the Code and the
regulations promulgated thereunder.
4M. AFFILIATE TRANSACTIONS. None of the Target Companies is party
to any contract, agreement or obligation with the Sellers or the Sellers'
Affiliates, other than contracts, agreements or obligations which will (except
as referred to in SECTION 3F of this Agreement) be terminated at or prior to the
Closing in accordance with SECTION 3F of this Agreement.
4N. LITIGATION AFFECTING TRANSACTION. Except as set forth on
SECTION 4N of the Seller Disclosure Letter, there are no material actions,
suits, proceedings or orders pending or, to the Sellers' knowledge, threatened
against the Sellers at law or in equity, or before or by any federal, state,
municipal or other governmental department, court, commission, board, bureau,
agency or instrumentality, domestic or foreign that would materially impair the
Sellers' ability to consummate the sale of the Timberlands Assets (including the
Additional Timberlands Assets) on the terms herein described on or prior to the
Termination Date. To the knowledge of Sellers, no action, suit, proceeding or
order disclosed on SECTION 4N of the Seller Disclosure Letter, if decided
adversely to Sellers, would have a material adverse effect on the Timberlands
Business or that portion of the Timberlands Assets (including the Additional
Timberlands Assets) which is the subject of such action, suit, proceeding or
order.
4O. LITIGATION AFFECTING TIMBERLANDS ASSETS. Except as set forth on
SECTION 4O of the Seller Disclosure Letter, there are no material actions,
suits, proceedings or orders pending or, to the Sellers' knowledge, threatened
against the Sellers at law or in equity, or before or by any federal, state,
municipal or other governmental department, court, commission, board, bureau,
agency or instrumentality, domestic or foreign that affect the Timberlands
Assets. To the knowledge of Sellers, no action, suit, proceeding or order
disclosed on SECTION 4O of the Seller Disclosure Letter, if decided adversely to
Sellers, would have a material adverse effect on the Timberlands Business or
that portion of the Timberlands Assets (including the Additional Timberlands
Assets) which is the subject of such action, suit, proceeding or order.
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4P. BROKERAGE. Except for the fees and expenses of Xxxxxxx Xxxxx &
Co. (which will be borne by Sellers), there are no claims for brokerage
commissions, finders fees, expenses or similar compensation in connection with
the transactions contemplated by this Agreement based on any arrangement or
agreement made by or on behalf of the Sellers or any of their Affiliates.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
As an inducement to the Sellers to enter into this Agreement, the
Purchaser hereby represents and warrants that:
5A. ORGANIZATION AND CORPORATE POWER. The Purchaser is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Delaware and is qualified to do business as a foreign
limited liability company and is in good standing in each jurisdiction in which
the failure to so qualify would have a material adverse effect upon the
financial condition or operating results of the Purchaser and its Subsidiaries
taken as a whole. The Purchaser and its Subsidiaries have all requisite limited
liability company power and authority necessary to own and operate their
properties and to carry on their businesses as now conducted and to enter into
this Agreement and consummate the transactions contemplated hereby. The copies
of the Purchaser's constitutive documents which have been made available to the
Sellers reflect all amendments made thereto at any time prior to the date of
this Agreement.
5B. AUTHORIZATION; NO BREACH. This Agreement has been duly
executed and delivered by the Purchaser and constitutes the valid and binding
obligation of the Purchaser, enforceable in accordance with its terms, except as
limited by the application of bankruptcy, moratorium and other laws affecting
creditors' rights generally and as limited by the availability of specific
performance and the application of equitable principles. Assuming receipt of the
consents set forth on SCHEDULE 5B attached hereto, the execution and delivery of
this Agreement by the Purchaser do not (i) result in any material breach of any
of the provisions of, (ii) conflict with or constitute a material default under,
(iii) give any third party the right to terminate, (iv) result in the creation
of any lien, security interest, charge or encumbrance upon any of the shares of
capital stock or any assets of the Purchaser or (v) require any authorization,
consent, approval, exemption or other action by or notice to any court or other
Governmental Authority or other Person, except as has been obtained or as
contemplated in this Agreement, under the provisions of the certificate of
incorporation or bylaws of the Purchaser, any material contract to which the
Purchaser is party, any judgment, order or decree, or any law, statute, rule or
regulation to which the Purchaser is subject.
5C. LITIGATION. Except as set forth on SCHEDULE 5C attached hereto,
there are no material actions, suits, proceedings or orders pending or, to the
Purchaser's knowledge, threatened against the Purchaser at law or in equity, or
before or by any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign that
could materially impair the Purchaser's ability to consummate the acquisition of
the Timberlands Properties on the terms herein described on or prior to the
Termination Date.
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5D. BROKERAGE. There are no claims for brokerage commissions,
finders fees, expenses or similar compensation in connection with the
transactions contemplated by this Agreement based on any arrangement or
agreement made by or on behalf of the Purchaser.
5E. FINANCING. In connection with the execution and delivery of
this Agreement, the Purchaser has delivered to the Sellers commitment letters in
favor of the Purchaser with respect to the transactions contemplated hereby
(collectively, the "COMMITMENT LETTERS"). The aggregate proceeds of the
financing as contemplated by the Commitment Letters (if and when received) will
be sufficient to pay all obligations of the Purchaser hereunder (including fees
and expenses). The obligations to fund the commitment under the Commitment
Letters are not subject to any condition, other than the conditions set forth in
the Commitment Letters. The Commitment Letters have been duly executed by the
Purchaser and, to the knowledge of Purchaser, each other Person party thereto,
and each such Commitment Letter is in full force and effect. There are no fees,
expense reimbursement obligations or other amounts that are required to be paid
by the Purchaser prior to Closing under or in respect of the Commitment Letters.
Nothing in this SECTION 5E shall be construed to suggest that Purchaser's
obligations are subject to any financing condition (it being agreed by the
Purchaser that there is no financing condition to its obligations hereunder).
5F. ACQUISITION FOR INVESTMENT. The Target Companies Equity
Interests acquired by the Purchaser pursuant to this Agreement are being
acquired for investment only and not with a view to any public distribution
thereof, and the Purchaser will not offer to sell or otherwise dispose of the
Target Companies Equity Interests so acquired by it in violation of any of the
registration requirements of the Securities Act, or any comparable state law.
The Purchaser is an "accredited investor" within the meaning of Regulation D
promulgated pursuant to the Securities Act.
ARTICLE 6
TERMINATION
6A. TERMINATION. Anything contained herein to the contrary
notwithstanding, this Agreement may be terminated and the transactions
contemplated hereby abandoned at any time:
(i) by the mutual written consent of the Purchaser and the Sellers;
(ii) by the Purchaser, if there has been a material violation or
breach by any of the Sellers of any covenant, representation or warranty
contained in this Agreement which has prevented the satisfaction of any
condition to the obligations of the Purchaser at the Closing and such
violation or breach has not been waived by the Purchaser or cured by the
Sellers within ten days after written notice thereof from the Purchaser;
(iii) by the Sellers, if there has been a material violation or breach
by the Purchaser of any covenant, representation or warranty contained in
this Agreement which has prevented the satisfaction of any condition to the
obligations of the Sellers at the Closing and such violation or breach has
not been waived by the Sellers or, in the case of a covenant breach, cured
by the Purchaser within ten days after written notice thereof by
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the Sellers (PROVIDED THAT neither a breach by the Purchaser of SECTION 5E
hereof nor the failure to deliver the Purchase Price at the Closing as
required hereunder shall be subject to cure hereunder unless otherwise
agreed to in writing by the Sellers); or
(iv) by the Purchaser or the Sellers if the transactions contemplated
hereby have not been consummated prior to February 7, 2005 (the
"TERMINATION DATE"); PROVIDED THAT (a) the Purchaser shall not be entitled
to terminate this Agreement pursuant to this subparagraph (iv) if the
Purchaser shall have breached SECTION 5E hereof or if the Purchaser's
breach of this Agreement or delay in taking action to cause the
consummation of the transactions contemplated hereby has prevented the
consummation of the transactions contemplated hereby and (b) the Sellers
shall not be entitled to terminate this Agreement pursuant to this
subparagraph (iv) if the Sellers' breach of this Agreement or delay in
taking action to cause the consummation of the transactions contemplated
hereby has prevented the consummation of the transactions contemplated
hereby.
6B. EFFECT OF TERMINATION. In the event of any termination of this
Agreement by the Purchaser or the Sellers as provided above, the Purchaser and
the Sellers shall retain all rights and remedies arising under law or contract
in respect of any breach arising prior to such termination. In the event of a
termination of this Agreement for any reason, this Agreement shall forthwith
become void and of no further force or effect (other than this SECTION 6B,
SECTION 8C (Confidentiality), SECTION 8M (Expenses; Transfer Taxes) and ARTICLE
10 (Miscellaneous), which shall survive the termination of this Agreement and
shall be enforceable by the parties hereto).
ARTICLE 7
DEFINITIONS
"ACQUISITION DATE" means October 29, 2004.
"AFFILIATE" means any Person that directly, or indirectly through one
or more intermediaries, controls or is controlled by or is under common control
with the party specified. For these purposes, control 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 contract or otherwise. In no event shall any Forest Product
Seller be deemed an Affiliate of any Seller.
"ALLOCATION" shall have the meaning set forth in SECTION 8L(i).
"ALTERNATIVE ARRANGEMENT" shall have the meaning set forth in SECTION
9F(i).
"ALTERNATIVE TRANSACTION" shall have the meaning set forth in SECTION
3E.
