Exhibit 10.2
ASSET PURCHASE AND SALE AGREEMENT
Between
▇▇▇▇ PIPELINE COMPANY, L.P. ("KPL")
▇▇▇▇ FERTILIZER STORAGE AND TERMINAL COMPANY ("KFS&T")
(together, "Seller")
and
KANEB PIPE LINE OPERATING PARTNERSHIP, L.P., ("Buyer")
Date: September 17, 2002
TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS...........................................................................................1
1.01 Definitions........................................................................................1
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1.02 Construction; Interpretation.......................................................................6
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ARTICLE II - SALE OF ASSETS.......................................................................................7
2.01 Purchase and Sale..................................................................................7
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2.02 Assets.............................................................................................7
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2.03 Excluded Assets....................................................................................8
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2.04 Assumption.........................................................................................9
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2.05 Seller's Accounts Receivable, Accounts Payable and Settlement Thereof.............................10
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ARTICLE III - PURCHASE PRICE.....................................................................................10
3.01 Purchase Price; Taxes.............................................................................10
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3.02 Adjustments to the Purchase Price.................................................................11
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3.03 Property Tax Proration............................................................................12
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3.04 Allocation........................................................................................12
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ARTICLE IV - REPRESENTATION AND WARRANTIES BY SELLER.............................................................12
4.01 Seller............................................................................................12
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ARTICLE V - REPRESENTATIONS AND WARRANTIES BY BUYER..............................................................21
5.01 Buyer.............................................................................................21
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ARTICLE VI - TITLE...............................................................................................22
6.01 Title to Real Property............................................................................22
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6.02 Title (Assets other than the Real Property).......................................................22
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ARTICLE VII - COVENANTS..........................................................................................22
7.01 Casualty Loss.....................................................................................22
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7.02 Conduct of Business Prior to Closing..............................................................23
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7.03 HSR Act...........................................................................................25
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7.04 Compliance with Conditions Precedent..............................................................25
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7.05 Preparation of Preliminary Settlement Statement...................................................25
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7.06 Press Release.....................................................................................25
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7.07 Government Filings................................................................................25
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7.08 Consents to Assignment............................................................................25
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7.09 Tariffs...........................................................................................26
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7.10 Notices under Articles IV, V and VII..............................................................26
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7.11 Pipeline Repairs..................................................................................26
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7.12 Cooperation.......................................................................................26
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ARTICLE VIII - POST-CLOSING AGREEMENTS...........................................................................27
8.01 Final Recapitulation Settlement; Subsequent Audits and Settlements...............................27
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8.02 Recording.........................................................................................27
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8.03 Records...........................................................................................27
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8.04 Use of Seller's Name..............................................................................28
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8.05 Non-Solicitation of Employees.....................................................................28
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8.06 Post-Closing Covenants............................................................................28
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8.07 Covenant Not to ▇▇▇...............................................................................28
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8.08 Further Assurances................................................................................28
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ARTICLE IX - CLOSING.............................................................................................29
9.01 Time and Place....................................................................................29
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9.02 Conditions to Buyer's Obligations.................................................................30
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9.03 Conditions to Seller's Obligations................................................................32
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ARTICLE X - DISCLAIMERS; INDEMNITIES.............................................................................33
10.01 Disclaimers.......................................................................................33
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10.02 Buyer's Indemnity.................................................................................35
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10.03 Seller's Indemnity................................................................................36
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10.04 Threshold and Monetary Cap........................................................................37
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10.05 Survival..........................................................................................38
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10.06 Sole and Exclusive Remedy.........................................................................38
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10.07 Limitations.......................................................................................39
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10.08 Indemnification Procedures........................................................................39
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ARTICLE XI - INSPECTION AND RECORDS; TITLE.......................................................................40
11.01 Inspection........................................................................................40
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11.02 Title Inspection..................................................................................40
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ARTICLE XII - TAXES..............................................................................................41
12.01 Tax Proceedings...................................................................................41
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12.02 Sales Taxes.......................................................................................41
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12.03 Other Taxes.......................................................................................41
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ARTICLE XIII - EMPLOYEE MATTERS..................................................................................42
13.01 Employees.........................................................................................42
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13.02 Employee Benefit Plans............................................................................43
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13.03 No Third Party Employee Beneficiary...............................................................44
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13.04 Federal Worker Adjustment and Retraining Notification Act.........................................45
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ARTICLE XIV - MISCELLANEOUS PROVISIONS...........................................................................45
14.01 Commission........................................................................................45
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14.02 Assignment........................................................................................45
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14.03 Entire Agreement; Amendments......................................................................45
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14.04 Severability......................................................................................45
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14.05 Actions...........................................................................................45
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14.06 Termination.......................................................................................46
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14.07 Counterparts......................................................................................46
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14.08 Governing Law.....................................................................................46
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14.09 Time of Essence...................................................................................46
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14.10 Nondisclosure of Confidential Information.........................................................47
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14.11 Assignment of ContractS and Property Rights.......................................................47
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14.12 Notices and Addresses.............................................................................47
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EXHIBITS AND SCHEDULES
Exhibit Description Section Reference
--------- ----------- -----------------
A Facilities 2.02(a)
B Real Property 2.02(b)
C Leasehold Interests 2.02(c)
D Property Rights 2.02(d)
E Permits 2.02(e)
F Contracts 2.02(f)
G Intellectual Property 2.02(g)
H Purchase Price Allocation 3.04
I Form of Assignment and Assumption Agreement 9.01(a)
J Form of ▇▇▇▇ of Sale 9.01(a)
K-1 Transition Services Agreement 9.01(a)
K-2 Services Agreement (Long Term) 9.01(a)
L Form of Special Warranty Deed 9.01(a)
M Additional Excluded Assets 2.03(e)
N Technical Repair Criteria 7.11
O Form of Easement 9.01(a)
P Post Closing Covenants 8.06
Q Form of Agreement for Anhydrous Ammonia
Storage and Throughput Service 9.01(a)
Schedule Description Section Reference
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4.01(d) Conduct of Business 4.01(d)
4.01(e) Proceedings and Orders 4.01(e)
4.01(g) Known Environmental Matters,
Environmental Law Violations and Claims 4.01(g)
4.01(h) Compliance with Laws 4.01(h)
4.01(j) Violations 4.01(j)
4.01(m) Legislative and Regulatory Changes 4.01(m)(v)
4.01(o)(i)(A) Exceptions to Employees 4.01(o)(i)
4.01(o)(i)(B) Notifications of Plans to Terminate Employment 4.01(o)(i)
4.01(o)(ii) Employee Benefit Plans 4.01(o)(ii)
4.01(p) Contracts 4.01(p)
4.01(r) Business Interruptions 4.01(r)
4.01(s) Permits 4.01(s)
4.01(t) Deposits 4.01(t)
4.01(u) Work Orders 4.01(u)
4.01(v) Customer List 4.01(v)
4.01(w) Royalties 4.01(w)
13.01 Employees 13.01(a)
ASSET PURCHASE AND SALE AGREEMENT
THIS ASSET PURCHASE AND SALE AGREEMENT ("Agreement") is entered into this
17th day of September, 2002, by and among: ▇. ▇▇▇▇ Pipeline Company, L.P., a
Delaware limited partnership, with its principal place of business at ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ("KPL"); ▇. ▇▇▇▇ Fertilizer Storage and
Terminal Company, a Nebraska corporation, with its principal place of business
at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ("KFS&T"); and ▇. ▇▇▇▇▇
Pipe Line Operating Partnership, L.P., a Delaware limited partnership, with its
principal place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("Buyer").
KPL and KFS&T are hereinafter collectively referred to as "Seller." Seller
and Buyer are hereinafter collectively referred to as the "Parties", and
individually as a "Party."
WHEREAS, Seller owns the anhydrous ammonia pipeline system described herein
and certain other related assets, facilities and contracts (collectively
referred to as the "Assets," as defined in Section 2.02); and
WHEREAS, pursuant to the terms of this Agreement, Seller desires to sell
and Buyer desires to purchase the Assets.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained herein, the Parties agree as follows:
ARTICLE I: DEFINITIONS
1.01 Definitions. As used herein, the following terms have the meanings set
forth below:
"Accounting Firm" has the meaning given it in Section 8.01(b).
"Affiliate" means with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control
with such Person. For purposes of the definition of "Affiliate," the term
"control" (including the correlative terms "controlled by" and "under the
common control of"), as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, through the
ownership of voting securities, by contract, or otherwise.
"Agreement" means this Asset Purchase and Sale Agreement.
"Asset" and "Assets" have the meanings given them in Section 2.02.
"Business" means the business currently being conducted by Seller
using the Assets.
"Business Day" means any day, Monday through Friday, on which
nationally chartered banks are open for the transaction of business in New
York, New York.
"Buyer" has the meaning given it in the Preamble.
"Buyer Indemnitees" means Buyer, its parent companies, Affiliates and
subsidiaries, and their respective partners, members, directors,
shareholders, officers, employees, agents, representatives, contractors and
subcontractors.
"Casualty Loss" has the meaning given it in Section 7.01.
"Closing" has the meaning given it in Section 9.01.
"Closing Amount" has the meaning given it in Section 7.05.
"Closing Date" means the date on which Closing occurs.
"Code" means the Internal Revenue Code of 1986, as amended.
"Confidentiality Agreement" means that certain confidentiality
agreement dated March 12, 2002 by and among Kaneb Pipe Line Company and
KPL, KFS&T and ▇▇▇▇ Nitrogen Company, which to the extent Confidential
Information relating to the Assets purchased and sold hereunder or the
Business was disclosed pursuant to the Confidentiality Agreement, the
obligations of Buyer thereunder shall automatically terminate as of the
Closing; provided, however, to the extent Confidential Information relating
to assets not purchased and sold hereunder was or is disclosed pursuant to
the Confidentiality Agreement, then the Confidentiality Agreement shall
remain in full force and effect according to its terms.
"Contracts" has the meaning given it in Section 2.02(f).
"Drop Dead Date" has the meaning given it in Section 14.06(a)(ii).
"Effective Time" has the meaning given it in Section 9.01.
"Employees" has the meaning given it in Section 13.01(a).
"Employment Sites" has the meaning given it in Section 4.01(o)(vii).
"Environmental Condition" means soil and water contamination, or other
types of Releases of Hazardous Materials or environmental damage or
contamination in, on, around or under the Assets or arising from the
Assets, including offsite disposal thereof and any of which requires
Remediation under applicable Environmental Laws.
"Environmental Laws" means any and all Legal Requirements or Orders,
rules, codes, policies, directives, standards, licenses or permits of any
Governmental Body relating to the environment, specifically including those
relating to the exposure to, or the use, Release, emission, presence,
storage, treatment, generation, transportation, processing or handling of,
Hazardous Materials, in effect as of the Effective Time, including the Safe
Drinking Water Act, 42 U.S.C.ss.300f et seq.; the Federal Insecticide,
Fungicide & Rodenticide Act, 7 U.S.C.ss.136 et seq.; the Toxic Substances
Control Act, 15 ▇.▇.▇.▇▇. 2601 et seq.; the Oil Pollution Act of 1990, 33
▇.▇.▇.▇▇. 2701 et seq.; the Clean Water Act, 33 U.S.C.ss.1251 et seq.; the
Clean Air Act, 42 U.S.C.ss.7401 et seq.; the Resource Conservation and
Recovery Act, 42 U.S.C.ss.6901 et seq.; the Comprehensive Environmental
Response, Compensation and Liability Act, 42 ▇.▇.▇.▇▇. 9601 et seq., and
the Emergency Planning and Community Right to Know Act, 42 ▇.▇.▇.▇▇. 11001
et seq., and all similar statutes adopted by the States in which the Assets
are located and in effect as of the Effective Time.
"Environmental Liabilities" means Liabilities/Claims (including
Remediation costs and legal costs associated therewith) incurred or imposed
(a) as the result of an Environmental Condition, (b) pursuant to an
agreement, Order, notice of responsibility or directive arising out of, or
in connection with, or under Environmental Laws, or (c) pursuant to a claim
by a Governmental Body or other Person for personal injury, property
damage, damage to natural resources, Remediation or payment or
reimbursement or response costs incurred or expended by such Governmental
Body or Person pursuant to common law or statute and related to the use or
Release of Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Excluded Assets" has the meaning given it in Section 2.03.
"Facilities" has the meaning given it in Section 2.02(a).
"Final Recap" has the meaning given it in Section 8.01(a).
"Final Recap Statement" has the meaning given it in Section 8.01(a).
"Governmental Body" means any (a) nation, state, county, city, town,
village, district, territory, or other jurisdiction of any nature; (b)
federal, state, local, municipal, foreign, or other government; (c)
governmental authority of any nature (including any governmental agency,
branch, department, official, or entity and any court or other tribunal);
or (d) body exercising, or entitled to exercise, any administrative,
executive, judicial, legislative, police, regulatory, or taxing authority
or power of any nature, including any arbitrator or arbitration panel.
"Hazardous Material" means any "hazardous waste", "hazardous
substance", "extremely hazardous substance", "toxic chemical", "hazardous
chemical", "toxic pollutants", "contaminants", "chemical", "chemical
substance", or "asbestos", as such terms are defined in any of the
Environmental Laws, or related substances, and petroleum and petroleum
products, all in such quantities or concentrations as are regulated by
Environmental Laws.
"Hired Employees" means those Employees accepting employment with
Buyer effective as of the Effective Date.
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended.
"Indemnify" means to indemnify, defend and hold harmless.
"Indemnitee" has the meaning given it in Section 10.08.
"Indemnitor" has the meaning given it in Section 10.08.
"Intellectual Property" has the meaning given it in Section 2.02(g).
"Intermittent Services Agreements" has the meaning given it in Section
4.01(p)(iv).
"Known by Seller" or "Seller's Knowledge" means the current actual
knowledge of the following employees of Seller applicable to the Assets:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, of such fact or circumstance, without any
specific or additional duty to review documents or records or interview
other persons to gain any new actual knowledge or to refresh a memory of
past knowledge.
"Known Environmental Condition" means an Environmental Condition which
occurred prior to the Effective Time, and which is Known by Seller at or
prior to Closing, each of which are listed on Schedule 4.01(g).
"KPL" has the meaning given it in the Preamble.
"KFS&T" has the meaning given it in the Preamble.
"Leasehold Interests" has the meaning given it in Section 2.02(c).
"Legal Requirement" means any Order, constitution, law, ordinance,
regulation, statute, or treaty issued by any Governmental Body, or any
principle of common law or governmental interpretation thereof.
"Liabilities/Claims" means all liabilities, claims, losses, strict
liability claims, including those arising under Environmental Laws,
demands, lawsuits, judgments, Orders, fines, penalties, damages, punitive
damages, expenses, including reasonable attorneys' and consultants' fees,
costs, environmental assessment costs, Remediation costs, and causes of
action asserted by any Person.
"Monetary Cap" has the meaning given it in Section 10.04.
"Negligence/Fault" means negligence, gross negligence, strict
liability and any other type or form of negligence recognized under
applicable law, and willful misconduct.
"Net Inventory" means the anhydrous ammonia owned by Seller as
linefill or stored by Seller in terminals that are connected to, related to
or used in connection with the Facilities, including any pipeline retention
allowances and long and short positions with respect thereto for calendar
year 2002.
"New Contracts" has the meaning given it in Section 9.02(j).
"Notice" means written notice provided pursuant to Section 14.12.
