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Exhibit 2.2
Execution
Copy
AMENDING AGREEMENT TO
ASSET PURCHASE AGREEMENT
THIS AGREEMENT is made as of
the 24th day of April, 2008 (this “ Agreement
”)
AMONG:
POPE & TALBOT,
INC. , a corporation organized under the laws of the State of
Delaware, POPE & TALBOT LTD. , a corporation
organized under the federal laws of Canada, POPE &
TALBOT LUMBER SALES, INC. , a corporation organized under the
laws of the State of Delaware, POPE & TALBOT SPEARFISH
LIMITED PARTNERSHIP , a limited partnership under the laws of
the State of South Dakota
(collectively, the “
Sellers ”)
AND:
INTERNATIONAL FOREST
PRODUCTS LIMITED , a British Columbia corporation
(the “ Purchaser
”)
WHEREAS, the Sellers and the
Purchaser entered into an Asset Purchase Agreement dated as of
November 19, 2007 (the “ Asset Purchase Agreement
”);
WHEREAS, the Purchaser
assigned the right to purchase certain assets situated in the
United States under the Asset Purchase Agreement to Interfor
Pacific Inc. (“ IPI ”), a Washington
corporation, pursuant to Section 10.06 thereof;
WHEREAS, IPI assigned the
right under the Asset Purchase Agreement to purchase the Spearfish
Mill and certain related assets (together the “ Spearfish
Assets ”) to Neiman Enterprises, Inc. (“
Neiman ”), a Wyoming corporation;
WHEREAS, Neiman, in turn,
assigned the right to purchase the Spearfish Assets under the Asset
Purchase Agreement to Spearfish Forest Products, Inc., a South
Dakota Corporation and Neiman Timber Company, LC, a Wyoming limited
liability company, (together, with IPI and Neiman, the “
Assignees ”);
WHEREAS, none of the
assignments to the Assignees have relieved the Purchaser of any of
its obligations under the Asset Purchase Agreement; and
WHEREAS, the Sellers and the
Purchaser wish to amend the terms of the Asset Purchase Agreement,
in the manner contemplated by this Agreement,
NOW THEREFORE in
consideration of good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged by each party), the
parties covenant and agree that:
1.
Definitions . In this Agreement, words and
phrases defined in the Asset Purchase Agreement, and used but not
otherwise defined herein, have the meanings given in the Asset
Purchase Agreement.
2. Amendments to
the Asset Purchase Agreement . The Sellers and the
Purchaser agree that the Asset Purchase Agreement is hereby amended
as follows:
(a) Section 1.01
(definition of “Actual Price Adjustment”) .
Section 1.01 is amended by deleting the definition of
“Actual Price Adjustment” and replacing it with the
following:
““ Actual
Price Adjustment ” means an amount equal to:
(i) the value of the Raw
Materials, Finished Goods and Residuals Inventories on hand as of
the Effective Time (as determined pursuant to
Section 2.08(a)), valued in accordance with the methodology
set out in Exhibit 1.01(f), less $3 million;
minus
(ii) the amount of any Target
Inventory Adjustment; plus
(iii) amounts paid as
deposits by any Seller under Cutting Contracts (which deposits
shall not include any cash bonds constituting Surety), to the
extent unapplied thereunder as of the Effective Time;
plus
(iv) outstanding deposits as
of the Effective Time (A) on all Assigned Contracts other than
Cutting Contracts, or (B) that relate to any of the Purchased
Assets (which deposits shall not include any of the deposits
identified on Exhibit 1.01(k)); plus or minus as may be
applicable
(v) the net amount of any
prorations pursuant to Section 5.17; plus or minus as may
be applicable
(vi) the amount of any STI
Adjustment; minus
(vii) the amount the Assumed
Bonded Obligations.
(b) Section 1.01
(definition of “Amendment Price Adjustment”) .
Section 1.01 is amended by adding the following immediately
after the definition of “Allocation”:
““ Amendment
Price Adjustment ” means an amount equal to
$150,000.”
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(c) Section 1.01
(definition of “Assigned Contract”) . The phrase,
“deemed an Excluded Asset by operation of
Section 2.01(b)(xiv)” in the definition of
“Assigned Contract” in Section 1.01 is replaced
with the phrase, “an Excluded Asset”.
(d) Section 1.01
(definition of “ Assumed Bonded Obligations ”).
