Exhibit 10.37
PURCHASE AND SALE AGREEMENT
Dated as of March 29, 2002
by and among
FREEPORT-McMoRan SULPHUR LLC,
McMoRan EXPLORATION CO.,
McMoRan OIL & GAS LLC
and
GULF SULPHUR SERVICES LTD., LLP
TABLE OF CONTENTS
Page No.
ARTICLE I.
DEFINITIONS 1
ARTICLE II.
PURCHASE AND SALE 6
2.1 PURCHASE AND SALE OF ASSETS 6
2.2 EXCLUDED ASSETS 8
2.3 ASSUMPTION OF SPECIFIED LIABILITIES 9
2.4 EXCLUDED LIABILITIES 9
2.5 CONSIDERATION 11
2.6 CLOSING ADJUSTMENT. 11
2.7 SUBSEQUENT CLOSING ADJUSTMENT. 12
2.8 TRANSFER OF TITLE 13
2.9 OTHER ADJUSTMENTS 13
2.10 SULPHUR ENTERPRISE 13
ARTICLE III.
THE CLOSING 13
3.1 CLOSING 13
3.2 DELIVERIES AT CLOSING 14
ARTICLE IV.
REPRESENTATIONS OF SELLER 15
4.1 ORGANIZATION 15
4.2 AUTHORIZATION; ENFORCEABILITY 15
4.3 NO APPROVALS OR CONFLICTS 15
4.4 ASSETS. 16
4.5 MATERIAL CONTRACTS 16
4.6 LITIGATION AND CLAIMS 17
4.7 PROPRIETARY RIGHTS 17
4.8 EMPLOYEES AND EMPLOYMENT MATTERS. 17
4.9 INTERESTS IN SUPPLIERS, CUSTOMERS AND COMPETITORS 18
4.10 ENVIRONMENTAL MATTERS 18
4.11 COMPLIANCE WITH LAWS 19
4.12 LICENSES AND PERMITS 19
4.13 ABSENCE OF CERTAIN CHANGES 19
4.14 BROKER'S OR FINDER'S FEES 19
4.15 TAXES; ERISA 20
4.16 INSURANCE; SURETY BONDS. 20
4.17 FINANCIAL. 20
4.18 REAL PROPERTY. 20
4.19 ILLEGAL ACTIVITY 21
4.20 FAIR VALUE 22
4.21 COMPLETE DISCLOSURE 22
ARTICLE V.
REPRESENTATIONS OF BUYER 22
5.1 ORGANIZATION 22
5.2 AUTHORIZATION; ENFORCEABILITY 22
5.3 NO APPROVALS OR CONFLICTS 22
5.4 BROKER'S OR FINDER'S FEES 23
5.5 PROCEEDINGS 23
5.6 INVESTIGATION. 23
ARTICLE VI.
PRE-CLOSING COVENANTS 23
6.1 TIME OF ESSENCE; COOPERATION AND BEST EFFORTS. 23
6.2 XXXX-XXXXX-XXXXXX FILING 24
6.3 PUBLIC STATEMENTS 24
6.4 REVIEW OF THE BUSINESS 24
6.5 CONDUCT OF BUSINESS PRIOR TO THE CLOSING DATE. 24
6.6 NO OTHER NEGOTIATIONS 25
6.7 NOTIFICATION OF CHANGES 25
6.8 NO INTENTIONAL ACTS 26
6.9 AVAILABILITY OF EMPLOYEES 26
6.10 TANK AND BARGE REPAIRS 26
6.11 REPRESENTATIONS, WARRANTIES AND COVENANTS 26
6.12 SELLER COOPERATION 26
6.13 SELLER'S COMMERCIAL EFFORTS 26
ARTICLE VII.
CONDITIONS TO CLOSING 26
7.1 CONDITIONS APPLICABLE TO ALL PARTIES 26
7.2 CONDITIONS TO THE BUYER'S OBLIGATIONS 27
7.3 CONDITIONS TO THE SELLER'S OBLIGATIONS 28
ARTICLE VIII.
TAX MATTERS 28
ARTICLE IX.
INDEMNIFICATION; SURVIVAL OF REPRESENTATIONS 29
9.1 INDEMNIFICATION. 29
9.2 NOTICE AND DEFENSE OF CLAIMS. 30
9.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES 30
9.4 LIMITATIONS 31
9.5 ADJUSTMENT TO PURCHASE PRICE 32
ARTICLE X.
OTHER POST-CLOSING COVENANTS 32
10.1 TRANSFER TAXES 32
10.2 ASSIGNMENT OF CERTAIN CONTRACTS 32
10.3 FURTHER ASSURANCES 32
10.4 RECORD RETENTION 32
10.5 MAIL AND OTHER COMMUNICATIONS. 33
10.6 WARN ACT NOTICE 33
10.7 REASONABLE COOPERATION 33
10.8 RISK OF LOSS 33
10.9 COVENANT NOT TO COMPETE; CONFIDENTIALITY 33
10.10 ACCOUNTS RECEIVABLE 34
10.11 ENVIRONMENTAL MATTERS. 34
10.12 CONFIDENTIALITY AGREEMENTS WITH THIRD PARTIES 38
10.13 DOCKING RIGHTS 38
10.14 RIGHT OF ACCESS 38
10.15 DEVON SETTLEMENT AGREEMENT 38
ARTICLE XI.
TERMINATION 39
11.1 TERMINATION 39
11.2 EFFECT OF TERMINATION; SURVIVAL 39
11.3 EXCLUSIVE TERMINATION RIGHTS 39
ARTICLE XII.
MISCELLANEOUS 39
12.1 NOTICES 39
12.2 WAIVER 41
12.3 EXPENSES 41
12.4 INTERPRETATION. 42
12.5 INTEGRATED AGREEMENT 42
12.6 CHOICE OF LAW 42
12.7 GUARANTY 43
12.8 PARTIES IN INTEREST AND ASSIGNMENT 43
12.9 AMENDMENT 43
12.10COUNTERPARTS 43
12.11SPECIFIC PERFORMANCE 43
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement"), dated as
of March 29, 2002, is by and among Freeport-McMoRan Sulphur LLC,
a Delaware limited liability company ("Seller"), Gulf Sulphur
Services Ltd., LLP, a Texas limited liability partnership
("Buyer"), McMoRan Exploration Co., a Delaware corporation and
sole member of Seller ("MMR"), and McMoRan Oil & Gas LLC, a
Delaware limited liability company ("MOXY").
W I T N E S S E T H:
WHEREAS, Seller desires to sell certain assets and convey
certain liabilities relating to its transportation and
terminaling business and Buyer desires to purchase such assets
and assume such liabilities as provided in this Agreement; and
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements herein contained, the
parties agree as follows:
ARTICLE I. DEFINITIONS
For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires, each
of the following terms shall have the meanings set forth below:
"Acquired Assets" has the meaning specified in Section 2.1.
"Affiliate" means, with respect to any Person, any other
Person that, directly or indirectly, through one or more
intermediaries, controls, has the right to control (in fact or by
agreement), is controlled by, or is under common control with,
such Person. As used in this definition, each of the terms
"controls," "has the right to control," "controlled by" and
"under common control with" means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through ownership of
voting securities, by contract or otherwise.
"Agreement" has the meaning specified in the introductory
paragraph.
"Asset Sale" means the sale of the Acquired Assets, the
assumption of the Assumed Liabilities, and the payment of the
Purchase Price in accordance with this Agreement.
"Assumed Liabilities" has the meaning specified in Section
2.3.
"Barge Repairs" has the meaning specified in Section 6.10.
"Benefit Arrangement" means any employment, severance or
similar contract, or any other contract, plan, policy or
arrangement providing for compensation, bonus, profit-sharing,
stock option or other stock related rights or other forms of
incentive or deferred compensation, vacation or other compensated
absences, insurance coverage (including any self-insured
arrangement), health or medical benefits, disability benefits,
and post-employment and retirement benefits, other than an
Employee Plan that (a) is maintained, administered or contributed
to by Seller, MMR or any ERISA Affiliate or (b) covers any
employee or former employee of Seller.
"Brokers" has the meaning specified in Section 2.4(c).
"Business" means the Seller's business activities relating
to the terminaling, handling, transporting and storage of
sulphur, but expressly excluding the (a) purchase and sale of
sulphur, (b) mining and exploitation of sulphur, (c) Excluded
Assets and the operation thereof, and (d) sale, terminaling,
handling, transportation and storage of sulphur recovered in
connection with the ordinary course of oil and gas production and
related activities by Seller, MMR or any of their respective
Affiliates.
"Business Day" means any day of the year on which banks are
not required or authorized to be closed in New York City.
"Buyer" has the meaning specified in the introductory
paragraph.
"Buyer Indemnitees" has the meaning specified in Section
9.1.
"Buyer's Ancillary Documents" has the meaning specified in
Section 5.2.
"Buyer's Indemnity Basket" has the meaning specified in
Section 9.4(a)(ii).
"CAA" has the meaning specified in the definition of
"Environmental Laws."
"CERCLA" has the meaning specified in the definition of
"Environmental Laws."
"Closing" means the closing of the Asset Sale.
"Closing Adjustment" has the meaning specified in Section
2.6(a).
"Closing Date" means the date on which the Closing occurs.
"COBRA" means part 6 of Subtitle B of Title I of ERISA or
Section 4980B of the Code.
"Code" means the Internal Revenue Code of 1986, as amended.
"Confidentiality Agreements" means the Confidentiality
Agreement by and between IMC Phosphates Company and Seller dated
as of March 14, 2000, as amended by Amendment No. 1 to the
Confidentiality Agreement dated as of October 31, 2000, and the
Confidentiality Agreement by and between Savage Industries Inc.
and Seller dated as of August 22, 2000.
"Contracts" has the meaning specified in Section 2.1(f).
"Criteria" has the meaning specified in Section
10.11(c)(vii).
"CWA" has the meaning specified in the definition of
"Environmental Laws."
"Devon Settlement Agreement" means the Letter Agreement
between Devon Energy Corp. and Seller dated August 22, 2000 and
the escrow account established in connection with that Letter
Agreement.
"Disclosure Schedules" means the schedules required by this
Agreement and attached hereto.
"Employee Plan" means (a) a plan or arrangement as defined
in Section 3(3) of ERISA that (i) is maintained, administered or
contributed to by Seller, MMR or any ERISA Affiliate or (ii)
covers any employee or former employee of Seller.
"Environmental Laws" mean the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), 42 USC 9601
et seq., as amended; the Resource Conservation and Recovery Act
("RCRA"), 42 USC 6901, et seq., as amended; the Clean Air Act
("CAA"), 42 USC 7401, et seq., as amended; the Clean Water Act
("CWA") 33 USC 1251, et seq., as amended; the Occupational Safety
and Health Act, 29 USC 651, et seq., as amended, regulations
issued by the United States Coast Guard, regulations issued by
the United States Department of Transportation and any other
federal, state, local or municipal laws, statutes, regulations,
rules, or ordinances imposing liability or establishing standards
of conduct for the protection of the environment, human health
and safety, including, without limitation, all Environmental Laws
governing the generation, use, collection, treatment, storage,
transportation, recovery, removal, discharge, manufacture,
processing, distribution, handling or disposal of Hazardous
Materials and all Environmental Laws imposing record-keeping,
maintenance, testing, inspection, notification and reporting
requirements with respect to Hazardous Materials.
"Environmental Permits" means licenses, permits,
registrations, governmental approvals, agreements and consents
which are required under or are issued pursuant to Environmental
Laws and all claims and rights of Seller thereunder to the extent
relating to the Business or the Acquired Assets.
"Equipment and Vessels" has the meaning specified in Section
2.1(c).
"Equipment/Vessel Lease" has the meaning specified in
Section 2.1(d).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Affiliate" means any Person that is along with the
Seller, a member of a controlled group of corporations, a
controlled group of trades or businesses, or an affiliated
service group, as described in section 414(b), (c), or (m) of the
Code or that is required to be aggregated with the Seller under
section 414(o) of the Code.
"Escrow Agent" has the meaning specified in Section 2.5(c).
"Escrow Amount" has the meaning specified in Section 2.5(c).
"Excluded Assets" has the meaning specified in Section 2.2.
"Excluded Liabilities" has the meaning specified in Section
2.4.
"GAAP" means generally accepted accounting principles in the
United States of America, consistently applied for the time
period involved.
"General Partner" has the meaning specified in Section 5.1.
"Hazardous Materials" means any pollutant, contaminant,
pesticide, petroleum or petroleum fuel, radioactive substance, or
hazardous or extremely hazardous, special, dangerous, or toxic
waste, substances, chemicals or materials which are "hazardous
substances" as defined in CERCLA, "hazardous waste" as defined
in RCRA, "hazardous air pollutants" as defined under the CAA, and
"hazardous substances" as defined under the CWA.
"HSR Act" has the meaning specified in Section 6.2.
"IMC" means IMC Global Inc.
"Indemnified Person" has the meaning specified in Section
9.2(a).
"Indemnifying Person" has the meaning specified in Section
9.2(a).
"Indemnity Claim" has the meaning specified in Section
9.2(a).
"Independent Auditor" means Deloitte & Touche LLP or such
other nationally recognized accounting firm mutually acceptable
to Buyer and Seller that has not represented either party (or any
of its Affiliates) in the previous three years.
"Intellectual Property" has the meaning specified in Section
2.1(h).
"Investigatory Workplan" has the meaning specified in
Section 10.11(c)(i).
"Knowledge of Seller" means actual knowledge of all officers
of MMR and Seller and managerial/supervisory employees of MMR and
Seller who are involved in Seller's sulphur business.
"Leased Equipment and Vessels" has the meaning specified in
Section 2.1(d).
"Leased Premises" has the meaning specified in Section
2.1(b).
"Licenses and Permits" has the meaning ascribed in Section
2.1(g).
"Lien" means, with respect to any Acquired Asset, whether
contingent or absolute, any title defect, lien, deed of trust,
mortgage, easement, covenant, pledge, charge, transfer
restriction, right of first refusal, preemptive right, option,
claim, security interest, right of others or other encumbrance of
any nature whatsoever.
"Losses" means all liabilities, demands, claims, actions or
causes of action, regulatory, legislative or judicial proceedings
or investigations, assessments, levies, losses, fines, penalties,
interest, damages, diminution of value, costs and expenses,
including, without limitation: reasonable attorneys',
accountants', investigators', and experts' fees and expenses,
sustained or incurred in connection with the defense or
investigation of any of the foregoing.
"Master Agreement" means the Master Agreement among Seller,
MMR, IMC, Savage and Buyer executed contemporaneously herewith.
"MMR" has the meaning specified in the introductory
paragraph.
"Multiemployer Plan" means a plan or arrangement as defined
in Section 3(37) of ERISA.
"Notice" has the meaning specified in Section 12.1.
"Owned Terminals Side Agreement" means the Owned Terminals
Side Agreement among Seller, Buyer, MMR and MOXY executed
contemporaneously herewith.
"Premises Lease" has the meaning specified in Section
2.1(b).
"Pennzoil Asset Purchase Agreement" means the Asset Purchase
Agreement between Freeport-McMoran Resource Partners, Limited
Partnership and Pennzoil Company dated October 22, 1994.