"Order" means any award, decision, injunction, judgment, decree,
order, ruling, subpoena, or verdict entered, issued, made, or rendered by
any court, administrative agency, or other Governmental Body.
"Party" and "Parties" have the meanings given them in the Preamble.
"Permits" has the meaning given it in Section 2.02(e).
"Person" means any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company,
joint venture, estate, trust, unincorporated organization, business,
syndicate, sole proprietorship, association, organization, labor union, or
other entity or Governmental Body.
"Plans" has the meaning given it in Section 4.01(o)(ii).
"Preliminary Settlement Statement" has the meaning given it in Section
7.05.
"Proceeding" means any action, arbitration, audit, claim, inspection,
notice, review, hearing, investigation, litigation, or suit (whether civil,
criminal, administrative, investigative, or informal), at law or in equity,
commenced, brought, conducted, or heard by or before, or otherwise
involving, any Governmental Body.
"Property Rights" has the meaning given it in Section 2.02(d).
"Purchase Price" has the meaning given it in Section 3.01(a).
"Real Property" has the meaning given it in Section 2.02(b).
"Records" has the meaning given it in Section 2.02(i).
"Reference Balance Sheet Date" has the meaning given it in Section
4.01(f)(iii).
"Release" or "Released" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
migrating or disposing (including the abandoning or discarding of barrels,
containers and other closed receptacles containing any Hazardous Material)
of a Hazardous Material into the environment.
"Remediation" means containment, remediation, clean-up, restoration,
removal or monitoring.
"Seller" has the meaning given it in the Preamble.
"Seller Indemnitees" means Seller, its parent companies, Affiliates
and subsidiaries, and their respective partners, members, directors,
shareholders, officers, employees, agents, representatives, contractors and
subcontractors.
"Seller's Accounts Payable" means any debt or trade payable owed by
Seller arising in the ordinary course of business from sales or services
rendered to Seller prior to the Effective Time in connection with the
Business.
"Seller's Accounts Receivable" means any debt or trade payable owing
to Seller arising in the ordinary course of business from sales or services
rendered by Seller prior to the Effective Time in connection with the
Business.
"Seller's Existing Field Authority Limitations" means $100,000 with
respect to capital expenditures; and $150,000 with respect to expensed
expenditures.
"Smart Pig Inspection" means the internal (in-line) pipeline
inspection by use of instrumented inspection tool.
"Tax" or "Taxes" means any income, excise, franchise, profits, capital
gains, capital stock, transfer, sales, use, occupation, property, payroll,
withholding or other taxes or charges, assessments, duties, levies or fees
of any kind imposed or collected by any Governmental Body or pursuant to
any Legal Requirement, including any penalties, interest, deficiency
assessments, additions to taxes or other charges with respect thereto.
"Threshold Amount" has the meaning given it in Section 10.04.
"Title Defect" means any encumbrance, encroachment, irregularity or
defect in or objection to title to the Real Property, Leasehold Interests,
Permits or Property Rights.
"Unknown Environmental Condition" means an Environmental Condition
which occurred prior to the Effective Time, but which is not Known by
Seller at or prior to Closing.
"WARN Act" means the Worker Adjustment Retraining Notification Act of
1988, as amended.
1.02 Construction; Interpretation. Unless the context shall require
otherwise: (i) words importing the singular number or plural number shall
include the plural number and singular number respectively; (ii) words importing
the masculine gender shall include the feminine and neuter genders and vice
versa; (iii) reference to "include", "includes", and "including" shall be deemed
to be followed by the phrase "without limitation;" (iv) reference to "to the
extent" shall be deemed to be followed by the phrase ", but only to the extent;"
(v) reference in this Agreement to "herein", "hereby", or "hereunder", or any
similar formulation, shall be deemed to refer to this Agreement as a whole,
including the Exhibits and Schedules referenced herein and attached hereto; (vi)
the headings of this Agreement are for reference only and shall not be deemed to
form part of the text or be used in the construction or interpretation of this
Agreement; and (vii) all references to "Section" or "Sections" refer to the
corresponding Section or Sections of this Agreement. This Agreement has been
mutually drafted, negotiated and prepared at the mutual request and direction of
the Parties, at arm's length, with the advice and participation of counsel. If
there is any ambiguity, this Agreement shall not be construed against either
Party.
ARTICLE II: SALE OF ASSETS
2.01 Purchase and Sale. Subject to the terms and conditions of this
Agreement, Buyer agrees to purchase from Seller and Seller agrees to sell,
transfer, assign and convey the Assets to Buyer at the Closing, effective as of
the Effective Time.
2.02 Assets. Unless otherwise excluded in this Agreement, the "Assets"
shall consist of the following and shall hereafter collectively, in whole or in
part, be referred to as the "Assets" or individually as the "Asset":
(a) Pipelines, Pipeline Assets and Other Fixtures. All right, title
and interest in and to Seller's Hermann, Missouri terminal and in and to
those certain pipelines, and related valves, pumps, compressors and other
equipment, vehicles, buildings, building contents, personal property and
fixtures relating primarily to Seller's anhydrous ammonia pipeline systems
(except for the Excluded Assets), including the items described in Exhibit
A (the "Facilities"). To the extent any such property is leased, the leases
related thereto are described in Exhibit C, and Seller shall assign its
leasehold interest to the extent assignable and will not convey title. To
the extent title to any of the Assets is held by an Affiliate of Seller,
Seller shall cause that Affiliate to transfer title directly to Buyer at no
additional cost to Buyer;
(b) Real Property. All right, title and interest in and to any parcels
of real property owned by Seller or an Affiliate thereof upon which the
Facilities are located, together with the improvements thereon (the "Real
Property"), including the parcels described in Exhibit B;
(c) Leasehold Interests. All right, title and interest of the lessee
in and to leases of real property upon which the Assets are situated and
the rights associated therewith relating to ongoing use, operation and
maintenance of the Assets (the "Leasehold Interests"), all of which are
more particularly described in Exhibit C;
(d) Property Rights. To the extent not listed as a Permit under
Exhibit E, all right, title and interest of the beneficiary or right holder
in and to those certain easements, rights-of-way, servitudes, permits
and/or licenses, railroad crossing rights, and other rights to use of the
surface and subsurface and related instruments which are held for use in
connection with the ownership, use, operation or maintenance of the Assets,
including those items listed in Exhibit D, and which excludes the Real
Property, the Permits and the Leasehold Interests (the "Property Rights");
(e) Permits. All right, title and interest of the beneficiary or
permit holder in and to any environmental, operational and other
governmental permits, licenses, Orders, franchises and related instruments
or rights relating to the ownership or operation of the Assets, all of
which are listed in Exhibit E ("Permits"), but only to the extent legally
assignable or transferable and excluding the Property Rights listed in
Exhibit D;
(f) Contracts. Subject to the provisions of Section 14.11, all of
Seller's right, title and interest in and to any and all contracts,
warranties and other agreements relating exclusively to or which are
reasonably necessary for the use of the Assets ("Contracts"), including the
Contracts listed in Exhibit F;
(g) Intellectual Property. All intellectual property interests
identified on Exhibit G, including all Liabilities/Claims against other
Persons for infringement and other proprietary rights associated therewith
(the "Intellectual Property");
(h) Inventory. The Net Inventory. Buyer will be responsible for
satisfying any pipeline retention allowances and long and short positions
and obligations with any third Persons.
(i) Records. All books, records and files of Seller relating to the
Assets (paper and electronic format, if available), excluding accounting
records, but including operating records, technical manuals and warranty
documents, customer lists and information, charts, maps, surveys, drawings,
prints and any physical embodiment of the Intellectual Property relating to
the Assets (the "Records"); provided, however, that the Records shall not
include Seller's and Seller's Affiliates' (A) corporate and partnership
records (including any documents relating to the formation or governance of
Seller or its Affiliates), (B) information related to previous offers for
the Assets, including economic analyses of the Assets, (C) any records to
the extent related to the Excluded Assets, and (D) records or other
information protected by the attorney-client privilege or that is work
product of Seller's counsel or counsel for Seller's partners or their
Affiliates, it being agreed that communications seeking or providing legal
advice by, between, or among the following persons shall be and are hereby
deemed confidential communications subject to the attorney-client
privilege: counsel for Seller, or their Affiliates, and any employee or
agent of Seller or their Affiliates.
2.03 Excluded Assets. Except as specifically included within the definition
of the Assets or otherwise provided for in this Agreement, it is the intent of
the Parties that no other assets or interests held or owned by Seller or any
related liabilities or obligations shall be sold, conveyed, transferred, or
assigned to Buyer, and specifically, the sale, conveyance, transfer, and
assignment hereunder shall not include the following (the "Excluded Assets"):
(a) any cash and cash equivalents of Seller;
(b) any logos, emblems, signs, trademarks, trade names, or service
marks that are the property of Seller or its Affiliates; provided, however,
that signs for location, warning, notice, or as required by law shall
remain in place and will be modified or replaced by Buyer to remove
Seller's name, logo, or other identifying marks as provided in Section
8.04;
(c) all items of personal property owned or leased generally by Seller
currently located at Seller's Wichita, Kansas facility or office, including
vehicles, office equipment, furniture, computers, copiers, and fax
machines;
(d) all ammonia terminals, truck loading and storage facilities
located at, on or adjacent to the Facilities unless specifically listed on
Exhibit A;
(e) all items of personal property (including vehicles, office
equipment, furniture, computers, copiers, and fax machines) located at or
adjacent to the Facilities to the extent listed on Exhibit M;
(f) any software programs and licenses for software which are
confidential or proprietary to Seller or its Affiliates, or cannot be
transferred without payment of a fee to another Person, owner or vendor;
provided, however, that Seller shall use good faith efforts to assist Buyer
in arranging for a copy of software that is not transferable without
payment of a fee or other right to use such software, provided Buyer pays
any fee charged or assessed by the vendor or owner thereof (or other
Persons holding the right to license the use of such software); and
provided further, that Buyer shall have access to all data which is not
confidential or proprietary on Seller's or its operator's systems relating
to the Assets for conversion to or storage on Buyer's systems; and
(g) any personal property, software, computers, servers, peripheral
computer hardware and communication devices used in, or in connection with,
Seller's pipeline control center used to remotely monitor and control the
anhydrous ammonia pipeline systems and to ensure the integrity thereof.
2.04 Assumption. As of the Effective Time, Buyer shall assume all rights
and obligations arising after the Effective Time under the Leasehold Interests,
Property Rights, Permits and Contracts and agrees to Indemnify the Seller
Indemnitees from and against all Liabilities/Claims under the Leasehold
Interests, Property Rights, Permits and Contracts accruing after the Effective
Time; but only in each case if such obligations and Liabilities/Claims do not
arise out of or relate to acts or omissions that occurred prior to the Effective
Time.
2.05 Seller's Accounts Receivable, Accounts Payable and Settlement Thereof.
(a) Buyer hereby acknowledges that no sale or transfer of the proceeds of
Seller's Accounts Receivable is made or contemplated by this Agreement and that
Seller is entitled to receive payment of all of Seller's Accounts Receivable out
of the payments received by Buyer on account thereof, if any. The Parties shall
reasonably cooperate with each other in connection with the collection of
Seller's Accounts Receivable.
(b) Buyer is not assuming any of Seller's Accounts Payable. Seller shall be
responsible for the payment of Seller's Accounts Payable. Seller and Buyer
hereby acknowledge that no transfer or assignment of Seller's Accounts Payable
is made or contemplated by this Agreement and that Seller shall remain
responsible for all of Seller's Accounts Payable.
(c) Notwithstanding the foregoing provisions of Section 2.05, Seller and
Buyer will provide each other with a monthly schedule of reimbursements due to
or from one Party as a result of the other Party collecting the former's
accounts receivable or payment of accounts payable. Reimbursements will be
settled monthly following Closing until both Parties agree that all significant
reimbursements have been settled.
ARTICLE III: PURCHASE PRICE
3.01 Purchase Price; Taxes.
(a) Purchase Price. Subject to the terms and conditions of this
Agreement, and in full payment for the Assets, Buyer shall pay to Seller at
Closing, by wire transfer as described in Section 9.01(b), the sum of One
Hundred Forty Million U.S. Dollars ($140,000,000.00) as such sum may be
adjusted as described in Section 3.02 pursuant to the provisions of Section
7.05 (the "Purchase Price").
(b) Taxes. Buyer shall pay all Taxes payable in connection with the
consummation of the transactions contemplated by this Agreement and the
sale, conveyance and assignment of the Assets hereunder (other than income
Taxes resulting directly from such sale, which shall be borne by Seller),
including sales and use Taxes; gross receipts Taxes and other similarly
imposed transaction Taxes; conveyances, transfer, and recording fees; motor
vehicle transfer and excise Taxes and registration fees; and real estate
transfer Taxes and documentary stamp Taxes, except for sales, transfer or
similar Tax which may be payable with respect to the anhydrous ammonia
owned by Seller as Net Inventory, for which Seller shall pay any applicable
sales, transfer or similar Tax. Buyer further agrees to prepare and file
any necessary Tax returns in connection with the foregoing Taxes (except
for sales, transfer or similar Tax which may be payable on the Net
Inventory referenced in the preceding sentence) and fees to be borne by
Buyer and to pay all filing and recording fees relating to the filing and
recording of any instruments delivered by Seller to convey the Assets to
Buyer.
3.02 Adjustments to the Purchase Price. The Purchase Price shall be
adjusted at Closing as follows.
(a) Upward Adjustments. The Purchase Price shall be adjusted upward by
the following:
(i) the amount of expenses, costs, Taxes, and charges incurred or
paid by Seller that are attributable to the ownership or operation of
the Assets after the Effective Time including, any prepaid lease or
other pre-payments, production, excise, severance, gross receipts,
federal and state income Tax, franchise Tax and any other Taxes based
upon or measured by the ownership of the Assets or the receipt of
proceeds therefrom, not deducted or netted from proceeds under Section
3.02(b)(i) below;
(ii) except for payments received by Buyer with respect to
Seller's Accounts Receivable, which are covered by Section 2.05(a),
the amount of all income, revenues and proceeds received by Buyer
attributable to the ownership and operation of the Assets prior to the
Effective Time; and
(iii) any other amount agreed upon by the Parties.
(b) Downward Adjustments. The Purchase Price shall be adjusted
downward by the following:
(i) the amount of all income, revenues and proceeds received by
Seller attributable to the ownership and operation of the Assets after
the Effective Time;
(ii) ad valorem, property, and other Taxes allocated to the
Seller under Section 3.03;
(iii) the amount attributable to any Casualty Loss prior to
Closing under Section 7.01;
(iv) the amount mutually agreed to and attributable to any gaps,
defects or encumbrances in Property Rights, Leasehold Interests and
Permits under Section 11.02(b);
(v) any other amount agreed upon by the Parties; and
(vi) An amount equal to $342,500, which is the mutually agreed
upon approximation of one-half of the costs that Buyer and Seller
expect Buyer will incur for the construction and installation of
equipment by Buyer necessary to monitor and control pipeline
movements, including remote terminal unit, Omni flow computer, control
building, electrical panel and wiring, satellite dish, indoor and
outdoor unit, and other required equipment at the locations listed
below in accordance with the easements granted in Exhibit O. Aurora,
Nebraska Crawfordsville, Indiana Fort Madison, Iowa Holstein, Iowa
Huntington, Indiana Iowa Falls, Iowa Marshalltown, Iowa Trilla,
Illinois Taft, Louisiana Walton, Indiana Washington, Iowa Wood River,
Illinois
The Parties agree that this downward adjustment to the Purchase
price shall be the sole and exclusive consideration due to Buyer for
the matters addressed in this Section 3.02(b)(vi).