Section 1.01 is amended by adding the following immediately
after the definition of “Assignment of Transferred
Intellectual Property”:
““ Assumed
Bonded Obligations ” means all accrued obligations of the
Sellers under the Cutting Contracts for which, as of the Effective
Time, the Purchaser is obligated to provide a Surety to the USDA or
the BLM pursuant to Section 5.22(a), except to the extent that
such obligation continues to be subject to a Surety provided by the
Sellers.”
(e) Section 1.01
(definition of “BCICAC”) . Section 1.01 is
amended by adding the following immediately after the definition of
“Bankruptcy Court”:
““ BCICAC
” has the meaning given to it in
Section 2.19.”
(f) Section 1.01
(definition of “BLM”) . Section 1.01 is
amended by adding the following immediately after the definition of
“Bill of Sale”:
““ BLM
” means the U.S. Department of the Interior Bureau of Land
Management.”
(g) Section 1.01
(definition of “Closing Date Section 54 Plan
Report”) . Section 1.01 is amended by adding the
following immediately after the definition of “Closing Date
Mercer Report”:
““ Closing
Date Section 54 Plan Report ” has the meaning given
to it in Section 2.18.”
(h) Section 1.01
(definition of “Effective Time”) .
Section 1.01 is amended by deleting the definition of
“Effective Time” and replacing it with the
following:
““ Effective
Time ” means the last instance in time (Pacific Time) on
the Closing Date.”
(i) Section 1.01
(definition of “Escrow Agent”) . Section 1.01
is amended by deleting the definition of “Escrow Agent”
and replacing it with the following:
““ Escrow
Agent ” has the meaning given to it in the Deposit Escrow
Agreement, the Forestry Escrow Agreement or the Needles Escrow
Agreement, as the context requires.”
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(j) Section 1.01
(definition of “Estimated Section 54 Plan
Amount”) . Section 1.01 is amended by adding the
following immediately after the definition of “Escrow
Agent”:
““ Estimated
Section 54 Amount ” means the net present value of
the amount remaining unpaid under the Section 54 Plan as at
the date of the preparation of that certain estimated financial
position of PTL’s unfunded pension plans as of
September 30, 2007 by Mercer (Canada)
Limited.”
(k) Section 1.01
(definition of “Estimated STI Road Adjustment”) .
Section 1.01 is amended by adding the following immediately
after the definition of “Estimated Section 54
Amount”:
““ Estimated
STI Road Adjustment ” means the estimated amount of the
STI Adjustment included in the Interim Price Adjustment that
relates to the existing roads, the inclusion of which is disputed
by the Purchaser.”
(l) Section 1.01
(definition of “Forestry Consultant”) .
Section 1.01 is amended by adding the following immediately
after the definition of “Financial Advisor”:
““ Forestry
Consultant ” has the meaning given to it in
Section 2.08(c).”
(m) Section 1.01
(definition of “Forestry Services Amount”) .
Section 1.01 is amended by deleting the definition of
“Forestry Services Amount” and replacing it with the
following:
““ Forestry
Services Amount ” means the amount of Forestry Services
as agreed upon or determined in accordance with
Section 2.10.”
(n) Section 1.01
(definition of “Forestry Services Delta”) .
Section 1.01 is amended by adding the following immediately
after the definition of “Forestry Services
Amount”:
““ Forestry
Services Delta ” has the meaning given to it in
Section 2.10(e)(i).”
(o) Section 1.01
(definition of “Forestry Services Escrow
Agreement”) . Section 1.01 is amended by adding the
following immediately after the definition of “Forestry
Services Delta”:
““ Forestry
Services Escrow Agreement ” has the meaning given to it
in Section 2.10(b).”
(p) Section 1.01
(definition of “Forestry Services Escrow Amount”) .
Section 1.01 is amended by adding the following immediately
after the definition of “Forestry Services Escrow
Agreement”:
““ Forestry
Services Escrow Amount ” has the meaning given to it in
Section 2.10(b).”
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(q) Section 1.01
(definition of “Independent Arbitrator”) .
Section 1.01 is amended by adding the following immediately
after the definition of “Independent Accounting
Firm”:
““ Independent
Arbitrator ” has the meaning given to it in
Section 2.19.”
(r) Section 1.01
(definition of “Interim Forestry Services Amount”)
. Section 1.01 is amended by adding the following immediately
after the definition of “Intellectual
Property”:
““ Interim
Forestry Services Amount ” means the amount of the
Forestry Services as at the anticipated Closing Date and as
indicated in the Forestry Services Statement.”
