Exhibit 10.3


 


SECOND
AMENDMENT TO


EQUITY AND ASSET PURCHASE
AGREEMENT


 


THIS SECOND AMENDMENT TO EQUITY AND ASSET PURCHASE AGREEMENT,
dated as of April 30,
2005 (this “Amendment”), is
made and entered into by and between MeadWestvaco Corporation, a Delaware
corporation (“Seller”), and Escanaba Timber LLC (formerly
known as Maple Acquisition LLC), a Delaware limited liability company (“Purchaser”). Capitalized
terms used herein but otherwise not defined shall have the meaning given to
such terms in the Purchase Agreement (as defined below).


 


WHEREAS, Seller and Purchaser have entered into that certain Equity and
Asset Purchase Agreement, dated as of January 14, 2005 (the “Purchase
Agreement”), which contemplates that Seller and
its Subsidiaries will sell, assign and transfer to Purchaser and/or one or more
of its Designated Affiliates, and that Purchaser and/or one or more of its
Designated Affiliates will purchase and acquire from Seller and its
Subsidiaries, all of the right, title and interest of Seller and its
Subsidiaries in and to the Purchased Equity Interests and the Purchased Assets,
and that Purchaser and/or one or more of its Designated Affiliates will assume
the Assumed Liabilities, in each case, upon the terms and subject to the
conditions set forth in the Purchase Agreement; and


 


WHEREAS, Seller and Purchaser have entered into that certain First
Amendment to Equity and Asset Purchase Agreement, dated as of April 22,
2005 (the “First Amendment,” together with the Purchase
Agreement, the “Amended Purchase Agreement”)


 


WHEREAS, Seller and Purchaser desire to further amend the Amended
Purchase Agreement as set forth below;


 


NOW, THEREFORE, in consideration of the mutual agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:


 


ARTICLE I


AMENDMENT
TO PURCHASE AGREEMENT


 


Section 1.1                                      Amendment of Section 6.12(e).   Section 6.12(e) of
the Purchase Agreement is hereby amended by adding the following at the end of Section 6.12(e):


 


“It is hereby acknowledged that Purchaser has not received Express Maps
for all of the Timberlands prior to the Closing. If it shall be determined
after the Closing that less than the applicable minimum acreage (determined as
set forth in this Section 6.12(e)) in the Escanaba Forest, the Chillicothe
Forest and/or the Wickliffe Forest was conveyed to Purchaser at Closing, then
Purchaser shall be entitled to claim the applicable Purchase Price Credit under
this Section 6.12(e), and Seller shall promptly cause such amount to be
paid to Purchaser, which amount shall be deemed to be an adjustment to the
Purchase Price; provided, however, that Purchaser must make any such claim in
writing not later than the earlier of (x) fifteen (15) days after its receipt
of the last of all the Express Maps covering all of the Escanaba Forest, the
Chillicothe Forest and the Wickliffe Forest and (y) ninety (90) days after the
Closing. Purchaser shall make available to Seller any GIS data and other
documents and personnel reasonably required by Seller to


 


1





















 


evaluate
and respond to any such claim. Notwithstanding anything to the contrary in Section 6.11
or in this Section 6.12, Purchaser shall not be entitled to deliver, after
the Closing, any notices of Title Defects with respect to the Titled Properties
for which Purchaser has obtained Title Policies at the Closing.”


 


Section 1.2                                      Amendment of Section 7.6. The last sentence of Section 7.6 of
the Purchase Agreement is hereby amended and restated in its entirety as
follows:


 


“To the extent such substitution contemplated by the first sentence of
this Section 7.6 has not been effected, Purchaser shall (i) use
commercially reasonable efforts to affect such substitution as soon as
practicable following the Closing, but in any event within 6 months thereof
(except with respect to the Guarantee described in Schedule 7.6(i), for
which Purchaser shall continue to use commercially reasonable efforts to effect
such substitution until such substitution occurs), and (ii) indemnify
Seller and its Subsidiaries that are not Acquired Companies with respect to any
such Guarantees (including the Guarantee described in Schedule 7.6(i)) in
accordance with Article XI; provided, however, that notwithstanding
anything in the foregoing, with respect to any of the Guarantees (other than
the Guarantee set forth in Schedule 7.6(i)), Seller and its Subsidiaries
may at any time following the six month anniversary of the Closing terminate
one or more of such Guarantees and thereafter cease to have any obligation whatsoever
arising from or in connection with any such terminated Guarantee.”