"Permitted Lien" means (a) Liens consisting of zoning or
planning restrictions, easements, permits and other restrictions
or limitations on the use of real property that in each case are
set forth on Schedule 1.0, (b) statutory Liens for current taxes
or assessments on property that are accrued but not yet payable,
(c) mechanic's, materialman's and other liens for goods and
services incorporated into or provided with respect to the
property encumbered thereby arising by operation of law in the
ordinary course of business, provided that the obligations
secured by such Liens (i) are not yet due and owing and (ii) do
not materially interfere with the use or enjoyment of any of the
Business properties or assets and do not materially impair the
marketability thereof, (d) statutory Liens in favor of lessors of
real property on personal property located on such real property
provided that the obligations secured by such Liens (i) are for
amounts not yet due and owing and (ii) do not materially
interfere with the use or enjoyment of any of the Business
properties or assets and do not materially impair the
marketability thereof, and (e) any other Liens reflected as
exceptions on the title insurance commitments set forth on
Schedule 1.0 covering real property; provided that any of such
Liens securing obligations for borrowed money will be released at
or before the Closing, and with respect to (c) and (d) above,
will remain the responsibility of Seller for the period through
Closing.
"Person" means any natural person, corporation, partnership,
limited liability company, trust and any other entity or
organization of any kind, including governmental or political
subdivisions or agencies or instrumentalities thereof.
"Premises Lease" has the meaning specified in Section
2.1(b).
"Purchase Price" has the meaning specified in Section 2.5.
"RCRA" has the meaning specified in the definition of
"Environmental Laws."
"Real Property" has the meaning ascribed in Section 2.1(a).
"Release" means any spill, discharge, leach, leak, emission,
escape, injection, dumping or other release of a Hazardous
Material into the environment, including any Release which is
subject to but not in compliance with Environmental Laws, whether
or not notification or reporting of such Release to any
governmental agency was or is required.
"Remedial Workplan" has the meaning specified in Section
10.11(c)(ii).
"Remediation Site" has the meaning specified in Section
10.11(c).
"Report" has the meaning specified in Section 5.6(b).
"Savage" means Savage Industries Inc.
"Seller" has the meaning specified in the introductory
paragraph.
"Seller/IMC Agreement" means the Agreement between IMC and
Seller executed contemporaneously herewith.
"Seller's Ancillary Documents" has the meaning specified in
Section 4.2.
"Seller's Indemnitees" has the meaning specified in Section
9.1(b).
"Seller's Indemnity Basket" has the meaning specified in
Section 9.4(a)(i).
"Settlement Agreement" means the Compromise and Settlement
Agreement between IMC Global Inc., its subsidiary IMC Phosphates
Company, Phosphate Resources Partners Limited Partnership, and
McMoRan Exploration Co., its subsidiaries Freeport McMoRan
Sulphur LLC and McMoRan Oil & Gas LLC, in the form attached to
the Master Agreement.
"Shut-Down Obligations" has the meaning set forth in Section
10.11(e).
"Subsequent Closing Adjustment" has the meaning specified in
Section 2.7.
"Sulphur Inventory" has the meaning specified in Section
2.2(k).
"Supplemental Sampling Data" has the meaning specified in
Section 5.6(b).
"Tank Repairs" has the meaning specified in Section 6.10.
"Taxes" means all federal, state, local, foreign or other
net income, gross income, gross receipts, sales, use, ad valorem,
severance, stamp, license, payroll, employment, social security,
unemployment, disability, registration, value-added, alternative
or add-on minimum, estimated, transfer, franchise, property,
withholding or other taxes, fees, assessments or charges of any
kind whatever, together with any interest and any penalties,
additions to tax or additional amounts with respect thereto, and
the term "Tax" means any one of the foregoing.
"Tax Returns" means all returns, declarations, reports,
statements and other documents required to be filed in respect of
Taxes, and the term "Return" means any one of the foregoing.
"Terminal Sites" means the location of the terminals used in
the Business and more fully described on Exhibit A.
"Ton" means long ton.
"Vessels" means the vessels owned by Seller as set forth on
Schedule 2.1(c).
"WARN Act" has the meaning specified in Section 10.6.
ARTICLE II. PURCHASE AND SALE
2.1 Purchase and Sale of Assets. Upon the terms and subject to
the conditions set forth in this Agreement, at the Closing Seller
shall convey, assign, transfer and deliver to Buyer and Buyer
shall acquire and accept from Seller, free and clear of all Liens
(other than Permitted Liens), all of the assets, properties and
rights of Seller of every kind, nature and description, corporeal
or incorporeal, tangible or intangible, used in the Business, but
excluding the Excluded Assets (collectively, excluding the
Excluded Assets, the "Acquired Assets"). The Acquired Assets
shall include, but not be limited to, the following:
(a) Except as set forth in the Owned Terminals Side Agreement,
the real property constituting the Terminal Sites set forth on
Schedule 2.1(a), together with all buildings, structures and
improvements located thereon and fixtures attached thereto and
all rights of way, privileges, easements and servitudes attendant
thereto (the "Real Property");
(b) The real estate leases (each, a "Premises Lease")
constituting the Terminal Sites set forth on Schedule 2.1(b)
(collectively, the "Leased Premises"), in each case to be
transferred by an assignment and assumption of lease agreement;
(c) The equipment, vehicles and Vessels set forth on Schedule
2.1(c) (collectively, the "Equipment and Vessels");
(d) The personal property charters, contracts of affreightment
and/or leases set forth on Schedule 2.1(d) (each, a
"Equipment/Vessel Lease") with respect to the property described
therein and the property set forth on Schedule 2.1(d)
(collectively, the "Leased Equipment and Vessels"), in each case
to be transferred by an assignment and assumption of lease
agreement;
(e) All of Seller's assets located on the Terminal Sites (other
than the Marine Xxxxx), including, but not limited to machinery,
furniture, tools, spare parts, supplies, fuel, lubricants,
computers, printers, other shop and office equipment, mobile
equipment and other personal property;
(f) All claims and rights of the Seller under all other
agreements, contracts, leases, and other contracts and
commitments of the Seller used in the Business, each of which is
more particularly described on Schedule 2.1(f) (collectively, the
"Contracts") other than any such Contracts set forth on Schedule
2.2(l);
(g) All of Seller's licenses, permits, consents, use agreements,
approvals, authorizations and certificates of any regulatory,
administrative or other governmental agency or body used in the
Business and all claims and rights of Seller thereunder (the
"Licenses and Permits") and Seller's Environmental Permits, all
of which collectively are more particularly described on Schedule
2.1(g);
(h) Seller's patents, know-how and technology used in the
Business, all of which is set forth on Schedule 2.1(h)
(collectively, "Intellectual Property");
(i) All books and maintenance, operations, Tax Returns (other
than income and franchise Tax Returns), and other records of
Seller located at the Terminal Sites and any other books and
records (wherever located), in each case, to the extent related
to the present operations of the Business and the historical
books and records related to the business activities involving
the Acquired Assets; it being understood by Buyer that it may not
be possible to segregate certain records from MMR's and Seller's
records but that Seller may retain copies of information set
forth in such records to the extent they do not relate
exclusively to the Business;
(j) All computer software programs set forth on Schedule 2.1(j);
(k) All prepaid expenses with respect to the Acquired Assets;
(l) All rights and interests of Seller arising under any claim
or potential claim against any person or any other contingent
assets, whether arising under contract rights, warranties,
subrogation rights or at law or equity, including without
limitation all claims against suppliers, customers and insurance
underwriters and brokers, in each case only to the extent they
arise out of the Business following the Closing;
(m) All other assets, including but not limited to machinery,
furniture, tools, spare parts, supplies, fuel, lubricants,
computers, printers, other shop and office equipment, mobile
equipment and other personal property of Seller, which are used
in, or required for the Business, other than Excluded Assets; and
(n) Sulphur inventory on vessels in transit which will become
the property of ExxonMobil upon delivery.
2.2 Excluded Assets. Notwithstanding the provisions of Section
2.1 hereof, the Acquired Assets do not include the following (the
"Excluded Assets"):
(a) All rights of Seller under this Agreement and the
instruments and agreements delivered to Seller by Buyer pursuant
to this Agreement;
(b) Except as provided in Section 2.1(l), cash and cash
equivalents, bank accounts, deposits, escrow accounts and other
financial assets;
(c) All insurance policies and rights thereunder, including
without limitation all claims receivable and rights to any
cancellation value, return premium, return fees and finance
contract credits in existence on the Closing Date or arising out
of the cancellation of policies in effect on the Closing Date;
(d) All assets relating to any pension, stock bonus, stock
option, or other related rights, medical (including self-insured
arrangement), dental, life, disability, workers' compensation,
vacation, deferred compensation, bonus, incentive plan, or any
other segregated funds for the benefit of Seller's employees, and
any claims for insurance or any other funding vehicle for Benefit
Arrangements or Employee Plans;
(e) All accounts receivable of Seller as of the Closing Date;
(f) All marks of Seller, including without limitation any and
all trademarks or service marks, trade names, slogans or other
like property relating to or including the name "Freeport-McMoRan
Sulphur LLC" or "Freeport-McMoRan" or "Freeport" or "McMoRan" and
all derivations, variations and abbreviations thereof; provided,
however, that Buyer shall have a reasonable time following
Closing, but in no event more than thirty (30) days after the
Closing Date, to remove all such trademarks or service marks,
trade names, slogans or other like property from any of the
Acquired Assets;
(g) All rights and interests of Seller arising under any claim
or potential claim against any person or any other contingent
assets, whether arising under contract rights, warranties,
subrogation rights or at law or equity, including without
limitation all claims against suppliers, customers and insurance
underwriters and brokers, in each case only to the extent they
(i) do not arise out of the Business or (ii) arise on or prior to
Closing;
(h) The Agreement for Sulphur Supply dated as of July 1, 1993,
as amended, among Seller (as successor to Freeport-McMoRan
Resource Partners, Limited Partnership and IMC Global Operations,
Inc.) and IMC Phosphates Company (formerly IMC-Agrico Company);
(i) Except as set forth on Schedule 2.2(i), Seller's Port
Sulphur facility and all personal property located at Seller's
Port Sulphur facility and at Seller's New Orleans offices;
(j) Other properties, claims and rights set forth on Schedule
2.2(j) and those not otherwise constituting Acquired Assets and
in each case spare parts relating thereto;
(k) All of Seller's liquid sulphur inventory as of the Closing
Date (collectively, the "Sulphur Inventory") and records relating
to the Sulphur Inventory;
(l) The contracts described on Schedule 2.2(l) which will be
terminated in connection with the Closing, assigned to IMC or its
Affiliates, or retained by Seller; and
(m) All rights and interests to any revenue or income from the
Excluded Assets and the proceeds from the sale or transfer of the
Excluded Assets.
2.3 Assumption of Specified Liabilities. Upon the terms and
subject to the conditions set forth in this Agreement, at the
Closing, Buyer will assume only (a) the payment and performance
obligations of the Business arising after the Closing Date under
the Contracts, Premises Leases, Equipment/Vessel Leases, Licenses
and Permits, and Environmental Permits that are effectively
assigned to Buyer or as to which Buyer effectively has the
benefits pursuant to Section 10.2, (b) Seller's obligation to
redeliver to ExxonMobil the sulphur described in Section 2.1(n),
(c) obligations pursuant to the arrangements identified on
Schedule 2.1(f) item 23, and (d) obligations approved by Buyer in
accordance with the following procedures: after April 1, 2002
Seller will communicate with Xxxxxxxx Xxxxxx at (000) 000-0000,
email: Xxxxxxxx@xxxxxxxxx.xxx, fax (000) 000-0000 to request
Buyer's approval to incur any obligation prior to Closing in an
amount equal to or greater than TWO THOUSAND FIVE HUNDRED AND
00/100 DOLLARS ($2500.00), which shall become due after Closing
and shall incur only such obligations as are approved in writing
by Xx. Xxxxxx or his designee in his or their reasonable
discretion.
2.4 Excluded Liabilities. Except for the Assumed Liabilities,
Buyer shall not assume and shall not be responsible for any
liabilities, obligations or commitments (the "Excluded
Liabilities"). The Excluded Liabilities shall include, but not
be limited to:
(a) Any liabilities or obligations associated with the Excluded
Assets;
(b) All liabilities or obligations relating to any accounts
payable (which will be paid by Seller to the extent not being
contested in good faith by Seller) of the Business as of the
Closing Date;
(c) Any liabilities or obligations to brokers, including without
limitation XX Xxxxxx Chase & Co. (the "Brokers") in respect of
brokerage or finder's fees or expenses arising out of or relating
to the transactions contemplated hereby;
(d) Any liabilities or obligations arising out of or relating to
a matter the nondisclosure of which results in a breach of a
representation or warranty of Seller contained herein;
(e) All liabilities or obligations arising out of claims made by
any person employed by Seller in the Business for payment of
costs incurred with respect to employment with Seller under any
medical insurance plan;
(f) All liabilities or obligations arising out of incidents or
events with respect to any person employed at the time of such
incident or event by Seller (or personnel supplied by contractor
to Seller with respect to the Business) for payment or benefit
under any state workers' compensation statute or other law;
(g) All liabilities or obligations of the Business that arise
out of, result from or relate to personal injury or property
damage (including as set forth in Section 10.11(a)) that occur or
have occurred prior to the Closing Date;
(h) Any liabilities or obligations for Taxes for periods prior
to and including the Closing Date, except as otherwise expressly
provided in this Agreement;
(i) Except as provided in Section 2.3, all liabilities or
obligations of the Business or relating to an Acquired Asset that
arise out of, result from, or relate to, any violation of any
applicable law, statute, ordinance, regulation or other
governmental requirement, to the extent that such liabilities or
obligations are attributable to actions taken or events occurring
prior to the Closing Date;
(j) Any liabilities or obligations to employees of Seller or
the Business, including but not limited to, any Benefit Arrangement,
Employee Plan, Multiemployer Plan, COBRA, ERISA, severance, bonus
or other compensation payments to employees of Seller or the
Business (including any determination of such liability or
obligation by a court or government agency), and any liabilities
for salaries, wages, bonuses, vacation pay and other compensation
which are owed to employees of Seller or the Business (as used in
this Section 2.4(j), "employees" includes current (through the
Closing), former and retired employees of Seller or the Business
and employees of contractors provided to Seller);
(k) Any liabilities or obligations with respect to indebtedness
for borrowed money, or any capitalized lease obligations;
(l) Regarding Excluded Assets, any liabilities or obligations
with respect to, relating to, associated with or arising out of
any applicable Environmental Laws or environmental matter with
respect to: (i) the ownership, occupancy, use, control or
condition of the Excluded Assets(including any liabilities
arising out of or relating to the operation or ownership of the
Main Pass mines); (ii) the purchase and sale of sulphur by
Seller; (iii) mining and exploitation of sulphur by Seller; (iv)
sale, terminaling, handling, transportation and storage of
sulphur recovered in connection with the ordinary course of oil
and gas production and related activities by Seller, MMR or any
of their respective Affiliates; and (v) any Release of any
Hazardous Material at the Excluded Assets or any other property
to which Hazardous Materials generated by the operations of the
Excluded Assets were sent or came to be present;
(m) Regarding the Business or Acquired Assets, and other than
specified Shut-Down Obligations with respect to the Terminal
Sites as set forth in Section 10.11, any liabilities or
obligations with respect to, or relating to, associated with or
arising out of any applicable Environmental Laws or environmental
matter with respect to: (i) the ownership, occupancy, use,
control or condition of the Business or Acquired Assets on or
prior to Closing; and (ii) any Release of any Hazardous Material
by the Business or at the Acquired Assets or any other property
to which Hazardous Materials generated by the operations of the
Business or the Acquired Assets were sent or came to be present,
in either case on or prior to Closing;
(n) Any liabilities or obligations under the Devon Settlement
Agreement, and the Pennzoil Asset Purchase Agreement or any other
agreement or arrangement with Devon Energy Corp. or Pennzoil
Company;
(o) Any costs or expenses arising in connection with the
scheduled dry docking and re-certification of the M/V Xxxxx X.
