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EXHIBIT 2.2
AMENDMENT TO ASSET PURCHASE AGREEMENT
This AMENDMENT, dated as of October 16, 1996 (this
"Amendment"), among PLUM CREEK TIMBER COMPANY, L.P., a Delaware limited
partnership (the "Buyer"), RIVERWOOD INTERNATIONAL CORPORATION, a Delaware
corporation (the "Seller Parent"), and NEW RIVER TIMBER, LLC, a Delaware limited
liability company (the "Company" and, together with the Seller Parent, the
"Sellers") and a wholly owned subsidiary of the Seller Parent, to the Asset
Purchase Agreement (the "Asset Purchase Agreement"), dated as of August 6, 1996,
among the Buyer and the Sellers,
WITNESSETH:
WHEREAS, the Buyer and the Sellers have executed
and delivered the Asset Purchase Agreement;
WHEREAS, Section 12.4 of the Asset Purchase Agreement provides
that no amendment or modification of the Asset Purchase Agreement shall be valid
or binding unless set forth in writing;
WHEREAS, the Buyer and the Sellers have agreed to amend
certain provisions of the Asset Purchase Agreement, as provided in this
Amendment;
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants and agreements hereinafter set forth, the parties hereto
hereby agree as follows:
1. Definitions. Capitalized terms used herein without
definition are used as defined in the Asset Purchase Agreement.
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2. Amendment to Section 1.1. Section 1.1 of the Asset Purchase
Agreement is hereby amended by amending the definition of the term "Forestry
Consultant" to read in its entirety as follows:
"Forestry Consultant" shall mean such firm as may be
mutually acceptable to the Sellers and the Buyer in their reasonable
judgment."
3. Amendment to Section 2.3. Section 2.3 of the Asset Purchase
Agreement is hereby amended by inserting the phrase ", and subject to adjustment
following the Closing pursuant to Section 2.4(d)" immediately prior to the
semicolon at the end of clause (i) thereof.
2. Amendment to Section 2.4(d)(i). Section 2.4(d)(i) of the
Asset Purchase Agreement is hereby amended to read in its entirety as follows:
"(d) Adjustment for Excess Harvesting. (i) In the event
that, after the date hereof and prior to the Closing, (x) the
respective amounts of pine sawlogs, pine pulpwood and hardwood pulpwood
harvested for the portion of calendar 1996 preceding the Closing Date
exceed by more than five percent (5%) the respective Scheduled Amounts
thereof (which harvesting may in any event include cutting diseased or
insect-infested trees), or (y) the amount of hardwood sawlogs harvested
for the portion of calendar 1996 preceding the Closing Date exceeds an
amount equal to the Scheduled Amount of hardwood sawlogs plus an amount
equal to five percent (5%) of such Scheduled Amount plus 1,500 ccf (one
hundred cubic feet of solid wood) of hardwood sawlogs, or (z) the
aggregate amount of pine sawlogs, hardwood sawlogs, pine pulpwood and
hardwood pulpwood harvested for the portion of calendar 1996 preceding
the Closing Date exceeds 505,000 ccf, the Base Purchase Price shall be
adjusted after the Closing to reflect such excess harvesting, to the
extent of such excess (without duplication among any
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such excess amounts). The amount of any such adjustment to the Base
Purchase Price under this Section 2.4(d)(i) shall be mutually
determined by the parties hereto based on the books and records of the
Sellers related to the harvesting prior to the Closing of pine sawlogs,
hardwood sawlogs, pine pulpwood and hardwood pulpwood (collectively,
the "Harvesting Records"). Each party will make the Harvesting Records
in such party's possession available for inspection by any other party
at such other party's reasonable request. If the parties are unable to
agree on the amount of any such adjustment within thirty (30) days from
the Closing Date, such amount shall be determined by the Forestry
Consultant, whose determination shall be conclusive and binding upon
the Sellers and the Buyer."
4. Amendment to Section 2.4(d)(i). Section 2.4(e) of the Asset
Purchase Agreement is hereby amended by adding immediately after words "Section
2.4(a)" in the first sentence thereof the words "and Section 2.4(d)".
5. Amendment to Section 5.1. Section 5.1 of the Asset Purchase
Agreement is hereby amended by adding the following clause to the end of the
second sentence thereof:
", provided that prior to the Closing the Sellers shall be entitled to
harvest an additional amount of hardwood sawlogs not to exceed 1,500
ccf (one hundred cubic feet of solid wood) as long as the aggregate
amount of pine sawlogs, hardwood sawlogs, pine pulpwood and hardwood
pulpwood harvested for the portion of calendar 1996 preceding the
Closing Date does not exceed 505,000 ccf".
6. Amendment to Section 6.1(a). The second sentence of Section
6.1(a) of the Asset Purchase Agreement is hereby amended by replacing the phrase
"twelve (12)" with the phrase "thirteen (13)".
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7. Amendment to Section 10.4(d)(iii). Section 10.4(d)(iii) of
the Asset Purchase Agreement is hereby amended by inserting the words "and
management" after the phrase "proper and adequate defense" where the same
appears therein, and by inserting the following sentences as the second and
third sentences thereof:
"Whether or not a Third Party Claim has been made or commenced with
respect to any Excluded Liability, the Buyer shall cooperate with each
Seller in all reasonable respects in connection with the defense and
management of such Excluded Liability, and render such assistance to
each Seller as may be reasonably requested in order to ensure the
proper and adequate defense and management thereof, including making
available records relating to such Excluded Liability and furnishing,
without expense to the Sellers, such employees of the Buyer and its
Affiliates as may be reasonably necessary for the preparation of such
defense and management or for testimony as witnesses. Whether or not a
Third Party Claim has been made or commenced with respect to any
Assumed Liability, the Sellers shall cooperate with the Buyer in all
reasonable respects in connection with the defense and management of
such Assumed Liability, and render such assistance to the Buyer as may
be reasonably requested in order to ensure the proper and adequate
defense and management thereof, including making available records
relating to such Assumed Liability and furnishing, without expense to
the Buyer, such employees of the Sellers and their respective
Affiliates as may be reasonably necessary for the preparation of such
defense and management or for testimony as witnesses."
8. Miscellaneous. Except as expressly amended and modified
hereby, the Asset Purchase Agreement is hereby ratified and reaffirmed in all
respects and all the terms and provisions thereof shall be and remain in full
force and effect. The section and other headings in this Amendment are inserted
solely as a matter of convenience and for
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reference, are not a part of this Amendment, and shall not be deemed to affect
the meaning or interpretation of this Amendment. This Amendment may be executed
in two or more counterparts, each of which shall be deemed an original, and all
of which together shall constitute one and the same instrument. This Amendment
shall be governed by and construed in accordance with the internal laws of the
state of New York applicable to agreements made and to be performed entirely
within such state, without regard to the conflict of laws principles or rules of
such state.
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IN WITNESS WHEREOF, each party hereto has executed or caused
this Amendment to be executed on its behalf, all on the day and year first above
written.
PLUM CREEK TIMBER COMPANY,
L.P.
By: Plum Creek Management
Company, L.P., its General
Partner
By:/s/James A. Kraft
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Name: James A. Kraft
Title: Vice President,
General Counsel and Secretary
RIVERWOOD INTERNATIONAL
CORPORATION
By:/s/ B.H. Chastaine
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Name: Bill H. Chastaine
Title: Secretary
NEW RIVER TIMBER, LLC
By:/s/ B.H. Chastaine
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Name: Bill H. Chastaine
Title: Vice President and
Secretary
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