Exhibit 10.3
FIRST AMENDMENT TO
ASSET PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO ASSET PURCHASE AND SALE AGREEMENT (this "First
Amendment") is entered into this 31st day of October, 2002, by and among:
X. Xxxx Pipeline Company, L.P., a Delaware limited partnership, with its
principal place of business at 0000 Xxxx 00xx Xxxxxx Xxxxx, Xxxxxxx,
Xxxxxx 00000 ("KPL");
X. Xxxx Fertilizer Storage and Terminal Company, a Nebraska corporation,
with its principal place of business at 0000 Xxxx 00xx Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxx 00000 ("KFS&T") (KLP and KFS&T are hereinafter
collectively referred to as "Seller"); and
X. Xxxxx Pipe Line Operating Partnership, L.P., a Delaware limited
partnership, with its principal place of business at 0000 Xxxxx
Xxxxxxx Xxxxxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxx 00000 ("Buyer").
WHEREAS, Seller and Buyer entered into that certain Asset Purchase and Sale
Agreement dated September 17, 2002 (the "Agreement"); and
WHEREAS, Seller and Buyer desire to amend the Agreement as provided herein.
NOW, THEREFORE, for and in consideration of the foregoing and the mutual
covenants and obligations set forth herein, Seller and Buyer do hereby covenant
and agree as follows:
1. Defined Terms. Capitalized terms used but not defined herein shall
have the meaning given to such terms in the Agreement.
2. Revision to Section 9.01 of the Agreement. The first sentence of
Section 9.01 shall be amended to read as follows: "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 October 31, 2002 The Closing shall be effective
as of 12:01 a.m. central time on November 1, 2002, except for the
conveyance and transfer of the Net Inventory, which shall be effective as
of 8:00 a.m. central time on November 1, 2002 (the "Effective Time")."
3. Amended Exhibits and Schedules to the Agreement.
(a) Existing pages 19, 20 and 22 (of 42) of Exhibit B (Real
Property) shall be amended to replace them with the revised pages 19
and 20, attached hereto as Attachment A.
(b) The existing site diagrams for Crawfordsville, Indiana and
Marshalltown, Iowa, attached to Exhibit A (Facilities) and Exhibit J
(Xxxx of Sale), and as also cross referenced in Exhibit M (Additional
Excluded Assets), shall be amended to replace them with the revised
Site Diagrams attached hereto as Attachment B (Crawfordsville) and
Attachment C (Marshalltown).
(c) Exhibit A (List of Assets) of Exhibit J (Form of Xxxx of
Sale) is amended to add a new section XI as follows: "XI. Camp Houses.
Two camp houses and all fixtures and appurtenances thereto situated
near Bodie's Boat Landing on the right descending bank of Little River
on the Xxxxxxx Lateral located on a parcel of land in Sections 38 and
13, T 7-1 East of Xxxxx Xxxxxx, Louisiana referred in:
| a certain deed (Xxxx of Sale) dated April 8, 1976, passed before
B.E. Xxxxxxxxxx, Notary Public; and,
| a certain Act of Partition in Reg. No. 116647, Bk 334, page 528.
Notwithstanding the provisions of Section 4.01(q) of the Agreement,
Seller specifically disclaims any warranty of title with respect to
the camp house described in the previous sentence and Seller only
conveys whatever interest it has in such House."
(d) Exhibits A, J and M shall be amended to add the following
asset to Exhibit M (Additional Excluded Assets) and to delete it from
Exhibit A (List of Assets) and Exhibit J (Form of Xxxx of Sale): | In
Section C (Tractors) of Vehicles and Other Rolling Stock: Unit #11326
1982 Case Model 1190 VIN#11034092
(e) Exhibits A and J shall be amended to add one additional Level
A Suit and SCBA unit at the Trilla, Illinois Facility as follows: | In
Section Q, (Trilla, Illinois Facility (delivery facility)), it shall
be modified to state: "Two (2) Level A Suits and SCBAs".
(f) Exhibit B (Real Property) attached to the Agreement shall be
amended to add the items stated in Exhibit B-1.
(g) Exhibit D (Property Rights) attached to the Agreement shall
be amended to add the items stated in Exhibit D-1.
(h) Exhibit E (Permits) attached to the Agreement shall be
amended to add the items stated in Exhibit E-1.
(i) Exhibit O is amended and replaced in its entirety as set
forth in the "Revised Exhibit O", attached hereto.
(j) Shedule 4.01(m) is amended and replaced in its entirety as
set forth in the "Revised Schedule 4.01(m)", attached hereto.