3.03 Property Tax Proration. Real estate, ad valorem and personal property
Taxes, if any, for the calendar year in which Closing occurs shall be prorated
to the Effective Time based upon the most recent property Tax assessments and
most recent certified Tax rates. Such Tax proration shall be settled at Closing
by a downward adjustment to the Purchase Price. Buyer will assume responsibility
for the actual payment to the applicable Governmental Body of any unpaid
property Taxes not yet due. Buyer shall Indemnify the Seller Indemnitees from
and against any and all real estate, ad valorem and personal property Taxes to
be paid by Buyer in accordance with this Section 3.03.
3.04 Allocation. The Parties agree that the valuations established in
Exhibit H attached hereto reflect the fair market value of the Assets at the
time of Closing. The Parties further agree that the Purchase Price for the
Assets shall be allocated among those Assets conveyed to Buyer hereunder in
accordance with Section 1060 of the Internal Revenue Code of 1986, as amended.
Seller and Buyer agree to cooperate in good faith in the allocation of the
Purchase Price and the completion and filing of the United States Federal Income
Tax Form 8594 in accordance with the price allocation. The Parties further agree
that they will report the Tax consequences of the purchase and sale hereunder in
a manner consistent with the valuations established in Exhibit H and that they
will not take any positions inconsistent therewith in connection with the filing
of any Tax return.
ARTICLE IV: REPRESENTATIONS AND WARRANTIES BY SELLER
4.01 Seller. Seller represents and warrants to Buyer as of the date of this
Agreement that:
(a) Organization and Standing. KPL is a limited partnership and KFS&T
is a corporation, each duly organized, validly existing and in good
standing under the laws of the States of Delaware and Nebraska
respectively, and both are duly authorized, qualified and licensed under
all applicable Legal Requirements to carry on the Business in the places
and in the manner now conducted.
(b) Authority. Seller has the full legal right, power and authority to
enter into, execute, deliver and perform this Agreement and to carry out
the transactions contemplated herein to be performed or carried out by
Seller. The execution and delivery of this Agreement by Seller and the
consummation of the transactions contemplated hereby have been duly and
validly authorized and approved by all requisite partnership or corporate
action on the part of Seller.
(c) Enforceability. This Agreement constitutes the legal, valid and
binding obligation of Seller, enforceable in accordance with its terms,
except as that enforceability may be (i) limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and (ii) subject to general
principles of equity (regardless of whether such enforceability is
considered in a Proceeding in equity or at law).
(d) Conduct of Business. Except as set forth in Schedule 4.01(d), to
Seller's Knowledge, since January 1, 2000, the Assets have been operated in
the ordinary course of business.
(e) Proceedings and Orders. Except as set forth in Schedule 4.01(e),
(i) there are no Proceedings pending before any Governmental Body, and to
Seller's Knowledge, there are no Proceedings threatened in writing, against
Seller relating to the Business or any of the Assets, or which question the
validity or legality of the transactions contemplated hereby; and (ii)
Seller is not subject to any outstanding Order (other than general
regulation and general regulatory Orders that are not specifically
addressed to Seller but are applicable generally to businesses of the type
operated by Seller) that would reasonably be anticipated to materially and
adversely affect the Assets or the Business.
(f) Financial Information. Seller has delivered to Buyer copies of the
following financial data and information of the Business:
(i) unaudited balance sheet as of December 31, 1999, December 31,
2000 and December 31, 2001;
(ii) unaudited income statement and statement of cash flows for
calendar years 1999, 2000 and 2001; and
(iii) unaudited balance sheet as of June 30, 2002 (the "Reference
Balance Sheet Date") and year to date unaudited income statement and
statement of cash flows for the period ending June 30, 2002.
Such financial statements delivered to Buyer are true and correct in all
material respects and present fairly the financial position and results of
operations of the Business as of the respective dates thereof and for the
fiscal periods then ended, in accordance with generally accepted accounting
principles consistently applied, except that the interim statements do not
include normal, recurring year-end adjustments or footnotes and the year
end statements do not include footnotes.
It is acknowledged by the Parties that Buyer may determine on or after
the date hereof that certain laws and regulations applicable to Buyer may
require an audit to be performed with respect to the Assets and the
Business for periods on or before the Closing Date. To the extent Buyer
makes such a determination, Seller agrees to reasonably cooperate with
Buyer in providing access to Seller's books, records, personnel and present
auditors (and their work papers) required to complete such an audit. The
cost of any such audit will be at Buyer's sole expense, and Buyer shall
reimburse Seller for Seller's reasonable third-Person out-of-pocket
expenses relating to its cooperation as described in the immediately
preceding sentence.
(g) Environmental Law Violations and Environmental Claims. Except as
set forth in Schedule 4.01(g), to Seller's Knowledge:
(i) there is no Environmental Condition relating to the Assets;
(ii) Seller is in compliance with all applicable Environmental
Laws with respect to the Assets or the operation thereof, including
the Records and accounting records required to comply with the
Environmental Laws;
(iii) there are no underground storage tanks, as defined in Title
40 of the Code of Federal Regulations, located on or under any of the
Assets;
(iv) there are no obligations, undertakings or liabilities
arising out of or relating to Environmental Laws or any Environmental
Condition that Seller, with respect to the Assets, has agreed to,
assumed or retained, by contract or otherwise; and
(v) Seller has provided Buyer access to all environmental audits,
assessments or investigations of the Assets that are in the possession
of Seller or are subject to its control.
(h) Compliance. Except as set forth in Schedule 4.01(h), the Assets
and Seller's ownership and operation of the Facilities, and its Records and
accounting records maintained in connection with the Asset or the Business,
are in compliance in all material respects with all Legal Requirements,
excluding the compliance with Environmental Laws and the Records and
accounting records relating thereto, which are covered exclusively by
Section 4.01(g).
(i) [Reserved]
(j) No Violations. Except as set forth in Schedule 4.01(j), the
execution and delivery of this Agreement and the performance by Seller of
its obligations hereunder will not:
(i) violate or conflict with any provision of Seller's limited
partnership agreements or corporate governance documents, as
applicable;
(ii) result in the breach of any term or condition of, or
terminate or constitute a default or cause the acceleration of any
obligation under, any agreement or instrument to which Seller is a
party or by which Seller or any of the Asset may be bound;
(iii) to Seller's Knowledge, except as otherwise stated in either
Schedule 4.01(g) or 4.01(h), violate or conflict with any applicable
Legal Requirement applicable to Seller or the Assets;
(iv) cause Buyer to lose the benefit of any right or privilege
included in the Assets;
(v) relieve any Person of any obligation (whether contractual or
otherwise) or enable any Person to terminate any such obligation or
any right or benefit enjoyed by Seller or to exercise any right under
any agreement with respect to the Assets;
(vi) require notice to or the consent, authorization, approval or
order of any Person; or
(vii) to Seller's Knowledge, materially and adversely affect the
business relationship of clients, customers and suppliers of the
Business.
(k) Non-foreign Entity. Seller is not a non-resident alien, foreign
corporation, foreign partnership, foreign trust, or foreign estate for
purposes of U.S. income taxation.
(l) Brokers. Seller is not a party to or in any way obligated under
any contract or other agreement for the payment of any broker's or finder's
fee in connection with the origination, negotiation, execution or
performance of this Agreement or the transactions contemplated hereby.
(m) Events Since the Reference Balance Sheet Date. Since the Reference
Balance Sheet Date, there has not been:
(i) any change in the condition (financial or otherwise) or in
the properties, assets, liabilities, business or prospects of the
Business of the Seller, except normal and usual changes in the
ordinary course of business, none of which has been material and
adverse and all of which in the aggregate have not been material and
adverse;
(ii) any labor trouble, strike or any other occurrence, event or
condition affecting the employees of Seller that materially and
adversely affects the condition (financial or otherwise) of the Assets
or the Business;
(iii) any breach or default by Seller or, to Seller's Knowledge,
by any other party, under any agreement or obligation included in the
Assets or by which any of the Assets are bound;
(iv) any damage, destruction or loss (whether or not covered by
insurance) materially and adversely affecting the Assets or the
Business;
(v) except as set forth in Schedule 4.01(m), to Seller's
Knowledge, any legislative or regulatory change that is reasonably
expected to materially and adversely affect the Assets or the
Business;
(vi) any transaction related to or affecting the Assets or the
Business other than transactions in the ordinary course of the
Business; or
(vii) any other occurrence, event or condition that has
materially and adversely affected (or is reasonably expected to
materially and adversely affect) the Assets or the Business.
(n) Taxes and Tax Returns. All Tax returns, information returns and
statements, forms and reports required by any Governmental Body or Legal
Requirement to be filed by Seller, or which include or should include
Seller, including those relating to Taxes to which Seller or the Business
is subject, have been or will be properly filed when due, and all Taxes
shown thereon to be due and payable have been or will be paid timely. There
are no liens for Taxes upon any of the Assets, except for liens for Taxes
not yet due and payable.
(o) Employee Matters.
(i) Seller's Employees. Except as otherwise stated on Schedule
4.01(o)(i)(A), Schedule 13.01 lists all of Seller's employees who work
at the Assets on the date Seller executes this Agreement, along with
such individual's title and/or job description and date of hire.
Seller has separately provided Buyer with such Employees current
annual salary, bonus(es) for the previous year and other compensation.
Except as otherwise stated in Schedule 4.01(o)(i)(B), none of the
Employees has provided Seller with notification that he/she plans to
terminate his/her employment during calendar year 2002, whether by
reason of the transactions contemplated by this Agreement or
otherwise.
(ii) Employee Benefits Plans. Schedule 4.01(o)(ii) lists all of
the employee welfare benefit and employee pension benefit plans as
defined in sections 3(1) and 3(2) of ERISA, including plans that
provide retirement income or result in a deferral of income by
Employees for periods extending to termination of employment or
beyond, and plans that provide medical, surgical or hospital care
benefits or benefits for sickness, accident, disability, death or
unemployment and all other employee benefit agreements or
arrangements, including deferred compensation plans, incentive plans,
bonus plans or arrangements, stock option plans stock purchase plans,
stock award plans, golden parachute agreements, severance pay plans,
dependent care plans, cafeteria plans, employee assistance programs,
scholarship programs, contracts with any of the Employees, retention
incentive agreements, non-competition agreements with any of the
Employees, consulting agreements with any of the Employees,
confidentiality agreements with any of the Employees, vacation
policies and similar plans, agreements and arrangements that are
currently in effect for the benefit of the Employees or their
beneficiaries (collectively, the "Plans"). Buyer will have no
liability with respect to any Plans or other similar plans or
arrangements of Seller or its Affiliates as a result of the
transactions contemplated by this Agreement.
(iii) Neither Seller nor any entity (whether or not incorporated)
that was at any time during the six-year period ending on the Closing
Date treated as a single employer together with the Seller under
section 414 of the Code has ever maintained, had an obligation to
contribute to, contributed to, or incurred any liability with respect
to, a pension plan that is or was subject to Title IV of ERISA of
section 412 of the Code.
(iv) Seller has complied with the group health plan continuation
of coverage requirements of the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended.
(v) In connection with the Business, there is no labor strike,
work stoppage, lockout, or other material labor dispute or slowdown
pending, or to Seller's Knowledge, threatened in writing against
Seller and there has not been any such action during the last three
(3) year period, and Seller is not a party to or bound by any
collective bargaining agreement or similar agreement or written work
rules or practices with any labor organization or employee association
covering the terms and conditions of employment of any employee who
works at any of the Assets. To Seller's Knowledge, no Employee is
represented by any labor organization and, to Seller's Knowledge,
there are no current union organizing activities among the Employees.
(vi) Other than wage increases in the ordinary course of
business, since December 31, 2001, Seller has not made any commitment
or agreement to increase the wages of any employment of any of the
Employees.
(vii) During the four (4) year period immediately prior to the
date hereof, Seller has not effectuated (i) a "plant closing" (as
defined in the WARN Act) affecting any site of employment of any of
the facilities included in the Assets covered by this transaction (the
"Employment Sites"); or (ii) a "mass layoff" (as defined in the WARN
Act) affecting any of the Employment Sites; nor has Seller been
affected by any transaction or engaged in layoffs or employment
terminations sufficient in number to trigger application of any
similar state or local law at any of the Employment Sites.
(viii) With respect to each Employee hired by Seller after
November 6, 1986 that is not a citizen of the United States, Seller
shall have required a copy of Form I-9 to be completed pursuant to the
Immigration Reform and Control Act of 1986, and the rules and
regulations promulgated thereunder, and shall have retained a copy of
such Form I-9 in its employee files.
(p) Contracts and Agreements. Exhibit F sets forth a true and complete
list of, briefly describes (including termination dates) and states whether
or not consent to assign is required with respect to, all of the following
contracts, agreements, leases, licenses, plans, arrangements or commitments
that relate to the Assets or the Business, including all amendments,
supplements and modifications thereto (the "Contracts"), excluding any
Property Rights or Leasehold Interests which are set forth in other
Exhibits:
(i) all contracts, agreements, leases, licenses, plans,
arrangements or commitments, including those in respect of the sale of
products or services or the purchase of raw materials, supplies or
other products or utilities;
(ii) all offers, tenders or the like outstanding and capable of
being converted into an obligation of Seller by the passage of time or
by an acceptance or other act of some other person or entity or both;
(iii) all sales, agency or distributorship agreements or
franchises or legally enforceable commitments or obligations with
respect thereto;
(iv) all collective bargaining agreements, union agreements,
employment agreements, consulting agreements or agreements providing
for the services of an independent contractor; provided, that Seller
has advised Buyer, and Buyer accordingly agrees, that Seller may
terminate service agreements with contractors who may work at or in
connection with Assets pursuant to Seller's "General Contracts,"
"Intermittent Services Agreements," or similar agreements (the
"Intermittent Services Agreements") and that such Intermittent
Services Agreements are not included on Exhibit F and will not be
assigned to Buyer, provided, that, Seller shall have provided Buyer
with a list of those vendors and a short description of the services
provided to the Business under the Intermittent Services Agreements
that will not be assigned to Buyer;
(v) compensation, group life and health insurance or other
employee benefit plans, agreements, arrangements or commitments of any
nature whatsoever, whether or not legally binding, and all agreements
with any present or former officer, director, manager or shareholder
of Seller;
(vi) all loan or credit agreements, indentures, guarantees (other
than endorsements made for collection), mortgages, pledges,
conditional sales or other title retention agreements, and all
equipment financing obligations, lease and lease-purchase agreements;
(vii) all leases and all other contracts, agreements or legally
enforceable commitments relating to or affecting real property or any
interest therein;
(viii) all performance bonds, bid bonds, surety bonds and the
like, all contracts and bids covered by such bonds, and all letters of
credit and guaranties;
(ix) all consent decrees and other judgments, decrees or orders,
settlement agreements and agreements relating to competitive
activities, requiring or prohibiting any future action;
(x) all contracts or agreements of any nature with any Affiliate
of Seller;
(xi) all contracts, agreements, leases, licenses, plans,
arrangements or commitments entered into outside the ordinary course
of the operation of the Business; and
(xii) all other contracts, agreements, leases, licenses, plans,
arrangements or commitments that are material to the Assets or the
operation of the Business
Except as set forth in Schedule 4.01(p), all such Contracts are valid,
binding and in full force and effect in accordance with their terms and
conditions. Except as set forth in Schedule 4.01(p), Seller is not in
default under any of the Contracts and, to the Seller's Knowledge, no other
party to any Contract is in default under such Contracts and there are no
conditions which, with the passage of time or giving of notice or both,
would constitute such a default by Seller, or, to Seller's Knowledge, by
any other party to the Contracts, and the Contracts will not be breached by
or give the other party a right of termination as a result of the
transactions contemplated by this Agreement. True and correct copies of all
of the Contracts, and all amendments, supplements and modifications thereto
have been delivered to Buyer. Except as noted on Exhibit F, all of the
Contracts may be assigned to Buyer without the approval or consent of any
Person.