"ANCILLARY AGREEMENTS" shall mean the Supply Agreements, the
Indemnification Side Letters and each other agreement executed by, between, on
behalf or at the direction of the parties hereto in connection with the
transactions contemplated thereby.
"ASSET PURCHASE OPTION" shall have the meaning set forth in SECTION
3I(ii).
"BUSINESS EMPLOYEES" shall have the meaning set forth in SECTION 8H.
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"CASUALTY LOSSES" shall have the meaning set forth in SECTION
2B(viii).
"CLOSING" shall have the meaning set forth in SECTION 1C.
"CLOSING DATE" shall have the meaning set forth in SECTION 1C.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMITMENT LETTERS" shall have the meaning set forth in SECTION 5E.
"CONFIDENTIALITY AGREEMENT" shall have the meaning set forth in
SECTION 8C.
"CONSENT PERIOD" shall have the meaning set forth in SECTION 3I(i).
"ELECTION NOTICE" shall have the meaning set forth in SECTION 3I(ii).
"ENVIRONMENTAL ASSESSMENTS" has the meaning set forth in SECTION
4F(ii).
"EQUITY PURCHASE OPTION" shall have the meaning set forth in SECTION
3I(ii).
"FCP" shall have the meaning given to such term in the preamble.
"FOREST PRODUCTS SELLERS" means, collectively, OfficeMax, Inc.
(formerly Boise Cascade Corporation), Minidoka Paper Company, and Boise Southern
Company.
"FPH" shall have the meaning given to such term in the preamble.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state,
province or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, including any government authority, agency,
department, board, commission or instrumentality of the United States, any state
of the United States or any political subdivision thereof.
"GOVERNMENTAL AUTHORIZATIONS" means all licenses, permits, franchises,
certificates of occupancy, other certificates and other authorizations and
approvals required to carry on the business as currently conducted under the
applicable laws, ordinances or regulations of any Governmental Authority.
"HARVEST PLANS" means the actual and projected timber harvest plans
attached hereto as EXHIBIT 7A attached hereto.
"HSR ACT" shall have the meaning given to such term in SECTION 8G.
"HSR APPROVAL" shall have the meaning given to such term in SECTION
2A.
"INDEMNIFICATION SIDE LETTER" shall have the meaning set forth in
SECTION 2B(xi).
"INDEMNIFIED PARTY" shall have the meaning set forth in SECTION 9E(i).
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"INDEMNIFYING PARTY" shall have the meaning set forth in SECTION
9E(i).
"INDENTURE" means that certain Indenture, dated October 29, 2004, by
and among BC, Boise Cascade Finance Corporation, the guarantors party thereto
and U.S. Bank National Association, as the same may be amended, modified,
supplemented or waived from time to time.
The term "KNOWLEDGE," when used in the phrase "TO THE KNOWLEDGE OF THE
SELLERS" or similar phrases means, and shall be limited to, the actual knowledge
of the Senior Executive Employees.
"LA BOKAY ASSIGNMENT CONSENT" means that certain Consent to Assignment
and Assumption of Lease, dated as of October 29, 2004, by and among Boise
Southern Company, La Bokay Corporation and Boise Louisiana Land & Timber, L.L.C.
"LA BOKAY CONSENT" shall have the meaning set forth in SECTION 3I(i).
"LA BOKAY ENDORSEMENT" shall have the meaning set forth in SECTION
3I(iii).
"LA BOKAY LEASE" means, collectively, (i) that certain Lease dated as
of September 1, 1976, by and between Boise Southern Company and La Bokay
Corporation, as amended by the Amendment to Lease, dated July 6, 1982, by and
between La Bokay Corporation and Boise Southern Company and the Second Amendment
to Lease, dated August 5, 1985, by and between La Bokay Corporation and Boise
Southern Company, (ii) that certain Natural Resources Agreement, dated September
1, 1976, by and between Boise Southern Company and La Bokay Corporation, as
amended by the Amendment to Natural Resources Agreement, dated as of October 5,
1988, by and between La Bokay Corporation and Boise Southern Company (the
"NATURAL RESOURCES AGREEMENT"), and (iii) that certain Guarantee, dated
September 1, 1976, from OfficeMax, Inc. (formerly Boise Cascade Corporation) to
La Bokay Corporation, as amended, modified, supplemented or waived by (A) the La
Bokay Assignment Consent, (B) those certain Assignments and Assumptions of
Lease, dated October 29, 2004, by and between Boise Southern Company and Boise
Louisiana Land & Timber, L.L.C. and (C) that certain Amended and Restated
Commercial Guarantee and Reconfirmation, dated as of October 29, 2004 made by
Office Max, Inc. (formerly Boise Cascade Corporation) to La Bokay Corporation.
"LA BOKAY SUBLEASE" shall have the meaning set forth in SECTION
3I(ii).
"LEASED TIMBERLANDS PROPERTIES" means all leasehold or subleasehold
estates and other rights to use or occupy any Timberlands Properties.
"LIEN" means any mortgage, pledge, lien, encumbrance, charge or other
security interest.
"LOSSES" means losses, liabilities, damages or expenses (including
reasonable legal fees).
"MATERIAL CONTRACT" means (i) any contract, agreement or other
commitment that requires payment by the Target Companies in the aggregate of
more than $1,500,000 in the aggregate in any twelve-month period that cannot be
terminated by the Target Companies on 90
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days' or less prior written notice without further liability or obligation
(other than for prior breach thereof) and (ii) the Original Agreement.
"MATERIAL LEASE AGREEMENTS" shall have the meaning set forth in
SECTION 4F(iii).
"NATURAL RESOURCES AGREEMENT" shall have the meaning set forth in
clause (ii) of the definition of La Bokay Lease.
"OMX ACKNOWLEDGMENT" shall have the meaning set forth in SECTION 1D.
"ORDINARY COURSE OF BUSINESS" means the ordinary course of conduct of
the Timberlands Business, operated on a basis consistent with its operation
prior to the date hereof by the Sellers and their predecessors.
"ORIGINAL AGREEMENT" means certain Asset Purchase Agreement, dated as
of July 26, 2004, by and among the Forest Products Sellers, FPH and BL&T, as
amended by (i) that certain First Amendment to Asset Purchase Agreement, dated
as of October 23, 2004, by and between OfficeMax, Inc. (formerly Boise Cascade
Corporation) and FPH, and (ii) that certain Second Amendment to Asset Purchase
Agreement, dated as of October 29, 2004, by and between OfficeMax, Inc.
(formerly Boise Cascade Corporation) and FPH, as the same may be further
amended, modified, supplemented or waived from time to time.
"OWNED TIMBERLANDS PROPERTIES" means all Timberlands Properties owned
by the Target Companies.
"PERMITTED ENCUMBRANCES" means (i) any restriction on transfer arising
under applicable law, (ii) liens for Taxes (which are not related to income,
sales, or withholding Taxes), assessments and other governmental charges not yet
due and payable or due but not delinquent as of the Closing Date or being
contested in good faith by appropriate proceedings, (ii) mechanic's, workmen's,
repairmen's, warehousemen's, carriers, or other like Liens arising or incurred
in the Ordinary Course of Business for amounts which are not delinquent and
which will not individually or in the aggregate materially impair the operation
of the Timberlands Assets, original purchase price conditional sales contracts
and equipment leases with third parties entered into in the Ordinary Course of
Business, (iii) Liens of landlords and licensors with respect to the property
leased or licensed, (iv) Liens under the Senior Credit Facility or the Indenture
(all of which will be released at or prior to the Closing), (v) with respect to
the Timberlands Properties, (A) easements, quasi-easements, licenses, covenants,
rights-of-way, and other agreements, conditions, restrictions or other matters
(but not including any other type of Liens) shown in the Title Commitments, (B)
easements, quasi-easements, licenses, covenants, rights-of-way and other similar
restrictions, including any other agreements, conditions, restrictions, or other
matters (but not including any other type of Liens) which would be shown by a
current title report or other similar report or listing, (C) any conditions that
may be shown by a current survey, title report or physical inspection, and (D)
zoning, building and other similar restrictions, none of which Encumbrances in
(B) through (D) materially impairs the uses of the Timberlands Properties as
currently used in the Timberlands Business or materially detracts from the value
thereof as currently used in the Timberlands Business, and (vi) with respect to
the Timberlands Assets, such encroachments, boundary line disputes, access
restrictions or absence
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of access, and adverse possession claims which are common to commercial
timberlands and will not individually or in the aggregate materially impair the
operation of the Timberlands Assets or materially detract from the value of the
Timberlands Assets. Notwithstanding any of the foregoing to the contrary, in no
event shall the term "Permitted Encumbrances" include any encumbrance or other
matter which (x) materially and adversely affects the encumbered portion of the
Timberland Properties for the growing and harvesting of timber and (y) is first
revealed in any "date down" amendatory endorsement from the Title Company to be
received by the Purchaser in connection with the Closing hereunder.
"PERSON" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision thereof.
"PHASE I REPORTS" shall have the meaning set forth in SECTION 4F(ii).
"PLANS" shall have the meaning set forth in SECTION 4J.
"PROPERTY TAXES" means all Taxes imposed on the Timberlands Properties
and ad valorem Taxes.
"PURCHASE PRICE" means $1,650,000,000.
"PURCHASER" shall have the meaning set forth in the preamble.
"PURCHASER DIRECTED ENTITIES" shall have the meaning set forth in
SECTION 10C hereof.
"REC" shall have the meaning set forth in SECTION 3G hereof.