 


Section 1.3                                      Amendment of Section 8.9. Section 8.9 of the Purchase Agreement
is hereby amended and restated in its entirety as follows:


 


“Officer’s Certificate. Purchaser shall have received a
certificate from Seller to the effect set forth in Section 8.1, 8.2 and
8.8, dated the Closing Date, signed on behalf of Seller by the Chief Executive
Officer, Chief Financial Officer, Treasurer or any Vice President of Seller.”


 


Section 1.4                                      Amendment of Section 11.7. Section 11.7 of the Purchase Agreement
is hereby amended by adding the following at the end of such Section 11.7:


 


“The parties hereby confirm that, (1) pursuant to Section 6.10(b) and
Section 8.10 of this Agreement, Purchaser has obtained Title Policies with
respect to (among other properties) the properties conveyed at the Closing
pursuant to the Deeds (which term shall be deemed to include, for purposes of
this Section 11.7, any deeds for Timberlands in Escanaba, Michigan
executed and delivered pursuant to clause (b) of the first sentence of Section 1.6
of this Agreement, as amended by the First Amendment), and (2) pursuant to
clause (a) of the first sentence of this Section 11.7, the grantor
under such Deeds shall have no liability to the grantee under such Deeds (or to
any successors or assigns of such grantee) pursuant to any warranty (express or
implied) contained or deemed contained in any such Deed, including (without limitation)
any such express or implied warranties pertaining to the legal descriptions
annexed to any such Deeds.” 


 


Section 1.5                                      Amendment of Section 15.1. Section 15.1 of the Purchase Agreement
is hereby amended by adding the following definition:


 


“UPRC
2001 IRBs” means the Upper Potomac River, Maryland, June 1, 2001, Series 2001
($1,600,000) industrial revenue bond issue.”


 





















 


Section 1.6                                      Assumed Indebtedness. The parties hereto acknowledge and agree
that, to (the extent that (i) the Capital Charge (as defined in the
Facilities Agreement between Seller and the Upper Potomac River Commission,
dated as of November 8, 2001 (the “Facilities Agreement”)) payable
by Purchaser and/or its Designated Affiliates following the Closing does not
exceed (x) $892,934.16 (or such other amount determined using a proportionate
share of the Capital Charge other than 28.11%, as determined in accordance with
Section 6.01 of the Facilities Agreement) in the aggregate through final
maturity of the 2001 UPRC IRBs (either amount, the “Aggregate Capital Charge”), and
(y) $26,782 (or such other amount determined using a proportionate share of the
Capital Charge other than 28.11%, as determined in accordance with Section 6.01
of the Facilities Agreement) per annum (either amount, the “Per Annum Capital
Charge,”) and (ii) Purchaser and/or its Designated Affiliates have no
obligations with respect to the 2001 UPRC IRBs other than as set forth in the
Facilities Agreement, the 2001 UPRC IRBs shall be treated as Assumed
Indebtedness for all purposes, except for purposes of determining the Final
Cash Consideration pursuant to Article II, and shall not be included in
any calculation of Assumed Indebtedness, Estimated Assumed Indebtedness, or
Final Assumed Indebtedness.  The parties
hereto also acknowledge and agree that, to the extent that the Capital Charge
payable by Purchaser and/or its Subsidiaries following the Closing either (i) does
exceed (x) on an aggregate basis through final maturity, the Aggregate Capital
Charge, or (y) on a per annum basis, the Per Annum Capital Charge, or (ii) the
Purchaser and/or its Designated Affiliates have obligations with respect to the
2001 UPRC IRBs other than as set forth in the Facilities Agreement, the 2001
UPRC IRBs shall be included in any calculation of Assumed Indebtedness,
Estimated Assumed Indebtedness, or Final Assumed Indebtedness, in each case for
purposes of determining the Final Cash Consideration pursuant to Article II,
but only to the extent of such excess or additional obligation, or, if such
determination is made after Final Assumed Indebtedness is finally determined,
Seller shall pay Purchaser or its Designated Affiliate the amount of such
excess or the amount in respect of such additional obligation.