(s) Section 1.01
(definition of “Interim Forestry Services Payment”)
. Section 1.01 is amended by deleting the definition of
“Interim Forestry Services Payment” and replacing it
with the following:
““ Interim
Forestry Services Payment ” has the meaning provided in
Section 2.10(c).”
(t) Section 1.01
(definition of “Lot 30”) . Section 1.01 is
amended by adding the following immediately after the definition of
“Loss”:
““ Lot 30
” means that certain lot 30 DL 7893 Plan 1194 Managed Forest
35 with a PID of 014-025-639.
(u) Section 1.01
(definition of “Lot 30 Profit Á Prendre ”).
Section 1.01 is amended by adding the following immediately
after the definition of “Lot 30”:
““ Lot 30
Profit Á Prendre ” has the meaning provided in
Section 5.24(e)”.
(v) Section 1.01
(definition of “Needles Authorization”) .
Section 1.01 is amended by adding the following immediately
after the definition of “Mill”:
““ Needles
Authorization ” means the grant to the Purchaser of one
or more leases or licenses of occupation by all necessary
Governmental Authorities (or a conveyance or other transfer of such
leases or licenses of occupation to Purchaser from Sellers), in the
form of such leases and licenses of occupation as may then be
granted by such Governmental Authorities in comparable
circumstances, providing the Purchaser (on an exclusive basis in
the case of a lease and on a non-exclusive basis in the case of a
license) with lawful access to, and the lawful right to
use
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the Needles Foreshore Area
(other than such portion of the Needles Foreshore Area that is
owned by Sellers and conveyed to Purchaser) for industrial log
handling and storage purposes for a term, inclusive of optional
renewals in favour of the Purchaser, of not less than fifteen
(15) years at an annual rent, license fee or similar amount
charged to the Purchaser during the initial five (5) years of
the term of less than $5,000 per annum, in aggregate, exclusive of
any applicable real property taxes payable to any such Governmental
Authority, free and clear of all liens, charges or encumbrances by
or through the Sellers.”
(w) Section 1.01
(definition of “Needles Escrow Agreement”) .
Section 1.01 is amended by adding the following immediately
after the definition of “Needles
Authorization”:
““ Needles
Escrow Agreement ” has the meaning given to it in
Section 2.19(a).”
(x) Section 1.01
(definition of “Needles Escrow Amount”) .
Section 1.01 is amended by adding the following immediately
after the definition of “Needles Escrow
Agreement”:
““ Needles
Escrow Amount ” has the meaning given to it in
Section 2.19(a).”
(y) Section 1.01
(definition of “Needles Foreshore Area”) .
Section 1.01 is amended by adding the following immediately
after the definition of “Needles Escrow
Amount”:
““ Needles
Foreshore Area ” means the approximately 8 hectare area
within the circled portion on the diagram attached hereto as
Exhibit 1.01(j).”
(z) Section 1.01
(definition of “Profits Á Prendre”) .
Section 1.01 is amended by adding the following immediately
after the definition of “Price Adjustment Escrow
Agreement”:
““ Profits
Á Prendre ” has the meaning given to it in
Section 5.24.”
(aa) Section 1.01
(definition of “Remaining Needles Escrow Amount”) .
Section 1.01 is amended by adding the following immediately
after the definition of “Reload Facility”:
““ Remaining
Needles Escrow Amount ” has the meaning given to it in
Section 2.19(c).”
(bb) Section 1.01
(definition of “Section 54 Amount”) .
Section 1.01 is amended by adding the following immediately
after the definition of “SEC Reports”:
““ Section 54
Amount ” has the meaning given to it in
Section 2.18.”
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(cc) Section 1.01
(definition of “Section 54 Plan”) .
Section 1.01 is amended by adding the following immediately
after the definition of “Section 54 Amount”:
““ Section 54
Plan ” means the letter of agreement dated the 8
th
day of February, 2006 between
PTL and United Steelworkers of America - Local 1-423 in respect of
the partial closure of Midway Sawmill Division and related
matters.”
(dd) Section 1.01
(definition of “Shelter Bay Covenant”) .
Section 1.01 is amended by adding the following immediately
after the definition of “Shared Contract”:
““ Shelter Bay
Covenant ” has the meaning given to it in
Section 5.24.”
(ee) Section 1.01
(definition of “Shelter Bay Lease”) .
Section 1.01 is amended by adding the following immediately
after the definition of “Shelter Bay
Covenant”:
““ Shelter Bay
Lease ” has the meaning given to it in
Section 5.24.”