Xxxxxxx and any repairs in connection therewith (which will
commence prior to Closing);
(p) Any liability or obligation arising prior to Closing except
as expressly provided in this Agreement; and
(q) Without limitation by the specific enumeration of the
foregoing, any liabilities or obligations not expressly assumed
by Buyer pursuant to the provisions of Section 2.3.
2.5 Consideration. The consideration for the Acquired Assets
shall be (i) FIFTY-TWO MILLION AND 00/100 DOLLARS
($52,000,000.00) (the "Purchase Price") to be adjusted pursuant
to Sections 2.6, and 2.9 and (ii) the assumption of the Assumed
Liabilities. At the Closing, Buyer shall:
(a) Pay to Seller, by wire transfer of immediately available
funds to an account designated in writing by Seller not less than
one Business Day prior to the Closing, an amount equal to (i) the
Purchase Price, less (ii) the Escrow Amount (as herein defined);
(b) Execute an agreement pursuant to which Buyer shall assume
the Assumed Liabilities;
(c) Deposit, on behalf of Seller and pursuant to a written
letter of direction from Seller, with XX Xxxxxx Chase & Co. as
escrow agent (the "Escrow Agent"), an amount (the "Escrow
Amount") equal to the sum of (i) the amount reasonably determined
by Buyer to be necessary to complete the Tank Repairs and the
Barge Repairs, plus (ii) the maximum amount (not to exceed FOUR
HUNDRED THOUSAND AND 00/100 DOLLARS ($400,000.00)) reasonably
estimated by Buyer to be necessary to secure Seller's performance
of the Remedial Workplan and other obligations set forth in
Section 10.11(c). Such funds (plus all income accrued thereon)
shall be maintained by Escrow Agent to secure Seller's
obligations set forth in Sections 6.10 and 10.11(c). The Escrow
Amount shall be administered and payable in accordance with an
escrow agreement reasonably acceptable to the parties, and any
amounts remaining in the escrow account shall be remitted to the
Seller (x) in the case of the escrow described in Section
2.5(c)(i) after completion of repairs and (y) in the case of the
escrow described in Section 2.5(c)(ii) following completion of
remediation at the Remediation Site as determined under Section
10.11(c); and
(d) Provision shall be made for payment at the Closing out of
the net proceeds for discharge of all Liens (other than Permitted
Liens) and payment of all amounts incurred through the Closing
Date (based on an accrual basis of accounting) to third parties
under all Contracts and Equipment/Vessel Leases and all other
agreements, contracts, leases and commitments used in the
Business including liens for goods and services.
Within ninety (90) days following Closing, Buyer shall prepare
and deliver to Seller an allocation of the Purchase Price among
the Acquired Assets and the restrictive covenants set forth in
Section 10.9 hereof, which allocation shall be consistent with
the requirements of Section 1060 of the Code.
2.6 Closing Adjustment.
(a) The following adjustments and prorations with respect to the
Acquired Assets (the "Closing Adjustment") shall be computed as
of the end of the Closing Date (except as otherwise expressly
provided below), in accordance with the following:
(i) Seller shall be responsible for and pay all expenses with
respect to, and shall be entitled to receive and retain all
revenue from, the Acquired Assets accruing through the end of the
Closing Date, regardless of when paid (in the case of expenses)
or received (in the case of revenue);
(ii) Pursuant to Schedule 2.6(a)(ii) and to the extent not set
forth on Schedule 2.6(a)(ii), any expenses, revenues or other
payments due to or from Seller with respect to the Acquired
Assets (excluding maintenance costs and other expenses which are
Excluded Liabilities) that relate to a period of time which
includes but does not end on the Closing Date, including without
limitation rental payments under the Premises Leases and
Equipment/Vessel Leases, taxes, license fees and those set forth
on Schedule 2.6(a)(ii), shall be prorated on an equitable basis
(provided that Buyer received post-Closing value for such service
in its reasonable discretion, and provided further that Buyer
shall not have the discretion to determine whether it will
receive post-Closing value with respect to the matters assumed
under Section 2.3 or described on Schedule 2.6(a)(ii)) taking
into account the services provided prior to Closing, the location
of any sulphur at Closing, and the number of days within such
period that have elapsed before and after the Closing Date,
unless another method of pro ration is specifically identified in
the arrangement governing such expenses, revenues or payments
(such as hourly or daily rates), with (A) any such expenses or
other payments relating to the period of time after the Closing
Date for which the Seller has paid, serving to increase the
Purchase Price and (B) any such expenses or other payments
relating to the period of time before the Closing Date which the
Buyer will pay and any revenues or receivables relating to the
period of time after the Closing Date which the Seller has
received, other than the storage reservation fees pursuant to
Section 5.1(a) of the Sulfur Tolling Agreement between Xxxx
Sulfur Products, LLC and Seller effective September 1, 2001,
serving to decrease the Purchase Price;
(iii) Real estate, personal and other ad valorem, property or
other similar taxes and assessments pertaining to any part of the
Acquired Assets shall be estimated on the basis of the latest
available property tax information, whether for the current or
preceding year; provided that the Subsequent Closing Adjustment
shall be based on the assessment in effect prior to the Closing,
but at the rates applicable to the year in which the Closing
occurs; and
(iv) To the extent transferable, contracts for the supply of
water, sewerage, telephone service, gas, and electric power shall
be transferred by Seller as of the close of business on the
Closing Date. Except as set forth in Section 10.11(d) relating
to the SRE/BBE wastestream, Buyer shall be responsible, at its
expense, for procuring any new required agreements for the supply
of water, sewerage, telephone service, gas and electric power
after the Closing Date. Seller shall be responsible for paying
all utility charges incurred in its name and Buyer shall be
responsible for paying all utilities incurred in its name. All
utility deposits and bonds of Seller shall belong to Seller, and
Buyer shall be obligated to make its own deposits and post its
own bonds with the various utilities providing services to the
Terminal Sites.
(b) Seller shall compute an estimated allocation of the items
described in Section 2.6(a) as of a date not less than three days
nor more than seven (7) days prior to the Closing Date, and
deliver a written report showing in detail the nature and basis
of this computation to Buyer not less than three (3) days prior
to the Closing Date. Seller shall provide to Buyer such
additional information with respect to such computation as Buyer
may request. Buyer shall have the right to approve such
allocations, which approval shall not be unreasonably withheld.
The Closing Adjustment shall be subject to further adjustment and
final determination on the basis of the Subsequent Closing
Adjustment as set forth in Section 2.7 below. If the amount of
the Closing Adjustment, as set forth on such tentative statement,
represents a credit to Buyer, then the amount thereof shall be
offset against the amount of the Purchase Price payable by Buyer
to Seller at the Closing. If it represents a credit to Seller,
then Buyer shall increase by the amount of the credit the amount
of the Purchase Price payable by Buyer to Seller.
2.7 Subsequent Closing Adjustment.
(a) Promptly following consummation of the Closing, Buyer shall
undertake an analysis of the Closing Adjustment to determine its
accuracy and, within sixty (60) days after the Closing Date,
deliver to Seller a written report statement setting forth any
changes in the Closing Adjustment (the "Subsequent Closing
Adjustment"). Seller shall afford Buyer and its representatives
reasonable access to its books, records and personnel for purpose
of determining the Subsequent Closing Adjustment. If Seller
objects to the Subsequent Closing Adjustment, such objection
shall be made in writing and delivered to Buyer within thirty
(30) days after Seller's receipt of the report on the Subsequent
Closing Adjustment, failing which such report shall be deemed to
have been accepted by Seller. If any objections are not resolved
between Buyer and Seller within fifteen (15) days following
Buyer's receipt of Seller's statement of objections, either party
may elect that any unresolved objections shall be submitted to an
Independent Auditor within thirty (30) days of the date of the
submission of the statement of objections. The Independent
Auditor shall make its own independent determination of the
accuracy of the Closing Adjustment, based on the standards
pursuant to which the calculations set forth in Section 2.6(a)
were made, within thirty (30) days of the date the objections are
first submitted for arbitration, and such determination shall be
final, non-appealable and binding upon the parties. The fees of
the Independent Auditor shall be divided equally between Buyer
and Seller.
(b) To the extent that the Subsequent Closing Adjustment as
adjusted pursuant to Section 2.7(a) shows that Buyer owes
additional amounts to Seller in excess of those amounts
previously credited, Buyer shall pay such amounts to Seller by
wire transfer within forty (40) days after Seller's receipt of
the report on the Subsequent Closing Adjustment if Seller fails
to object to the Subsequent Closing Adjustment, and otherwise,
within ten (10) days after Buyer's receipt of the Independent
Auditor's Report. Any amount shown by the Subsequent Closing
Adjustment, as adjusted, that Seller owes to Buyer in excess of
those amounts previously credited shall be paid by Seller to
Buyer by wire transfer within forty (40) days after Seller's
receipt of the report on the Subsequent Closing Adjustment if
Seller fails to object to the Subsequent Closing Adjustment, and
otherwise, within ten (10) days after Buyer's receipt of the
Independent Auditor's Report.
(c) Upon the receipt by Buyer or Seller of actual real estate or
personal property tax bills for any year that was part of a
Closing Adjustment, the receiving party shall deliver copies of
such bills to the other party, and the parties agree to reprorate
such taxes within ten (10) days from the delivery of any such tax
xxxx to the other party.
2.8 Transfer of Title. Title and risk of loss with respect to
the Acquired Assets and Buyer's right to operate and control the
Acquired Assets will pass from Seller to Buyer at the Closing
Date.
2.9 Other Adjustments. The Purchase Price shall be adjusted to
the extent otherwise expressly agreed in writing by Buyer and
Seller.
2.10 Sulphur Enterprise. Buyer will pay to Seller on or before
November 15, 2002 an amount equal to (a) the positive difference,
if any, between $9.95 and the actual weighted average rate per
Ton paid by the Buyer under the Contract of Affreightment with
International Shipholding for sulphur shipped on the Sulphur
Enterprise from the Closing Date through October 6, 2002,
multiplied by (b) the number of Tons of sulphur shipped by Buyer
on the Sulphur Enterprise during such period.
ARTICLE III. THE CLOSING
3.1 Closing. The closing of the transactions contemplated
hereby shall take place at the offices of Jones, Walker,
Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P. in New Orleans,
Louisiana commencing at 10:00 a.m. local time on May 31, 2002 (or
on such earlier date as the parties may agree), provided all of
the conditions set forth in Article VII have been satisfied or
waived by the party entitled to grant such waiver.
3.2 Deliveries at Closing. At the Closing:
(a) Seller shall deliver, or cause to be delivered to Buyer the
following:
(i) such special warranty deeds, bills of sale, assignments,
releases, consents to assignments and other instruments of sale,
conveyance, assignment, assumption and transfer satisfactory in
form and substance to Buyer and Seller as may reasonably be
required in order to convey to Buyer all of Seller's right, title
and interest in and to the Acquired Assets free of all Liens
except for Permitted Liens;
(ii) originals of all permits, Environmental Permits, licenses
and governmental, administrative and regulatory approvals and
authorizations that are in Seller's possession and that are
necessary to own and operate the Acquired Assets;
(iii) a schedule of sulphur inventories located at the
Terminal Sites or on any vessels included in the Acquired Assets,
setting forth the amount, owner, and delivery status;
(iv) such other documents and instruments as shall be
reasonably necessary to effect the transactions contemplated hereby;
(v) opinions of counsel for the Seller opining as to the
corporate or company status, due authorization, validity and
binding effect of the Agreement and the related documents to be
delivered by Seller and such other matters as Buyer may
reasonably request;
(vi) Uniform Commercial Code ("UCC"), Federal and State
tax lien and bankruptcy searches with respect to Seller, for the States
of Louisiana, Texas, Florida and Delaware and the counties thereof
in which a portion of the Business is conducted, United States
Coast Guard lien searches relative to Vessels, and patent,
trademark and copyright searches with respect to Seller, all
prepared by search companies reasonably satisfactory to Buyer,
and dated not earlier than fifteen (15) days prior to the Closing
Date;
(vii) consents to assignments and estoppel certificates
with respect to the contracts and leases set forth on Schedule 7.1(d),
in form and substance reasonably acceptable to Buyer and Seller;
(viii) ALTA extended coverage title insurance policies
(for which Buyer will pay one-half of the cost) and commitments and
surveys with respect to the Real Property reasonably satisfactory
to Buyer (to the extent necessary to obtain extended coverage
under the title insurance policy); and
(ix) all books and records which are Acquired Assets.
(b) Buyer shall deliver, or cause to be delivered to Seller the
following:
(i) payment of the Purchase Price, less the amounts required
to be withheld pursuant to Section 2.5, as adjusted, by wire
transfer of immediately available funds to an account designated
in writing by Seller (which designation shall not be less than
one (1) Business Day prior to the Closing);
(ii) the agreement pursuant to which Buyer shall assume the
Assumed Liabilities;
(iii) a perpetual royalty-free license (which license shall
be non-transferable by Seller except in connection with the sale
of the Excluded Assets) for the use by Seller of the Intellectual
Property in its business after the Closing; and
(iv) such other documents and instruments as shall be reasonably
necessary to effect the transactions contemplated hereby.
(c) Buyer and Seller shall each provide to the other such proof
of satisfaction of the conditions set forth in Article VII as the
party whose obligations are conditioned upon such satisfaction
may reasonably request; and
(d) Buyer and Seller shall each provide to the other the
certificates, agreements and documents required by this Agreement
and take such other action as is required to consummate the
transactions contemplated hereby.
ARTICLE IV. REPRESENTATIONS OF SELLER
Except as provided in the Disclosure Schedules attached
hereto, Seller represents and warrants to Buyer as follows:
4.1 Organization. Seller is a limited liability company duly
organized, validly existing and in good standing under the laws
of the state of Delaware. Seller has full power and authority to
own its properties and assets and to carry on its business as it
is now being conducted. Seller is duly qualified or licensed to
do business as a foreign limited liability company in good
standing in the jurisdictions in which the ownership of its
property or the conduct of its business requires such
qualification, except where the failure to be so qualified would
not adversely affect Seller's ability to transfer the Acquired
Assets to Buyer or the validity, binding nature or enforceability
of any of the Contracts, Equipment/Vessel Leases, Licenses and
Permits, Environmental Permits, or Premises Leases.
4.2 Authorization; Enforceability. The board of directors of
MMR, the sole member of Seller, has duly approved and authorized
the execution and delivery of this Agreement and all other
documents and instruments to be executed by Seller pursuant to
this Agreement (collectively, "Seller's Ancillary Documents") and
the consummation of the transactions contemplated hereby, and no
other authorization proceedings on the part of MMR or Seller is
necessary to approve and authorize the execution and delivery of
this Agreement or any of Seller's Ancillary Documents by Seller
and the consummation by Seller of the transactions contemplated
hereby. This Agreement constitutes, and each of Seller's
Ancillary Documents will constitute as of its date, a legal,
valid and binding obligation of Seller, enforceable against it in
accordance with its respective terms, except that the enforcement
hereof may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights generally and (b) general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).