"REPRESENTATION" shall have the meaning set forth in SECTION 9F(vii)
hereof.
"REPRESENTATIVES" means, for any Person, each of such Person's
representatives, consultants, contractors, attorneys, advisors, investment
bankers, accountants and agents.
"RETAINED ASSETS" means all assets of the Target Companies or any of
its Affiliates, whether tangible or intangible, real or personal, including
cash, receivables, inventory, prepaid assets, property, plant and equipment, and
including all liabilities or obligations associated therewith, but excluding the
Timberlands Assets. Without limiting the generality of the foregoing, all of the
personal property listed on EXHIBIT 7B attached hereto shall be "Retained
Assets" for all purposes of this Agreement.
"ROLLBACK TAXES" shall have the meaning given to such term in SECTION
8L(ii).
"SEC" shall have the meaning given to such term in SECTION 8B.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SELLERS" shall have the meaning set forth in the Preamble.
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"SELLER DISCLOSURE LETTER" means the disclosure letter provided by the
Sellers and made a part of this Agreement.
"SELLER GROUP" shall have the meaning given to such term in SECTION
8J.
"SELLER IMPROVEMENTS" shall have the meaning given to such term in the
definition of Timberlands Improvements.
"SENIOR CREDIT FACILITY" means that certain Credit Agreement, dated as
of October 29, 2004, by and among Boise Cascade Holdings, L.L.C., BC, Boise Land
& Timber Holdings Corp., BL&T, the lenders party thereto and JPMorgan Chase
Bank, as the same may be amended, modified, supplemented or waived from time to
time.
"SENIOR EXECUTIVE EMPLOYEES" means each of Xxxx X. Xxxxxxxx, Xxxxxx
Xxxxxxx, and Xxxxx New.
"SPECIFIC REPRESENTATION" shall have the meaning set forth in SECTION
9F(vii).
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, association or other business entity of which (i) if a corporation,
a majority of the total voting power of shares of stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof, or (ii) if a partnership, association or other
business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a partnership, association or other business entity if
such Person or Persons shall be allocated a majority of partnership, association
or other business entity gains or losses. In no event, shall any joint venture
of which a Person has an interest be deemed a Subsidiary hereunder.
"SUPPLY AGREEMENTS" has the meaning given to such term in SECTION
2B(ii) hereof.
"TARGET COMPANIES" shall have the meaning given to such term in the
preamble hereto.
"TARGET COMPANIES EQUITY INTERESTS" shall have the meaning given to
such term in the preamble hereto.
"TAX" or "TAXES" means any federal, state, local or foreign income,
gross receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, property or windfall profits taxes, environmental taxes,
customs duties, franchise, employees' income withholding, foreign or domestic
withholding, social security, unemployment, disability, real property, personal
property, sales, use, transfer, value added, alternative or add-on minimum or
other tax, fee, assessment or charge of any kind whatsoever including any
interest, penalties or additions to Tax or additional amounts in respect of the
foregoing.
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"TAX RETURN" means any Tax return, payment voucher, declaration,
report, claim for refund, or information return or statement.
"TERMINATION DATE" shall have the meaning set forth in SECTION 6A(iv).
"THIRD-PARTY CLAIM" shall have the meaning set forth in SECTION 9E(i).
"TIMBERLANDS ASSETS" means, collectively, the Timberlands Properties,
the Timberlands Inventories, the Timberlands Operating Contracts, the
Timberlands Personal Property and the Timberlands Improvements.
"TIMBERLANDS BUSINESS" means the growing and harvesting of timber
conducted with respect to the Timberlands Properties, whether by Sellers, the
Target Companies, or the Forest Products Sellers.
"TIMBERLANDS IMPROVEMENTS" means all mineral rights (if any),
buildings, roads, bridges and other improvements of the Target Companies located
on the Timberlands Properties as of the Closing Date and all forestry field
offices, sorting yards, and other improvements of the Target Companies located
on the Timberlands Properties as of the Closing Date; PROVIDED that to the
extent that any assets of the Sellers and their Subsidiaries (other than the
Target Companies) would be included as "Timberlands Improvements" but for the
fact that such assets are assets of the Sellers and their Subsidiaries (rather
than the Target Companies), the parties shall negotiate in good faith as to
whether such assets (the "SELLERS IMPROVEMENTS") shall be included as
Timberlands Improvements included as Timberlands Assets hereunder and, to the
extent the parties so agree, a side letter shall be executed and delivered
between the parties to reflect that such assets of the Sellers and their
Subsidiaries are "Timberlands Improvements" within the meaning of this
Agreement; PROVIDED further that the parties shall negotiate in good faith any
sub-leases or other arrangements for Timberlands Improvements or Seller
Improvements that either party reasonably requests in order to operate the
Timberlands Business (in the case of Purchaser) or the Sellers' business (in the
case of Sellers) after the Closing.
"TIMBERLANDS INVENTORIES" means all timber inventory of the Target
Companies located on the Timberlands Properties as of the Closing Date, whether
standing or cut.
"TIMBERLANDS OPERATING CONTRACTS" means all the contracts, contract
rights, water rights, leases, servitudes, permits, licenses, forest practice
permits and pending or draft applications therefore, notifications, approvals,
and authorizations of Governmental Authorities, access easements, and reciprocal
road use rights where interactive roads exist, of the Target Companies
exclusively relating to the Timberlands Properties.
"TIMBERLANDS PERSONAL PROPERTY" means (i) copies of each of the
following: (A) books, maps, aerial photographs, surveys, deeds, title policies,
environmental reports, unapproved permit applications, plans (including mining
and reclamation plans), drawings, co-specifications, renderings, engineering
studies, electronic timber inventory and other electronic data, in each case
solely to the extent such personal property primarily relates to the Timberlands
Business as conducted on the Closing Date, (B) data base software program and
mapping software programs that can operate independent of Sellers' mainframe and
that Sellers are
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permitted to license to Purchaser without consent of any other party, and (C)
timber management and operations data and records, road maintenance and
abandonment plans, wildlife survey results, biological studies, wildlife and
fisheries reports, aerial spraying records, fertilization records, growth and
yield data, grading and drainage studies, soil stability studies, disease/insect
reports, cruise materials and other similar records and materials (including all
spatial and tabular GIS data), exclusively related to the Timberlands Business
as conducted on the Closing Date, (ii) furniture, property, plant and equipment
located in offices on the Timberlands Properties exclusively related to the
Timberlands Business as conducted on the Closing Date, and (iii) other personal
property of the Sellers and their Subsidiaries (including vehicles and other
rolling stock) exclusively related to the Timberlands Business as conducted on
the Closing Date; PROVIDED that, prior to Closing, Sellers may identify in
writing to Purchaser any Timberlands Personal Properties that Sellers have in
good faith determined will be needed for performance of Sellers' obligations
under the Supply Agreements after the Closing and the Timberlands Personal
Properties so identified will, with the written consent of Purchaser (not to be
unreasonably withheld), be Retained Assets hereunder.
"TIMBERLANDS PROPERTIES" has the meaning given to such term in the
preamble hereto.
"TITLE COMMITMENTS" shall have the meaning set forth in SECTION 4F(i).
"TITLE COMPANY" shall mean First American Title Insurance Company.
"TITLE POLICIES" has the meaning given to such term in SECTION 2B(ix).
"TRANSFER TAXES" means all fees, sales (including, without limitation,
bulk sales), use, transfer, gains, stamp, duties, value-added, recording fees
and Taxes and similar fees and Taxes.
"TRANSFERRED EMPLOYEES" has the meaning given to such term in SECTION
8H.
"TREAS. REG." means the Treasury Regulations promulgated pursuant to
the Code.
"WARN" has the meaning given to such term in SECTION 8I.
ARTICLE 8
ADDITIONAL AGREEMENTS
8A. SURVIVAL. The representations and warranties set forth in this
Agreement, and all claims and causes of action in connection therewith, shall
survive the Closing solely for purposes of ARTICLE 9 and shall terminate on the
close of business on the date that is twelve (12) months after the Closing Date;
PROVIDED that the representations and warranties made by the Sellers in SECTION
4B (Target Companies Equity Interests), SECTION 4C (Subsidiaries), the first
sentence of SECTION 4D (Authorization), the last sentence of SECTION 4F(i)
(Title to Timberlands Properties), SECTION 4F(iv) (Title to Timberlands Assets
other than Timberlands Properties), SECTION 4J (ERISA), SECTION 4L (Taxes),
SECTION 4M (Affiliate Transactions) and SECTION 4P (Brokerage) and the
representations and warranties of Purchaser in the first sentence of SECTION 5B
(Authorization) and in SECTION 5D (Brokerage), shall survive the Closing until
the sixtieth
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day after expiration of the statute of limitations applicable to the matter
addressed by the particular representation and warranty. The covenants of any
party set forth in this Agreement that require performance by such party on or
prior to the Closing Date (other than covenants that specifically require
performance at the Closing, including those pursuant to SECTION 1B and SECTION
1C), and all claims and causes of action with respect thereto, shall survive the
Closing solely for purposes of ARTICLE 9 and shall terminate at the close of
business on the date that is twelve (12) months after the Closing Date. The
covenants of any party set forth in this Agreement that require performance by
such party at the Closing or after the Closing, and claims and causes of action
with respect thereto, shall survive the Closing indefinitely with respect
thereto.