(ff) Section 1.01
(definition of “Surety”) . Section 1.01 is
amended by adding the following immediately after the definition of
“Straddle Period”:
““ Surety
” means any form of surety including performance bonds
standing surety for post-harvest obligations under any Cutting
Contract, cash standing surety for post-harvest obligations under
any Cutting Contract in lieu of such performance bonds, and any
master payment bond standing surety for stumpage or other payment
obligations under any Cutting Contract.”
(gg) Section 1.01
(definition of “Timber Rights of First Refusal”) .
Section 1.01 is amended by adding the following immediately
after the definition of “TFL 23”:
““ Timber
Rights of First Refusal ” has the meaning given to it in
Section 5.24.”
(hh) Section 1.01
(definition of “Union Employees’ Vacation
Accrual”) . Section 1.01 is amended by adding the
following immediately after the definition of “Union
Employees”:
““ Union
Employees’ Vacation Accrual ” means all amounts
owing or accrued to the Union Employees in respect of vacation or
other time off with pay for the period up to the Effective Time,
including without limitation amounts on account of vacation pay,
banked vacation, leave payment, banked overtime, vacation pay on
vacation pay, sick/WCB vacation credits, vacation anniversary
catch-up and floater days, whether or not due and payable on or
before the Closing Date.”
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(ii) Section 1.02
. Section 1.02 is amended by deleting subsection
(i) thereof and replacing it with the following:
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“(i) |
the use of “or” is not intended to be exclusive
unless expressly indicated otherwise; and |
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(j) |
other than with respect to the calculation and delivery of the
Interim Price Adjustment and the Forestry Services Statement (which
shall provide for the use of such currency conversion rates as are
reasonably selected by the Sellers), whenever Canadian dollar
amounts are converted to US dollar amounts for the purposes of
calculating amounts payable or to be assumed under this Agreement,
the rate of exchange used shall be the USD-CAD closing rate on the
Business Day immediately preceding the Closing Date, as published
by the Bank of Canada.” |
(jj) Section 2.02
. Section 2.02 is amended by adding the following new
subsection immediately after subsection
(vii) thereof:
“(viii) the Assumed
Bonded Obligations.”
(kk) Section 2.03
. Section 2.03 is deleted in its entirety and replaced with
the following:
“SECTION 2.03
Purchase Price . The purchase price (the “ Purchase
Price ”) payable by the Purchaser to the Sellers for the
sale, transfer, assignment, conveyance and delivery to the
Purchaser of the Purchased Assets shall be equal to the sum of:
(a) $69 million; plus (b) the Actual Price
Adjustment; minus (c) the Cure Costs; minus
(d) the Landfill Price Adjustment; minus (e) any
Wind-Up Deficiency; minus (f) the Amendment Price
Adjustment; minus (g) the Estimated Section 54
Plan Amount; minus (h) the Union Employees’
Vacation Accrual.”
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(ll) Section 2.04
. Section 2.04, other than the preamble thereto is deleted in
its entirety and replaced with the following:
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“(a) |
the sum of: (i) $69 million, plus (ii) an
amount equal to seventy-five percent (75%) of the excess, if
any, of the Interim Price Adjustment over the Estimated STI Road
Adjustment; minus (iii) the amount of the
Purchaser’s Deposit plus all accrued interest thereon;
minus (iv) the amount of the Determined Cure Costs as
of two (2) Business Days prior to the Closing Date;
minus (v) the amount of the Asserted Cure Costs;
minus (vi) the Landfill Price Adjustment; minus
(vii) any Wind-Up Deficiency; minus (viii) the
Forestry Services Escrow Amount; minus (ix) the
Amendment Price Adjustment; minus (x) the Interim
Forestry Services Payment that is paid and applied in accordance
with the direction provided by the Sellers in Section 2.10(c);
minus (xi) the Union Employees’ Vacation Accrual;
minus (xii) the Estimated Section 54 Plan Amount;
minus (xiii) the Needles Escrow Amount, shall be paid
by completed wire transfer to the Purchase Price Bank Account of
immediately available, good funds on the Closing Date; |
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(b) |
an amount equal to the sum of (i) twenty-five percent
(25%) of the excess, if any, of the Interim Price Adjustment
over the Estimated STI Road Adjustment; plus (ii) the
Estimated STI Road Adjustment, if any (such sum being the “
Price Adjustment Deposit ”) shall be deposited with
the Escrow Agent on the Closing Date pursuant to the Price
Adjustment Escrow Agreement, in accordance with
Section 2.07(b); |
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(c) |
the amount of the Asserted Cure Costs shall be deposited with
the Escrow Agent on the Closing Date pursuant to the Asserted Cure
Costs Escrow Agreement, in accordance with
Section 2.09(a); |
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(d) |
the amount of the Purchaser’s Deposit plus all accrued
interest thereon shall be deemed to be paid by the Purchaser by the
release of such amount on the Closing Date to or for the account of
the Sellers by the Escrow Agent, pursuant to the Deposit Escrow
Agreement and in accordance with Section 2.14; |
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(e) |