4.3 No Approvals or Conflicts. Neither the execution, delivery
or performance by the Seller of this Agreement or any of Seller's
Ancillary Documents, nor the consummation by Seller of the
transactions contemplated hereby or thereby will (a) violate,
conflict with or result in the breach of any provision of its
certificate of formation or limited liability company agreement,
(b) violate, conflict with or result in a breach of any provision
of, or constitute a default under, or result in the termination
or cancellation of, or accelerate the performance required by, or
result in the creation of any Lien upon the Acquired Assets under
any note, bond, mortgage, indenture, license, lease, contract,
agreement or other instrument or commitment or obligation to
which the Seller or any of its properties may be bound or
affected, (c) violate any order, writ, injunction, decree,
judgment, ruling, law, rule or regulation of any court or
governmental authority, domestic or foreign, applicable to the
Seller or the Acquired Assets, or (d) require any consent,
approval or authorization of, or notice to, or declaration,
filing or registration with, any governmental or regulatory
authority or any Person having a contractual relationship with
Seller other than (i) any required filings under the HSR Act,
(ii) such items that have already been obtained, (iii) those that
will not result or could not reasonably be expected to adversely
affect Seller's ability to transfer the Acquired Assets to Buyer
or Buyer's ability to operate the Acquired Assets or (iv) those
disclosed on Schedule 4.3(d), which schedule shall indicate
whether the item is a required consent or notice.
4.4 Assets.
(a) Schedules 2.1(a), 2.1(b), 2.1(c), 2.1(d) and 2.1(h), are the
complete lists of all Real Property, Equipment and Vessels,
Leased Premises, Leased Equipment and Vessels and Intellectual
Property, and Section 2.1 describes all material assets relating
to the Business owned in whole or in part by Seller, or leased by
Seller or otherwise used in the conduct of the Business. The
assets described in Section 2.1 constitute all property necessary
in order for Seller to conduct the Business as it has been
conducted in the past. Except as set forth in Schedule 4.4(a),
the assets constituting tangible personal property described in
Section 2.1 are in good operating condition and repair (ordinary
wear and usage excepted). All Vessels listed on Schedule 2.1(c)
as being United States Coast Guard documented are properly
certified for operation in the Business in accordance with
applicable laws and regulations. The sulphur described in
Section 2.1(n) conforms to the requirements of the applicable
ExxonMobil contracts.
(b) Seller has good and marketable title to, or a valid
leasehold interest in, and the power to sell or assign, the
Acquired Assets free and clear of any Liens, except for Permitted
Liens. No unreleased mortgage, trust deed, chattel mortgage,
security agreement, financing statement or other instrument
encumbering any of the Acquired Assets has been recorded, filed,
executed or delivered other than Permitted Liens. The Acquired
Assets are adequate to conduct the Business as it is presently
being conducted and the Acquired Assets conveyed to Buyer on the
Closing Date will be adequate to enable Buyer to continue to
conduct the Business as it is presently being conducted. Seller
has no legal obligations, absolute or contingent, to any Person
other than Buyer to sell or otherwise dispose of, or to refrain
from selling or otherwise disposing of any of the Acquired
Assets.
(c) EXCEPT AS OTHERWISE PROVIDED HEREIN, SELLER CONVEYS THE
ACQUIRED ASSETS, WITHOUT ANY WARRANTY, AND ALL IMPLIED WARRANTIES
WITH RESPECT TO THE ACQUIRED ASSETS, INCLUDING THOSE RELATED TO
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY
DISCLAIMED BY SELLER AND EXPRESSLY WAIVED BY THE BUYER. BUYER
FURTHER DECLARES AND ACKNOWLEDGES THAT THE FOREGOING WAIVERS HAVE
BEEN BROUGHT TO ITS ATTENTION AND EXPLAINED IN DETAIL TO IT AND
THAT BUYER HAS VOLUNTARILY AND KNOWINGLY CONSENTED TO THE
FOREGOING WAIVERS.
4.5 Material Contracts. Each Premises Lease, Equipment/Vessel
Lease and each Contract is, and will be after the assignment
thereof at the Closing, in full force and effect, and the Seller
has in all material respects performed all obligations required
to be performed by them to date thereunder. The Premises Leases,
Equipment and Vessel Leases and the Contracts are all of the
undischarged agreements which Seller is a party to, bound by, or
the issuer, beneficiary or recipient of, with respect to the
Business or which binds any of the Acquired Assets, other than
immaterial obligations occurring in the ordinary course of
business. All rents and other monetary amounts that have become
due and payable under the Premises Leases, Equipment and Vessel
Leases and Contracts have been paid. Except as described and
disclosed on Schedule 4.5, no default by Seller has occurred and
Seller does not know of, and has not received notice of violation
or default under (nor does there exist any condition that with
the passage of time or the giving of notice would cause such a
violation of or default under) any Premises Lease,
Equipment/Vessel Lease or any contract set forth on Schedule
2.1(f). True and correct copies of all contracts, leases,
subleases and other instruments referred to in this Section 4.5
and all amendments and modifications thereto have been furnished
by Seller to Buyer, and all such contracts and all other
contracts or instruments to which Seller is a party and which
relate to the Business, are in full force and binding upon the
parties thereto and Seller has not been notified and has no
knowledge of any termination thereof or any breach or claim of
breach with respect to any of such contracts or instruments.
4.6 Litigation and Claims. Except as set forth in Schedule 4.6
and Schedule 4.10, there is no suit, claim, action, investigation
or proceeding at law or in equity, any arbitration or any
administrative or other proceeding by or before any court,
governmental instrumentality or agency, pending or, to the
Knowledge of Seller, threatened against Seller by or before any
governmental entity or arbitrator that (a) relates to the
Business or the Acquired Assets or the operation thereof or (b)
challenges the validity or propriety, or seeks to prevent
consummation of, the transactions contemplated by this Agreement.
There are no facts which, if known by a potential claimant or
governmental authority, would reasonably give rise to a claim or
proceeding which, if asserted or conducted with results
unfavorable to Seller, would have a material adverse effect on
the business, operations, assets, liabilities, financial
condition or prospects of the Business, or the consummation of
the transaction contemplated hereby, or the use of the Acquired
Assets (whether by Buyer after the Closing or by Seller prior
thereto).
4.7 Proprietary Rights. Except as set forth on Schedule 2.1(h),
(a) the Seller is not bound by or a party to any options,
licenses or agreements of any kind with respect to the
Intellectual Property and pending applications therefor relating
to the Business and (b) there are no claims or suits pending or
threatened against it claiming an infringement of any copyrights,
licenses, trademarks, service marks or trade names of others in
connection with the Business and sale of the Business, and
transfer of any of the rights referred to hereunder is not
prohibited under any license, copyright, trademark or agreement.
Seller has no knowledge of or any reason to believe that (x) any
third party asserts ownership rights in any of the Intellectual
Property, (y) Seller's use of any Intellectual Property infringes
any right of any third party, or (z) any third party is
infringing any of Seller's rights in any of the Intellectual
Property.
4.8 Employees and Employment Matters.
(a) Schedule 4.8(a)(i) contains a true and complete list of all
of Seller's employees with respect to the Business as of the date
hereof, and Schedule 4.8(a)(ii) contains a true and complete list
of all personnel provided by contractors to Seller with respect
to the Business as of the date hereof, in each case showing the
job description, title and location of each such individual.
(b) There (i) is no unfair labor practice complaint against
Seller relating to the Business pending before the National Labor
Relations Board, (ii) is no labor strike, slowdown or stoppage
pending or, to the Knowledge of Seller, threatened against or
involving the employees (including part-time employees, temporary
employees and independent contractors) of the Business, (iii) is
no labor union that claims to represent the employees of the
Business, (iv) is no collective bargaining agreement currently
being negotiated by Seller with respect to the employees of the
Business, (v) is pending no labor or labor related grievance
related to the Business that is likely to be material, (vi) is no
arbitration proceeding arising out of or under any collective
bargaining agreement of Seller and no claim therefor has been
asserted, (vii) has not been any material labor difficulty
experienced by Seller relating to the Business during the past
three (3) years, and (viii) there is no employee-related matter
that could adversely affect the Business or the Acquired Assets.
4.9 Interests in Suppliers, Customers and Competitors. Except
as set forth on Schedule 4.9, neither the Seller nor any officer
or director (or, to the Knowledge of Seller, any member of the
immediate family of a director or officer of the Seller) thereof,
possesses, directly or indirectly, any financial interest in, or
is a director, officer or employee of, any Person that is a
supplier, distributor, customer, lessor, lessee or competitor of
the Business. Ownership of less than five percent (5%) of any
class of securities of a company that has registered at least one
class of its securities under the Securities Exchange Act of 1934
shall not be deemed a financial interest for purposes of this
section.
4.10 Environmental Matters. Except as set forth in Schedule
4.10:
(a) Both Seller (with respect to the Business) and Seller's use
and operation of the Business (including without limitation the
Acquired Assets) have been in material compliance and continue
to be in material compliance with applicable Environmental Laws.
Seller has neither received nor is aware of any notice, citation,
summons, inquiry, complaint or order from any governmental
authority alleging failure of the Seller to comply with, or
alleging liability or potential liability for Seller's failure to
comply with, applicable Environmental Laws with respect to the
Business or the Acquired Assets.
(b) Seller has obtained all Environmental Permits necessary for
operation of the Business and Acquired Assets, all such
Environmental Permits are in good standing, and Seller and the
Business are in compliance with all terms and conditions of such
Environmental Permits. All Environmental Permits issued to
Seller with respect to the Business are listed on Schedule
2.1(g). Seller has neither received nor is aware of any notice,
citation, summons, inquiry, complaint or order from any
governmental authority alleging failure of the Seller to obtain
any Environmental Permit necessary to operate the Business or the
Acquired Assets.
(c) Seller has not stored, treated, recycled, generated, or
transported any Hazardous Material in a manner that is subject to
RCRA permitting in regards to the Business, or at, to, or from
the Acquired Assets.
(d) To Seller's Knowledge in the past ten (10) years, there
have been no spills, discharges, leaks, or other releases of solid
sulfur at or from the Acquired Assets except in the ordinary
course of business.
(e) To Seller's Knowledge, there has been no Release, for
which Seller is responsible, or which could give rise to any obligation
or liability, under any applicable Environmental Laws. No notice
reporting a Release at, to or from the Business or Acquired
Assets has been filed and Seller has not failed to file such
notice when legally required to do so.
(f) To Seller's Knowledge, no underground storage tanks have
been installed or used on the Acquired Assets.
(g) Neither the Business nor the Acquired Assets are now
subject, nor to the best of Seller's Knowledge have they been
subject in the past ten (10) years, to any order, judgment, or
decree from, or agreement or settlement with any Person
(including without limitation any prior owner or operator)
respecting: (i) any remedial action; or (ii) any claims arising
from the Release or threatened Release of a Hazardous Material
at, to, or from the Business or Acquired Assets.
4.11 Compliance with Laws. Except for environmental matters
which are covered under Section 4.10:
(a) Seller is in compliance with, and is not in default or
violation under, and has not conducted its operations in
violation in any respect of, any law, rule, regulation, decree or
order applicable to the Business or the Acquired Assets.
(b) At no time has Seller been notified in writing that it was,
and to the Knowledge of Seller it is not presently, the subject
of any federal, state or local criminal investigation relating to
the Business. Except as set forth in Schedule 4.11(b), at no
time has Seller been notified in writing by any federal, state or
local governmental authority of any violation of any law,
regulation, ordinance, rule or order (including those described
in other subsections of this Article IV) that remains unresolved.
4.12 Licenses and Permits. Seller possesses such federal, state,
and local licenses, permits and other authorizations necessary
for the continued conduct of the Business in the ordinary course,
consistent with past practices, without interruption, each of
which is set forth on Schedule 2.1(g), and each of such Licenses
and Permits is in full force and effect and has been and is being
fully complied with by it. None of the governmental agencies or
instrumentalities that have issued the Licenses and Permits has
notified Seller in writing of its intent to modify, revoke,
terminate or fail to renew any such License or Permit, and, to
the Knowledge of Seller, no such action has been threatened. No
License or Permit will be modified, revoked or shall lapse as a
result of the Asset Sale, except as set forth in Schedule 4.12.
This Section 4.12 does not cover environmental matters or
Environmental Permits, each of which is covered under Section
4.10.
4.13 Absence of Certain Changes. Except as set forth in Schedule
4.13, the Seller has not with respect to the Business or the
Acquired Assets, since December 31, 2001: (a) granted any
increase in the rate of wages, salaries or other compensation or
benefits to any employees (including part-time employees,
temporary employees and independent contractors), other than
increases or payments in the ordinary course of its business
consistent with past practice, (b) suffered or incurred any
damage, destruction, fire, explosion, accident, flood, or other
casualty loss or act of God (whether or not covered by
insurance), (c) suffered any labor disputes or disturbances, (d)
otherwise failed to operate the Business in the ordinary course
consistent with past practices so as to preserve the Business
organization intact and to preserve the goodwill of its
customers, suppliers, employees and others with whom it has
business relations, (e) made or suffered any material change in
the conduct or nature of any aspect of the Business, (f) without
limitation by the enumeration of any of the foregoing, except for
the execution of this Agreement and agreements entered into in
anticipation of the transactions contemplated by this Agreement,
entered into any transaction other than in the usual and ordinary
course of business, (g) suffered or been threatened with any
adverse change or loss of any relationship between Seller and any
of its key employees, significant customers or significant
suppliers, (h) disposed of material assets used in the Business,
or (i) agreed to do any of the foregoing. Since December 31,
2001, Seller has not suffered any material adverse change with
respect to (w) the Acquired Assets, (x) the condition of the
Seller's Business, (y) environmental conditions subsequent to
Buyer's recent environmental review of the Business, or (z) the
contracts referred to herein to be assigned by Seller at the
Closing.
4.14 Broker's or Finder's Fees. No agent, broker, person or firm
acting on behalf of Seller is, or will be, entitled to any
commission or broker's or finder's fees from any parties hereto,
or any Affiliate of the parties hereto, in connection with the
Asset Sale (including the sale of the Real Property), other than
fees to Chase Securities Inc., the payment of which shall be
Seller's sole responsibility.
4.15 Taxes; ERISA. Seller and MMR have timely filed all Tax
Returns required to be filed with respect to Taxes. All such Tax
Returns are correct and complete in all material respects. All
Taxes payable by Seller or MMR, whether or not shown on any Tax
Return, have been paid in full. No claim has ever been made by
an authority in a jurisdiction where Seller or MMR does not file
Tax Returns that Seller or MMR is or may be subject to taxation
by that jurisdiction. Seller and MMR have withheld and paid all
Taxes or other amounts required to have been withheld and paid in
connection with amounts paid or owing to any persons providing
services to Seller or MMR. There are no tax liens on any
Acquired Assets other than for Taxes not yet due. No power of
attorney that is currently in force has been granted with respect
to any matter relating to Taxes that could affect the Acquired
Assets. The transaction contemplated herein is not subject to
the tax withholding provisions of Section 3406 of the Code, or of
Subchapter A of Chapter 3 of the Code, or of any other provision
of law. Neither Seller nor any ERISA Affiliate has any liability
with respect to Multiemployer Plans. There are no Liens in favor
of the Pension Benefit Guaranty Corporation.
4.16 Insurance; Surety Bonds.
(a) Schedule 4.16(a) is a list of all policies and binders of
insurance held by or on behalf of Seller or relating to the
Business, the Terminal Sites or which name Seller as an insured
and which pertain to the Acquired Assets, the Business, Seller's
employees who are employed in the conduct of the Business or
personnel provided by contractors to Seller with respect to the
Business (specifying the amount of the coverage, the type of the
coverage, expiration date, amount of deductible and any pending
claims thereunder).