(q) Title to Assets. Seller owns or has the right to use (pursuant to
a valid lease or license disclosed herein) all of the Assets. Except for
the Real Property which is covered exclusively in Section 6.01, Seller has
good and marketable title to the Assets, excluding any assets shown on
Exhibits C or D as being leased by Seller or under a Property Right, free
and clear of any liens or encumbrances. The Assets include all existing
warranties and service agreements with respect to any of the Assets to the
extent the same are capable of being assigned to Buyer. The Assets include
all easements, rights of ingress and egress and utilities and services
necessary to conduct the Business as Seller currently conducts it. None of
the Real Property has been condemned or otherwise taken by any Governmental
Body, nor to Seller's Knowledge, is any such condemnation or taking
threatened in writing nor has Seller received any written notice that any
is planned. Except for the Excluded Assets, the Assets are all of the
assets and properties Seller used in its operation of the Business during
the twelve (12) month period immediately preceding the date hereof;
provided, that, in the case of leased or licensed assets or properties, the
leases or licenses covering such assets or properties are included in the
Assets.
(r) Except as set forth in Schedule 4.01(r), in the two (2) year
period immediately preceding the date of this Agreement, there have not
been any significant interruptions of the Business.
(s) Permits.
(i) Except as set forth in Schedule 4.01(s), the Permits set
forth in Exhibit E are a true and complete list of all licenses,
permits and similar documents necessary for the conduct of the
Business as it has been conducted by Seller during the immediately
preceding twelve (12) months (excluding any highway, railroad or road
permits, which are included on Exhibit D) and a true and correct copy
of all Permits have been delivered to Buyer. Except as set forth in
Schedule 4.01(s), all of the Permits are validly issued to Seller and
in its name and in full force and effect. The Assets and the Business
are operated substantially in compliance with the Permits.
(ii) Except as set forth in Schedule 4.01(s), no violations are
or have been recorded with respect to any of the Permits and no
proceeding is pending or, to Seller's Knowledge, threatened in writing
seeking the revocation or limitation of any of the Permits. Seller has
no reason to believe that any of the Permits would not be assignable,
transferable or able to be re-issued to Buyer. Except as set forth in
Schedule 4.01(s), Seller has made all filings necessary to request the
timely renewal or issuance of all the Permits it uses in the Business
prior to Closing for Seller to own and operate the Assets and the
Business as Seller currently operates them. Except as set forth in
Schedule 4.01(s), there are no pending requests by Seller for
abatement of any Permit requirements relating to the Assets or the
Business.
(t) Deposits. Except as set forth in Schedule 4.01(t), Seller does not
now hold any deposits or prepayments by third Persons with respect to any
of the Assets or the Business.
(u) Work Orders. Except as set forth in Schedules 4.01(u) or Exhibit
F, there are no outstanding work orders or contracts relating to any
portion of the Assets from or required by any policy of insurance, fire
department, sanitation department, health authority or other Governmental
Body, nor is there any matter under discussion with such Persons or
authorities relating to such work orders or contracts.
(v) Customer List. Schedule 4.01(v) sets forth a true, correct and
complete list of all customers of the Business to which Seller has sold or
provided products or services during the two (2) years immediately prior to
the date hereof, including an accurate statement of the gross revenues
received from each such customer during the twelve month period ended June
30, 2002. This list also indicates by special designation all customers on
the list that the Business has not sold or provided products or services
during the first six (6) months of calendar year 2002.
(w) No Royalties. Except as set forth in Schedule 4.01(w), no royalty
or similar payment or amount is being paid or is owed by Seller, not is any
such item accruing, with respect to the operation, ownership or use of the
Business or the Assets.
(x) Inventory. The Net Inventory, as well as any product inventory of
product located in the pipeline or any terminals being conveyed to Buyer
hereunder, is of the quality and quantity usable in the ordinary course of
the Business as it has been conducted by Seller during the immediately
preceding twelve (12) month period. As of Closing, the Net Inventory will
be not less than seventy-four thousand (74,000) tons, including the Net
Inventory in the Hermann, MO terminal. None of the Net Inventory or other
products located in the Facilities is owned by any Persons other than
Seller. All product received or held by Seller as pipeline retention
allowances after December 31, 2001 is located in the Facilities, or stored
by Seller in terminals connected to, related to, or used in connection
with, the Facilities and is included in the Net Inventory.
ARTICLE V: REPRESENTATIONS AND WARRANTIES BY BUYER
5.01 Buyer. Buyer represents and warrants to Seller as of the date of this
Agreement that:
(a) Organization and Standing. Buyer is a limited partnership duly
organized, validly existing and in good standing under the laws of the
State of Delaware, and is, or will be as of the Closing, duly authorized,
qualified and licensed under all applicable Legal Requirements to carry on
the Business in the places and in the manner now conducted.
(b) Authority. Buyer has the full legal right, power and authority to
enter into, execute, deliver and perform this Agreement and to carry out
the transactions contemplated herein to be performed or carried out by
Buyer. The execution and delivery of this Agreement by Buyer and the
consummation of the transactions contemplated hereby have been duly and
validly authorized and approved by all requisite partnership action on the
part of Buyer.
(c) Enforceability. This Agreement constitutes the legal, valid and
binding obligation of Buyer, enforceable in accordance with its terms,
except as that enforceability may be (i) limited by an applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and (ii) subject
to general principles of equity (regardless of whether such enforceability
is considered in a Proceeding in equity or at law).
(d) Legal Proceedings. (i) there are no Proceedings pending before any
Governmental Body, and to Buyer's Knowledge, there are no Proceedings
threatened in writing, against Buyer, or which Buyer reasonably anticipates
becoming a party, or which the question the validity or legality of the
transactions contemplated hereby; and (ii) Buyer is not subject to any
outstanding Order (other than general regulation and general regulatory
Orders that are not specifically addressed to Buyer but are applicable
generally to businesses of the type operated by Buyer or the Business) that
would reasonably be anticipated to materially and adversely affect Buyer's
ability to purchase, own and operate the Assets or the Business.
(e) No Violations. This transaction will not (i) violate or conflict
with any provision of Buyer's organizational documents; (ii) result in the
breach of any term or condition of, or terminate or constitute a default or
cause the acceleration of any obligation under, any agreement or instrument
to which Buyer is a party or is otherwise bound; or (iii) violate or
conflict with any Legal Requirement applicable to Buyer.
(f) Non-foreign Entity. Buyer is not a non-resident alien, foreign
corporation, foreign partnership, foreign trust, or foreign estate for
purposes of U.S. income taxation.
(g) Brokers. Buyer is not a party to or in any way obligated under any
contract or other agreement for the payment of any broker's or finder's fee
in connection with the origination, negotiation, execution or performance
of this Agreement or the transactions contemplated hereby.
ARTICLE VI: TITLE
6.01 Title to Real Property. Title to the Real Property will be conveyed
with a special warranty of title, pursuant to which Seller will warrant title to
the Real Property against any and all Liabilities/Claims arising by, through,
and under Seller or any Affiliate of Seller, but not otherwise.
6.02 Title (Assets other than the Real Property). Except as set forth in
Sections 4.01(q) and 6.01, Seller makes no warranty with respect to title of the
Assets.
ARTICLE VII: COVENANTS
7.01 Casualty Loss. Prior to Closing, if all or any portion of the Assets
have been or are damaged or destroyed by fire, flood, storm, or other casualty
of a similar nature, or shall be taken by condemnation or under the right of
eminent domain (all of which are herein called "Casualty Loss"), Seller shall
bear the risk of such Casualty Loss, and the Purchase Price shall be adjusted
downward as provided in Section 3.02(b)(iii) by the cost to repair or replace,
as applicable, those damaged, lost or destroyed Assets unless Seller replaces or
repairs such at its cost prior to Closing in a manner reasonably acceptable to
Buyer. Any insurance proceeds, payments made under threat of condemnation, or
condemnation awards, shall be the sole property of Seller. The risk of Casualty
Loss relating to the Assets shall pass to Buyer at Closing. All repair or
replacement costs shall be determined jointly by the Parties or, if the Parties
disagree with respect thereto, at Seller's option, Seller may repair or replace
such Assets at Seller's cost, except that should the Casualty Loss or Casualty
Losses have a Material Adverse Effect On The Assets When Taken As A Whole, then
either Party may terminate this Agreement. The phrase "a Material Adverse Effect
On The Assets When Taken As A Whole" shall mean a Casualty Loss and/or Casualty
Losses for which either: (i) the repair and/or replacement costs exceeds ten
percent (10%) of the Purchase Price; or (ii) the repair and replacement thereof
requires more than ninety (90) days to complete.
7.02 Conduct of Business Prior to Closing.
(a) Prior to Closing, Seller shall:
(i) afford to the officers and authorized representatives of
Buyer access to the books and records of Seller related to the Assets
and the Business and shall furnish Buyer with such financial and
operating data and other information regarding the Assets and the
Business and as Buyer may from time to time reasonably request;
(ii) conduct the Business in the ordinary course;
(iii) maintain the Assets in good working order and condition,
ordinary wear and tear excepted;
(iv) perform all its obligations under agreements relating to or
affecting the Assets or the Business;
(v) keep in full force and effect its existing insurance coverage
on the Assets;
(vi) use its reasonable commercial efforts to maintain and
preserve the Business, and retain its present employees, customers,
suppliers and others having business relations with it;
(vii) duly and timely file all reports or returns required by any
Legal Requirement to be filed with any Governmental Body, and timely
pay all Taxes levied or assessed upon it or its properties or upon any
part thereof;
(viii) duly observe and conform to all Legal Requirements
relating to the Assets or its properties or to the operation and
conduct of its business and all covenants, terms and conditions upon
or under which any of its properties are held;
(ix) duly and timely take all actions necessary to carry out the
transactions contemplated hereby; and
(x) deliver to Buyer on or before the 20th day of each month true
and correct unaudited monthly balance sheets and statements of income
for the Business for the immediately preceding month, with such
financial statements for the months between June 30, 2002 and
execution of this Agreement, to be delivered at the time of execution
of this Agreement.
(b) Without the consent of Buyer (which consent shall not be
unreasonably withheld, delayed or conditioned), and prior to Closing,
Seller shall not:
(i) incur obligations with respect to, or undertake any
transactions relating to, the Assets other than transactions (A) in
the normal, usual, and customary manner, (B) of a nature and in an
amount consistent with prior practice, and (C) in the ordinary course
of business of owning and operating the Assets;
(ii) encumber, sell, or otherwise dispose of any of the Assets,
other than property which is replaced by equivalent property, or which
is used, consumed, or abandoned in the normal operations of the
Business;
(iii) enter into or assume any contract, agreement, obligation,
lease, license or commitment related to the Business or the Assets (or
of a type included in the Assets) other than in the ordinary course of
business;
(iv) except in the case of an emergency situation or if Seller
believes (after consultation with Buyer) is required to comply with a
Legal Requirement, enter into or assume (whether or not in the
ordinary course of business) any contract, agreement, obligation,
lease, license or commitment related to the Business or the Assets
which would reasonably be anticipated to commit the Buyer after
Closing to in excess of Seller's Existing Field Authority Limitations;
provided, that, if Seller enters into such a contract, agreement,
obligation, lease, license or commitment in order to comply with a
Legal Requirement, if such arrangement would materially and adversely
affect Buyer's ownership or operation of the Assets or the Business
after Closing, Buyer shall have the right to terminate this Agreement
pursuant to the provisions of Section 14.06;
(v) enter into or assume any mortgage, pledge, conditional sale
or other title retention agreement, lien, encumbrance or charge of any
kind upon any of the Assets, or sell, lease, abandon or otherwise
dispose of any of the Assets, including real property, machinery,
equipment or other operating properties;
(vi) engage in any activities or transactions that would
reasonably be expected to materially and adversely affect the Assets
or the Business; or
(vii) increase the salary of any Employee except in the ordinary
course of business and then not in excess of five percent (5%) of such
Employee's base salary;
(c) Seller shall cooperate with Buyer and its representatives in the
preparation of any documents or other material that may be required by any
Governmental Body in connection with the Assets or the Business or the
transactions contemplated hereby.
(d) Upon Buyer providing Seller with reasonable notice, Seller shall
afford to the officers and authorized representatives of Buyer reasonable
access to the premises, facilities and tangible assets included in the
Assets for the purpose of inspecting such premises, facilities and
equipment in such manner as Buyer shall deem appropriate.
7.03 HSR Act. As required by law, and to the extent not earlier filed,
Seller and Buyer, promptly, but in no event later than three (3) Business Days
after the execution of this Agreement, shall each file notification reports
under the HSR Act and the rules thereunder in connection with the transactions
contemplated by this Agreement, shall cooperate with each other in attempting to
secure early termination of the applicable waiting periods under such Act, and
upon the request of either the Federal Trade Commission or the Department of
Justice, shall exercise their respective commercially reasonable efforts to
supply such agencies with any additional requested information as expeditiously
as possible. Each Party shall pay its own costs in preparing such filing, and
the filing fees will be shared equally by Buyer and Seller.
7.04 Compliance with Conditions Precedent. Each Party shall use its
commercially reasonable efforts to cause the conditions precedent to Closing set
forth in Sections 9.02 and 9.03, applicable to such Party, to be fulfilled and
satisfied as soon as practicable but in any event prior to Closing.
7.05 Preparation of Preliminary Settlement Statement. No later than three
(3) days prior to the anticipated Closing, Seller shall prepare and deliver to
Buyer a statement of the estimated Purchase Price adjustments to be made at
Closing as provided for in this Agreement ("Preliminary Settlement Statement")
showing the calculation of the Purchase Price, as adjusted ("Closing Amount").
The Parties agree that where actual numbers are not available, the Preliminary
Settlement Statement will be based upon the previous year's Tax renditions and
payments and from Seller's prior-month's Asset-related financial records and
will be reconciled when actual numbers are available. If the Parties are unable
to resolve any disagreements with respect thereto, such disagreement shall be
resolved in the same manner as set forth in Sections 8.01(a) and (b).
7.06 Press Release. The Parties shall consult with each other with regard
to all publicity and other releases issued at or prior to Closing concerning
this Agreement and the transactions contemplated hereby and except as required
by Legal Requirements, neither Party shall issue any publicity or other release
without the prior written consent of the other Party.
7.07 Government Filings. After Closing, Buyer shall promptly file with the
applicable Governmental Body all filings necessary to change Seller or its
operator from the owner and/or operator of the Assets to Buyer or its designee
and shall promptly provide Seller with the copies of all such filings when made
and confirmation thereof when received.