(k) Schedules 4.01(o)(i)(A) and 13.01 shall be amended to add the
following employee to Schedule 13.01 (Employees) and to delete him
from Schedule 4.01(o)(i)(A) (Exceptions to Employees):
------------------------------ ------------------------------- ----------------------- -----------
Name Location Role Hire Date
------------------------------ ------------------------------- ----------------------- -----------
------------------------------ ------------------------------- ----------------------- -----------
Xxxx Koegeboehm Hermann Eng. Mgr. 1/14/91
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4. Revision to Article X of the Agreement. New Section 10.09 shall be added
to the Agreement as follows:
"10.09 Seller's Indemnity for Development of Telecon Easement Rights. After
the Effective Time, and to the fullest extent permitted by law, but subject
to the other provisions of this Article X, and except to the extent of the
negligence, gross negligence or wilful misconduct of any of the Buyer
Indemnitees, KPL and KFS&T will jointly and severally Indemnify the Buyer
Indemnitees from and against any and all Liabilities/Claims arising from or
in connection with or relating to (i) the fiber optic rights existing on
some or all of the Assets pursuant to the agreements by and between KPL,
Sea Breeze Communications Company and XX.Xxx Corp, now known as Velocita
Corp., (ii) any exercise of those rights or (iii) the installation,
operation, or maintenance of any fiber optics cables or similar or related
assets in connection with such rights (collectively, the "Fiber Optics
Issues")."
5.Clarification of Thresholds, Monetary Cap and Survival. It is hereby
acknowledged and agreed by the Parties that the new Section 10.09 of the
Agreement, as added above, is subject to the Monetary Cap set forth in Section
10.04 of the Agreement and is subject to the two (2) year survival of
indemnifications set forth in Section 10.05(b) of the Agreement, but is not
subject to the Threshold set forth in Section 10.04.
6. Survey and Granting of Metes and Bounds Easements on Seller and Xxxx
Nitrogen Company Owned Real Property. As soon as practicable after the Closing
Date, but in any event within one hundred eighty (180) days after the Closing
Date, Buyer may construct, for use in connection with the Facilities and on real
property owned by Seller or Xxxx Nitrogen Company ("KNC"), such control
buildings and related facilities as are reasonably necessary in connection with
Buyer's operation of the Facilities (the "New Construction"). Seller hereby
grants to Buyer, and agrees to cause KNC to grant to Buyer, the right for Buyer
and its affiliates and subcontractors and vendors to enter onto Seller's and
KNC's real property and to construct such buildings and facilities at such
locations as are approved by Seller and Buyer, such approval not to be
unreasonably withheld, conditioned or delayed. Within one hundred eighty (180)
days following the Closing Date or ninety (90) days after completion of the New
Construction, whichever is later, Seller shall, at its cost, cause a survey of
the New Construction and the Facilities conveyed to Buyer under the Agreement
which are located on real property owned by Seller or KNC and shall grant, or
cause KNC to grant, a metes and bounds easement suitable for recording for such
Facilities and New Construction substantially in the form of Exhibit O. Buyer
will exercise its rights hereunder in such a manner so as to not unreasonably
interfere with Seller's or KNC's operations. If and to the extent an easement is
granted pursuant to the terms of this Section 6 and another easement currently
exists for all or a portion of the said property, the Parties will cause a
termination and release of the then existing easement therefor.
Buyer agrees that its ingress and egress pursuant to this Section 6 shall
be only upon prior notice to Seller (verbal or written), and shall not
unreasonably interfere with Seller's or KNC's ongoing operations. Upon obtaining
Seller's prior consent (which shall not be unreasonably withheld, conditioned or
delayed), Buyer may also use as temporary working space such parts of Seller's
and KNC's real property as are reasonably necessary to conduct Buyer's
activities in connection with the New Construction, provided such land is not
occupied by substantial improvements. Additionally, all of Buyer's ingress and
egress to, and any operations on, Seller's and KNC's real property shall be
conducted in compliance with all of Seller's and KNC's safety procedures, rules
and regulations in effect at the property location from time to time, which
shall include site safety training and access restriction procedures as are
normally required by Seller or KNC of third party invitees. Provided, however,
that Seller will provide, and will cause KNC to provide, Buyer immediate access
upon verbal notice when conditions with respect to the New Construction are
threatening or causing harm to persons or property or a release of any
deleterious or harmful substances into the environment. Buyer further agrees
that the New Construction shall be designed, constructed, tested and operated in
accordance with applicable safety rules and regulations published by federal
and/or state regulatory agencies having jurisdiction. If no such government
safety rules apply, then applicable industry standards and practices shall be
complied with.
Buyer agrees to Indemnify Seller and KNC, their related companies and
affiliates, and their officers, directors, employees and agents (collectively
referred to hereinafter as "Indemnitees") from and against any and all
Liabilities/Claims for damage to property or the environment or injury to or
death of Persons to the extent such Liabilities/Claims result from, grow out of,
or arise in connection with, the exercise by Buyer of any of the rights granted
under this Section 6, except to the extent that such Liabilities/Claims result
from Indemnitees' negligence, gross negligence or willful misconduct.
Notwithstanding the foregoing, Buyer further agrees to Indemnify Indemnitees
from and against any and all Liabilities/Claims relating to personal injuries or
death suffered by Buyer or its contractors, or the employees or agents of any of
them, during the course of performing activities hereunder, regardless of
whether such Liabilities/Claims are caused by or arise out of Indemnitees'
negligence as relating to either the physical conditions of the work site or any
failure to warn about any such physical conditions, but excluding Claims to the
extent caused by any other type of Indemnitees' negligence, gross negligence or
willful misconduct.