 


ARTICLE II


AMENDMENT TO SCHEDULES TO PURCHASE AGREEMENT


 


Section 2.1             Amendment
of Schedule 1.1.   Schedule 1.1
of the Purchase Agreement is hereby amended by deleting such schedule in
its entirety and replacing the same with Annex A hereto, and such
amended Schedule shall be deemed for all purposes to have been delivered
as of the date of the Purchase Agreement.


 


Section 2.2                                      Amendment of Schedule 1.2(a)(i).   Schedule 1.2(a)(i) of
the Purchase Agreement is hereby amended by deleting such schedule in its
entirety and replacing the same with Annex B hereto, and such amended Schedule shall
be deemed for all purposes to have been delivered as of the date of the
Purchase Agreement.


 


Section 2.3                                      Amendment of Schedule 1.2(a)(ii).   Schedule 1.2(a)(ii) of
the Purchase Agreement is hereby amended by deleting such schedule in its
entirety and replacing the same with Annex C hereto, and such amended Schedule shall
be deemed for all purposes to have been delivered as of the date of the
Purchase Agreement.


 





















 


Section 2.4                                      Amendment of Schedule 1.2(b)(i).   Schedule 1.2(b)(i) of the Purchase
Agreement is hereby amended by deleting such schedule in its entirety and
replacing the same with Annex D hereto, and such amended Schedule shall
be deemed for all purposes to have been delivered as of the date of the
Purchase Agreement.


 


Section 2.5                                      Amendment of Schedule 1.2(b)(ii).   Schedule 1.2(b)(ii) of the Purchase
Agreement is hereby amended by deleting such schedule in its entirety and
replacing the same with Annex E hereto, and such amended Schedule shall
be deemed for all purposes to have been delivered as of the date of the
Purchase Agreement.


 


Section 2.6                                      Amendment of Schedule 1.2(g).   Schedule 1.2(g) of the Purchase
Agreement is hereby amended by deleting such schedule in its entirety and
replacing the same with Annex F hereto, and such amended Schedule shall
be deemed for all purposes to have been delivered as of the date of the
Purchase Agreement.


 


Section 2.7                                      Amendment of Schedule 1.2(n).   Schedule 1.2(n) of the Purchase Agreement
is hereby amended by deleting such schedule in its entirety and replacing
the same with Annex G hereto, and such amended Schedule shall be
deemed for all purposes to have been delivered as of the date of the Purchase
Agreement.


 


Section 2.8                                      Amendment of Schedule 1.3(d).   Schedule l.3(d) of the Purchase Agreement
is hereby amended by deleting such schedule in its entirety and replacing
the same with Annex H hereto, and such amended Schedule shall be
deemed for all purposes to have been delivered as of the date of the Purchase
Agreement.


 


Section 2.9                                      Amendment of Schedule 1.3(e).   Schedule 1.3(e) of
the Purchase Agreement is hereby amended by deleting such schedule in its
entirety and replacing the same with Annex I hereto, and such amended Schedule shall
be deemed for all purposes to have been delivered as of the date of the
Purchase Agreement.


 


Section 2.10                                Amendment of Schedule 1.4(o).   Schedule 1.4(o) of the Purchase Agreement
is hereby amended by deleting such schedule in its entirety and replacing
the same with Annex J hereto, and such amended Schedule shall be
deemed for all purposes to have been delivered as of the date of the Purchase
Agreement.