8B. PRESS RELEASE AND ANNOUNCEMENTS. The Sellers and the Purchaser
agree that no public release or announcement concerning the transactions
contemplated hereby shall be issued or made by or on behalf of any party without
the prior consent of the other parties, except that (i) the Sellers may make
announcements from time to time to their respective employees and (ii) any party
may, after consultation with counsel, make announcements that such parties
reasonably may determine are necessary to comply with applicable law. The
Purchaser acknowledges and agrees that the Sellers or their Affiliates will be
required to announce the terms of this Agreement and make publicly available
this Agreement and that no breach of this Section 8B shall be deemed to result
therefrom; PROVIDED that the Sellers shall (x) not, without the prior written
consent of Purchasers, file the Commitment Letters with the Securities Exchange
Commission ("SEC") and (y) use commercially reasonable efforts to obtain
confidential treatment for the Supply Agreements from the SEC. Notwithstanding
the foregoing, the Purchaser and the Sellers shall cooperate to prepare a joint
press release to be issued on the Closing Date.
8C. CONFIDENTIALITY. The Purchaser acknowledges that all information
provided to any of it and its Affiliate and Representatives by the Sellers and
its Affiliates and Representatives is subject to the terms of a confidentiality
agreement, dated as of October 22, 2004, by and between Xxxxxxx Xxxxx & Co., for
the benefit of FPH and its Affiliates, and FCP (the "CONFIDENTIALITY
AGREEMENT"), the terms of which are hereby incorporated herein by reference and
shall be binding on the Purchaser as a recipient of information from the Sellers
and the Target Companies as though the Purchaser was originally signatory
thereto.
8D. NOTIFICATION. Prior to the Closing, the Purchaser and each of
the Sellers shall promptly notify the other parties hereto if such Person
obtains knowledge that any of the representations and warranties in this
Agreement, the Seller Disclosure Letter and the Schedules hereto are not true
and correct in all material respects, or if such Person obtains actual knowledge
of any material errors in, or omissions from, the Seller Disclosure Letter or
the Schedules to this Agreement.
8E. CONSENTS. The Purchaser acknowledges and agrees that certain
consents to the transactions contemplated by this Agreement may be required from
parties to contracts, leases, licenses or other agreements to which the Sellers
and/or any of their Subsidiaries (including the Target Companies) is a party and
such consents have not been obtained. Prior to Closing, the Purchaser and the
Sellers shall use commercially reasonable efforts to obtain such consents;
PROVIDED that, except as set forth in SECTION 2B(v), failure to obtain any such
consent
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shall not delay or prevent the Closing (including by application of SECTION
2B(i)); PROVIDED FURTHER that no party nor any of such party's Affiliates or
Representatives shall be required to expend money, commence any litigation or
offer or grant any accommodation (financial or otherwise) to or against any
third party to obtain any such consent. The Purchaser agrees, however, that
except as may arise from breach of SECTION 4D hereof, neither the Sellers nor
any of their respective Affiliates shall have any liability whatsoever to the
Purchaser or any of its Affiliates arising out of or relating to the failure to
obtain any consents that may have been or may be required in connection with the
transactions contemplated by this Agreement or because of the default,
acceleration or termination of any such contract, lease, license or other
agreement as a result thereof. The Purchaser further agrees that, except as may
arise from breach of SECTION 4D hereof, no representation, warranty or covenant
of the Sellers contained herein shall be breached or deemed breached as a result
of the failure to obtain any consent or as a result of any such default,
acceleration or termination or any lawsuit, action, claim, proceeding or
investigation commenced or threatened by or on behalf of any Person arising out
of or relating to the failure to obtain any consent or any such default,
acceleration or termination. Notwithstanding anything in SECTION 8E, SECTION 8F
or elsewhere in this Agreement to the contrary, (i) except as expressly provided
in SECTION 1D hereof with respect to the OMX Acknowledgment, in no event shall
any consent, acknowledgment or other agreement be sought, requested or required
with respect to the Original Agreement without the prior written consent of
Sellers (which may be withheld in their sole and absolute discretion) and (ii)
except as expressly provided for in SECTION 3I of this Agreement, in no event
shall any consent, acknowledgment or other agreement be sought, requested or
required with respect to the La Bokay Lease (including with respect to the La
Bokay Sublease (if any)) without the prior written consent of Sellers (which may
be withheld in their sole and absolute discretion).
8F. REASONABLE BEST EFFORTS. Subject to the terms of this Agreement
(including the limitations set forth in the next sentence this SECTION 8F), each
of the Purchaser, the Sellers and the Target Companies shall use its reasonable
best efforts to cause the Closing to occur. Notwithstanding anything in this
Agreement to the contrary, the "reasonable best efforts" of the Sellers and/or
the Target Companies shall not require the Sellers or the Target Companies, or
any of their respective Affiliates or Representatives to expend any money to
remedy any breach of any representation or warranty hereunder. From and after
the Closing Date, the parties agree to execute such further documents and
assignments, and otherwise to cooperate with each other, in such manner as may
be reasonably requested by any of them, in order to give full effect to
conveyances, covenants and agreements of the parties set forth herein.
8G. REGULATORY ACT COMPLIANCE. The Purchaser and the Sellers shall
each file or cause to be filed, promptly (but in any event within five business
days) after the date of this Agreement, any notifications or the like required
to be filed under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "HSR ACT") with respect to the transactions contemplated hereby and
the Purchaser, on the one hand, and the Sellers, on the other hand, shall each
pay 50% of all filing and similar fees payable in connection therewith. With
respect to filings under the HSR Act, each of the parties hereto shall seek
early termination of the waiting period under the HSR Act. The Purchaser and the
Sellers shall use their respective reasonable best efforts to respond to any
requests for additional information made by any agencies and to cause the
waiting periods or other requirements under the HSR Act to terminate or expire
at the earliest possible date and to resist in good faith, at each of their
respective cost
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and expense (including the institution or defense of legal proceedings), any
assertion that the transactions contemplated hereby constitute a violation of
the antitrust laws, all to the end of expediting consummation of the
transactions contemplated hereby. Each of the Purchaser and the Sellers shall
consult with the other prior to any meetings, by telephone or in person, with
the staff of the Federal Trade Commission, the United States Department of
Justice or any other regulatory agency, and each of the Purchaser and the
Sellers shall have the right to have a representative present at any such
meeting.
8H. EMPLOYEE BENEFITS MATTERS. Prior to Closing, the Purchaser
shall cause FCP to identify, from the employees listed on SECTION 8H of the
Seller Disclosure Letter, those employees to whom FCP intends to offer
employment at Closing (the employees listed on SECTION 8H of the Seller
Disclosure Letter to which such employment is offered, the "BUSINESS
EMPLOYEES"), and, effective immediately upon Closing, BC shall terminate, and
the Purchaser shall cause FCP to offer employment to, each such Business
Employee on terms and conditions consistent with persons in similar positions
with similar experience with the Purchaser (those Business Employees who accept
employment with Purchaser shall be "TRANSFERRED EMPLOYEES"); PROVIDED that,
notwithstanding the foregoing, the Sellers may deliver written notice to the
Purchaser not later than five (5) business days after the date hereof
identifying one or more individuals listed on SECTION 8H of the Seller
Disclosure Letter that works at the Xxxxxxx, Alabama facility and any such
individual will not be a Business Employee or Transferred Employee hereunder.
Purchaser agrees that it shall cause FCP to offer employment to no less than 70
individuals that are Business Employees. In addition, in the event that any of
the Transferred Employees is terminated without cause at any time within two
years after the Closing, the Purchaser shall cause FCP to pay the maximum
severance pay that such Transferred Employee would have received under the
severance pay plan of Sellers or their Affiliates as in effect as of the Closing
Date and as disclosed on SECTION 8H of the Seller Disclosure Letter. The
Purchaser shall cause FCP to be solely responsible for satisfying the
continuation coverage requirements of Section 4980B of the Code for all
Transferred Employees and their covered dependants that are "M&A qualified
beneficiaries" as such term is defined in Treas. Reg. Section 54.4980B-9. The
Sellers acknowledge and agree that FCP shall not have any liability under this
SECTION 8H in respect of any employee that is not a Transferred Employee.
Without limiting FCP's obligations under this SECTION 8H, the Sellers further
acknowledge that FCP is not assuming any liability or responsibility whatsoever
with respect to any employee benefit plan or program maintained by Sellers for
the benefit of any Transferred Employee.
8I. FACILITY CLOSINGS; EMPLOYEE LAYOFFS. For a period of ninety days
after the Closing Date, neither the Purchaser nor any of the Purchaser's
Affiliates (including the Target Companies) shall terminate Transferred
Employees in such numbers as would trigger any liability under the Worker
Adjustment, Retraining and Notification Act, 29 U.S.C. Section 2101, et seq.
("WARN") or any state or foreign plant closing or severance law. The Purchaser
shall, and shall cause the Target Companies to comply with any notice or filing
requirements under WARN and any state or foreign plant closing or severance law.
8J. PROVISION RESPECTING REPRESENTATION OF TARGET COMPANIES AND
THE SELLERS. Each of the parties to this Agreement hereby agrees, on its own
behalf and on behalf of its directors, members, partners, officers, employees
and Affiliates, that Xxxxxxxx & Xxxxx LLP may serve as counsel to each and any
of the Sellers, their direct and indirect equityholders and
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their respective Affiliates (individually and collectively, the "SELLER GROUP"),
on the one hand, and the Target Companies, on the other hand, in connection with
the negotiation, preparation, execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, and that, following
consummation of the transactions contemplated hereby, Xxxxxxxx & Xxxxx LLP (or
any successor) may serve as counsel to the Seller Group or any director, member,
partner, officer, employee or Affiliate of the Seller Group, in connection with
any litigation, claim or obligation arising out of or relating to this Agreement
or the transactions contemplated by this Agreement notwithstanding such
representation or any continued representation of the Target Companies, and each
of the parties hereto hereby consents thereto and waives any conflict of
interest arising therefrom, and each of such parties shall cause any Affiliate
thereof to consent to waive any conflict of interest arising from such
representation.