(b) Schedule 4.16(b) lists all insurance claims made by Seller
relating to the Business since December 31, 1998 and, to the
Knowledge of Seller, the basis for any unmade claims.
(c) Schedule 4.16(c) lists all surety bonds and financial
assurances in place with respect to the Business.
4.17 Financial.
(a) Seller's books, accounts and records with respect to the
Business are, and have been, maintained in Seller's usual,
regular and ordinary manner, in accordance with generally
accepted accounting practices, and all material transactions to
which Seller has been a party with respect to the Business are
properly reflected therein.
(b) The cost information provided by Seller to Savage, IMC and
their advisors fairly represents the historical costs related to
the Acquired Assets as they have been operated by Seller, in
accordance with generally accepted accounting practices
consistently applied.
4.18 Real Property.
(a) Except as set forth on Schedule 4.18(a), the Real Property
is not subject to any leases or tenancies. None of the
improvements comprising the Real Property or the businesses
conducted by Seller thereon, including the Business, are in
violation of any use or occupancy restriction, limitation,
condition or covenant of record or any zoning or building law,
code or ordinance or public utility easement. Seller is not in
default under any agreement, lease or tenancy described on
Schedule 4.18(a), nor to the best Knowledge of Seller, is any
other party thereto in default thereunder.
(b) The Leased Premises are leased to Seller pursuant to written
leases, true, correct and complete copies of which have been
provided to Buyer. None of the improvements comprising the
Leased Premises, or the businesses conducted by Seller thereon,
including the Business, are in violation of any building line or
use or occupancy restriction, limitation, condition or covenant
of record or any zoning or building law, code or ordinance or
public utility or other easements. Seller is not in default
under any agreement relating to the Leased Premises nor, to the
best Knowledge of Seller, is any other party thereto in default
thereunder. All options in favor of Seller to purchase any of
the Leased Premises, if any, are in full force and effect.
(c) Except as set forth on Schedule 4.18(c) and under Section
10.11(d), each facility located on the Real Property and the
Leased Premises currently is served by gas, electricity, water,
sewage and waste disposal and other utilities adequate to operate
such facility at its current rate of production and as proposed
in the future, and none of the utility companies serving any such
facility has threatened Seller with any reduction in service.
Such utilities either enter the Real Property and the Leased
Premises through adjoining public streets or, if they pass
through adjoining private land, do so in accordance with valid,
permanent public or private easements which, following the
Closing, will inure to the benefit of Buyer, its successors and
assigns. All of said utilities are installed and operating and
all installation and connection charges have been paid for in
full.
(d) Except as set forth on Schedule 4.18(d), the continued
maintenance and operation of the Real Property and the Leased
Premises as currently maintained and operated is not dependent on
facilities located at other property, and the continued
maintenance and operation of any other property is not dependent
on facilities located on the Real Property or the Leased
Premises, in each case, other than commercially provided
utilities; no building or other improvement not part of the Real
Property or the Leased Premises relies on the Real Property or
the Leased Premises (as applicable) or any part thereof or any
interest therein to fulfill any governmental requirement; and no
building or other improvement on the Real Property or the Leased
Premises relies on any property not included within the Real
Property or the Leased Premises (as applicable) to fulfill any
governmental requirement.
(e) There are no challenges or appeals pending regarding the
amount of the taxes on, or the assessed valuation of, the Real
Property or the Leased Premises, and no special arrangements or
agreements exist with any governmental authority with respect
thereto (the representations and warranties contained in this
Section 4.18(e) shall not be deemed to be breached by any
prospective general increase in real estate tax rates).
(f) There are no condemnation proceedings pending or, to the
best Knowledge of Seller, threatened with respect to any portion
of the Real Property or the Leased Premises.
(g) There is no tax assessment (in addition to the normal,
annual general real estate tax assessment) pending or, to the
best Knowledge of Seller, threatened with respect to any portion
of the Real Property or, to the extent Seller is liable for
payment therefor, the Leased Premises.
4.19 Illegal Activity. Neither Seller nor, to the best of
Seller's Knowledge, any of its former or current officers,
directors, employees, agents or representatives has made,
directly or indirectly, with respect to the Business or Seller's
business, any bribes or kickbacks, illegal political
contributions, payments from corporate funds not accurately and
completely recorded on the books and records of Seller, payments
from corporate funds to governmental officials, in their
individual capacities, for the purpose of affecting their action
or the action of the government they represent, to obtain
favorable treatment in securing business or licenses or to obtain
special concessions, or illegal payments from corporate funds to
obtain or retain business.
4.20 Fair Value. Seller agrees that the Purchase Price is
reasonably equivalent to the fair market value of the Business,
including the Acquired Assets. Seller therefore hereby waives
and releases Buyer and its past or present officers, partners,
agents, attorneys, successors and assigns from any and all claims
that the transactions contemplated hereby are avoidable as
fraudulent transfers under state or federal law.
4.21 Complete Disclosure. No representation or warranty of
Seller in this Agreement and no statement by Seller in any
Schedule to this Agreement or Seller's Ancillary Documents omits
to state a material fact necessary to make the statements herein
or therein, in light of the circumstances in which they were
made, not misleading.
ARTICLE V. REPRESENTATIONS OF BUYER
Buyer represents and warrants to Seller that:
5.1 Organization. Buyer is a limited partnership registered as
a limited liability partnership, duly organized, validly existing
and in good standing under the laws of the State of Texas and has
the full power and authority to enter into this Agreement and to
perform its obligations hereunder. Sulphur Assets Holding
Company LLC, a Delaware limited liability company (the "General
Partner") is the sole general partner of the Buyer and is duly
organized, validly existing and in good standing under the laws
of the State of Delaware.
5.2 Authorization; Enforceability. The members of the General
Partner have duly approved and authorized the execution and
delivery of this Agreement and the other documents and
instruments to be executed by Buyer pursuant to this Agreement
(collectively, "Buyer's Ancillary Documents") by the General
Partner on behalf of the Buyer and the consummation by the Buyer
of the transactions contemplated hereby, and no other limited
liability company, partnership, limited partnership, limited
liability partnership or other proceedings on the part of the
members, the General Partner or Buyer are necessary to approve
and authorize the execution and delivery of this Agreement or any
of Buyer's Ancillary Documents by Buyer and the consummation by
Buyer of the transactions contemplated hereby. This Agreement
constitutes, and each of Buyer's Ancillary Documents will
constitute as of its date, a legal, valid and binding obligation
of Buyer, enforceable against Buyer in accordance with its terms,
except that the enforcement hereof may be limited by
(a) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally and (b) general principles of equity (regardless
of whether enforceability is considered in a proceeding in equity
or at law).
5.3 No Approvals or Conflicts. Neither the execution, delivery
or performance by Buyer of this Agreement, any of Buyer's
Ancillary Documents nor the consummation by Buyer of the
transactions contemplated hereby or thereby will (a) violate,
conflict with or result in the breach of any provision of the
certificate of limited partnership, limited liability limited
partnership agreement, application for registered limited
liability partnership or other formative document of Buyer or the
certificate of formation, limited liability company agreement or
other formative document of the General Partner, (b) violate,
conflict with or result in a breach of any provision of, or
constitute a default under, or result in the termination or
cancellation of, or accelerate the performance required by, or
result in the creation of any Lien upon any of the properties of
Buyer under, any note, bond, mortgage, indenture, license, lease,
contract, agreement or other instrument or commitment or
obligation to which Buyer or any of its properties may be bound
or affected, (c) violate any order, writ, injunction, decree,
judgment, ruling, law, rule or regulation of any court or
governmental authority, domestic or foreign, applicable to Buyer
or its properties, or (d) except for any required filings under
the HSR Act or those that have already been obtained, require any
consent, approval or authorization of, or notice to, or
declaration, filing or registration with, any governmental or
regulatory authority other than those that, in the case of clause
(d) above, are not likely to materially or adversely affect
Buyer's performance of its obligations under this Agreement or
the Buyer's Ancillary Documents.
5.4 Broker's or Finder's Fees. No agent, broker, person or firm
acting on behalf of Buyer is, or will be, entitled to any
commission or broker's or finder's fees from the any parties
hereto, or any Affiliate of the parties hereto, in connection
with the Asset Sale.
5.5 Proceedings. There is no action, suit or proceeding at law
or in equity, any arbitration or any administrative or other
proceeding by or before any court, governmental instrumentality
or agency, pending or, to the knowledge of Buyer, threatened
against or affecting Buyer that could have a material adverse
effect on the ability of Buyer to consummate the Asset Sale or
perform its obligations under this Agreement and the Buyer's
Ancillary Documents.
5.6 Investigation.
(a) Buyer acknowledges that it (i) has been furnished certain
documents and materials relating to the Asset Sale and other
information and (ii) has had the opportunity to visit with Seller
and meet with its officers and representatives to discuss the
Business, Acquired Assets, Assumed Liabilities and the Asset
Sale.
(b) IMC and Savage have retained Xxxxxxxx X. Xxxxxx and Company
to perform a pre-purchase environmental due diligence
investigation of the Real Estate, Leased Premises and other
Acquired Assets as determined by IMC and Savage ("Environmental
Review"). IMC and Savage acknowledge that Seller has allowed
such firm, as part of its Environmental Review, to conduct
appropriate inspections and sampling, to conduct interviews with
appropriate supervisors, employees and regulators of Seller, and
to review regulatory files. The results of the Environmental
Review have been summarized in the following reports: "Due
Diligence Investigation, Four Freeport Sulphur Terminals,"
Xxxxxxxx X. Xxxxxx and Company (March 2002) (the "Report") and
the Supplemental Preliminary Sampling Data provided by Xxxxxxxx
X. Xxxxxx and Company on March 28, 2002 (the "Supplemental
Sampling Data") regarding the Terminal Site at Galveston. IMC
and Savage have shared and made available to Seller the Report
and the Supplemental Sampling Data for the Terminal Site at
Galveston. Seller acknowledges that IMC and Savage have made
available, and Seller has conducted interviews with Xxxxxxxx X.
Xxxxxx regarding the Environmental Review.
(c) Buyer acknowledges that it has made its own independent
evaluation of the value of the Business, Acquired Assets and the
Assumed Liabilities.
ARTICLE VI. PRE-CLOSING COVENANTS
From the date hereof through the Closing Date, the parties
covenant and agree as follows:
6.1 Time of Essence; Cooperation and Best Efforts.
(a) Time is of the essence and each party will devote
substantial resources and work diligently to complete the
transactions contemplated by this Agreement as soon as possible.
(b) Without limiting the foregoing, each party will cooperate
with the other and use its commercially reasonable efforts to
take all action and to do all things necessary to (i) procure all
necessary and appropriate consents and approvals, (ii) complete
and file all necessary and appropriate applications,
notifications, filings and certifications and (iii) satisfy all
requirements prescribed by law for the consummation of the
transactions contemplated by this Agreement, and satisfy all
other conditions set forth in this Agreement for the consummation
of the transactions contemplated by this Agreement. All costs
incurred in connection with obtaining consents shall be borne by
Seller.
6.2 Xxxx-Xxxxx-Xxxxxx Filing. Within ten (10) Business Days of
the execution of this Agreement, Buyer and Seller shall file
notification and report forms with the Federal Trade Commission
and the Antitrust Division of the United States Department of
Justice pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, and the rules and regulations
promulgated thereunder (the "HSR Act").
6.3 Public Statements. Buyer and Seller will cooperate with
each other in the preparation of any press releases announcing
the execution of this Agreement or the consummation of the Asset
Sale. Except for any press release announcing the execution of
this Agreement, no party, without the prior consent of the other,
will issue any press release, written or oral statement for
general circulation, or other public disclosure relating to the
transactions contemplated hereby except as required by securities
law disclosure requirements or otherwise as required by law. The
parties agree to adhere to existing obligations under the
Confidentiality Agreements. Each party agrees that it will
consult with the other prior to the issuance of any press release
or other written or oral statement for general circulation
relating to the transactions described hereby, except to the
extent such consultation is not feasible to discharge its legal
obligations.
6.4 Review of the Business. Prior to the Closing Date, Seller
will (a) make available to IMC, Savage or Buyer and its
representatives, for inspection and review, the Acquired Assets
and all properties, books, computer and information systems,
records, accounts, documents and other information related to the
Acquired Assets and the Business as may be reasonably requested
from time to time by IMC, Savage or Buyer in connection with the
Asset Sale; (b) make its officers and accountants available for
consultation with IMC, Savage or Buyer upon the reasonable
request of IMC, Savage or Buyer, (c) afford IMC, Savage and Buyer
the opportunity to contact third parties having business,
regulatory or other relationships with the Business (such as
customers, suppliers, contractors, consultants, regulators and
other third parties), and (d) permit access to third parties to
verify information obtained pursuant to this Section 6.4 as the
same may be reasonably requested by IMC, Savage or Buyer. In
connection with any requests for information and access pursuant
to this Section 6.4, Buyer will provide reasonable notice to
Seller and endeavor to minimize the disruption of the Business.
An employee or representative of Seller shall be entitled to be
present at any or all inspections and reviews of the Acquired
Assets and Seller's books, records, accounts, documents and other
information by Buyer or Buyer's representatives.
6.5 Conduct of Business Prior to the Closing Date.
(a) Without the prior written consent of Buyer, Seller shall not
commit or omit to do any act that (i) would cause a breach of
representation, warranty agreement, commitment or covenant of
Seller contained in this Agreement in any respect, or (ii) would
cause the representations and warranties contained in Article IV
to become untrue in any respect.
(b) Seller shall use commercially reasonable efforts (and Buyer
shall cooperate with Seller) to obtain all consents specified by
Buyer to the assignment of, or alternate arrangements
satisfactory to Buyer with respect to, any contract, lease,
agreement, purchase order, sales order, or other instrument,
License or Permit, or Environmental Permit which is to be
assigned to Buyer hereunder and which may be required for such
assignment to be effective.
(c) Seller shall preserve the Business and the goodwill of its
customers, suppliers and others having business relations with
the Business and shall preserve and maintain in good operating
condition and repair (ordinary wear and usage excepted) all
Acquired Assets and shall not remove assets from any of the
Terminal Sites, or sell, transfer, dispose of, replace,
substitute or destroy any such assets except in the ordinary
course of business.
(d) Seller shall conduct the Business in the usual and ordinary
course and carry on all of its operations (including, without
limitation, the purchase and sale of inventory and supplies, the
collection of accounts receivable and the payment of accounts
payable and other obligations) in accordance with past practices.
(e) Without the prior written consent of Buyer, such consent not
to be unreasonably withheld, and without limiting the generality
of any other provision of this Agreement, Seller shall not with
respect to the conduct of the Business, enter into any contract,
amend, terminate or give notice of termination with respect to
any existing Contracts to which Seller is a party or by which any
Acquired Asset is bound, or waive any material rights, except for
immaterial contracts amended or terminated in the ordinary course
of business.
(f) Seller shall not encumber any of the Acquired Assets, other
than Permitted Liens.
(g) Seller shall ensure that the Acquired Assets, at Closing,
have sufficient liquid sulphur inventories (whether owned by
Seller or others) to (i) maintain the efficient and ratable
operation of the Business, (ii) cover the heating coils in the
tanks at the Terminal Sites (other than the tanks subject to the
Tank Repairs), and (iii) ensure that sufficient sulphur is
available at or in transit to the Tampa Terminals on the Closing
Date to permit IMC or its Affiliates to consume three thousand
five hundred (3,500) Tons of sulphur per day for each of the
seven (7) days following Closing. Except as set forth in this
Section 6.5(g) or as otherwise provided in this Agreement, Seller
shall be under no restrictions with respect to the sale of
sulphur inventory.