 


Section 2.11                                Amendment of Schedule 3.2(h).   Schedule 3.2(h) of the Purchase
Agreement is hereby amended by deleting such schedule in its entirety and
replacing the same with Annex K hereto, and such amended Schedule shall
be deemed for all purposes to have been delivered as of the date of the
Purchase Agreement.


 


Section 2.12                                Amendment of Schedule 4.1.   Schedule 4.1
of the Purchase Agreement is hereby amended by deleting such schedule in
its entirety and replacing the same with Annex L hereto, and such
amended Schedule shall be deemed for all purposes to have been delivered
as of the date of the Purchase Agreement.


 


Section 2.13                                Amendment of Schedule 4.2.   Schedule 4.2
of the Purchase Agreement is hereby amended by deleting such schedule in
its entirety and replacing the


 





















 


same
with Annex M hereto, and such amended Schedule shall be deemed for
all purposes to have been delivered as of the date of the Purchase Agreement.


 


Section 2.14                                Amendment of Schedule 4.3.   Schedule 4.3 of the Purchase Agreement is
hereby amended by deleting such schedule in its entirety and replacing the
same with Annex N hereto, and such amended Schedule shall be deemed
for all purposes to have been delivered as of the date of the Purchase
Agreement.


 


Section 2.15                                Amendment of Schedule 4.5.   Schedule 4.5
of the Purchase Agreement is hereby amended by deleting such schedule in
its entirety and replacing the same with Annex O hereto, and such
amended Schedule shall be deemed for all purposes to have been delivered
as of the date of the Purchase Agreement.


 


Section 2.16                                Amendment of Schedule 4.9(a)(i).   Schedule 4.9(a)(i) of the Purchase Agreement
is hereby amended by deleting such schedule in its entirety and replacing
the same with Annex P hereto, and such amended Schedule shall be
deemed for all purposes to have been delivered as of the date of the Purchase
Agreement.


 


Section 2.17                                Amendment of Schedule 4.9(b).   Schedule 4.9(b) of
the Purchase Agreement is hereby amended by deleting such schedule in its
entirety and replacing the same with Annex Q hereto.


 


Section 2.18                                Amendment of Schedule 4.9(c).   Schedule 4.9(c) of
the Purchase Agreement is hereby amended by deleting such schedule in its
entirety and replacing the same with Annex R hereto, and such amended Schedule shall
be deemed for all purposes to have been delivered as of the date of the
Purchase Agreement.


 


Section 2.19                                Amendment of Schedule 4.9(c)(iii).   Schedule 4.9(c)(iii) of
the Purchase Agreement is hereby amended by deleting such schedule in its
entirety and replacing the same with Annex S hereto, and such amended Schedule shall
be deemed for all purposes to have been delivered as of the date of the
Purchase Agreement.


 


Section 2.20                                Amendment of Schedule 4.10(a).   Schedule 4.10(a) of
the Purchase Agreement is hereby amended by deleting such schedule in its
entirety and replacing the same with Annex T hereto, and such amended Schedule shall
be deemed for all purposes to have been delivered as of the date of the
Purchase Agreement.


 


Section 2.21                                Amendment of Schedule 4.11(a).   Schedule 4.11(a) of
the Purchase Agreement is hereby amended by deleting such schedule in its
entirety and replacing the same with Annex U hereto, and such amended Schedule shall
be deemed for all purposes to have been delivered as of the date of the
Purchase Agreement.


 


Section 2.22                                Amendment of Schedule 4.14.   Schedule 4.14 of the Purchase Agreement is
hereby amended by deleting such schedule in its entirety and replacing the
same with Annex V hereto, and such amended Schedule shall be deemed
for all purposes to have been delivered as of the date of the Purchase
Agreement.