8K. CHANGE OF NAMES. As promptly as practicable after the Closing,
but in any event within thirty (30) days after the Closing, the Purchaser shall
cause each of the Target Companies to file a certificate of name change with the
Secretary of State for the State of Delaware and each other jurisdiction in
which any of the Target Companies is qualified to do business. From and after
the Closing, none of the Target Companies shall use "Boise", "Boise Cascade" or
any similar variation thereof, the tree-in-a-circle logo, or any other
intellectual property of the Sellers or any of their Affiliates, in the conduct
of its business or on any of the Timberlands Assets or other stationary,
letterhead or signage of the Purchaser or the Target Companies. Purchaser, on
behalf of its Affiliates (including the Target Companies), acknowledge that all
such intellectual property is owned by and for the benefit of the Sellers and
their Affiliates (other than the Target Companies).
8L. CERTAIN TAX MATTERS.
(i) The Purchaser and the Sellers shall jointly allocate the
Purchase Price in accordance with Section 1060 of the Code (the
"ALLOCATION") among Timberlands Assets using the methodology and allocation
amounts set forth on the Purchase Price Allocation Schedule to be delivered
by Sellers to Purchaser at least 10 days prior to Closing and reasonably
satisfactory to the Purchaser. For purposes of the Allocation, the Purchase
Price shall mean an amount equal to the Purchase Price plus any liabilities
of the Target Companies that are treated as assumed liabilities for U.S.
federal income Tax purposes. Except to the extent that such action or
inaction would cause any Person to be in violation of the final
determination any Taxing authority or applicable law, (A) the Sellers and
the Purchaser agree to prepare and file an IRS Form 8594 for or such other
form or statement as may be required by applicable law, rule or regulation,
and any comparable state or local income tax form, in a manner consistent
with the Allocation, (B) the Sellers and the Purchaser shall adhere to the
Allocation for all Tax-related purposes including any federal, foreign,
state, county or local income and franchise Tax Return filed by them after
the Closing Date, including the determination by the Sellers of taxable
gain or loss on the sale of the Timberlands Assets and the determination by
the Purchaser of its tax basis with respect to the Timberlands Assets, and
(C) neither the Purchaser nor the Sellers shall file any Tax Returns or, in
a judicial or administrative proceeding, assert or maintain any Tax
reporting position that is inconsistent with this Agreement or the
Allocation agreed to in accordance with this Agreement.
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(ii) The Sellers shall be responsible for, and shall indemnify the
Purchaser and the Target Companies for, Taxes of the Target Companies to
the extent attributable to taxable periods or portions thereof ending on or
prior to the Closing Date. The Purchaser shall, or shall cause one of the
Target Companies to, pay to the Sellers any refund of Taxes for any of the
Target Companies or any of the Timberlands Assets with respect to any
taxable periods or portions thereof ending on or prior to the Closing Date.
Notwithstanding anything to the contrary set forth in this SECTION 8L(ii),
if the Purchaser or any of the Target Companies shall discontinue active
forestry operations or otherwise change the use of all or any portion of
the Timberlands Properties, and as a result thereof any Property Tax or
other Tax shall be assessed against the Sellers or the Timberlands
Properties for any period prior to the Closing Date ("ROLLBACK TAXES"),
then the Purchaser shall, or shall cause the Target Companies to, be
responsible for, indemnify the Sellers for, and pay before the due date
therefor, the entire amount of such Rollback Taxes. For purposes of this
Agreement, the portion of Taxes or Property Taxes for a period that
includes but does not end on the Closing Date shall be allocable to the
portion of the period that ends on the Closing Date shall be determined by
taking the Tax or Property Tax for the entire period multiplied by a
fraction, the numerator of which is the number of days in the portion of
the period ending on the Closing Date and the denominator of which is the
number of days in the entire period. At least 30 days prior to filing any
Tax Return relating to any Property Taxes for which the Sellers may be
responsible, or which may reduce any refund for Taxes to which the Sellers
may be entitled pursuant to this SECTION 8L(ii), the Purchaser shall
deliver to the Sellers a draft of such Tax Returns and shall file such Tax
Returns only after incorporating any comments that the Sellers have made
into such Tax Returns.
(iii) After the Closing, each party shall provide, and shall cause its
Affiliates to provide, during normal business hours and upon reasonable
advance notice, the other party, its Affiliates and their representatives
with such assistance and access as they may reasonably request in
connection with the preparation of Tax Returns required to be filed, any
audit or other examination by or communication with any governmental
authority relating to Taxes or customs duties, any judicial or
administrative proceedings relating to liability for Taxes or customs
duties, or any claim for refund in respect of Taxes. Such assistance shall
include making employees available, during normal business hours and upon
reasonable advance notice, to the other party, its Affiliates and their
representatives, providing additional information and explanation of any
material to be provided, furnishing to or permitting the copying by such
other party, its Affiliates and their representatives of any records,
returns, schedules, documents, work papers or other relevant materials
which might reasonably be expected to be used in connection with such
return, audit, examination, proceeding or claim.
8M. EXPENSES; TRANSFER TAXES. If this Agreement is terminated prior
to consummation of the Closing, each party shall pay all fees and expenses
incurred by such party and such party's Affiliates in connection with this
Agreement and the transactions contemplated hereby. If the Closing occurs, the
Purchaser shall pay, or cause to be paid, all fees and expenses incurred by the
Purchaser and their pre-Closing Affiliates in connection with this Agreement and
the transactions contemplated hereby. Purchaser, on the one hand, and the
Sellers, on the other hand, shall each pay 50% of the costs and expenses of
obtaining the Phase I Reports, the Title
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Policies (including all title endorsements contemplated in SECTION 2B(ix) and,
if obtained, the La Bokay Endorsement) and any Transfer Tax imposed on any party
hereto or any of its Affiliates resulting from the transactions contemplated
hereby (and, if either Purchaser or the Sellers makes the entire such payment,
the Sellers or the Purchaser shall reimburse the other for the portion that is
paid on its behalf by the other party hereto). Except as set forth in this
SECTION 8M, the Sellers shall pay all fees and expenses incurred by the Sellers
and, to the extent incurred prior to Closing, the Target Companies in connection
with this Agreement and the transactions contemplated hereby.
ARTICLE 9
INDEMNIFICATION
9A. INDEMNIFICATION BY SELLERS. From and after the Closing (but
subject to the provisions of this ARTICLE 9), Sellers shall, on a joint and
several basis, indemnify the Purchaser for any Losses suffered or incurred by
Purchaser to the extent directly arising from (i) any breach of any
representation or warranty of Sellers or FPH contained in this Agreement, any
certificate of Sellers delivered pursuant to this Agreement or any instrument of
transfer executed in connection herewith, or (ii) any breach of any covenant of
the Sellers or FPH contained in this Agreement or any instrument of transfer
executed in connection therewith. Notwithstanding the foregoing and
notwithstanding anything herein or in any other agreement to the contrary, (x)
no claims by Purchaser shall be so asserted, and the Sellers shall have no
obligation to indemnify the Purchaser, unless and until the aggregate amount of
all Losses of Purchaser indemnifiable hereunder exceeds on a cumulative basis an
amount equal to $16,500,000, and then only to the extent of any such excess and
(y) the aggregate liability of the Sellers for Losses in respect of breaches and
for indemnification under this Agreement shall in no event exceed $100,000,000
in the aggregate and Purchaser shall not assert any claims for indemnification
for Losses in excess of such amount; provided that notwithstanding the
foregoing, the limitations set forth in this sentence shall not apply to (A) any
breach of any representation or warranty made by Sellers in SECTION 4B (Target
Companies Equity Interests), SECTION 4C (Subsidiaries), the first sentence of
SECTION 4D (Authorization), the last sentence of SECTION 4F(i) (Title to
Timberlands Properties), SECTION 4F(iv) (Title to Timberlands Assets other than
Timberlands Properties), SECTION 4J (ERISA), SECTION 4L (Taxes), SECTION 4M
(Affiliate Transactions) and SECTION 4P (Brokerage) or (B) any breach of any
covenant or agreement (I) set forth in SECTION 3B (other than SECTIONS 3B(i) and
SECTION 3B(iv), for which the limitations on indemnification set forth in
clauses (x) and (y) of this SECTION 9A shall be applicable) or SECTION 3F hereof
or (II) which requires performance by the Sellers after the Closing Date.
9B. INDEMNIFICATION BY PURCHASER. From and after the Closing (but
subject to the provisions of this ARTICLE 9), Purchaser shall, indemnify the
Sellers for any Losses suffered or incurred by Sellers to the extent directly
arising from (i) any breach of any representation or warranty of Purchaser or
FCP contained in this Agreement or any certificate of Purchaser delivered
pursuant to this Agreement, or (ii) any breach of any covenant or agreement of
Purchaser or FCP contained in this Agreement.