7.08 Consents to Assignment. If the terms of any Property Right, Leasehold
Interest, Permit or Contract require that consent or approval be obtained prior
to any assignment or partial assignment, upon execution of this Agreement and up
to Closing, Seller shall exercise reasonable commercial efforts, at its cost,
and with the cooperation of Buyer, to obtain such consent or approval prior to
Closing. Seller shall send all initial letters requesting such consents or
approvals to all such third Persons. If such consents or approvals are not
obtained by Seller prior to Closing, at Closing, Seller shall provide a status
report of Seller's efforts to obtain such consents and approvals and Buyer shall
be responsible, at its cost, for seeking such consents and approvals, and Seller
shall use reasonable commercial efforts to assist Buyer in obtaining such
consents or approvals, and Buyer shall promptly reimburse Seller for all costs
incurred by Seller in assisting Buyer to obtain such consents or approvals
following Closing; provided that, Seller shall be responsible for obtaining, at
its cost, any consents required to assign or otherwise transfer any railroad
crossing rights. Seller shall provide Buyer with a list of any Leasehold
Interest, Permit or Contract that requires consent to assign and Buyer shall
provide a list of any Property Right that requires consent to assign.
7.09 Tariffs. By no later than three (3) Business Days after the Closing
Date, Buyer shall file with each applicable Governmental Body all filings
necessary to adopt the tariffs in effect for the Facilities and to reflect in
the tariffs the change in ownership and operatorship of the Assets, all to be
effective at the Effective Time.
7.10 Notices under Articles IV, V and VII. If any of the representations or
warranties of either Seller or Buyer hereunder are determined by the Party
providing them to have been incorrect when made, or are determined by that Party
to be incorrect as of any date subsequent to the date hereof, or if any of the
covenants of Seller or Buyer contained in this Agreement have not been complied
with timely, then that Party shall immediately notify the other Party to such
effect, provided that such notice shall in no way limit the rights of either
Party (i) under Section 14.06 to terminate this Agreement or refuse to
consummate the transactions contemplated hereby or (ii) to enforce any rights or
remedies it may have hereunder.
7.11 Pipeline Repairs. In lieu of any indemnification obligation set forth
in Article X, Seller, at its sole cost, expense and risk, will make reasonable
commercial efforts to make all pipeline repairs to the anhydrous ammonia
pipelines purchased and sold hereunder pursuant to the Technical Repair Criteria
set forth in Exhibit N as a result of a Smart Pig Inspection for the first four
(4) pipe segments of said line (Note: A total of four (4) metal loss Smart Pig
Inspections have been completed as of August 1, 2002). Seller shall conduct any
additional Smart Pig Inspection runs of such pipelines between date of this
Agreement and the Closing, if any, in its ordinary course of business at its
sole cost, expense and risk. If the fifth pipe segment Smart Pig Inspection run
(whether conducted by Seller or Buyer and whether conducted prior to or after
Closing) demonstrates that repairs are required pursuant to the Criteria set
forth in Exhibit N, and if and to the extent such repairs are conducted prior to
Closing, such repairs shall be conducted at Seller's sole cost, expense and
risk. If any such repairs for the first four or the fifth Smart Pig Inspection
run are conducted after Closing, they shall be conducted by Buyer at Buyer's
sole risk and Seller shall reimburse Buyer for its reasonable costs and expenses
therefor, but only to the extent such repairs are conducted pursuant to the
Technical Repair Criteria, and subject to the cost and expense reimbursement
limitations, set forth in Exhibit N. The cost of any Smart Pig Inspection runs
after the fifth overall run and any repairs associated with any Smart Pig
Inspections after the fifth run overall, regardless of when such repairs are
conducted, shall be at Buyer's sole risk, cost and expense.
7.12 Cooperation. Each of the Parties shall cooperate with the other and
its representatives in the preparation of any documents or other material that
may be required by any Governmental Body in connection with the Assets or the
Business or the transactions contemplated hereby.
ARTICLE VIII: POST-CLOSING AGREEMENTS
8.01 Final Recapitulation Settlement; Subsequent Audits and Settlements.
With respect to final recapitulation and audits:
(a) Within ninety (90) days after the Closing, Seller shall provide to
Buyer, for Buyer's review and comment, a proposed final statement in the
form of the Preliminary Settlement Statement (the "Final Recap Statement")
to account for all adjustments to the Purchase Price known as of such date
pursuant to Section 3.02 (the "Final Recap"). Buyer shall have the right,
within thirty (30) days after receipt of the Final Recap Statement, to
audit the Final Recap Statement. If Buyer disagrees with the Final Recap
Statement, the Parties shall use their respective commercially reasonable
efforts to reach agreement within thirty (30) days following Buyer's
completion of its audit of the Final Recap Statement.
(b) If the Parties are unable to resolve any disagreements, such
disagreement shall, at the earliest practicable date, be referred, by
either or both of the Parties, to a nationally recognized accounting firm
mutually acceptable to the Parties (the "Accounting Firm"), along with all
audit reports, work papers, schedules, and calculations related to the
matter in dispute. Within twenty-five (25) days after such submission, the
Accounting Firm shall issue a letter report determining the Final Recap,
which shall be final and binding. Any fees and expenses incurred in
resolving disputes shall be borne by the Party incurring such, except for
the Accounting Firm, which shall be borne equally by Buyer and Seller.
(c) Payment of any amounts owed under the Final Recap is due within
ten (10) days after the date Seller and Buyer agree on the Final Recap
Statement, or within ten (10) days after the determination of the Final
Recap by the Accounting Firm, whichever is later.
8.02 Recording. Buyer shall be solely responsible for promptly recording
the assignments and any other instruments related to the conveyance of the
Assets, and shall promptly furnish Seller with copies of all recordings and the
recording information. All recording and filing fees shall be paid by Buyer.
8.03 Records. Within thirty (30) days following Closing, Seller shall
permit Buyer to take possession of the designated original set of the Records in
Seller's possession except accounting records for transactions prior to Closing,
wherever located. With regards to such retained accounting records, Seller shall
make available to Buyer such records for inspection and copying during normal
business hours. For a period of five (5) years following the Closing Date (or
such longer period if requested by Seller due to a pending Proceeding or a
Proceeding threatened in writing), Buyer shall use commercially reasonable
efforts to retain and make such Records which it takes possession of available
to Seller for inspection and copying during normal business hours, together with
such additional Records of Buyer as may be reasonably requested by Seller in
order to pursue any claims, obligations, and disputes relating to the Assets;
provided, that, at any time, Buyer may provide notice to Seller pursuant to
Section 14.12 of Buyer's willingness to transfer to Seller possession of any
Record, and if Seller does not accept such transfer within sixty (60) days of
the receipt of such notice, then Buyer shall be relieved of its obligations
under this sentence with respect to such Record. Prior to Seller disposing of
Seller's accounting records for the Business, Seller shall provide notice to
Buyer pursuant to Section 14.12 of Seller's willingness to transfer to Buyer
possession of such accounting records, and if Buyer does not accept such
transfer within sixty (60) days of the receipt of such notice, then Seller shall
be relieved of its obligations to retain such accounting record.
8.04 Use of Seller's Name. By no later than ninety (90) days after Closing,
Buyer shall have removed or caused to have been removed the names and marks used
by Seller or its operator and all variations and derivations thereof and logos
relating thereto from the Assets (including all pipeline markers) and Buyer
shall not thereafter make any use whatsoever of those names, marks and logos. If
Buyer has not completed such removal within ninety (90) days after Closing,
Seller shall have the right, but not the obligation, to complete such removal or
cause such removal to be completed and Buyer shall reimburse Seller for any
costs or expenses incurred by Seller in connection therewith and shall Indemnify
the Seller Indemnitees from and against any and all Liabilities/Claims caused by
or arising from Buyer's failure to do so.
8.05 Non-Solicitation of Employees. Buyer covenants and agrees on its own
behalf and on behalf of its successors, permitted assigns and on behalf of any
other Person to whom Buyer may sell or otherwise convey all or any portion of
the Assets, that it will not solicit to hire any of the Employees listed in
Schedule 4.01(o)(i)(A) for a period of two (2) years after the Closing Date.
Seller covenants and agrees on its behalf and on behalf of its Affiliates,
successors and permitted assigns that it will not solicit to hire any of the
Hired Employees for a period of two (2) years after the Closing Date.
8.06 Post-Closing Covenants. The other Post Closing Covenants are set forth
in Exhibit P.
8.07 Covenant Not to ▇▇▇. Except in connection with exercising its rights
to indemnity under this Agreement, Buyer, on behalf of itself and its
Affiliates, covenants and agrees that it will not ▇▇▇ or join, or request or
demand in writing that any Governmental Body or any Person ▇▇▇ or join, Seller
or the Seller Indemnitees in any Proceedings that arise under or due to an
Unknown Environmental Condition.
8.08 Further Assurances. Each Party shall, from time to time at the
reasonable request of the other, and without further consideration, execute and
deliver such other instruments of sale, transfer, conveyance, assignment,
clarification, and termination, and take such other action as the Party making
the request may reasonably require to effectuate the intentions of the Parties,
including those required to sell, transfer, convey and assign to, and vest in
Buyer, and to place Buyer in possession of the Assets, and to transfer, assign,
or convey the Excluded Assets to Seller or any other property that was
mistakenly conveyed to Buyer. Seller intends to convey the Assets at Closing;
provided, however, if it is determined after Closing that: (i) any part of the
Assets was not in fact conveyed to Buyer, and that the title to any part of the
Assets is incorrectly in the name of Seller; (ii) any Excluded Asset is conveyed
to Buyer and that the title to such Excluded Asset is incorrectly in the name of
Buyer; or (iii) any other property that was mistakenly conveyed to Buyer as a
part of the Assets and that title to such property is incorrectly in the name of
Buyer, then each Party shall take all such action necessary to promptly and
correctly convey any part of the Assets to Buyer, or any part of the Excluded
Assets to Seller or any other property mistakenly conveyed to Buyer re-conveyed
to Seller.
ARTICLE IX: CLOSING
9.01 Time and Place. The closing of the transaction contemplated by this
Agreement (the "Closing") shall take place at the offices of Seller in Wichita,
Kansas, beginning at 8:00 a.m., central time, on a mutually agreeable date
within three (3) Business Days after all conditions to Closing specified under
Sections 9.02 and 9.03 have been either met or waived. The Closing shall be
effective as of 8:00 a.m. central time on the Closing Date, or such other date
as the Parties may agree (the "Effective Time"). At Closing, the following
events shall occur, each being a condition precedent to the others and each
being deemed to have occurred simultaneously with the others:
(a) Closing Deliveries.
(i) Buyer shall deliver to Seller a certificate of an officer of
Buyer as to the adoption of resolutions of its General Partner or
other governing body authorizing the execution, delivery and
performance of this Agreement by Buyer and the consummation of the
transaction contemplated hereby;
(ii) Seller shall deliver to Buyer certificates executed by an
officer of each Seller as to the adoption of resolutions of its
General Partner and Board of Directors or other governing bodies
authorizing the execution, delivery and performance of this Agreement
by Seller and the consummation of the actions contemplated hereby;
(iii) Seller and Buyer shall execute, acknowledge and deliver to
each other Assignment and Assumption Agreement(s) respectively
assigning and assuming the Leasehold Interests, Property Rights,
Permits, Contracts and Intellectual Property substantially in the form
of Exhibit I;
(iv) Seller shall execute, acknowledge and deliver to Buyer
▇▇▇▇(s) of Sale conveying the Facilities, Inventory and Records to
Buyer substantially in the form of Exhibit J;
(v) Seller shall deliver to Buyer an original title to each of
the titled vehicle(s) listed in Exhibit A and other transfer documents
required to re-register such titled vehicle(s) in Buyer's name;
(vi) Seller and Buyer shall execute and deliver to each other a
Transition Services Agreement in substantially the form of Exhibit
K-1; the Services Agreement (Long Term) in substantially the form of
Exhibit K-2; and the Agreement for Anhydrous Ammonia Storage and
Throughput Service in substantially the form of Exhibit Q.
(vii) Seller shall execute, acknowledge and deliver to Buyer
Special Warranty Deeds for the Real Property substantially in the form
of Exhibit L;
(viii) Seller or its Affiliates shall execute, acknowledge and
deliver to Buyer easements for access to the certain portions of the
Real Property substantially in the form of Exhibit O covering the Real
Property owned by Seller or its Affiliate upon which any of the
Facilities are located;
(ix) Buyer shall execute and deliver to Seller a Sales Tax
Exemption Certificate(s) (for Resale) for the anhydrous ammonia
linefill in a form or forms acceptable to the states in which the
linefill is located;
(x) Seller and Buyer shall execute and deliver to each other and
such other conveyance documents and instruments of transfer and
assignment necessary to convey the Assets to Buyer in the manner
contemplated by this Agreement; and
(xi) Seller shall deliver to Buyer a valid and enforceable
release and termination agreement from Velocita Corp. and Sea Breeze
Communications Company which fully releases and terminates (A) any and
all rights of way previously granted to such entities that are related
to or located on the same real property as the Property Rights, and
(B) any and all rights previously granted to such entities related to
the Property Rights, including any rights to develop the fiber optic
rights of way located in the Property Rights or otherwise deal in any
way with any fiber optic or similar cable or lines in, on, or in
connection with, the Property Rights, and shall deliver such other
related instruments and approvals as Buyer may require in connection
therewith, such release and termination agreement, other instruments
and other approvals to be in form and substance reasonably
satisfactory to Buyer.
(b) Payment. Buyer shall deliver to Seller, and Seller shall have
received, the payment of the purchase price set forth in Article III, as
adjusted, in immediately available same day funds by wire transfer for
credit to Seller's account as designated by Seller in writing not less than
three (3) Business Days prior to the anticipated Closing Date.
9.02 Conditions to Buyer's Obligations. Each obligation of Buyer to be
performed by or at the Closing, is, at the option of Buyer, subject to each of
the conditions set forth below.
(a) The representations and warranties made by Seller in this
Agreement shall be true and accurate in all material respects on and as of
the Closing with the same effect as though such representations and
warranties have been given on and as of the Closing and Buyer shall have
received a certificate, dated as of the Closing Date, signed by Seller to
such effect. Seller shall also have performed or complied with, in all
material respects, all of its obligations under this Agreement which are to
be performed or complied with by it prior to or at Closing and Buyer shall
have received a certificate, dated as of the Closing Date, signed by Seller
to such effect.
(b) There shall not be on the Closing (i) any Order by any
Governmental Body, (ii) any written threat thereof by any Governmental
Body, which is evidenced by a writing from the threatening agency or (iii)
any Proceeding, which in all reasonable likelihood, might prohibit or
render illegal, the consummation of the transaction contemplated herein or
which seeks damages on account thereof.
(c) All agreements, documents, and instruments contemplated under this
Agreement to be executed and delivered by Seller or its Affiliates shall
have been duly executed by Seller or its Affiliates and shall be ready for
delivery concurrently with the consummation of the transactions
contemplated by this Agreement.
(d) All required consents, approvals and waivers from any Governmental
Body, including those under the HSR Act, shall have been received, or if
applicable, the waiting period under the HSR Act applicable to the
transactions contemplated hereby shall have expired or been terminated.
(e) The Assignment and Assumption Agreement substantially in the form
of Exhibit I shall have been executed and delivered by Seller and Buyer.