 





















 


Section 2.23                                Amendment of Schedule 6.14.   Schedule 6.14
of the Purchase Agreement is hereby amended by deleting such schedule in
its entirety and replacing the same with Annex W hereto, and such
amended Schedule shall be deemed for all purposes to have been delivered
as of the date of the Purchase Agreement.


 


Section 2.24                                Amendment of Schedule 7.6.    Schedule 7.6
of the Purchase Agreement is hereby amended by deleting such schedule in
its entirety and replacing the same with Annex X hereto, and such
amended Schedule shall be deemed for all purposes to have been delivered
as of the date of the Purchase Agreement.


 


Section 2.25                                Schedule 7.6(i).   The
Schedules to the Purchase Agreement are hereby amended by adding Annex Y
as Schedule 7.6(i) of the Purchase Agreement, and such Schedule shall
be deemed for all purposes to have been delivered as of the date of the Purchase
Agreement.


 


Section 2.26                                Amendment of Schedule 7.9.   Schedule 7.9
of the Purchase Agreement is hereby amended by deleting such schedule in
its entirety and replacing the same with Annex Z hereto, and such
amended Schedule shall be deemed for all purposes to have been delivered
as of the date of the Purchase Agreement.


 


ARTICLE III

MISCELLANEOUS


 


Section 3.1                                      No Waiver. Nothing in this Amendment shall constitute a waiver by Seller or
Purchaser of any breach or default on the part of any party to the Purchase Agreement.


 


Section 3.2                                      Governing Law; Jurisdiction. The provisions of Sections 15.3 and 15.4 of
the Purchase Agreement shall apply to this Amendment as if references to “Agreement”
therein were to this Amendment.


 


Section 3.3                                      No Other Agreements.  
This Amendment together with the Purchase Agreement (as amended by this
Amendment and together with the Schedules, Exhibits and other agreements
referenced therein), the Transition Agreements (together with the Schedules,
Exhibits and other agreements referenced therein) and the Confidentiality
Agreement contain, and are intended as, a complete statement of all of the
terms and the arrangements between the parties hereto with respect to the
matters provided for herein, and supersede any previous agreements and
understandings between the parties hereto with respect to those matters.


 


Section 3.4                                      Effect. Except as expressly set forth herein, this Amendment shall not by
implication or otherwise alter, modify, amend or in any way affect any of the
representations, warranties, terms, conditions, obligations, covenants or
agreements contained in the Purchase Agreement, all of which shall continue in
full force and effect in accordance with their respective terms. For the
avoidance of doubt, except as expressly set forth herein, the execution,
delivery and effectiveness of this Amendment shall not constitute a
reaffirmation, remaking, withdrawal or modification as of the date of this
Amendment of any of the representations, warranties or covenants of any party
hereto.


 





















 


Section 3.5                                      Counterparts; Execution and Delivery by
Facsimile. This Amendment
may be executed in two or more counterparts, each of which shall be deemed to
be an original, but all of which shall constitute one and the same agreement.
This Amendment may be executed and delivered by facsimile, with such delivery
to be as effective as delivery of an originally executed counterpart hereof.


 





















 


IN WITNESS WHEREOF, the parties hereto caused this Amendment to be duly
executed as of the date first above written.


 


 


	
   

  	
  MEADWESTVACO
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Robert E. Birkenholz

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Robert
  E. Birkenholz

  
	
   

  	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ESCANABA
  TIMBER LLC

  (formerly known as Maple Acquisition LLC)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Linda Sheffield

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Linda
  Sheffield

  
	
   

  	
   

  	
  Title:

  	
  Treasurer

  
					



 





















 


ANNEX A


 


Schedule 1.1

Purchased Companies


 


1.          Escanaba Paper Company


 


2.          MeadWestvaco Maryland, Inc.


 


3.          MeadWestvaco Kentucky, LP


 


4.          MeadWestvaco Oxford Corporation


 


5.          MeadWestvaco Energy Services LLC


 


6.          Upland Resources, Inc.


 


7.          EPC Timberlands LLC


 


8.          Oxford Paper Company