6.6 No Other Negotiations. During the period from the date of
this Agreement through the Closing Date, neither MMR nor Seller
shall, directly or indirectly, through any officer, director or
agent or otherwise, conduct, take part in, initiate, solicit or
encourage (including by way or providing non-public information
or assistance) any discussions or negotiations with any third
party regarding any sale, business combination or other similar
transaction involving the Business or the Acquired Assets.
6.7 Notification of Changes. Between the date of this Agreement
and the Closing Date, Seller will promptly notify Buyer in
writing if Seller becomes aware of any fact or condition that
would (except as expressly contemplated by this Agreement) have
been required to have been set forth in the Disclosure Schedules
or would (except as expressly contemplated by this Agreement)
cause or constitute a breach of any representation, warranty or
covenant of Seller in this Agreement had such representation,
warranty or covenant been made after the time of occurrence of
such fact or condition. Seller shall deliver to Buyer a
supplement to the Disclosure Schedules, which shall (a) be
prominently titled "[First, Second, Etc.] Supplement to
Disclosure Schedules," (b) identify clearly all changes being
made to the Disclosure Schedules thereby, and (c) set forth, in
reasonable detail, only the facts or conditions that cause or
constitute the exception to the representation or warranty to
which exception is taken in such supplement. No notification or
supplement to the Disclosure Schedules pursuant to this Section
6.7 shall be deemed a waiver of any breach of representation,
warranty or covenant for purposes of Section 9.1(a). Buyer
reserves the right to make any claim under Section 9.1(a) for any
breach of representation, warranty or covenant or any claim under
Section 9.1(a) related to any matter disclosed in any supplement
to the Disclosure Schedules.
6.8 No Intentional Acts. No party shall intentionally perform
any act which, if performed, or omit to perform any act which, if
omitted to be performed, would prevent or excuse the performance
of this Agreement by any party hereto or which would result in
any representation or warranty herein contained of said party
being untrue in any material respect as if originally made on and
as of the Closing Date.
6.9 Availability of Employees. Seller, to the extent requested
by Buyer, will make any of Seller's employees with respect to the
Business available, prior to Closing, for interviews with Savage
or one of its Affiliates for potential employment with Savage or
one of its Affiliates at or following the Closing. Upon request,
Seller will provide to Savage or one of its Affiliates the
relevant terms of such employee's employment with Seller
(including, but not limited to dates of hire, positions,
compensation, benefit arrangements and vacation). Neither Buyer,
Savage nor their Affiliates has or will have any duty or
obligation to offer employment to or employ any of Seller's
employees at or following the Closing, and Seller shall not make
any representations or statements to its employees to the
contrary.
6.10 Tank and Barge Repairs. Prior to Closing, Seller shall
complete in accordance with sound engineering and construction
standards, (a) the repairs of tanks #4 and #5 (columns and
floors) and tank #6 (to address all conditions necessary to place
the tank back in to sulphur service) at the Terminal Site at Port
Xxxxxx, Tampa, Florida (collectively, the "Tank Repairs") and (b)
the repairs to the barges as a result of the "Marine Vessel
Claims" described in Schedule 4.16(b) as required in the exercise
of prudent business judgment (collectively, the "Barge Repairs"),
or in each case, if such repairs are not completed prior to
Closing, then Buyer shall deduct from the Purchase Price, at
Closing, that portion of the Escrow Amount, contemplated by
Section 2.5(c)(i), which shall be deposited with the Escrow Agent
pursuant to Section 2.5(c).
6.11 Representations, Warranties and Covenants. Seller shall
provide prompt notice of any fact or event that (a) causes or
would cause any of Seller's representations and warranties to be
untrue in any material respect or (b) causes or would cause
Seller not to comply with any of its covenants in this Agreement
in any material respect. Seller agrees, prior to Closing, to use
commercially reasonable efforts to remedy the result of any such
fact or event. To the extent any such remedy is not completed
prior to Closing, then Buyer shall deduct from the Purchase
Price, at Closing, an amount equal to the amount reasonably
estimated to complete any such remedy, or, if such fact or event
is incapable of being remedied, an amount equal to the reasonably
estimated diminution in value of the Acquired Assets.
6.12 Seller Cooperation. During the period from the date of this
Agreement through the Closing Date, Seller will cooperate with
Buyer to provide for an orderly transition of the Business from
the Seller to Buyer.
6.13 Seller's Commercial Efforts. Prior to and following
Closing, Seller, in good faith, will use commercially reasonable
efforts to assist Buyer in maintaining property tax assessments
on the Acquired Assets at the currently assessed amounts.
ARTICLE VII. CONDITIONS TO CLOSING
7.1 Conditions Applicable to All Parties. The obligations of
each of the parties hereto to consummate the Asset Sale are
subject to the satisfaction (or the waiver by Buyer and Seller)
of the following conditions at or prior to the Closing:
(a) Restraining Action. No judgment, order or decree shall have
been issued or rendered by any court or other governmental body
to restrain or prohibit the Asset Sale.
(b) Statutory Requirements and Regulatory Approval. All
statutory requirements for the valid consummation of the Asset
Sale shall have been fulfilled and all appropriate orders,
consents and approvals from all regulatory agencies and other
governmental authorities whose order, consent or approval is
required by law for the consummation of the Asset Sale shall have
been received, including without limitation the orders, consents
and approvals listed on Schedule 7.1(b).
(c) HSR Act Proceedings. Any applicable waiting period under
the HSR Act shall have expired or been earlier terminated with no
adverse action taken or threatened by applicable governmental
authorities.
(d) Third Party Consents. Seller shall have received any
consents necessary for the assignment for all contracts listed on
Schedule 7.1(d).
(e) New Supply Agreements. At or prior to April 30, 2002, IMC
or its Affiliate shall have entered into sulphur supply
agreements to be effective at Closing with the suppliers
separately agreed upon by the parties, which shall be consistent
with the terms agreed upon by the parties.
7.2 Conditions to the Buyer's Obligations. The obligation of
the Buyer to consummate the Asset Sale is subject to the
satisfaction, at or prior to the Closing, of the conditions set
forth below. The benefit of these conditions is for the Buyer
only and may be waived in writing by the Buyer at any time in its
sole discretion.
(a) Representations, Warranties and Covenants. Each
representation and warranty of the Seller contained in Article
IV, that is qualified as to materiality shall be true and correct
and each representation and warranty that is not so qualified
shall be true and correct in all material respects on and as of
the Closing Date; Seller shall have performed all obligations
required by this Agreement to be performed by Seller at or prior
to the Closing; and Seller shall have delivered to Buyer on the
Closing Date a certificate signed by an appropriate officer of
Seller, dated the Closing Date, certifying to the fulfillment of
the conditions set forth in this Section 7.2(a).
(b) Services Agreements. The "Transgulf Service Agreements"
and the "River Service Agreement" with the customers separately
agreed upon by the parties shall (i) have been provided to IMC,
(ii) be consistent in form and substance with the description of
the contracts as provided to Buyer by Seller (it being understood
that Seller has provided to Buyer a fair and accurate description
of all material terms and conditions of such Transgulf Service
Agreements), and (iii) have been assigned to Buyer and become
effective in accordance with their terms.
(c) Financing. Buyer shall have received non-recourse financing
on terms no less favorable than those agreed upon by the parties
consistent with the assumption that Buyer will have received a
capital contribution of TWENTY MILLION AND 00/100 DOLLARS
($20,000,000.00) in the aggregate from the partners of the Buyer
(or their Affiliates).
(d) Material Adverse Change. There shall have been no material
adverse change with respect to the (i) the Acquired Assets, (ii)
the condition of the Seller's Business, (iii) environmental
conditions of the Acquired Assets or Seller's Business subsequent
to the Environmental Review, or (iv) the contracts referred to
herein to be assigned by Seller at the Closing.
(e) Seller/IMC Agreement. Seller shall have complied with the
terms of the Seller/IMC Agreement applicable to it.
(f) Settlement Agreement. Seller shall have executed and
delivered to IMC a counterpart of the Settlement Agreement in the
form attached to the Seller/IMC Agreement.
(g) Master Agreement. Seller and MMR shall have complied with
the terms of the Master Agreement applicable to them.
7.3 Conditions to the Seller's Obligations. The obligation of
the Seller to consummate the Asset Sale is subject to the
satisfaction, at or prior to the Closing, of the conditions set
forth below. The benefit of the conditions is for the Seller
only and may be waived by Seller in writing at any time in its
sole discretion.
(a) Representations, Warranties and Covenants. The
representations and warranties of the Buyer contained in Article
V that are qualified as to materiality shall be true and correct
and such representations and warranties that are not so qualified
shall be true and correct in all material respects on the Closing
Date; Buyer shall have performed in all material respects all
covenants and obligations required by this Agreement to be
performed by it at or prior to the Closing; and Buyer shall have
delivered to Seller on the Closing Date a certificate, dated the
Closing Date, certifying to the fulfillment of the conditions set
forth in this paragraph.
(b) Release of Liens. Seller shall have obtained the release of
all Liens by Seller's commercial lenders including liens for
goods and services.
(c) Seller/IMC Agreement. IMC shall have complied with the
terms of the Seller/IMC Agreement applicable to it.
(d) Settlement Agreement. IMC shall have executed and delivered
to Seller a counterpart of the Settlement Agreement in the form
attached to the Seller/IMC Agreement.
(e) Master Agreement. IMC, Savage and Buyer shall have complied
with the terms of the Master Agreement applicable to each of
them.
ARTICLE VIII. TAX MATTERS
8.1 Buyer shall prepare or cause to be prepared and file or
cause to be filed any Tax Returns that relate to the Acquired
Assets or Assumed Liabilities for taxable periods which begin
before the Closing Date and end after the Closing Date (other
than income Tax Returns).
8.2 Buyer, Seller and MMR shall cooperate fully, as and to
the extent reasonably requested by another party, in connection
with the filing of Tax Returns pursuant to this Section and any
audit, litigation or other proceeding with respect to Taxes.
Such cooperation shall include the retention and (upon another
party's request) the provision of records (including electronic
records) and information which are reasonably relevant to any
such audit, litigation or other proceeding and making employees
available on a mutually convenient basis to provide additional
information and explanation of any material provided hereunder.
Buyer, Seller and MMR agree (a) to retain all books and records
with respect to tax matters pertinent to the Business relating to
any taxable period beginning before the Closing Date until the
expiration of the statute of limitations (and, to the extent
notified by Buyer, Seller or MMR, any extensions thereof) of the
respective taxable periods, and to abide by all record retention
agreements entered into with any taxing authority, (b) to give
the other party reasonable written notice prior to transferring,
destroying or discarding any such books and records and, if the
other party so requests, Buyer, Seller or MMR, as the case may
be, shall allow the other party to take possession of such books
and records, and (c) to provide the other party with any
reasonably requested information within thirty (30) days of such
request, provided that each party shall bear its own costs with
respect to any such information request.
8.3 Buyer, Seller and MMR further agree, upon request, to
use their best reasonable efforts to obtain any certificate or
other document from any governmental authority or any other
Person as may be necessary to mitigate, reduce or eliminate any
Tax that could be imposed (including, but not limited to, with
respect to the transactions contemplated hereby).
8.4 All tax sharing agreements or similar agreements with
respect to or involving Seller or MMR, to the extent related to
any of the Acquired Assets, shall be terminated as of the Closing
Date and, after the Closing Date, Buyer shall not be bound
thereby or have any liability thereunder.
ARTICLE IX. INDEMNIFICATION; SURVIVAL OF REPRESENTATIONS
9.1 Indemnification.
(a) From and after the Closing Date, subject to the terms and
conditions of this Article IX (including the limits on indemnity
set forth in Section 9.4) Seller, MMR and MOXY shall jointly and
severally indemnify, defend and hold harmless IMC, Savage, Buyer
and their Affiliates, and their respective officers, directors
and employees (the "Buyer Indemnitees") from, and will pay to
Buyer Indemnitees the amount of, any Losses arising from or
arising out of or by virtue of or in connection with:
(i) any inaccuracy in or breach of any representation or
warranty of the Seller contained in Article IV or in the
certificate furnished pursuant to Section 7.2(a) or in any of
Seller's Ancillary Documents;
(ii) any breach by Seller of, or failure by Seller to comply
with, any agreement or covenant contained herein (including,
without limitation, obligations under Article IX hereof);
(iii) any claims by parties other than Buyer or its
Affiliates to the extent caused by acts or omissions of Seller on
or prior to the Closing Date, including claims for Losses which
arise or arose out of Seller's operation of the Business prior to
the Closing;
(iv) any Excluded Liabilities (including those Excluded
Liabilities referenced in Section 10.11), without regard to
whether such Excluded Liabilities may be disclosed on the
Disclosure Schedules; and
(v) any claims by any parties resulting from the manner
in which Seller or its agents, consultants, or contractors performs or
fails to perform the Remedial Workplan described under Section
10.11(c).
(b) After the Closing Date, subject to the terms and conditions
of this Article IX (including the limits on indemnity set forth
in Section 9.4), Buyer shall indemnify and hold harmless the
Seller and its Affiliates and their respective officers and
directors (the "Seller's Indemnitees") from, and will pay to the
Seller's Indemnitees the amount of, any Losses arising from or in
connection with (i) any inaccuracy in or breach of any
representation or warranty of Buyer contained in Article V or in
any of Buyer's Ancillary Documents, (ii) a breach by Buyer of, or
failure by Buyer to comply with, any agreement or covenant
contained herein (including, without limitation, obligations
under Article IX hereof), (iii) any Assumed Liabilities, (iv)
third party claims arising from the operations or conduct of the
Business or the ownership or use of the Acquired Assets after the
Closing, or (v) environmental liabilities of Buyer consistent
with Section 10.11.
9.2 Notice and Defense of Claims.
(a) A Person seeking indemnification under this Article IX (the
"Indemnified Person") shall give prompt written Notice to the
indemnifying person or persons, or successors thereto (the
"Indemnifying Person"), of any matter with respect to which the
Indemnified Person seeks to be indemnified (the "Indemnity
Claim"). Such Notice shall state the nature of the Indemnity
Claim and, if known, the amount of the Loss. If the Indemnity
Claim arises from a claim of a Person not a party to this
Agreement, the Indemnified Person shall give such Notice within a
reasonable time but in no event later than fifteen (15) days from
receipt by the Indemnified Person of Notice of any Indemnity
Claim and, in the event that a suit or other proceeding is
commenced, within fifteen (15) days after receipt of written
notice thereof by the Indemnified Person. Notwithstanding
anything in this Section 9.2(a) to the contrary, the failure of
an Indemnified Person to give timely Notice of an Indemnity Claim
shall not bar such Indemnity Claim except and to the extent that
such failure has impaired materially the ability of the
Indemnifying Person to defend the Indemnity Claim.