9C. EXCLUSIVE REMEDY. Subject to SECTION 10P hereof, each party
hereto acknowledges and agrees that, from and after the Closing, its sole and
exclusive remedy with respect to any and all claims relating to the subject
matter of this Agreement, the Seller
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Disclosure Letter and the Schedules and transactions contemplated hereby shall
be pursuant to, and subject to the limitations of, the indemnification
provisions set forth in this ARTICLE 9. In furtherance of the foregoing, each
party hereby waives and shall cause each of its Affiliates to, from and after
the Closing, to the fullest extent permitted under applicable law, any and all
rights, claims and causes of action it may have against any other party to this
Agreement relating to the subject matter of this Agreement arising under or
based upon any federal, provincial, state, local or foreign statute, law,
ordinance, rule or regulation or otherwise. Furthermore, each party to this
Agreement acknowledges and agrees that, from and after the Closing, no Affiliate
of any party to this Agreement and no officer, director, agent, employee, or
other Representative of any other party to this Agreement or any of such party's
Affiliates shall have any personal or institutional liability or obligation of
any kind to any other party to this Agreement or such other party's Affiliates
(whether for indemnification or otherwise) in connection with this Agreement,
any delivery made pursuant to this Agreement or the consummation of the
transactions contemplated hereby or thereby. Notwithstanding anything herein to
the contrary (including SECTION 10M hereof), the immediately foregoing sentence
is for the benefit of, and enforceable by, each Affiliate of each party hereto
and each officer, director, agent, employee, and other Representative of each
party hereto or such party's Affiliates and shall serve as an absolute and
complete defense to any claim or action against such Person.
9D. TERMINATION OF INDEMNIFICATION. The obligations to indemnify
and hold harmless a party hereto in respect of a breach of representation or
warranty or covenant shall terminate when the applicable representation or
warranty or covenant terminates pursuant to SECTION 8A; PROVIDED, HOWEVER, that
such obligations to indemnify and hold harmless shall not terminate with respect
to any item as to which the party to be indemnified shall have, prior to the
expiration of the applicable period, previously made a claim by delivering a
written notice (stating in reasonable detail the nature of, and factual and
legal basis for, any such claim for indemnification, and the provisions of this
Agreement upon which such claim for indemnification is made) to the indemnifying
party.
9E. PROCEDURES RELATING TO INDEMNIFICATION.
(i) In order for a party (the "INDEMNIFIED PARTY") to be entitled to
any indemnification provided for under this Agreement in respect of a claim
or demand made by any Person against the Indemnified Party (a "THIRD PARTY
CLAIM"), such Indemnified Party must notify the indemnifying party (the
"INDEMNIFYING PARTY") in writing, and in reasonable detail, of the Third
Party Claim as promptly as reasonably possible after receipt by such
Indemnified Party of notice of the Third Party Claim; PROVIDED THAT failure
to give such notification on a timely basis shall not affect the
indemnification provided hereunder except to the extent the Indemnifying
Party shall have been actually prejudiced as a result of such failure.
Thereafter, the Indemnified Party shall deliver to the Indemnifying Party,
within five business days after the Indemnified Party's receipt thereof,
copies of all notices and documents (including court papers) received by
the Indemnified Party relating to the Third Party Claim.
(ii) If a Third Party Claim is made against an Indemnified Party, the
Indemnifying Party shall be entitled to participate in the defense thereof
and to assume the defense thereof with counsel selected by the Indemnifying
Party. Should an
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Indemnifying Party so elect to assume the defense of a Third Party Claim,
the Indemnifying Party shall not be liable to the Indemnified Party for
legal expenses subsequently incurred by the Indemnified Party in connection
with the defense thereof. If the Indemnifying Party assumes such defense,
the Indemnified Party shall have the right to participate in the defense
thereof and to employ counsel, at its own expense, separate from the
counsel employed by the Indemnifying Party, it being understood, however,
that the Indemnifying Party shall control such defense. The Indemnifying
Party shall be liable for the fees and expenses of counsel employed by the
Indemnified Party for any period during which the Indemnifying Party has
not assumed the defense thereof. If the Indemnifying Party chooses to
defend any Third Party Claim, all the parties hereto shall cooperate in the
defense or prosecution of such Third Party Claim. Such cooperation shall
include the retention and (upon the Indemnifying Party's request) the
provision to the Indemnifying Party of records and information which are
reasonably relevant to such Third Party Claim, and making employees
available on a mutually convenient basis to provide additional information
and explanation of any material provided hereunder. Whether or not the
Indemnifying Party shall have assumed the defense of a Third Party Claim,
neither Purchaser nor any of its Affiliates shall admit any liability with
respect to, or settle, compromise or discharge, any Third Party Claim for
which any sums are recoverable hereunder without the prior written consent
of the Sellers.
9F. CERTAIN ADDITIONAL MATTERS.
(i) The amount of any and all Losses under this ARTICLE 9 shall be
determined net of, and the amount of any "Losses" shall be deemed be
reduced by (i) the net present value of any Tax benefits realizable
(calculated using a discount rate of 6%) by any party seeking
indemnification hereunder arising from the deductibility of any such Losses
and (ii) any amounts recovered, recoverable or for which there is a right
of recovery by an Indemnified Party or by any of such Indemnified Party's
Affiliates in respect of such claim under or pursuant to (A) the Title
Policies (including, if issued, the La Bokay Endorsement), (B) the Original
Agreement or (C) any other agreement (including the La Bokay Assignment
Consent) with any of the Forest Products Sellers to which or pursuant to
which an Indemnified Party or its Affiliates has rights (collectively, the
"ALTERNATIVE ARRANGEMENTS") and no Indemnified Party shall assert any claim
against an Indemnifying Party under this ARTICLE 9 in respect of any matter
for which amounts have been recovered, are recoverable or for which there
is a right of recovery pursuant to an Alternative Arrangement. Furthermore,
if recovery is made pursuant to another arrangement (i.e., other than an
Alternative Arrangement) for which the Purchaser or another Purchaser
Indemnified Party has rights to recovery prior to any claim for
indemnification being paid hereunder, the amount of Losses suffered by the
Purchaser Indemnified Parties with respect to such claim shall be reduced
by the excess of the amount of such recovery over the expenses incurred by
the Purchaser Indemnified Parties in connection with such recovery. If,
after a claim for indemnification is paid hereunder, a Purchaser
Indemnified Party recovers amounts under such other arrangement, the
Purchaser shall promptly remit to the Sellers the excess of (x) the lesser
of (A) the amount of proceeds received for such claim under the other
arrangement and (B) the amount previously paid to the Purchaser Indemnified
Parties pursuant to this ARTICLE 9 over (y) expenses incurred by the
Purchaser Indemnified Parties in connection with such
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recovery. Notwithstanding the foregoing, to the extent any such Loss
indemnifiable hereunder served to reduce the Deductible, and subsequent
recovery is made under another arrangement, the portion of the Deductible
so reduced shall be automatically deemed restored (but only to the extent
that the amount of such recovery exceeds the expenses incurred by the
Purchaser Indemnified Parties in connection with such recovery). No
Purchaser Indemnified Party shall have any right to assert any claims
against the Sellers pursuant to this ARTICLE 9 or otherwise with respect to
any Losses that would have been covered by the Title Policies (including,
if issued, the La Bokay Endorsement) or the Original Agreement had the
Purchaser or the Purchaser Indemnified Party maintained for its benefit and
the benefit of the Target Companies and the Timberlands Assets the same
rights or coverage under the Title Policies (including, if issued, the La
Bokay Endorsement) or the Original Agreement following the Closing that was
in effect for the Target Companies and the Timberlands Assets immediately
prior to the Closing.
(ii) Each party hereby waives, to the extent permitted under its
applicable insurance policies, any subrogation rights that its insurer may
have with respect to any indemnifiable Losses. Each Indemnified Party
agrees that in the event of any breach giving rise to an indemnification
obligation under this ARTICLE 9, such Indemnified Party shall take and
cause its Affiliates (including the Target Companies) to take, or cooperate
with the Representative, if so requested by the Representative, in order to
take, all reasonable measures to mitigate the consequences of the related
breach (including taking steps to prevent any contingent liability from
becoming an actual liability).
(iii) In no event shall any party be entitled to recover or make a
claim for any amounts in respect of, and in no event shall "Losses" be
deemed to include consequential, incidental or indirect damages, lost
profits or punitive damages and, in particular, no "multiple of profits" or
"multiple of cash flow" or similar valuation methodology shall be used in
calculating the amount of any Losses.
(iv) Notwithstanding anything herein to the contrary, the parties
agree that no representation or warranty is being made as to whether any
consent of any other Person party to the La Bokay Lease is required in
connection with the transactions contemplated hereby (including as to
whether any consent is required in connection with the La Bokay Sublease or
as a result of the Purchaser electing (or, in accordance with SECTION
3I(iii), having been deemed to have elected) to exercise the Asset Purchase
Option or the Equity Purchase Option) and no Seller (nor, in the event that
the Asset Purchase Option is elected, Boise Louisiana Land & Timber,
L.L.C.) shall have any liability for breach of any representation,
warranty, covenant or agreement made hereunder resulting from failure to
obtain any such consent or for the adequacy or inadequacy of any such
consent obtained. Without limiting the generality of the foregoing, no
Seller shall have any liability under SECTION 9A(i) or otherwise, nor shall
the condition set forth in SECTION 2B(i) not be deemed to be satisfied, as
a result of (A) any breach of the representations and warranties set forth
in SECTION 4D to the extent relating to the La Bokay Lease, the La Bokay
Sublease, or, to the extent that the Asset Purchase Option is elected, any
contract that is assigned to Purchaser in connection therewith, or (B) any
breach of SECTION 4H or any other representation, warranty, covenant or
agreement being deemed to have been
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breached as a result of the La Bokay Lease having been breached or alleged
to have been breached as a result of the execution and delivery of this
Agreement, the performance of the parties' respective obligations hereunder
or the consummation of the transactions contemplated hereby (including as a
result of sale of the Target Companies Equity Interests of Boise Louisiana
Land & Timber, L.L.C. and/or the execution, delivery or performance of the
La Bokay Sublease or assignment of any contract of Boise Louisiana Land &
Timber, L.L.C. being assigned hereunder without consent of any counterparty
thereto). It is expressly agreed by the parties that the Sellers shall have
no liability for breach of the La Bokay Lease arising as a result of the
execution and delivery of this Agreement, the performance of the parties'
respective obligations hereunder or the consummation of the transactions
contemplated hereby (including as a result of sale of the Target Companies
Equity Interests of Boise Louisiana Land & Timber, L.L.C. and/or the
execution, delivery or performance of the La Bokay Sublease or assignment
of any contract of Boise Louisiana Land & Timber, L.L.C. being assigned
hereunder without consent of any counterparty thereto).