an amount equal to the Forestry Services Escrow Amount shall be
deposited with the Escrow Agent on the Closing Date pursuant to the
Forestry Services Escrow Agreement, in accordance with
Section 2.10(b); |
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(f) |
an amount equal to the Interim Forestry Services Payment shall
be paid and applied in accordance with the direction provided by
the Sellers in accordance with Section 2.10(c); |
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(g) |
an amount equal to the Needles Escrow Amount shall be deposited
with the Escrow Agent on the Closing Date pursuant to the Needles
Escrow Agreement, in accordance with Section 2.19(a);
and |
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(h) |
the Purchase Price shall be adjusted after the Closing to
reflect any difference between the Interim Price Adjustment and the
Actual Price Adjustment, as provided in
Section 2.08(d).” |
(mm)
Section 2.07(a) . Section 2.07(a) is deleted in
its entirety and replaced with the following:
“SECTION 2.07 (a)
Interim Price Adjustment . Not less than five (5) nor
more than ten (10) Business Days prior to the Closing Date,
the Sellers shall deliver a calculation of the Interim Price
Adjustment to the Purchaser. The Interim Price Adjustment shall be
based upon the Sellers’ estimate of the Mills segment balance
sheet components of the Sellers’ trial
balance.”
(nn)
Section 2.08(c) . Section 2.08(c) is deleted in
its entirety and replaced with the following:
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“(c) |
If the
Sellers and the Purchaser are unable to agree upon any item(s) of
the Actual Price Adjustment within twenty (20) Business Days
after delivery by the Purchaser of the written calculation pursuant
to Section 2.08(b), then the item(s) in dispute shall be
referred by the parties to, and shall be determined by, the
Independent Accounting Firm. In such event: (i) the
Independent Accounting Firm shall be required to utilize the
services of a suitably qualified forestry consulting firm (the
“ Forestry Consultant ”) that is mutually
agreeable to the parties hereto and carries on business in the
interior region of British Columbia in respect of any disagreement
between the Sellers and the Purchaser as regards the STI
Adjustment; (ii) each party shall be entitled, but not
obligated, to: (A) furnish to the Independent Accounting Firm
and Forestry Consultant such working papers and other documents and
information relating to the disputed item(s) as are in the
possession or control of such
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party; (B) present to
the Independent Accounting Firm and Forestry Consultant the basis
for its view with respect to the disputed item(s); and
(C) discuss the determination of the disputed item(s) with the
Independent Accounting Firm and Forestry Consultant; (iii) the
determination by the Independent Accounting Firm shall be final and
binding on the parties; and (iv) the fees and disbursements of
the Independent Accounting Firm and Forestry Consultant shall be
allocated between the Sellers and the Purchaser in the same
proportion that the aggregate amount of such remaining disputed
items so referred to the Independent Accounting Firm that is
unsuccessfully disputed by each such party (as finally determined
by the Independent Accounting Firm) bears to the total amount of
such remaining disputed items so submitted. The Sellers and the
Purchaser shall direct the Independent Accounting Firm to use all
reasonable efforts to issue to the parties its determination of the
disputed items within thirty (30) days after such disputed
items are referred to the Independent Accounting
Firm.”
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(oo) Section 2.10
. Section 2.10 is deleted in its entirety and replaced with
the following:
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“2.10 |
“Forestry Services Payments . (a) Not less than
five (5) nor more than ten (10) Business Days prior to
the anticipated Closing Date, the Sellers shall deliver to the
Purchaser a detailed written calculation (the “ Forestry
Services Statement ”) of the Interim Forestry Services
Amount to obtain agreement with respect to the amount thereof. The
Forestry Services Statement shall include such supporting data as
may reasonably be required in order to confirm the Interim Forestry
Services Amount. If the Sellers and the Purchaser agree in writing
on the Interim Forestry Services Amount, then such amount as they
have agreed shall be the Forestry Services Amount. |
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(b) |
On the
Closing Date, the Purchaser shall deliver to and deposit in trust
with the Escrow Agent $1,500,000 (the “ Forestry Services
Escrow Amount”) , pursuant to the terms of a Forestry
Services Escrow Agreement entered into among Sellers, the
Purchaser, and the Escrow Agent, in
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substantially the form
attached as Exhibit 2.08(c) (the “ Forestry Services
Escrow Agreement ”). Interest earned on the Forestry
Services Escrow Amount shall be deemed a part of the Forestry
Services Escrow Amount for all purposes of this Agreement. The
Forestry Services Escrow Amount shall be released in accordance
with this Section 2.10. The Sellers and the Purchaser shall
each pay, and shall each be liable only for, one-half of the Escrow
Agent’s escrow fees and charges in connection with the escrow
account established under the Forestry Services Escrow
Agreement.