(f) The ▇▇▇▇(s) of Sale substantially in the form of Exhibit J shall
have been executed and delivered by Seller to Buyer.
(g) Seller and Buyer shall execute and deliver to each other a
Transition Services Agreement in substantially the form of Exhibit K-1; the
Services Agreement (Long Term) in substantially the form of Exhibit K-2;
and the Agreement for Anhydrous Ammonia Storage and Throughput Service in
substantially the form of Exhibit Q.
(h) The Special Warranty Deeds substantially in the form of Exhibit L
shall have been executed and delivered by Seller to Buyer.
(i) The Easements substantially in the form of Exhibit O shall have
been executed and delivered by Seller to Buyer.
(j) No material and adverse change shall have occurred in the
Business, and no Casualty Loss to the Assets which would have a Material
Adverse Effect (as defined in Section 7.01), whether or not covered by
insurance, shall have occurred since the Reference Balance Sheet Date, and
Seller shall have delivered to Buyer a certificate dated as of the Closing
Date, executed by Seller representing to Buyer such facts.
(k) Seller shall have delivered to Buyer an accurate list, dated as of
the Closing Date, showing: (i) all agreements, contracts and commitments of
the typed listed on Exhibit F entered into since the date of this Agreement
(including amendments, if any, to the items listed on Exhibit F), and (ii)
all other agreements, contracts and commitments relating to the Business or
the Assets entered into since the date of this Agreement, together with
true, complete and accurate copies of all such documents (the "New
Contracts"). Buyer shall have the right and opportunity to review and
approve the New Contracts. All of the New Contracts that are approved by
Buyer shall be included in the Assets (with no addition or subtraction to
or from the Purchase Price) and the future obligations of Seller thereunder
shall be assigned to and assumed by Buyer pursuant to Section 2.04. Any New
Contracts not approved by Buyer in writing shall remain the sole obligation
of Seller and shall not be assumed by Buyer, and Buyer shall have no
obligation or liability with respect thereto.
(k) No notice to or consent, authorization, approval or order of any
Person shall be required for the consummation of the transactions
contemplated by this Agreement (except for notices that have been duly and
timely given and consents, authorizations and approvals that have been
obtained). True and correct copies of all required notices, consents,
authorizations and approvals shall have been delivered to Buyer and shall
be reasonably satisfactory in form and substance to Buyer and its counsel.
(l) Buyer shall have waived, or Seller shall have cured, any title
defects with respect to any of the Real Property included in any title
reports secured by Buyer, which in Buyer's reasonable judgment would
adversely impair Buyer's ownership or the use of said Real Property as
currently used by Seller.
(m) The release and termination agreement and other instruments and
other approvals referenced in Section 9.01(a)(xi) shall have been executed
and delivered to Buyer.
9.03 Conditions to Seller's Obligations. Each obligation of Seller to be
performed on the Closing is, at the option of Seller, subject to each of the
conditions set forth below:
(a) The representations and warranties made by Buyer in this Agreement
shall be true and accurate in all material respects on and as of the
Closing with the same effect as though such representations and warranties
had been given on and as of the Closing and Seller shall have received a
certificate, dated as of the Closing Date, signed by Buyer to such effect.
Buyer shall also have performed and complied with, in all material
respects, all of its obligations under this Agreement which are to be
performed or complied with by it prior to or at Closing. Seller shall have
received a certificate, dated as of the Closing Date, signed by Buyer to
such effect.
(b) There shall not be on the Closing Date (i) any Order by any
Governmental Body, (ii) any written threat thereof by any Governmental
Body, which is evidenced by a writing received from the threatening agency
or (iii) any Proceeding, which in all reasonable likelihood, might prohibit
or render illegal, the consummation of the transaction contemplated herein
or which seeks damages on account thereof.
(c) All agreements, documents, and instruments contemplated under this
Agreement to be executed and delivered by Buyer shall have been duly
executed by Buyer and shall be ready for delivery concurrently with the
consummation of the transactions contemplated by this Agreement.
(d) All required consents, approvals and waivers from any Governmental
Body, including those under the HSR Act, shall have been received, or if
applicable, the waiting period under the HSR Act applicable to the
transactions contemplated hereby shall have expired or been terminated.
(e) The Assignment and Assumption Agreement substantially in the form
of Exhibit I shall have been executed and delivered by Buyer to Seller.
(f) Seller and Buyer shall execute and deliver to each other a
Transition Services Agreement in substantially the form of Exhibit K-1; the
Services Agreement (Long Term) in substantially the form of Exhibit K-2;
and the Agreement for Anhydrous Ammonia Storage and Throughput Service in
substantially the form of Exhibit Q.
(g) No Casualty Loss to the Assets which would have a Material Adverse
Effect (as defined in Section 7.01), whether or not covered by insurance,
shall have occurred since the Reference Balance Sheet Date.
(h) The Sales Tax Exemption Certificate(s) (for Resale) for the
anhydrous ammonia linefill in a form or forms acceptable to the states in
which the linefill is locate shall have been executed and delivered by
Buyer to Seller.
ARTICLE X: DISCLAIMERS; INDEMNITIES
10.01 Disclaimers.
(a) Except as specifically set forth in Sections 4.01, 6.01 or 6.02,
Buyer acknowledges and agrees that the Seller Indemnitees have not made, do
not make, and expressly disclaim any warranties, representations,
covenants, or guarantees, either express or implied, whether arising by
operation of law or otherwise, as to the merchantability, habitability,
quantity, quality, environmental condition, or physical condition of the
Assets, their suitability or fitness for any particular purpose or use or
that Buyer may increase or maintain the current or existing pipeline
tariffs. Buyer affirms that it: (i) has had the opportunity prior to
execution of this Agreement to investigate and inspect the Assets,
including an environmental review, and (ii) has made its own determination
as to the: (A) merchantability, habitability, quantity, quality and
physical condition of the Assets, and (B) the Assets' suitability or
fitness for any particular purpose or use.
(b) Except as otherwise set forth herein, including the indemnity
obligations hereunder, Buyer hereby agrees to accept the Assets upon
Closing in their present environmental condition and physical condition on
an "as is", "where is", and "with all faults and defects" basis, including
environmental, regardless of how caused or created (including by Seller's
Negligence/Fault, actions, omissions, or fault, pursuant to any statutory
scheme, due to strict liability, or otherwise), and acknowledges that
Seller shall not be under any obligation whatsoever pursuant to this
Agreement to undertake any improvement, repair, modification, alteration,
Remediation, or other work of any kind with respect to any of the Assets
except as set forth in Section 7.01.
(c) (i) Except with respect to those matters for which Seller is
Indemnifying Buyer as provided under Section 10.03, the Seller
Indemnitees are hereby expressly released by Buyer from any and all
responsibilities, obligations, and Liabilities/Claims, known and
unknown, whether based upon Negligence/Fault or otherwise, arising
under Environmental Laws or any other Legal Requirement, including any
obligations to take the Assets back or reduce the Purchase Price and
any actions for contribution, indemnity, or to improve, repair, or
otherwise modify the physical condition of the Assets, that Buyer or
its successors or assigns may presently or in the future have against
any of the Seller Indemnitees, based, in whole or in part, upon the
presence of Hazardous Materials or other Environmental Condition on,
at, under, or emanating from the Assets or arising from the
environmental condition or physical condition of the Assets,
regardless of how caused or created (by Seller's Negligence/Fault,
actions or omissions pursuant to any statutory scheme or strict
liability, or otherwise). Buyer further acknowledges that the
provisions of this Section have been fully explained to Buyer and that
it fully understands and accepts the same as a condition to proceeding
with this transaction. Buyer acknowledges that none of the Seller
Indemnitees have made any statements or representations contrary to
the provisions of this section. Buyer specifically acknowledges that
Seller is not assuming any Liabilities/Claims or Environmental
liabilities of the Buyer Indemnitees.
(ii) Except with respect to those matters for which Buyer is
Indemnifying the Seller Indemnitees as provided under Section 10.02,
the Buyer Indemnitees are hereby expressly released by Seller from any
and all responsibilities, obligations, and Liabilities/Claims, known
and unknown, whether based on Negligence/Fault or otherwise, arising
under Environmental Laws or any other Legal Requirement, including any
obligations to increase the Purchase Price and any actions for
contribution, indemnity, or to improve, repair, or otherwise modify
the physical condition of the Assets, that Seller or its successors or
assigns may presently or in the future have against any of the Buyer
Indemnities, based, in whole or in part, upon the presence of
Hazardous Materials or other Environmental Condition on, at or under,
or emanating from the Assets or arising from the environmental
condition or physical condition of the Assets, regardless of how
caused or created (by Buyer's Negligence/Fault, actions or omissions
pursuant to any statutory scheme or strict liability, or otherwise).
Seller further acknowledges that the provisions of this Section have
been fully explained to Seller and that it fully understands and
accepts the same as a condition to proceeding with this transaction.
Seller acknowledges that none of the Buyer Indemnitees have made any
statements or representations contrary to the provisions of this
section. Seller specifically acknowledges that Buyer is not assuming
any Liabilities/Claims or Environmental liabilities of the Seller
Indemnitees.
(iii) This Section 10.01(c) is not intended, and should not be
construed, to: (A) cause Buyer or its successors or assigns to become
responsible for any Liabilities/Claims or Environmental Liabilities of
Seller except as provided in Section 10.02; (B) cause Seller or its
successors or assigns to become responsible for any Liabilities/Claims
or Environmental Liabilities of Buyer except as provided in Section
10.03; or (C) alter or modify in any manner the indemnity obligations
of the parties under this Agreement.
(d) Except as specifically set forth in Sections 4.01 or 6.01, none of
the Seller Indemnitees make any warranty or representation, express,
implied, statutory or otherwise, as to the accuracy or completeness of any
title opinion, data, reports, records, projections, information, or
materials now, heretofore, or hereafter furnished or made available to
Buyer in connection with the Assets, including any description of the
Assets, the pricing assumptions, the environmental condition or physical
condition of the Assets, any other matters contained in the data, or any
other materials furnished or made available to Buyer by Seller or by any
Seller Indemnitee.
(e) By virtue of the purchase of the Assets from Seller, Buyer
acknowledges that Seller hereby expressly excludes, and does not assign,
transfer, or convey to Buyer any rights or benefits of or to any insurance
policies of Seller or Seller's Affiliates which might relate to, cover, or
insure Seller for loss of or liability arising from the use, ownership, or
operation of the Assets, regardless of whether such assignment, right, or
benefit arises by statute, agreement, or operation of law, including but
not limited to defense and indemnity benefits attributable to or arising
from or under such policies.
10.02 Buyer's Indemnity. After the Effective Time, and to the fullest
extent permitted by law, but subject to the other provisions of this Article X,
Buyer shall Indemnify the Seller Indemnitees from and against any and all
Liabilities/Claims arising from or relating to:
(a) any breach of the representations and warranties or covenants made
by Buyer in this Agreement;
(b) Buyer's, its contractors' and/or agents' inspection of the Assets,
regardless of whether such Liabilities/Claims are caused by or arise from
the Seller Indemnitees' or third Persons' negligence, actions, omissions or
fault, or otherwise;
(c) the possession, ownership, condition, use, or operation of the
Assets by Buyer, or its successors or assigns after the Effective Time, or
the assumption of responsibilities hereunder by Buyer concerning the Assets
(except that Buyer shall have no duty to Indemnify the Seller Indemnitees
under this Section 10.02(c) with respect to any Environmental Condition or
environmental related Liabilities/Claims, which is covered exclusively
under Sections 10.02(d) and 10.02(e)), provided such Liabilities/Claims are
not caused by and do not arise from Seller Indemnitees' negligence,
actions, omissions or fault, except that this Indemnity shall apply to the
extent Liabilities/Claims arise from or relate to the design, physical
condition, or maintenance-status of the Assets as of the Effective Time,
regardless of whether the design, physical condition, or maintenance-status
of the Assets is caused by, or arises from, Seller Indemnitees' or third
Persons' pre-Closing negligence, actions, omissions or fault; provided,
further that the indemnity set forth in this Section 10.02(c) shall not
apply to the extent Seller has an indemnity obligation to Buyer pursuant to
Section 10.03;
(d) any Environmental Condition or environmental related
Liability/Claim arising from the operation by Buyer, design, physical
condition, or maintenance-status of the Assets after the Effective Time
while owned or operated by Buyer, its successors or assigns; provided,
that, such Environmental Condition does not result from and is not
attributable to the Seller Indemnitees negligence, actions, omissions or
fault or a third Person's negligent actions or omissions or fault prior to
the Effective Time, except that this Indemnity shall apply to the extent
Liabilities/Claims arise from or relate to the design, physical condition,
or maintenance-status of the Assets as of the Effective time, regardless of
whether the design, physical condition, or maintenance-status of the Assets
is caused by, or arises from, Seller Indemnitees' or third Persons'
pre-Closing negligence, actions, omissions or fault; provided, further that
the indemnity set forth in this Section 10.02(d) shall not apply to the
extent Seller has an indemnity obligation to Buyer pursuant to Section
10.03; and
(e) any Liabilities/Claims and Environmental Liabilities arising as a
result of an Unknown Environmental Condition, which Unknown Environmental
Condition is discovered or reported to Seller more than two (2) years after
the Closing Date, except for Liabilities/Claims and Environmental
Liabilities arising out or relating to personal injury or death to persons
or fines and penalties, for which Buyer shall not owe any indemnity under
this Section 10.02(e).
10.03 Seller's Indemnity. After the Effective Time, and to the fullest
extent permitted by law, but subject to the other provisions of this Article X,
Seller shall Indemnify the Buyer Indemnitees from and against any and all
Liabilities/Claims arising from or relating to:
(a) any breach of the representations and warranties or covenants made
by Seller in this Agreement; provided, that, for purposes of the indemnity
set forth in this Section 10.03(a), the representations and warranties of
Seller set forth in this Agreement shall be deemed to have been made by
Seller without any qualifications regarding materiality and reference
therein to "material" or "materiality" or similar words shall be deemed
deleted, it being the agreement of the Parties that with respect to the
indemnity set forth in this Section 10.03(a), Seller's only relief with
respect to materiality shall be the Threshold Amount set forth in Section
10.04;
(b) the possession, ownership, use, or operation of the Assets by
Seller prior to the Effective Time (except that Seller shall have no duty
to Indemnify under this Section 10.03(b) with respect to any Environmental
Condition or environmental related Liabilities/Claims, which is covered
exclusively by the provisions of Sections 10.03(c), 10.03(d) and 10.03(e)),
except for Liabilities/Claims arising post-Closing to the extent they arise
from or relate to the design, physical condition, or maintenance-status of
the Assets as of the Effective Time, which are specifically and exclusively
covered by Buyer's indemnity set forth in Sections 10.02(c) and 10.02(d);
(c) any Known Environmental Condition;
(d) any Unknown Environmental Condition and Environmental Liability
arising from an event, condition, incident, action or omissions existing or
occurring prior to the Effective Time relating to the Assets or the
Business, except for Environmental Liabilities arising post-Closing to the
extent they arise from or relate to the design, physical condition, or
maintenance-status of the Assets as of the Effective Time, which are
specifically and exclusively covered by Buyer's indemnity set forth in
Sections 10.02(c) and 10.02(d);
(e) Seller's disposal, treatment, transportation for disposal or
treatment or the storage in anticipation of the disposal or treatment, of
Hazardous Material prior to the Effective Time;
(f) any Proceedings pending before any Governmental Body as to which
it has been served process or which Seller has received written notice; and
(g) any substantial non-compliance with Legal Requirements associated
with Seller's ownership or operation of the Assets or the Business prior to
the Effective Time (but excluding those matters relating to Environmental
Condition or environmental related Liabilities/Claims to the extent they
are covered by the indemnity set forth in Sections 10.02(d), 10.02(e),
10.03(c), 10.03(d) and 10.03(e)).