Buyer agrees that, after commencing construction relating to the New
Construction or any portion thereof, Buyer will pursue the work diligently to
effect prompt completion of the New Construction, and following the construction
will restore the surface of the land affected by the New Construction, as nearly
as is practicable, to the condition in which it existed prior to construction.
7. Trailer Replacement. A certain non-titled 1993 16' tandem axle trailer
(VIN 00XXX0000XX000000), listed on both Exhibit A (Facilities) and Exhibit J
(Form of Xxxx of Sale) was replaced in the ordinary course of business with a
2002 HH, Model HD252, Trailer (VIN # 0X0XX00000X000000), which is a titled
vehicle. Therefore, this 1993 trailer is deleted from Exhibits A and J and the
replacement 2002 trailer is hereby added to Exhibit A, and title thereto shall
be conveyed to Buyer by delivery of the original title thereto pursuant to
Section 9.01(a)(v) of the Agreement.
8. Marshalltown, Iowa Building. New Section 3.02(b)(vii) shall be added to
the Agreement as follows:
"(vii) An amount equal to $60,000.00, which is the mutually agreed upon
approximation of one-half (1/2) of the costs that Buyer and Seller expect
Buyer will incur for the construction of a new 30' x 64' post frame
office/shop building on the Real Property which is conveyed to Buyer under
the Agreement at Marshalltown, Iowa. 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)(vii)."
9. (a) The term "Closing" is changed to "Effective Time" in the
following Sections of the Agreement: 2.01, 3.02(b)(iii), 4.01(x), 7.01,
7.02(a), 7.02(b), 8.08, 9.02(a), 9.02(b), 9.03(a), 10.03(b), 10.03(d),
14.06 and 14.10(a).
(b) The term "Closing Date" is changed to "Effective Time" in the
following Sections of the Agreement : 9.02(a), 9.02(j), 9.03(a) and
9.03(b).
(c) The term "at Closing" in Section 3.01(a) of the Agreement is
changed to "on November 1, 2002".
10. Lis Pendens. Seller covenants and agrees that it will use its best
efforts to remove, promptly after Closing and to Buyer's reasonable
satisfaction, the existing lis pendens with respect to the Trilla Pump Station
and the Pana Pump Station as described in item 3 of the Buyer's title defect
letter to Seller dated September 24, 2002 (which was sent by Fulbright &
Xxxxxxxx L.L.P., Buyer's counsel)(collectively, the "Lis Pendens"). Seller shall
Indemnify the Buyer Indemnitees from and against any and all Liabilities/Claims
arising from or relating to the Lis Pendens or any enforcement thereof or
collections with respect thereto. This Indemnity obligation is not subject to
the Threshold or the Monetary Cap, and shall survive Closing without limitation
as to time or amount.
11. Non-Recorded Property Right at IMC-Agrico, Taft, LA. The Parties
acknowledge that there is a non-recorded Property Right in the amount of 812
rods across the property of IMC-Agrico at Taft LA, and have made a downward
adjustment to the Purchase Price in the amount of $64,960.00 ($80.00 x 812 rods)
pursuant to Section 3.02(b)(v) of the Agreement. Buyer agrees that this downward
adjustment to the Purchase Price shall be the sole and exclusive consideration
due to Buyer for this matter. However, if, following Closing, Seller provides
Buyer with a Property Right suitable for recording with respect thereto, Buyer
shall promptly reimburse said amount.
12. Ratification of Agreement. Except as expressly provided herein to the
contrary, the terms, covenants, and conditions of the Agreement shall remain in
full force and effect without modification or amendment, and the Parties hereto
ratify and reaffirm the same in its entirety.
13. Miscellaneous. The foregoing Recitals are incorporated herein by
reference and are made a part hereof. The provisions of this First Amendment
were negotiated and shall be deemed to have been drafted by the Parties hereto.
This First Amendment shall be governed by and construed in accordance with the
laws of the State of Kansas, without regard to the conflicts of laws principles.
If the terms of the Agreement conflict or are inconsistent with those of this
First Amendment, the terms of this First Amendment shall govern.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
IN WITNESS WHEREOF, the duly authorized representatives of the parties
hereto have executed this First Amendment as of the date first set forth above.
"Seller" "Seller"
Xxxx Pipeline Company, X.X. Xxxx Fertilizer Storage and Terminal Company
By: Xxxx Pipeline Company, LLC,
Its General Partner
By: By:
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Xxx XxXxxx Xxxxxxx X. Xxxxxx
President Vice President
"Buyer"
Kaneb Pipe Line Operating Partnership, L.P.
By: Kaneb Pipe Line Company, LLC,
Its General Partner
By:
----------------------------
Xxxxx X. Xxxxxxxx
President
Signature page to that certain First Amendment to the Asset Purchase and Sale
Agreement by and among Xxxx Pipeline Company, L.P. and Xxxx Fertilizer Storage
and Terminal Company (together, "Seller") and Kaneb Pipe Line Operating
Partnership, L.P. ("Buyer").