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(c) |
At the Closing, the Purchaser shall assume and agree to perform
all of the Forestry Services (notwithstanding the amount paid to
the Purchaser by the Sellers for the assumption and agreement to
perform the Forestry Services by the Purchaser) and the Sellers
shall pay to the Purchaser the amount of the Forestry Services
Amount as indicated in the Forestry Services Statement (the “
Interim Forestry Services Payment ”) by an irrevocable
direction to pay and apply an equal portion of the Purchase Price
on the Closing Date in satisfaction of such amount. |
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(d) |
If the
Sellers and the Purchaser are unable to agree upon the Forestry
Services Amount within sixty (60) Business Days after the
Closing Date, then the item(s) in dispute shall be referred by the
parties to, and shall be determined by, the Silviculture Expert. In
such event: (i) each party shall be entitled, but not
obligated, to: (A) furnish to the Silviculture Expert such
working papers and other documents and information relating to the
disputed item(s) as are in the possession or control of such party;
(B) present to the Silviculture Expert the basis for its view
with respect to the disputed item(s); and (C) discuss the
determination of the disputed item(s) with the Silviculture Expert;
(ii) the determination by the Silviculture Expert shall be
final and binding on the parties; and (iii) the fees and
disbursements of the Silviculture Expert shall be allocated between
the Sellers and the Purchaser in the same proportion that the
aggregate amount of such remaining disputed items so referred to
the Silviculture Expert that is unsuccessfully disputed by each
such party
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(as finally determined by
the Silviculture Expert) bears to the total amount of such
remaining disputed items so submitted. The Sellers and the
Purchaser shall direct the Silviculture Expert to use all
reasonable efforts to issue to the parties its determination of the
disputed items within thirty (30) days after such disputed
items are referred to the Silviculture Expert.
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(e) |
On the third Business Day following the agreement of the
parties with respect to the Forestry Services Amount, as provided
in Section 2.10(a), or, if the parties are unable to reach
agreement, the determination of any disputed item(s) by the
Silviculture Expert pursuant to Section 2.10(d),
then: |
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(i) |
if the Forestry Services Amount is equal to or less
than the Interim Forestry Services Amount, then (A) the
Forestry Services Escrow Amount shall be released to Sellers by the
Escrow Agent; and (B) the Purchaser shall pay to the Sellers
an amount equal to the difference, if any, between the Forestry
Services Amount and the Interim Forestry Services Amount (the
“ Forestry Services Delta ”) by wire transfer of
immediately available, good funds; |
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(ii) |
if the Forestry Services Amount is greater than the
Interim Forestry Services Amount and the Forestry Services
Delta is less than the Forestry Services Escrow Amount,
then: (A) an amount equal to the Forestry Services Delta shall
be released to the Purchaser from the Forestry Services Escrow
Amount by the Escrow Agent; and (B) the balance of the
Forestry Services Escrow Amount shall be released to the Sellers by
the Escrow Agent; and |
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(iii) |
if the Forestry Services Amount is greater than the
Interim Forestry Services Amount and the Forestry Services
Delta is greater than the Forestry Services Escrow Amount,
then: (A) the Forestry Services Escrow amount shall be
released to the Purchaser by the Escrow Agent; and (B) the
Sellers shall pay to the Purchaser by wire transfer of immediately
available, good funds an amount equal to the excess of the Forestry
Services Delta over the Forestry Services Escrow
Amount.” |
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(pp) Section 2.11
. Section 2.11 is deleted in its entirety and replaced with
the following:
“SECTION 2.11
Closing . Subject to the terms and conditions of this
Agreement, the sale and purchase of the Purchased Assets and the
assumption of the Assumed Liabilities and the Forestry Services
contemplated by this Agreement shall take place at a closing
(th
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