(v) The Purchaser agrees on behalf of itself and the other Purchaser
Indemnified Parties that, from and after the date that the OMX
Acknowledgment is obtained, neither Seller shall have any liability for
failure to obtain any consent of any Forest Products Seller pursuant to the
Original Agreement for purposes of effectuating the assignment contemplated
by SECTION 1D hereof in connection with the transactions contemplated
hereby and no Seller shall have any liability for breach of any
representation, warranty, covenant or agreement made hereunder resulting
from failure to obtain any such consent or for the adequacy or inadequacy
of any such consent obtained. Without limiting the generality of the
foregoing, from and after the date that the OMX Acknowledgment is obtained,
no Seller shall have any liability under SECTION 9A(i) or otherwise, nor
shall the condition set forth in SECTION 2B(i) not be deemed to be
satisfied, as a result of any breach of the representations and warranties
set forth in SECTION 4D to the extent relating to the assignment of rights
under the Original Agreement pursuant to SECTION 1D hereof. It is expressly
agreed by the parties that, from and after the date that the OMX
Acknowledgment is obtained, the Sellers shall have no liability for breach
of this Agreement or the Original Agreement relating to the assignment
contemplated by SECTION 1D hereof. Nothing in this SECTION 9F(v) shall be
deemed to imply that receipt of the OMX Acknowledgment is a condition to
Purchaser's obligations to close (it being expressly agreed that receipt of
the OMX Acknowledgment is not a condition to Purchaser's obligations
hereunder), that consent of any of the Forest Products Sellers is necessary
in order to effectuate the assignment contemplated under SECTION 1D hereof
or that any breach of any provision of this Agreement has occurred as a
result of failure to obtain the OMX Acknowledgment or other consent from
any of the Forest Products Sellers.
(vi) Any indemnity payment under this Agreement shall be treated as
an adjustment to the Purchase Price for Tax purposes.
(vii) Notwithstanding the foregoing, to the extent that a
representation or warranty of the Sellers contained in this Agreement or
the Seller Disclosure Letter (each, a "REPRESENTATION") addresses a
particular issue with specificity (a "SPECIFIC
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REPRESENTATION"), and no breach by Sellers exists under such Specific
Representation, Sellers shall not be deemed to be in breach of any other
Representation (with respect to such issue) that addresses such issue with
less specificity than the Specific Representation and if such Specific
Representation is qualified or limited by Sellers' knowledge, or in any
other manner, no other Representation shall supercede or limit such
qualification in any manner.
9G. NO WAIVER RELATING TO CLAIM FOR ACTUAL FRAUD. The liability of
any party under this Agreement shall be in addition to, and not exclusive of,
any other liability that such party may have at law or equity if it is finally
determined by a court of competent jurisdiction that such party committed common
law actual fraud. None of the provisions set forth in this Agreement, including
the provisions set forth in Article 9, shall be deemed a waiver by any party to
this Agreement of any right or remedy which such party may have at law or equity
based on any other party's acts of common law actual fraud, nor shall any such
provision limit, or be deemed to limit, (i) the Losses sought or awarded in any
such claim for common law actual fraud, (ii) the time period during which a
claim for common law actual fraud may be brought, or (iii) the recourse which
any party may seek against another party with respect to a claim for common law
actual fraud; provided, that with respect to such rights and remedies at law or
equity, the parties further acknowledge and agree that none of the provisions of
this SECTION 9G shall be deemed a waiver of any defenses which may be available
in respect of actions or claims for common law actual fraud, including by not
limited to defenses of statutes of limitations or limitations of damages.
9H. WAIVER. Effective as of the Closing, the Sellers waive any
rights to indemnification or contribution from the Target Companies for
indemnification payments required from the Sellers hereunder.
ARTICLE 10
MISCELLANEOUS.
10A. AMENDMENT AND WAIVER. This Agreement may be amended or any
provision of this Agreement may be waived; PROVIDED THAT any amendment or waiver
shall be binding against the party against whom enforcement is sought only if
such amendment or waiver is set forth in a writing executed by such party. Any
amendments or waivers under this Agreement following the Closing shall require
the prior written consent of the Sellers. No course of dealing between or among
any Persons having any interest in this Agreement shall be deemed effective to
modify, amend or discharge any part of this Agreement or any rights or
obligations of any person under or by reason of this Agreement.
10B. NOTICES. All notices, demands and other communications
hereunder shall be in writing and shall be deemed duly given (i) on the date of
delivery upon confirmation of receipt, if delivered personally or by facsimile
before 5:00 p.m. local time on a business day (and otherwise on the next
business day), (ii) on the first business day following the date of dispatch if
delivered by a recognized next-day courier service, or (iii) on the third
business day following the date of mailing if delivered by registered or
certified first-class mail, return receipt requested, postage prepaid. All
notices hereunder shall be delivered as set forth below, or pursuant to such
other instructions as may be designated in writing by the party to receive such
notice:
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NOTICES TO THE SELLERS:
c/o Boise Land & Timber Corp.
0000 X. Xxxxxxxxx Xx.
Xxxxx, XX 00000
Attention: General Counsel
Telephone: 000-000-0000
Telecopy: 208-384-4912
AND COPIES TO:
Madison Dearborn Partners, L.L.C.
Three First National Plaza, Suite 3800
00 X. Xxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxx
Telephone: 000.000.0000
Telecopy: 312.895.1056
Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Telephone: 000.000.0000
Telecopy: 312.861.2200
NOTICES TO THE PURCHASER:
c/o Forest Capital
Xxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
WITH A COPY TO:
Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP
1114 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: 000.000.0000
Telecopy: 212.389.5099
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10C. ASSIGNMENT.
(i) This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their respective
heirs, successors and permitted assigns; PROVIDED THAT neither this
Agreement nor any of the rights, interests or obligations hereunder shall
be assigned (including by merger, operation of law or otherwise) by any
party hereto without the prior written consent of the other parties.
(ii) At Closing, Purchaser, in its sole discretion, may direct
Sellers to sell and transfer certain of the Target Companies Equity
Interests and certain of the Additional Timberlands Assets to (i) one or
more affiliates of a fund managed by Forest Capital Partners, LLC (the
manager of Purchaser) and/or (ii) one other purchaser or group of
purchasers of Boise Idaho Land & Timber, L.L.C. and Boise Central
Washington Land & Timber, L.L.C. (collectively, the "PURCHASER DIRECTED
ENTITIES"), and Sellers shall convey such Target Companies Equity Interests
and Additional Timberlands Assets directly to such Purchaser Directed
Entities as directed by Purchaser. Notwithstanding the foregoing, the
Purchaser agrees with the Sellers that it shall acquire in its own name the
Target Companies Equity Interests of, and the Timberlands Business
conducted by, not less than two (2) Target Companies.
(iii) Notwithstanding clause (i) above and in connection with the
actions contemplated by clause (ii) above, the Purchaser may assign its
rights and interest (but, prior to Closing, not its obligations) hereunder,
in whole or in part, without the prior written consent of Sellers to the
Purchaser Directed Entities; PROVIDED that (x) the Purchaser acknowledges
and agrees that no rights or interests assigned to it under SECTION 1D
hereof may be assigned by the Purchaser without the consent of the Forest
Products Sellers given in accordance with the Original Agreement and (y)
the rights of assignment and direction provided for in this SECTION 10C and
the rights of any such assignee hereunder shall not be construed in any
manner so as to (A) increase the liabilities of Sellers under this
Agreement, (B) change any limitation on indemnification set forth herein,
(C) increase or change the remedies available with respect to any breach of
any provision hereof, (D) permit any duplication of recovery as to Losses,
or (E) permit any further assignment by such assignee of any rights under
this Agreement without the prior written consent of Sellers; PROVIDED that,
effective as of the Closing, Purchaser may assign to a Purchaser Directed
Entity its obligations hereunder (other than its obligations to pay the
Purchase Price). For all purposes hereof, a transfer, sale or disposition
of a majority of the voting capital stock or other voting interests of
Purchaser or any Purchaser Directed Entity (whether by contract or
otherwise) shall be deemed an assignment hereunder.
10D. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provisions or the remaining provisions of this Agreement.
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10E. NO STRICT CONSTRUCTION. Notwithstanding the fact that this
Agreement has been drafted or prepared by one of the parties, each of the
Purchaser and the Sellers confirm that they and their respective counsel have
reviewed, negotiated and adopted this Agreement as the joint agreement and
understanding of the parties hereto and the language used in this Agreement
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
Person.