10.04 Threshold and Monetary Cap. Notwithstanding the provisions of
Sections 10.02 and 10.03, with respect to Liabilities/Claims arising under
Sections 10.03(a), 10.03(b), 10.03(d), 10.03(e), and 10.03(f), Seller shall have
no liability, and Buyer shall assume all liability, and shall Indemnify the
Seller Indemnitees from and against all Liabilities/Claims with respect to the
first One Hundred Thousand Dollars ($100,000.00) (the "Threshold Amount");, it
being understood that all such Liabilities/Claims shall accumulate until such
time or times as the aggregate of such Liabilities/Claims, exceed the Threshold
Amount, whereupon Seller shall Indemnify the Buyer Indemnitees from and against
all such Liabilities/Claims in excess of the Threshold Amount, up to a maximum
of Fourteen Million Dollars ($14,000,000.00)(the amount above $100,000.00 up to
a total liability of $14,000,000.00, for a total liability by Seller of
$13,900,000.00) (the "Monetary Cap"). Notwithstanding anything contained herein
(except for the next sentence), with respect to any such Liabilities/Claims in
excess of the Monetary Cap, Seller shall, without limitation, have no liability
to any Buyer Indemnitee, direct or indirect for any Liabilities/Claims.
Notwithstanding the other provisions of this Section 10.04, with respect to: (i)
Seller's warranties of title set forth in Sections 4.01(q), 6.01 and 6.02, the
monetary cap shall equal the Purchase Price; and (ii) Seller's Indemnity under
Section 10.03(c) and action arising from actual fraud or willful misconduct, the
Threshold and Monetary Cap shall not be applicable.
10.05 Survival. Except as limited by this Section 10.05, all of the
respective indemnifications, representations, warranties, covenants, agreements
and other obligations of the Parties, including the indemnification obligations
hereunder, shall survive Closing and shall not be deemed merged into any
conveyance documents. For the avoidance of doubt, all such obligations shall
survive the Closing regardless of any investigation at any time made by or on
behalf of Buyer.
(a) Representations and Warranties. Except as otherwise stated herein,
the respective representations and warranties of the Parties set forth in
this Agreement shall terminate two (2) years after the Closing Date except
for claims made in writing with respect to a particular matter or matters
prior thereto, and provided that any acknowledgments, waivers or
representations given herein may be asserted as a defense by any Party
hereunder at any time in connection with defending a claim or claims
asserted by the other Party, or its successors or permitted assigns, with
regard to any of the transactions contemplated by this Agreement. Seller's
representations and warranties of title set forth in Sections 4.01(q), 6.01
and 6.02 shall survive the Closing indefinitely, notwithstanding any
otherwise applicable statute of limitation.
(b) Indemnities. Except as otherwise stated herein, the respective
indemnity obligations of the Parties set forth in this Agreement shall
terminate two (2) years after the Closing Date except for claims made in
writing with respect to a particular matter or matters prior thereto;
provided, however, the following indemnity obligations shall survive the
Closing indefinitely, notwithstanding any otherwise applicable statute of
limitation:
(i) Buyer's indemnity obligations set forth in Section 10.02(e);
(ii) Buyer's indemnity obligations set forth in Section 10.02(c)
and Section 10.02(d) solely with respect to the design, physical
condition or maintenance-status of the Assets as of the Effective
Time;
(iii) Seller's indemnity obligations set forth in Section
10.03(c);
(iv) Seller's indemnity obligations set forth in Section 10.03(a)
solely with respect to Seller's representations and warranties of
title set forth in Section 4.01(q) and Section 6.01; and
(v) the Parties' post-Closing covenants.
(c) Covenants. The covenants and obligations of the Parties contained
in this Agreement, to the extent required in order for a Party or Parties
to receive the intended benefits of any such provision, shall extend beyond
any applicable statutory limitation period, and shall not terminate by
reason of such statutory limitation period otherwise imposed by law.
10.06 Sole and Exclusive Remedy. Other than claims for actual fraud, and
except for any right of specific performance of this Agreement that a Party may
have under law or equity, the right of each Party to seek indemnification
(subject to the limitations provided for in this Article X) from the other Party
shall be the sole and exclusive remedy of each Party against the other under
this Agreement, and subject to the foregoing, it is expressly understood and
agreed that, except by virtue of the indemnification provisions set forth
herein, neither Party is entitled to any non-contractual indemnity,
contribution, adjustment, reduction, set-off, damages or the like in connection
with the transaction contemplated hereby, but may be entitled to any appropriate
equitable relief.
10.07 Limitations. Notwithstanding anything to the contrary contained in
this Agreement, neither Party:
(a) shall be liable to the other Party for any damages related to or
arising in connection with this Agreement or the transactions contemplated
hereby other than actual or compensatory damages; it being agreed that no
Party shall be liable to the other for indirect, incidental, consequential,
exemplary, punitive damages or diminution in value of the Assets or the
Business hereunder, including any lost earnings or profits or losses due to
business interruption; or
(b) shall be entitled to recover more than once for any one
Liability/Claim for which full indemnification is provided hereunder, such
as in the case of Liabilities/Claims flowing from the breach of more than
one representation, warranty, covenant, or agreement hereunder.
10.08 Indemnification Procedures. If any Proceedings are instituted or any
claim or demand is asserted by any Person in respect of which indemnification
may be sought by any Party or Parties from any other Party or Parties under the
provisions of this Agreement, the Party or Parties seeking indemnification
(collectively, the "Indemnitee") shall cause Notice of the assertion of any
claim of which it has knowledge that is covered by the indemnity to be forwarded
promptly to the Party or Parties from which indemnification is sought
(collectively, the "Indemnitor"); provided, that failure or delay in providing
Notice shall not relieve the Indemnitor of liability except to the extent
prejudiced by such failure or delay. The Indemnitor shall have the right, at its
option and at its own expense, to be represented by counsel of its choice and to
participate in, or, if the Indemnitor acknowledges in writing to the Indemnitee
the Indemnitor's obligations to Indemnify the Indemnitee with respect to a
Liability/Claim, to take exclusive control of, the defense, negotiation, and/or
settlement of any Proceeding or demand which relates to any amounts
indemnifiable or potentially indemnifiable under this Agreement; provided,
however, that the Indemnitee may participate in any such Proceeding with counsel
of its choice and at its own expense, shall have a right to Notice of any
settlement, and the Indemnitor shall not execute or otherwise agree to any
settlement or consent decree which provides for other than monetary payment
without the Indemnitee's prior written consent, which consent will not
unreasonably be withheld, conditioned or delayed. If the Indemnitor elects not
to defend or settle such Proceeding or demand and the Indemnitee defends,
settles, or otherwise deals with any such Proceeding or demand, which settlement
may be without the consent of the Indemnitor, the Indemnitee will act reasonably
and in accordance with its good faith business judgment. The Parties hereto
agree to reasonably cooperate fully with each other in connection with the
defense, negotiation, or settlement of any such Proceeding or demand. After
final judgment or award shall have been rendered by a Government Body and the
expiration of the time in which to appeal therefrom, or a settlement shall have
been consummated, or the Indemnitee and the Indemnitor shall have arrived at a
mutually binding agreement with respect to each separate matter indemnified by
the Indemnitor, the Indemnitee shall forward to the Indemnitor Notice of any
sums due and owing by the Indemnitor with respect to such matter and the
Indemnitor shall pay all of the sums so owing to the Indemnitee by check within
thirty (30) days after the date of such Notice. If a claim is made by a third
Person against an Indemnitee, the Indemnitee will, at its own expense, use its
commercially reasonable efforts to make available to the Indemnitor those
employees whose assistance, testimony, or presence is necessary to assist the
Indemnitor in evaluating and in defending such claims; provided, however, that
any such access shall be conducted in such a manner as not to interfere
unreasonably with the operations of the business of the Indemnitee.
ARTICLE XI: INSPECTION AND RECORDS; TITLE
11.01 Inspection. Prior to Closing, at any reasonable time and from time to
time, Seller shall permit the representatives of Buyer to inspect the Assets and
observe the operating and maintenance personnel therein employed, to further
observe any and all activities related to the maintenance, operation,
contracting, and administration thereof. All information furnished to Buyer
pursuant to this provision will be deemed to be "Confidential Information" for
purposes of the Confidentiality Agreement. All inspections shall be conducted in
compliance with all of Seller's safety procedures, rules and regulations in
effect at the Assets from time to time, which shall include, without limitation,
site safety training and access restriction procedures as are normally required
by Seller of third Person invitees.
11.02 Title Inspection. Prior to Closing, Buyer may complete a review of
title to the Real Property and the Property Rights.
(a) Title Inspection of Real Property. Seller shall have no obligation
to cure any Title Defects to any of the Real Property, but, as set forth in
Section 9.02(l), if any title report prepared by or for Buyer shows any
title defects with respect to any of the Real Property which in Buyer's
reasonable judgment would adversely impair Buyer's ownership or the use of
said Real Property as currently used by Seller, Seller's curing of such
Title Defects shall be a condition to Buyer's obligation to Close hereunder
and if not waived by Buyer or cured by Seller, Buyer shall have the right
to terminate this Agreement pursuant to the provisions of Section 14.06.
(b) Title Inspection of Property Rights, Leasehold Interests and
Permits. Seller shall notify Buyer prior to Closing of any gaps or Title
Defects within Seller's Knowledge with respect to the Property Rights,
Leasehold Interests and Permits. Upon Buyer's completion of its review of
the Property Rights, Leasehold Interests and Permits, the Parties will
agree upon the known gaps and Title Defects in the Property Rights,
Leasehold Interests and Permits. The Parties agree that there will be a
downward adjustment to the Purchase Price of Eighty dollars ($80.00) per
rod for gaps or for which there are Title Defects in the Property Rights,
Leasehold Interests and Permits, which the Parties agree is a reasonable
approximation of the cost to cure such gaps and Title Defects and which
shall be reflected in the adjustment to the Purchase Price pursuant to
Section 3.02(b)(iv). If Buyer and Seller do not agree on the number of rods
for which there are gaps or Title Defects in the Property Rights, Leasehold
Interests and Permits (which results in a Purchase Price reduction), either
Buyer or Seller may terminate this Agreement pursuant to Section 14.06.
Buyer may raise for consideration any such gaps or Title Defects it
discovers prior to Closing. Subject to Seller's disclosure to Buyer of all
gaps and Title Defects within Seller's Knowledge and to agreement upon the
number of rods for which there are gaps and Title Defects in the Property
Rights, Leasehold Interests and Permits, the mutually agreed upon reduction
in the Purchase Price (which shall be equal to $80.00/rod times the number
of rods for which there is a gap or Title Defect) shall be Buyer's sole and
exclusive remedy with respect to any such gaps and Title Defects, whether
Known by Seller or unknown as of Closing.
ARTICLE XII: TAXES
12.01 Tax Proceedings. If Buyer or any of its Affiliates receives notice of
any examination, adjustment, or other Proceeding relating to the liability for
Taxes of or with respect to Seller for any period prior to the Effective Time,
Buyer shall provide Notice to Seller within seven (7) Business Days of receiving
notice thereof (or such lesser time if such notice given to Buyer requires
action in less than seven (7) Business Days). As to any such Taxes for which
Seller is or may be liable, Seller shall, at Seller's expense, control or settle
the contest of such examination, adjustment, or other Proceeding, and shall
defend (upon Buyer's request), indemnify and hold the Buyer Indemnitees harmless
from and against all losses in connection therewith. The Parties shall cooperate
with each other and with their respective Affiliates in the negotiations and
settlement of any Proceeding described in this Section 12.01 and in Section
12.02.
12.02 Sales Taxes. The Purchase Price provided for hereunder excludes any
sales Tax or other Taxes required to be paid in connection with the sale of the
Assets and the Parties agree that this transaction is an isolated or occasional
sale and that sales Tax is not due; however if any sales tax is eventually
levied upon this transaction, as set forth in Section 3.01(b), Buyer shall be
responsible for all applicable sales and use Taxes, gross receipts, conveyance,
transfer, and recording fees, motor vehicle transfer and excise Taxes and
registration fees, and real estate transfer Taxes and documentary stamp Taxes,
if any, that may be imposed on any transfer pursuant to this Agreement, except
that Buyer shall not be responsible for (i) any Taxes based upon income, or (ii)
any sales, transfer or similar Tax which may be payable with respect to the
anhydrous ammonia owned by Seller as Net Inventory, for which Seller shall pay
any applicable sales, transfer or similar Tax. Except for any applicable sales,
transfer or similar Tax on the Net Inventory, Buyer shall Indemnify the Seller
Indemnitees from and against any and all sales, use, gross receipts and similar
Taxes and related penalties and interest imposed on Seller based on the sale of
the Assets (but not Taxes based on income). To the extent the sale of the Assets
is a sale of tangible personal property, Buyer and Seller shall cooperate to
obtain any applicable exemption certificates or other documentation necessary to
obtain available Tax exempt status for the sale of the Assets.
12.03 Other Taxes. Buyer shall defend (upon Seller's request), indemnify
and hold the Seller Indemnitees harmless from, and shall be responsible for,
paying or withholding or causing to be paid or withheld all Taxes of Buyer which
accrue after the Effective Time and for filing all statements, returns, and
documents incident thereto.
ARTICLE XIII: EMPLOYEE MATTERS
13.01 Employees.
(a) Seller shall take all action necessary to assure that Buyer may
interview and offer employment to any or all of the employees listed on
Schedule 13.01 ("Employees"), which offers of employment will be
conditioned upon Closing and upon the termination of such employees'
employment with Seller or its Affiliates at the Effective Time and shall be
effective as of the Effective Time. Buyer shall provide Seller with a list
of all of those Employees it wishes to interview or make offers of
employment to without interviews and shall coordinate interviews with a
Seller designated representative. Buyer shall provide Seller a list of
those Employees to whom offers of employment have been made, which list
shall include the nature and title of the position, salary, and location of
employment. Buyer shall also provide Seller with a list of those Employees
accepting Buyer's employment offer on or before seven (7) days prior to the
anticipated Closing Date. Such offers of employment shall be on the same
basis, and Buyer shall treat the Hired Employees on substantially the same
basis, as other similarly situated employees of Buyer.
(b) The Hired Employees will become Buyer's Employees at the Effective
Time. At that time, Buyer will become responsible for wages, salaries,
benefits, other compensation, severance pay, and severance benefits to the
extent required under federal, state, or local law, or notices required
under such laws with respect to the Hired Employees arising with respect to
employment with Buyer and which relate to any period after the Effective
Time. Buyer shall Indemnify the Seller Indemnitees from and against any
Liabilities/Claims by any Hired Employees for their wages, salaries,
bonuses, severance pay, and severance benefits provided under federal,
state, or local law, notices required under such laws, and compensation or
benefits of any kind which accrue under Buyer's employee benefit plans as a
result of and related to any of the Hired Employees' employment with Buyer
after the Effective Time.