(b) If the Indemnity Claim arises from the claim or demand of a
Person not a party to this Agreement, the Indemnifying Person
shall assume its defense, including the hiring of counsel (which
counsel shall be reasonably acceptable to the Indemnified Person)
and the payment of all fees and expenses. The Indemnified Person
shall have the right to employ separate counsel and to
participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the Indemnified Person
unless both the Indemnified Person and the Indemnifying Person
are named as parties and the Indemnified Person shall in good
faith determine that representation by the same counsel is
inappropriate. In the event that the Indemnifying Person, within
fifteen (15) days after Notice of any such action or claim, fails
to assume the defense thereof, the Indemnified Person shall have
the right to undertake the defense, compromise or settlement of
such action, claim or proceeding for the account of the
Indemnifying Person, subject to the right of the Indemnifying
Person upon the payment of all fees, expenses, costs and
settlement payments incurred to date by the Indemnified Person,
to assume the defense of such action, claim or proceeding at any
time prior to the settlement, compromise or final determination
thereof. Anything in this Article IX to the contrary
notwithstanding, the Indemnifying Person shall not, without the
Indemnified Person's prior consent, settle or compromise any
action or claim or consent to the entry of any judgment with
respect to any action, claim or proceeding for anything other
than money damages paid by the Indemnifying Person. The
Indemnifying Person may, without the Indemnified Person's prior
consent, settle or compromise any such action, claim or
proceeding or consent to entry of any judgment with respect to
any such action or claim that requires solely the payment of
money damages by the Indemnifying Person and that includes as an
unconditional term thereof the release by the claimant or the
plaintiff of the Indemnified Person from all liability in respect
of such action, claim or proceeding; provided, however, that the
consent of the Indemnified Person, which consent shall not be
unreasonably withheld, shall always be required with respect to
the settlement or compromise of any action related to Taxes. The
Indemnified Person shall not settle or compromise any such action
or claim without the consent of the Indemnifying Person, to the
extent the Indemnifying Person has accepted responsibility for
indemnification obligations in writing; provided that the
Indemnified Person shall give the Indemnifying Person prior
Notice of any proposed compromise or settlement.
9.3 Survival of Representations and Warranties. The
representations and warranties made by any party herein shall
survive until March 31, 2004; provided, however, that the
representations and warranties contained in Sections 4.15 shall
survive until the expiration of the applicable statute of
limitations, and the representations and warranties contained in
Sections 4.1, 4.2, 4.3, the first two sentences of 4.4(b), 4.10,
4.14, 5.1, 5.2, 5.3 and 5.4 shall not expire.
9.4 Limitations. Notwithstanding anything to the contrary in
this Agreement:
(a) Subject to Section 9.4(f):
(i) Seller, MMR and MOXY shall not have any obligation to make
indemnification payments with respect to Indemnity Claims arising
under Section 9.1(a)(i) (excluding claims for breach of the
representations and warranties set forth in Sections 4.1, 4.2,
4.3 and the first two sentences of Section 4.4(b)) or under
Section 10.11(d) with respect to the Acquired Assets until the
aggregate of all claims against such party or parties hereunder
exceeds FIVE HUNDRED THOUSAND AND 00/100 DOLLARS ($500,000.00)
("Seller's Indemnity Basket"), in which event the Indemnified
Person shall be entitled to recovery for all Losses including the
amount less than FIVE HUNDRED THOUSAND AND 00/100 DOLLARS
($500,000.00). Notwithstanding the foregoing, Seller, MMR and
MOXY shall be obligated to make indemnification payments under
Sections 10.11(a), (b) and (c) for any and all Losses and such
Losses shall not be included in Seller's Indemnity Basket.
(ii) Buyer shall not have any obligation to make indemnification
payments with respect to Indemnity Claims arising under Section
9.1(b)(i) or under Section 10.11, until the aggregate of all
claims against such party hereunder exceeds FIVE HUNDRED THOUSAND
AND 00/100 DOLLARS ($500,000.00) ("Buyer's Indemnity Basket"), in
which event the Indemnified Person shall be entitled to recovery
for all Losses including the amount less than FIVE HUNDRED
THOUSAND AND 00/100 DOLLARS ($500,000.00). Notwithstanding the
foregoing, Buyer shall be obligated to make indemnification
payments under Section 10.11(a) for any and all Losses and such
Losses shall not be included in Buyer's Indemnity Basket.
(b) Subject to Section 9.4(f), neither the Seller, MMR nor MOXY
on the one hand, nor Buyer, on the other hand, shall have any
liability with respect to Indemnity Claims arising under Sections
9.1(a)(i) or 9.1(b)(i) (excluding claims for the breach of the
representations and warranties set forth in Sections 4.1, 4.2,
4.3 and the first two sentences of 4.4(b)) for an aggregate
amount of all Indemnity Claims in excess of TWENTY MILLION AND
00/100 DOLLARS ($20,000,000.00).
(c) Neither the Seller, MMR, MOXY nor Buyer shall have liability
under Sections 9.1(a)(i) or 9.1(b)(i) unless Notice of an
Indemnity Claim, or Notice of facts as to which a Loss is
expected to be incurred, shall have been given prior to the end
of the applicable period specified in Section 9.3.
Notwithstanding anything to the contrary herein, nothing in this
Section 9.4(c) shall modify the obligation of the Indemnified
Persons to give the Notice specified in Section 9.2.
(d) In no event shall any recovery under this Agreement include
the loss of anticipated profits, loss of managerial time, lost
opportunity, or other consequential or incidental damages that do
not constitute out of pocket expenses.
(e) In the absence of fraud, this Article IX shall serve as the
sole and exclusive remedy of Buyer Indemnitees and the Seller's
Indemnitees for Losses and for any other claims in any way
relating to this Agreement to the exclusion of all other
statutory or common law remedies.
(f) Except for claims under Section 10.11(d), the limitations of
Sections 9.4(a), (b) and (c) do not apply with respect to any
claim which arises under Sections 9.1(a)(ii), (iii), (iv) or (v)
or 9.1(b)(ii), (iii) or (iv), irrespective of whether any such
claim could also arise under Sections 9.1(a)(i) or 9.1(b)(i),
respectively.
9.5 Adjustment to Purchase Price. If Seller makes any payment
to Buyer pursuant to this Article IX, then such amount shall be
treated as a reduction to the Purchase Price.
ARTICLE X. OTHER POST-CLOSING COVENANTS
10.1 Transfer Taxes. Except as provided in Section 12.3, Seller
shall pay when due all Taxes incurred in connection with the
transactions contemplated by this Agreement. In addition, Buyer
shall hold Seller harmless from and against any sales, use or
transfer tax which has accrued after the Closing Date with
respect to the Acquired Assets. Seller shall provide to Buyer
clearance certificates and within one hundred twenty (120) days
after the Closing Date, evidence of payment of transfer taxes.
10.2 Assignment of Certain Contracts. Anything in this Agreement
to the contrary notwithstanding, to the extent that any
agreement, contract, License or Permit, Environmental Permit,
lease, or other authorization, purchase or sale order, or other
executory contract or commitment (other than those set forth in
Schedule 7.1(d)) for which assignment to Buyer is contemplated
hereby is not assignable without the consent of another Person
(which consent has not been obtained), this Agreement shall not
be deemed to constitute or require an assignment or an attempted
assignment thereof if such assignment or attempted assignment
would constitute a breach thereof. If such consent has not been
obtained by the Closing Date, the Seller agrees to (a) cooperate
with Buyer in any reasonable arrangement designed to provide for
Buyer substantially the same benefits and obligations under any
such agreement, contract, License or Permit, Environmental
Permit, lease, or other authorization, purchase or sale order, or
other executory contract or commitment without cost to Buyer,
including (i) enforcing for the benefit of Buyer any or all
rights of Seller under any contract, commitment, License or
Permit, Environmental Permit or other authorization, or other
agreement against any other Person that is a party thereto, or
(ii) at Buyer's election, not transferring, conveying, assigning
or delivering to Buyer at the Closing, and retaining legal title
or right thereto, while permitting Buyer the possession and use
of such assets or rights for Buyer's account and with Buyer
receiving the benefits and burdens of such assets or rights as if
such assets or rights had been so transferred, conveyed, assigned
and delivered, and (b) take all reasonable further action to
obtain such consents, approvals or novations as may be required
under such instrument, applicable law or otherwise to effect the
transfer of the asset or right to Buyer. Nothing in this Section
10.2 shall be deemed a waiver of any closing condition set forth
in this Agreement.
10.3 Further Assurances. Seller and Buyer each agree to execute
and deliver such other documents, certificates, agreements and
other writings and to take such other actions as may be necessary
or desirable in order to consummate or implement expeditiously
the transactions contemplated by this Agreement, including
without limitation any and all documents necessary to assign to
Buyer any of the Acquired Assets that are not conveyed to Buyer
at the Closing.
10.4 Record Retention. Buyer agrees that, for a period of six
(6) years following the Closing, it shall not destroy, discard,
deface or otherwise alter any of the books, records, contracts or
other data of the Business in its possession covering or prepared
during the period ending on the Closing Date, without furnishing
prior Notice to Seller and a reasonable opportunity for Seller,
at its cost, to take custody of such books, records or other
data. Buyer also agrees during such six (6)-year period to
provide Seller, its accountants, counsel and other
representatives, during normal business hours and upon reasonable
Notice, access to such books, records, contracts and other data
in order to enable Seller to prepare any required tax returns and
to prepare for and defend against any tax or other claims or
litigation, and for any other reasonable business purpose related
to Seller's ownership of the Acquired Assets and their operation
of the Business prior to the Closing.
10.5 Mail and Other Communications.
(a) The Seller hereby authorizes Buyer after the Closing Date to
receive and open all mail and other communications addressed to
the Seller received by Buyer at the Terminal Sites and to act
with respect to such mail and other communications in such manner
as Buyer may elect if such mail and other communications relate
to the Business and related rights and obligations of Buyer under
this Agreement. If such mail and other communications do not so
relate, Buyer shall forward such mail and other communications
promptly to the Seller.
(b) After the Closing, the Seller shall promptly deliver to
Buyer the original of any mail or other communication received by
it pertaining to the Business and related rights and obligations
of Buyer under this Agreement, and any monies, checks or other
instruments of payment to which Buyer is entitled, and Buyer
shall promptly deliver to the Seller any monies, checks or
instruments of payment to which the Seller is entitled.
10.6 WARN Act Notice. Seller shall be solely responsible for
providing any notice required under the Worker Adjustment and
Retraining Notification Act (the "WARN Act") by virtue of the
Asset Sale, and shall indemnify and hold Buyer and its Affiliates
harmless from any liability arising from any failure of Seller to
fully comply with the requirements of such WARN Act.
10.7 Reasonable Cooperation. The Seller will (a) consult with
Buyer prior to the Closing with the view of achieving a smooth
transition of ownership from Seller to Buyer with minimal
disruption to the Business, (b) provide reasonable assistance to
Buyer in contacting any material customer of the Seller with a
view to determining whether such customer is likely to remain a
customer following the Closing and, if such customer's consent is
required for the consummation of the transactions contemplated by
this Agreement, obtaining such consent, and (c) keep Buyer
reasonably informed concerning any material developments in the
Business.
10.8 Risk of Loss. Until Closing, the Acquired Assets shall be
at the sole risk and loss of Seller. Upon the Closing, title and
all risk of loss shall transfer to Buyer. Seller shall keep the
Acquired Assets insured against loss or damage in accordance with
its existing insurance coverage until the Closing.
10.9 Covenant Not to Compete; Confidentiality. As an inducement
for Buyer to enter into this Agreement, each of Seller and MMR
covenants and agrees that:
(a) From and after the Closing and continuing for the lesser of
seven (7) years and the longest time permitted by applicable law
(the "Non-Compete Period"), neither such party or any of such
party's Affiliates shall do any one or more of the following,
directly or indirectly:
(i) Control, manage, operate, be employed or engaged (whether
as a consultant, or otherwise) by, or otherwise participate or
engage in any business, or own any interest in any entity
whatsoever, if such entity is engaged, in the broadest geographic
region allowable by applicable law, in any business engaged in
the purchase, sale, terminaling, handling, transporting or
storage of sulphur; or
(ii) Solicit for a business competitive with the Business any
customer of the Buyer that was a customer of Seller or MMR on or
prior to the Closing for a service that is provided by the
Business as of the Closing.
(b) For the longest period permitted by applicable law following
the Closing Date, Seller, MMR and their Affiliates shall hold in
strictest confidence, and not, without the prior written approval
of Buyer, use for their own benefit or the benefit of any party
other than Buyer, or disclose to any Person other than Buyer
(other than as required by law) any information of any kind
relating to the Business or Buyer, except such information as was
publicly available prior to the Closing Date; provided, however,
that this provision shall not prohibit disclosure by Seller of
information to its lenders and their counsel.
(c) Seller acknowledges that this Section 10.9 is to be governed
by the laws of Delaware and recognizes that the territorial, time
and scope limitations set forth in each agreement set forth in
Sections 10.9(a) and 10.9(b) are reasonable and are properly
required for the protection of Buyer's legitimate interest in
client relationships, goodwill and trade secrets, and in the
event that any such territorial, time or scope limitation is
deemed to be unreasonable by a court of competent jurisdiction,
Buyer and Seller agree, and Seller submits, to the modification
of any or all of said territorial, time or scope limitations to
such an area, period or scope as said court shall deem reasonable
under the circumstances. If such partial enforcement is not
possible, the provision shall be deemed severed, and the
remaining provisions of this Agreement shall remain in full force
and effect.
Notwithstanding the foregoing provisions of this Section 10.9 or
anything else to the contrary in this Agreement, Seller and MMR
shall be permitted, without restriction or penalty, to sell or
otherwise convey, terminal, handle, transport and store sulphur
recovered in connection with the ordinary course of oil and gas
production and related activities by Seller, MMR and their
respective Affiliates. Nothing in this Section 10.9 shall
prohibit Seller from selling the Port Sulphur Terminal (or any
portion thereof) to a party which intends to use the property in
connection with the storing and handling of sulphur. For a
period of ten (10) years following the Closing Date, if Seller
proposes a sale of the Port Sulphur Terminal to an identifiable
third party, Seller shall notify Buyer and provide Buyer a right
of first negotiation with respect to the purchase of such
property.
10.10 Accounts Receivable. After the Closing:
(a) In the event Seller shall receive any payment, some or all
of which relates to services provided by Buyer that is not
reflected in a proration pursuant to Section 2.6(a), then Seller
shall promptly deliver to Buyer the amount owed to Buyer.
(b) In the event Buyer shall receive any payment, some or all of
which relates to services provided by Seller that is not
reflected in a proration pursuant to Section 2.6(a), then Buyer
shall promptly deliver to Seller the amount owed to Seller.
10.11 Environmental Matters.
(a) Buyer will repair, maintain, xxxxx and remove asbestos-
containing material at the Acquired Assets as necessary in the
normal course of business and consistent with applicable
standards. By means of this Section 10.11(a), Buyer is not
assuming any obligation for, and Seller indemnifies Buyer from
any Losses related to, claims from individuals concerning pre-
Closing exposure to asbestos containing materials at the Acquired
Assets. Buyer indemnifies Seller from any Losses related to
claims from individuals concerning post-Closing exposure to
asbestos containing materials at the Acquired Assets.
(b) Wastewater Treatment System at Galveston.
(i) Buyer will operate and maintain the wastewater treatment
system at the Terminal Site at Galveston (the "WWTS") in a manner
that: (1) satisfies the material terms of Galveston's National
Pollution Discharge Elimination System permit (the "NPDES
Permit"), (2) conforms to customary business practices for
operation of the WWTS, and (3) conforms to the Seller's operating
procedures and WWTS facility design in existence at the time of
Closing (but only to the extent that such operating procedures
and WWTS facility designs meet the requirements of the NPDES
Permit). In the case of each of (1), (2) and (3), Buyer will
conduct all operations with the objective of meeting the
discharge limitations on copper contained in the NPDES Permit.
(ii) Subject to Sections 10.11(b)(iv) and 10.11(f), if within two
(2) years after Closing, the operator of the Terminal Site at
Galveston determines in the exercise of its prudent business
judgement, that the WWTS cannot meet the NPDES permit conditions
related to copper, Buyer shall inform Seller of this conclusion.