10F. CAPTIONS. The captions used in this Agreement and descriptions
of the Seller Disclosure Letter and Schedules are for convenience of reference
only and do not constitute a part of this Agreement and shall not be deemed to
limit, characterize or in any way affect any provision of this Agreement, and
all provisions of this Agreement shall be enforced and construed as if no
caption or description of the Seller Disclosure Letter or the Schedules had been
used in this Agreement.
10G. COMPLETE AGREEMENT. Except for the Confidentiality
Agreement and the Ancillary Agreements, this Agreement and the other agreements
executed on the date hereof contain the complete agreement between the parties
and supersede any prior understandings, agreements or representations by or
between the parties, written or oral, which may have related to the subject
matter hereof in any way.
10H. SELLER DISCLOSURE LETTER. The disclosures in the Seller
Disclosure Letter are to be taken as relating to the representations and
warranties of the Sellers as a whole. The inclusion of information in the Seller
Disclosure Letter shall not be construed as an admission that such information
is material to the Sellers or any of the Target Companies. In addition, matters
reflected in the Seller Disclosure Letter are not necessarily limited to matters
required by this Agreement to be reflected in the Seller Disclosure Letter. Such
additional matters are set forth for informational purposes only and do not
necessarily include other matters of a similar nature. Until the third business
day prior to the Closing, the Sellers shall have the right to supplement, modify
or update the Seller Disclosure Letter to ensure the correctness thereof. Any
such supplements, modifications and updates shall not affect the obligations of
the Purchaser under SECTION 2B(i) hereof to consummate the transactions
contemplated hereby or be deemed to cure any breach by Sellers of any
representation, warranty, covenant or agreement made as of the date of this
Agreement, but, if the transaction closes, the Sellers shall not be deemed to be
in breach of any representation, warranty, covenant or agreement hereunder as of
the Closing Date with respect to the information disclosed in any such
supplement, modification or update. From and after the Closing, references to
the Seller Disclosure Letter shall be references to the Seller Disclosure Letter
as so supplemented, modified and/or updated. In no event shall Sellers have any
right to supplement, modify or amend Section 1.1 of the Seller Disclosure Letter
or Section 1.2 of the Seller Disclosure Letter after the date of this Agreement
without the prior written consent of the Purchaser.
10I. NO ADDITIONAL REPRESENTATIONS; DISCLAIMER.
(i) The Purchaser acknowledges and agrees that neither the Sellers
nor any of the Target Companies, nor any Representative or other Person
acting on behalf of the Sellers, the Target Companies or any of their
respective Affiliates has made any representation or warranty, express or
implied, as to the accuracy or completeness of any
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information regarding the Target Companies or the Timberlands Assets,
except as expressly set forth in this Agreement or any Ancillary Agreement
or as and to the extent required by this Agreement to be set forth in the
Seller Disclosure Letter. The Purchaser further agrees that neither the
Sellers nor any of their Affiliates will have or be subject to any
liability to the Purchaser or any of its Affiliates or Representatives
resulting from the distribution to the Purchaser, or the Purchaser's use
of, any such information, including the Confidential Information Memorandum
prepared by Xxxxxxx, Xxxxx & Co. dated February 2004 and any information,
document or material made available to the Purchaser or its Affiliates or
Representatives in certain "data rooms," management presentations or any
other form in expectation of the transactions contemplated by this
Agreement.
(ii) Except as expressly provided in this Agreement or in the
Ancillary Agreements, the Purchaser acknowledges that it is not relying
upon any statement, information or representation with respect to any
matters relating to the Timberlands Assets made by the Sellers or anyone
acting or purporting to act, on behalf of the Sellers (including the
Representatives). Except as expressly provided in this Agreement or in the
Ancillary Agreements, the Purchaser agrees to accept the Timberlands Assets
"AS-IS" and "WITH ALL FAULTS" in its condition and state of repair on the
date of each Closing, and acknowledges that the Sellers are making no
warranties, express or implied, with respect to the condition of the
Timberlands Assets or the Target Companies or the volume or condition of
the timber or wood products located thereon (either now or at the time of
Closing), except as expressly set forth herein or in the Ancillary
Agreements. The Purchaser agrees that, except as specifically provided in
this Agreement, neither the Sellers nor any of its Affiliates is liable or
bound in any manner by any express or implied warranties, pertaining to the
Timberlands Assets, its state of title, income, rent, expenses, operations,
leases or tenancies (or the existence or absence of defaults thereunder)
nor with respect to the physical condition thereof. Except to the extent
resulting from a breach of a representation, warranty, covenant or
agreement made by the Sellers hereunder, the Sellers shall not be liable
for any latent or patent defects in the Timberlands Assets or any part
thereof and, except to the extent required by a covenant requiring
performance by the Sellers prior to Closing, the Sellers shall have no
obligations under this Agreement to repair or make any improvements to the
condition of the Timberlands Assets or any portion thereof at any time
prior to the Closing (or thereafter).
10J. COUNTERPARTS. This Agreement may be executed in multiple
counterparts (including by means of telecopied or electronically transmitted
signature pages), all of which taken together shall constitute one and the same
Agreement.
10K. GOVERNING LAW. The internal law (and not the law of conflicts)
of the State of New York shall govern all questions concerning the construction,
validity and interpretation of this Agreement and the performance of the
obligations imposed by this Agreement.
10L. INTERPRETATION. When used herein, "including" means "including,
without limitation" and the masculine includes the feminine and vice versa. Any
reference to any
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agreement or contract referenced herein or in the Seller Disclosure Letter or
any Schedule shall be a reference to such agreement or contract, as amended,
modified, supplemented or waived. Each party agrees that all amounts required to
be paid hereunder shall be paid in United States currency without discount,
rebate or reduction and subject to no counterclaim or offset, on the dates
specified herein. A "business day" shall be any day, other than a Saturday,
Sunday, or any other date in which banks located in New York, New York or
Chicago, Illinois are closed for business as a result of federal, state or local
holiday.
10M. THIRD-PARTY BENEFICIARIES AND OBLIGATIONS. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns. Nothing in this Agreement, express or
implied, is intended to or shall confer upon any Person other than the parties
hereto or their respective successors and permitted assigns, any rights,
remedies or liabilities under or by reason of this Agreement.
10N. WAIVER OF BULK SALES LAWS. Each of the parties acknowledges and
agrees that neither the Sellers nor any of their Subsidiaries will comply with,
and hereby waives compliance by the Sellers and their Subsidiaries with, any
"bulk sales", "bulk transfer" or similar law relating to the transactions
contemplated hereby.
10O. REASONABLE COOPERATION. As promptly as practicable after the
Closing, Sellers shall deliver to the Purchaser copies of all books and records
related primarily to the Target Companies, the Timberlands Assets and the
Additional Timberlands Assets. Following the Closing, each party shall keep and
preserve in an organized and retrievable manner the books and records relating
to the Timberlands Business being transferred hereunder for the lesser of (i)
seven years from the Closing Date or (ii) the retention period for such records
under such party's records retention schedules applicable to such records. Upon
expiration of such period for any specific books and records, each party shall
notify the other that it intends to destroy such records unless such other party
takes possession of them within 60 days following such notice and upon
expiration of such period may promptly destroy any such record not taken by such
other party. Each party shall allow the other party and its Representatives, at
the requesting party's expense, access to the books, records and other
Timberlands Assets upon reasonable request and advance notice and during normal
business hours, subject to the confidentiality provisions set forth in this
Agreement (with it being understood that any such information provided to
Purchaser or its Representatives shall be subject to the restrictions in the
Confidentiality Agreement). In the event that prior to any expiration period, a
party desires to destroy any books or records, prior to the date of destruction,
it shall first offer to the other parties hereto the opportunity to take
possession of such books and records, and to the extent such other party does
not exercise such right prior to expiration of such 30-day period, the
possessing party may destroy such books and records without default hereunder.
10P. SPECIFIC PERFORMANCE. Each party hereto acknowledges that the
other parties hereto shall have the right, in addition to any other rights and
remedies existing in its favor, to enforce its rights and the obligations of the
other parties hereto not only by an action or actions for damages but also by an
action or actions for specific performance, injunctive and/or other equitable
relief; PROVIDED that this provision shall not be interpreted to require the
Sellers or the Target Companies, or any of their respective Affiliates or
Representatives, to expend any money to remedy any breach of any representation
or warranty hereunder. Each party hereby
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agrees to waive the defense that there is an adequate remedy at law to any such
claim for specific performance, injunctive and/or other equitable relief.
* * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
BOISE LAND & TIMBER CORP.
By: /s/ Xxx Xxxxxxx
-----------------------------------------
Its: Chief Financial Officer
-----------------------------------------
BOISE CASCADE, L.L.C.
By: /s/ Xxx Xxxxxxx
-----------------------------------------
Its: Chief Financial Officer
-----------------------------------------
FOREST PRODUCTS HOLDINGS, L.L.C.
(acknowledged and agreed solely for purposes of
Section 1D hereof)
By: /s/ Xxx Xxxxxxx
-----------------------------------------
Its: Chief Financial Officer
-----------------------------------------
XXXXXXXXXX INVESTMENTS LLC
By: Forest Capital Partners, LLC, its Manager
-----------------------------------------
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Its: Managing Director
-----------------------------------------
FOREST CAPITAL PARTNERS, LLC
(acknowledged and agreed solely for purposes of
Section 8H hereof)
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Its: Managing Director
-----------------------------------------