(c) Seller shall retain responsibility for, and shall Indemnify the
Buyer Indemnitees from and against all liabilities or obligations for the
following matters which accrue for the periods prior and up to the
Effective Time as a result of the Employees' employment with Seller:
(i) wages, salaries, commissions and bonuses;
(ii) all accrued and outstanding employee benefits and severance
pay and severance benefits to the extent required under federal,
state, or local law, or notices required under such laws with respect
to Employees of Seller who are terminated prior to the Effective Time;
(iii) vacation pay with respect to the Hired Employees; and
(iv) any other employee-related matters or liabilities with
respect to its employees during the periods in which they are employed
by Seller.
13.02 Employee Benefit Plans.
(a) At the Effective Time, Seller or its Affiliates shall cause the
termination of the participation of the Hired Employees in all of the
Plans, except that the Hired Employees' participation in Seller's or its
Affiliates' medical and dental plans shall continue through the last day of
the month in which the Effective Time occurs. On the last day of the month
in which the Effective Time occurs, the Hired Employees' participation in
Seller's or its Affiliates' medical and dental plans shall terminate.
Seller shall determine whether the "same desk" rule applies to the Seller's
or its Affiliates' Tax qualified savings plan. If such rule does not apply,
Seller shall make distribution to the Hired Employees in accordance with
the terms of Seller's or its Affiliates' plan.
(b) All of the Hired Employees will be permitted to enroll in all of
Buyer's "employee welfare benefit plans," as that term is defined in
Section 3(1) of ERISA, upon the termination of such benefits under Seller's
or its Affiliates' Plans and any other employee programs of Buyer in
accordance with the terms and conditions of Buyer's plans and programs in
effect from time to time for its similarly situated employees generally.
(c) Subject to the satisfaction of the conditions described below in
this Section 13.02(c), at the Effective Time Buyer shall waive or cause the
waiver of waiting periods, pre-existing condition exclusions, deductibles
(for the remainder of 2002), and other limitations on participation
otherwise applicable to any Hired Employee and qualified dependents (who
were covered by an employee welfare benefit plan of Seller or its
Affiliates and immediately elects to be covered by an employee welfare
benefit plan of Buyer) under or with respect to all employee welfare
benefit plans maintained by Buyer. The conditions for the waivers described
above are:
(i) Buyer will waive waiting periods to the extent service with
Seller would otherwise satisfy the waiting period and the Hired
Employee is actively at work. For Long Term Disability Insurance, the
waiver is contingent upon receiving a waiver from Buyer's insurance
carrier;
(ii) Buyer will waive pre-existing condition exclusions to the
extent a Certificate of Creditable Coverage is presented by and for
the Hired Employee and all dependents showing coverage for the
eighteen (18) months immediately prior to coverage under Buyer's plan;
and
(iii) Buyer will offset (waive or partially waive) deductibles to
the extent the Hired Employee or dependent shows reasonable evidence
of satisfaction of the applicable deductible with Seller during the
same calendar year.
(d) Seller shall retain responsibility for any medical, dental, life,
vision, AD&D, cafeteria, short-term disability, and long-term disability
claims by any Hired Employee which were incurred on or prior to the
Effective Time and for workers' compensation claims related to injuries
arising from the employment of the Hired Employees for periods prior to and
through the Effective Time, in each case to the extent covered by the
respective employee benefit plan and/or insurance plan or policy of Seller
or its Affiliates, and any claims regarding the Seller's 401(k) Plan which
arise out of the administration or operation of such Plan prior to the
Effective Time. Seller shall be responsible, and bear all costs, for the
administration and termination of such benefits and Seller represents and
warrants that Buyer shall have no liability with respect thereto. Buyer
states that it does not assume, and shall have no liability with respect
to, any medical, dental, life, vision, AD&D, cafeteria, short-term
disability or long-term disability claims by any Hired Employee which were
incurred on or prior to the Effective Time or for workers' compensation
claims related to injuries arising from the employment of the Hired
Employees for periods prior to and through the Effective Time, in each case
whether or not covered by the respective employee benefit plan and/or
insurance plan or policy of Seller or its Affiliates, or any claims
regarding the Seller's 401(k) Plan which arise out of the administration or
operation of such plan prior to the Effective Time.
(e) For purposes of this Section, a claim for reimbursement under a
medical, hospital or dental, prescription drug, or similar plan shall be
deemed to be incurred on the date that the claim occurs. A claim occurs on
the date service is provided and there shall be no continuation of a claim
from one day to the next. In the event of a hospitalization commencing
prior to the last day of the month in which the Effective Time occurs, any
existing coverage shall cease on the last day of the month in which the
Effective Time occurs unless the participant elects COBRA continuation
coverage.
(f) With respect to the Hired Employees, prior employment with Seller
or an Affiliate thereof shall be recognized by Buyer, for the purpose of
determining service awards, severance, vacation eligibility, and for
eligibility, vesting, and participation under Buyer's employee benefit
plans, but not with respect to calculating pension benefit payments. All
Hired Employees shall be subject to Buyer's vacation policies, provided all
such Hired Employees shall be given full credit for pre-Closing years of
service recognized by Seller and its Affiliates for vacation purposes under
Buyer's policy. Seller shall be responsible for payment to Hired Employees
for any accrued and earned but not used vacation. The Hired Employees will
be permitted by Buyer to take the vacation time paid by Seller as time off
without pay after the Closing Date until they reach their anniversary year
at which time they will be given vacation recognizing prior years of
service with Seller on Buyer's vacation schedule.
(g) Seller shall not include a reserve for accrued bonuses through the
Effective Time. Seller shall pay such amounts, if any, directly to the
Hired Employees.
13.03 No Third Party Employee Beneficiary. The Parties expressly
acknowledge that this Agreement is not intended to create a contract between
either Buyer or Seller, on the one hand, and any Hired Employee, on the other
hand, and no Hired Employee may rely on this Agreement as the basis for any
breach of contract claim against Buyer or Seller. Seller shall not, in any
manner, be responsible or liable for administration or the payment of any
benefit due under any plans maintained by Buyer after the Closing.
13.04 Federal Worker Adjustment and Retraining Notification Act. Seller
shall have caused the termination of the employment of the Hired Employees as of
the Effective Time and shall have provided such notice of termination if and as
required by the Worker Adjustment Retraining and Notification Act, as amended,
and shall have complied with any comparable state or local statutes or
regulations.
ARTICLE XIV: MISCELLANEOUS PROVISIONS
14.01 Commission. Each of the Parties represents and warrants that there
are no claims for brokerage commission or finders' fees in connection with the
transaction contemplated by this Agreement arising as a result of any actions
taken or agreements by such Party, and Seller and Buyer will respectively pay or
discharge, and will Indemnify the other Party against, brokerage commissions or
finders' fees incurred by reason of any action taken by such Indemnitor.
14.02 Assignment. The terms, provisions and conditions of this Agreement
shall extend to, be binding upon and inure to the benefit of the Parties, their
respective successors and permitted assigns. No Party will make an assignment of
its rights and/or obligations under this Agreement without the prior written
consent of the other, which such consent may be withheld for any reason. Any
assignment or attempted assignment in violation of this Section shall be void.
Notwithstanding the foregoing, either Party may assign this Agreement, and its
rights and obligations hereunder, to any of its respective Affiliates upon
providing Notice to the other Party without first obtaining the written consent
of the other Party; provided that the assigning Party shall remain liable for
its obligations hereunder notwithstanding such assignment.
14.03 Entire Agreement; Amendments. This Agreement and the exhibits and
schedules attached hereto and incorporated by reference herein contain the
entire understanding of the Parties with respect to its subject matter. There
are no restrictions, agreements, promises, warranties, covenants or undertakings
relating to the transactions contemplated herein other than those expressly set
forth herein. This Agreement supersedes all prior agreements and understandings
between the Parties with respect to its subject matter. This Agreement may be
amended only by a written instrument duly executed by the Parties. Any condition
to a Party's obligations hereunder may be waived in writing by such Party. No
waiver by any Party of any one or more defaults by the other in performance of
any of the provisions of this Agreement shall operate or be construed as a
waiver of any future default or defaults, whether of a like or different
character.
14.04 Severability. Each portion of this Agreement is intended to be
severable. If any term or provision hereof is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the validity of the
remainder of this Agreement.
14.05 Actions. Seller and Buyer, singularly and plurally, warrant and agree
that each shall use its commercially reasonable efforts to take or cause to be
taken all such action as may be necessary to consummate and make effective the
transaction as set forth in this Agreement and to assure that it will not be
under any material corporate, legal or contractual restriction that would
prohibit or delay the timely consummation of such transaction.
14.06 Termination.
(a) This Agreement may be terminated at any time on or prior to
Closing:
(i) by mutual written consent of Seller and Buyer;
(ii) by Seller if the conditions set forth in Section 9.03 have
not been satisfied in all material respects by Buyer or not waived by
Seller in writing by December 31, 2002 (the "Drop Dead Date");
(iii) by Buyer if the conditions set forth in Section 9.02 have
not been satisfied in all material respects by Seller or not waived by
Buyer in writing by the Drop Dead Date;
(iv) by Buyer or Seller pursuant to and in accordance with
Section 7.01 or Section 11.02(b); or
(v) by Buyer pursuant to and in accordance with Section
7.02(b)(iv) or Section 11.02(a).
(b) If the Closing does not occur as a result of either Seller or
Buyer exercising its right to terminate pursuant to this Section 14.06,
this Agreement shall be null and void, and no Party shall have any rights
or obligations under this Agreement, except that:
(i) A termination shall not relieve any Party from any liability
for breach hereof occurring prior to termination, and the
non-breaching Party shall be entitled to any and all relief under
applicable law or in equity on account of such breach; and
(ii) Buyer's obligations under the Confidentiality Agreement
shall survive any such termination.
14.07 Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
14.08 Governing Law. This Agreement shall be governed by, enforced in
accordance with, and interpreted under, the laws of the State of Kansas, without
regard to its conflicts of law principles.
14.09 Time of Essence. With regards to dates and time periods set forth or
referred to in this Agreement, time is of the essence.
14.10 Nondisclosure of Confidential Information.
(a) Seller recognizes and acknowledges that it has knowledge of
certain confidential information regarding the Assets and the Business
which will be included in the Assets conveyed to Buyer at Closing
hereunder. Seller agrees that it will not disclose, and will use reasonable
commercial efforts to prevent disclosure to any other Person of such
confidential information except to authorized representatives of Buyer.
Seller recognizes and agrees that violation of this provision may cause
irreparable damage or injury to Buyer, the exact amount of which may be
impossible to ascertain, and that Buyer may be entitled to an injunction,
without the necessity of posting a bond therefor, restraining any further
violation of this provision. Such rights to any injunction shall be in
addition to, and not in limitation of, any other rights and remedies Buyer
may have vis-a-vis Seller.
(b) The Parties acknowledge and agree that the terms and conditions of
this Agreement, including any Exhibits and Schedules referenced herein, are
confidential and proprietary to each of the Parties and that they will use
reasonable commercial efforts to prevent disclosure of the contents hereof
to any Person, except as by an authorized representative of the other Party
(including that Party's attorneys, accountants, auditors and lenders who
are bound to a duty of confidentiality to that Party), and except as
required, and then only to the extent required, to be disclosed pursuant to
a Legal Requirement, and then the Party disclosing it shall make reasonable
commercial efforts to obtain reliable assurance from the Person to whom it
is disclosed that confidential treatment will be accorded thereto. In such
instance the other Party shall be provided sufficient prior Notice of the
requirement to disclose such that the other Party may seek, at its expense,
a protective order or other appropriate remedy with respect thereto.
14.11 Assignment of Contracts and Property Rights. Notwithstanding any
other provision of this Agreement, nothing in this Agreement or any related
document shall be construed as an attempt to assign or transfer: (i) any
Contract, Leasehold Interest, Permit or Property Right which as a matter of law
or by its terms, is non-assignable without the consent of the other parties
thereto unless such consent has been given, or (ii) any Contract or claim as to
which all of the remedies for the enforcement thereof enjoyed by Seller would
not, as a matter of law or by its terms, pass to Buyer incident to the
assignment or transfer to Buyer to be made under this Agreement. However, in
order to assist Buyer in preserving and realizing the full value of such
Contracts, Leasehold Interests, Permits, Property Rights and claims, Seller, at
the request of Buyer, shall exercise reasonable efforts to assist Buyer in
capturing the commercial benefit of such non-assignable Contracts, Leasehold
Interests, Permits and Property Rights, and to facilitate the collection of
moneys due and payable and to become due and payable thereunder to Buyer under
such Contracts and claims. Seller shall promptly pay over to Buyer all moneys
collected by or paid to it with respect to each such Contract or claim.
14.12 Notices and Addresses.
(a) All notices required or permitted hereunder shall be in writing
and shall be served on the Parties at the addresses set forth in Section
14.12(b). Any such notices may be sent by: (i) a nationally recognized
overnight courier, in which case notice shall be deemed delivered three (3)
Business Days after deposit with such courier; (ii) facsimile transmission,
in which case notice shall be deemed delivered upon actual receipt by
recipient; (iii) certified mail, return receipt requested, in which case
notice will be deemed delivered three (3) Business Days after mailing; or
(iv) hand-delivery, in which case notice shall be deemed delivered upon
actual receipt by recipient. Copies of notices are for informational
purposes only, and a failure to give or receive copies of any notice shall
not be deemed a failure to give notice. Any notice or other communication
required to be given under this Agreement or in connection with the matters
contemplated by it shall be in writing in the English language. The refusal
to accept delivery shall constitute acceptance, and in such event, the date
of delivery shall be the date on which delivery was refused.
Notwithstanding anything to the contrary contained herein, if the delivery
of any notice, item, or information, pursuant to the terms hereof, begins
the running of a time period during which a Party is obligated to respond
or else have its approval deemed to have been granted or denied, then such
notice, item, or information shall either bear or be accompanied by a cover
letter w+hich bears the following legend (in bold and capital letters):
"TIME SENSITIVE REQUEST - RESPONSE REQUIRED WITHIN A FINITE NUMBER OF
DAYS."
(b) The addresses and other details of the Parties are (or at such
other address as either Party may designate by written notice):
Seller: ▇▇▇▇ Pipeline Company, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ Fertilizer Storage and Terminal Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: ▇▇▇▇ Fertilizer Storage and Terminal Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ Pipeline Company, L.P.
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Buyer: Kaneb Pipe Line Operating Partnership, L.P.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman of the Board and
Chief Executive Officer
Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
With Copies to: Kaneb Pipe Line Operating Partnership, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fulbright & ▇▇▇▇▇▇▇▇ L.L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
IN WITNESS WHEREOF, the Parties have hereto set their hands by their duly
authorized officials as of the date set forth above.
"Seller" "Seller"
▇▇▇▇ Pipeline Company, ▇.▇. ▇▇▇▇ Fertilizer Storage and Terminal Company
By: ▇▇▇▇ Pipeline Company, LLC,
Its General Partner
By: By:
----------------------------------------- -------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President President
"Buyer"
Kaneb Pipe Line Operating Partnership, L.P.
By: Kaneb Pipe Line Company, LLC,
Its General Partner
By:
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
Signature page to that certain Asset Purchase and Sale Agreement by and among
▇▇▇▇ Pipeline Company, L.P. and ▇▇▇▇ Fertilizer Storage and Terminal Company
(together, "Seller") and Kaneb Pipe Line Operating Partnership, L.P. ("Buyer").