Buyer and Seller agree equally to divide the costs, up to the
first ONE HUNDRED THOUSAND AND 00/100 DOLLARS ($100,000.00), for
modification of the WWTS solids handling system to promote sludge
removal. Costs in excess of ONE HUNDRED THOUSAND AND 00/100
DOLLARS ($100,000.00) and fines or penalties related to the
failure of the WWTS to meet the NPDES permit conditions for
copper will be borne solely by Seller.
(iii) Subject to Sections 10.11(b)(iv) and 10.11(f), if
within two (2) years after the sludge handling system
modifications are completed, the WWTS continues chronically to
violate the NPDES permit conditions related to copper, Seller
will indemnify Buyer for any commercially reasonable expenditures
to bring the WWTS into material compliance with the NPDES permit
conditions related to copper and for any fines or penalties
related to the failure of the WWTS to meet the NPDES permit
conditions for copper. Buyer will consult with Seller to
identify and select commercially reasonable methods for
minimizing any costs associated with bringing the WWTS into
material compliance with the NPDES Permit conditions related to
copper.
(iv) The provisions in Sections 10.11(b)(ii) and (b)(iii) shall
apply only if: (1) the violations of the NPDES permit conditions
related to copper results from circumstances other than post
Closing operation of the Business (including any changes made by
the facility operator to the physical design of the WWTS, any
modification to the soils or encapsulation barriers in place at
the time of Closing that were installed for the purpose of
containing the copper in the soils within the vat area, or the
presence of other non-sulfur materials that contain copper or
compounds known to mobilize copper that were introduced into the
vat area subsequent to Closing); and (2) the facility operator
has satisfied the conditions set forth in Section 10.11(b)(i)
above.
(v) Buyer will promptly notify Seller of any NPDES Permit
exceedence for copper at the Galveston Terminal Site.
(c) Seller and Buyer acknowledge that chlorinated organic
compounds have been detected at the Terminal Site in Galveston,
Texas in soil and groundwater samples taken from borehole B2 (as
designated in the Environmental Review) and at sampling locations
X-0, X-0, X-0, X-0, X-0, X-0, X-0 and P-10 (as designated in the
Supplemental Sampling Data) (collectively, these locations are
the "Remediation Site"). To address these sampling results:
(i) Buyer will delineate the nature and extent to which the soil
and groundwater conditions at the Terminal Site at Galveston are
attributable to chlorinated organic compounds in the vicinity of
the locations set forth above. Such delineation, which shall be
conducted pursuant to an agreed written investigatory workplan
("Investigatory Workplan") to be prepared by Buyer and approved
by Seller (which approval shall not be unreasonably withheld or
delayed) no later than May 15, 2002, shall be necessary and
sufficient to support development of a reasonable Remedial
Workplan designed to meet the Criteria. Buyer shall expend up to
the first ONE HUNDRED THOUSAND AND 00/100 Dollars ($100,000.00)
to prepare and perform the Investigatory Workplan, with Seller to
expend the remaining amounts consistent with the purposes of this
Section 10.11(c), if necessary.
(ii) Taking into account the information generated in connection
with performance of the Investigatory Workplan, Seller shall
prepare and Buyer shall approve (which approval shall not be
unreasonably withheld or delayed) a written remedial workplan
("Remedial Workplan") to address soil and groundwater conditions
at the Terminal Site at Galveston that are attributable to
chlorinated organic compounds at the Remediation Site. The
Remedial Workplan shall be designed to assure that chlorinated
organic compound concentrations in soil and groundwater at the
Remediation Site meet the Criteria. In deciding among various
alternative courses of action under the Remedial Workplan, equal
consideration shall be given to compliance with applicable
Environmental Laws, cost minimization, minimization of
interference with Buyer's ongoing operations at the Terminal
Site, and expeditious completion of the Remedial Workplan. After
approval of the Remedial Workplan by Buyer, Seller shall, at its
own cost and expense, conduct the Remedial Workplan to achieve
timely reasonable progress taking into account prudent business
practices, in accordance with timetables set forth in the
Remedial Workplan, shall follow good environmental engineering
practice and shall incorporate remedial and sampling methods
approved in applicable regulatory guidance or under applicable
Environmental Laws. Prior to retaining consultants or
contractors to assist in executing the Remedial Workplan, Seller
shall provide Buyer with a list of prospective consultants or
contractors and Buyer shall strike from that list any contractors
or consultants that Buyer believes, in its prudent business
judgment, do not meet Buyer's standard requirements for onsite
contractors or consultants. Seller shall select its consultants
or contractors only from those remaining on the list after
Buyer's review.
(iii) The Remedial Workplan shall be deemed complete when the
following conditions have been met: (A) concentrations of
chlorinated organic compounds in confirmatory samples taken from
excavations at the Remediation Site (where soil removal has been
performed) and in five representative soil locations within the
Remediation Site at appropriate depths at each location (where
other forms of remediation have been used) reflect chlorinated
organic compound concentrations at or below the selected
Criteria, or when a governing regulatory authority confirms the
adequacy of soil remediation; (B) four consecutive quarterly
groundwater samples taken at three representative groundwater
monitoring well locations within the Remediation Site reflect
chlorinated organic compound concentrations at or below the
selected Criteria, or when a governing regulatory authority
confirms the adequacy of ground water remediation; (C) any
remedial excavations have been backfilled and graded to return
the Remediation Site to essentially the physical condition it was
in before excavation or to such other condition as has been
mutually agreed by the parties; (D) excavated soil and other
materials related to the remediation have been sent offsite for
appropriate disposal or otherwise managed in accordance with
applicable standards under applicable Environmental Laws (with
Seller assuming responsibility for manifesting and disposing of
materials if necessary); and (E) any groundwater monitoring or
remediation xxxxx have been plugged and abandoned or otherwise
secured to prevent tampering and allow future monitoring if
necessary.
(iv) Seller will notify Buyer in writing when it believes that it
has satisfied Section 10.11(c)(iii) for completion of the
Remediation Workplan. Within ten (10) Business Days of receiving
such notice, Buyer shall notify Seller with specificity, in
writing, if it believes Seller has failed to satisfy Section
10.11(c)(iii). Seller, after consulting with Buyer, will take
such actions as are necessary to fulfill the are necessary to
fulfill Section 10.11(c)(iii).
(v) Buyer shall give Seller and its employees, consultants,
contractors and agents access at all reasonable times to the
Remediation Site as may be reasonably requested by Seller to
enable Seller to carry out the Remedial Workplan and related
obligations. Seller and Buyer agree to use their best efforts to
minimize the costs of, and disruption of operations resulting
from, execution of the Remedial Workplan. The parties shall keep
each other fully informed as to the progress of the Remedial
Workplan, including but not limited to providing the other party
with copies of any reports, investigations or correspondence
relevant or relating to the Remedial Workplan or to any
discussions with the relevant environmental authorities.
(vi) Seller's performance of its obligations under this Section
10.11(c) shall be guaranteed by the escrow established under
Section 2.5(c)(ii). Such escrow shall be immediately released to
Buyer if Seller fails to demonstrate timely reasonable progress,
taking into account prudent business practices, towards
completion of the Remedial Workplan as determined by Buyer using
its prudent business judgment; provided that Buyer shall be
required to use all such amounts of the escrowed funds as
necessary to remediate chlorinated organic compounds at the
Remediation Site and shall release to Seller any unused portion
of the Escrow Amount following completion of remediation at the
Remediation Site in accordance with the conditions set forth in
Section 10.11(c)(iii).
(vii) For purposes of this Section 10.11(c), "Criteria" shall
be established in the Remedial Workplan and shall mean: (A)
remediation standards mutually agreed upon between Buyer and
Seller; or (B) regulatory remediation standards applicable to the
Terminal Site at Galveston; or (C) site-specific remediation
standards approved by applicable governing regulatory
authorities.
(viii) Buyer and Seller will cooperate in efforts initiated
either individually or collectively, to obtain the maximum
recovery of costs available from third parties to address matters
under this Section 10.11(c).
(d) Seller will close the percolation pond at the Terminal Site
at Port Xxxxxx in a timely fashion in accordance with
Environmental Laws and a written closure plan and to address
issues regarding the percolating pond raised by the Hillsborough
County EPC in Warning Notice #24653 dated February 27, 2002
("WN"). Seller shall obtain written confirmation from the
appropriate regulatory agencies that the closure plan is adequate
under applicable Environmental Laws and to address the WN.
Within sixty (60) days after Closing, Seller will use all
commercially reasonable efforts to arrange for the collection and
off-site disposal of the combined Softener Regen Effluent (SRE)/
Boiler Blowdown Effluent (BBE) wastestream generated at the
Terminal Site. These arrangements will include but not be
limited to: (1) the sampling and chemical analyses of the
combined SRE/BBE wastestream necessary to obtain a contract with
a licensed DOT-certified waste transporter for approved disposal
of that wastestream at one of the City of Tampa's wastewater
treatment plants; and (2) the installation of a wastewater
management system. Such wastewater management system will
consist of an aboveground tank and associated piping and
appurtenances with a volume sufficient to provide adequate
accumulation, but not less than five thousand (5,000) gallons,
for the combined SRE/BBE effluent flow. Once Seller has made
arrangements for collection and off-site disposal of the combined
SRE/BBE wastestream, Buyer shall be responsible for carrying out
the arrangements at its expense.
(e) Buyer will be responsible for those portions of the
environmental, health, safety, or reclamation liabilities and
obligations that are associated with or result from operations of
the Business or the Acquired Assets subsequent to Closing. At the
time of the permanent termination of sulfur operations at the
Acquired Assets, Buyer hereby indemnifies and agrees to hold
harmless Seller from the following obligations and liabilities:
dismantling and removing above-ground facilities at the Acquired
Assets; removing docks and other water borne structures as
required by the United States Coast Guard or other governmental
authority with jurisdiction over the docks and water borne
structures at the Acquired Assets; removing raw materials and
products stored above-ground or accumulated in unloading trenches
at the Acquired Assets, including, as necessary, the removal of
up to six inches of the underlying soil in the sulfur storage vat
area at the Galveston Terminal and backfilling to grade with
appropriate fill material (collectively "Shut-Down Obligations")
and any liabilities or obligations resulting from or related to
the manner in which Buyer performs or fails to perform the Shut-
Down Obligations.
(f) By means of this Section 10.11(f), Buyer is not assuming any
obligation for any Excluded Liabilities or Excluded Assets and
those Excluded Liabilities and Excluded Assets remain the
obligation of Seller. Notwithstanding the foregoing, and except
for (i) those matters set forth in Section 10.11(b) (c) and (d)
above and (ii) those claims related to Excluded Assets -- each of
which shall be covered regardless of the nature of the claim or
the manner in which the claim arises -- Seller's obligation to
indemnify Buyer for those breaches of representations and
warranties set forth in Section 4.10 in accordance with Section
9.1(a)(i) and for those Losses related to Excluded Liabilities
covered under Section 9.1(a)(v) shall extend only to those
liabilities or obligations that arise from or are related to a
claim made against Buyer independently by a governmental
authority or a third party or to obligations arising under
applicable Environmental Laws.
10.12 Confidentiality Agreements with Third Parties. Each of
MMR and Seller shall use its best efforts to enforce the terms of
any confidentiality or standstill agreements with third parties
relating to the Acquired Assets and to require any such party to
return any confidential information regarding the Business which
they have obtained pursuant to any such agreements. All of
Seller's rights in and to such confidentiality and standstill
agreements (to the extent relating to the Business) shall be
assigned to Buyer upon the occurrence of the Closing.
10.13 Docking Rights. Seller hereby agrees to permit Buyer
marine and land access to its dock at the Port Sulphur Terminal
for fleeting the M/V Xxxxx X. Xxxxxxx and storing spare parts and
related equipment (including the items set forth on Schedule
2.1(c) that are located at the Port Sulphur Terminal on the
Closing Date) for the six (6)-month period after the Closing
Date. Buyer hereby agrees to permit Seller marine and land
access to its dock at the Galveston Terminal for fleeting the M/V
Marine Xxxxx and storing spare parts and related equipment for
the six (6)-month period after the Closing Date. Each vessel
owner shall pay all costs associated with docking its vessel,
including utilities. Neither Buyer nor Seller has any liability
for security of, or loss or damage to, the other party's vessel.
10.14 Right of Access. Following the Closing, Buyer will
provide Seller with access to the Acquired Assets, upon
reasonable notice, for purposes of removing marks in accordance
with Section 2.2(f) and assessing, monitoring and remediating
environmental matters.
10.15 Devon Settlement Agreement. Buyer will cooperate with
Seller and use its good faith, commercially reasonable efforts to
assist Seller with obtaining a release of the money in escrow
pursuant to the Devon Settlement Agreement.
ARTICLE XI. TERMINATION
11.1 Termination. This Agreement may, by Notice given at or
prior to the Closing, be terminated:
(a) By the mutual written consent of Seller, IMC, Savage and
Buyer;
(b) By IMC or Buyer if any condition to Closing required by
Sections 7.1 or 7.2 has not been met or waived by each party
entitled to grant such waiver by May 31, 2002 and the Asset Sale
has not occurred by such date;
(c) By Seller if any condition to Closing required by Sections
7.1 or 7.3 has not been met or waived by each party entitled to
grant such waiver by May 31, 2002 and the Asset Sale has not
occurred by such date; and
(d) By IMC, Savage or Seller if the condition required by
Section 7.1(e) has not been met by April 30, 2002 or waived;
provided that in the case of Sections 11.1(b), (c) or (d) above,
such Notice may not be given after the applicable condition has
been satisfied; and provided, further, that the right to
terminate this Agreement pursuant to this Section 11.1 shall not
be available to a party if its failure to fulfill or perform any
obligation or its breach of a representation or warranty under
this Agreement has been a substantial cause of, or has
substantially resulted in, the non-fulfillment of a condition to
Closing.
11.2 Effect of Termination; Survival. Upon termination of this
Agreement pursuant to Article XI, this Agreement shall be void
and there shall be no liability by reason of this Agreement, or
the termination thereof, on the part of any party or their
respective directors, officers, employees, agents or shareholders
except for any liability of a party hereto arising out of a
material breach of its representations and warranties contained
herein or arising out of a material breach of any covenant in
this Agreement prior to the date of termination.
11.3 Exclusive Termination Rights. Neither IMC, Savage, Buyer
nor Seller may terminate this Agreement for any reason not
expressly provided in Section 11.1 hereof. The foregoing
notwithstanding, any claim of either Buyer or Seller against the
other shall survive beyond the Closing Date as provided in
Section 9.3 hereof and neither party shall be deemed to have
waived any right solely by virtue of Closing the transactions
contemplated by this Agreement.
ARTICLE XII. MISCELLANEOUS
12.1 Notices. Any notice, communication, request, reply,
consent, advice or disclosure notice ("Notice") required or
permitted to be given or made by any party to the other in
connection with this Agreement must be in writing and may be
given or served only on a Business Day (a) by depositing such
Notice in the United States mail, postage prepaid and registered
or certified with return receipt requested, (b) by hand
delivering such Notice, (c) by sending such Notice by a national
commercial courier service for next business day delivery, in
each case properly addressed as provided below, or (d) by sending
such Notice via facsimile transmission. Notice deposited in the
mail in the manner described above shall be effective seventy-two
(72) hours after such deposit; Notice hand delivered in person or
delivered by commercial courier shall be effective at the time of
delivery; and Notice given by facsimile shall be effective when
such facsimile is transmitted to the facsimile number specified
in this Section 12.1 and confirmation of transmission is received
by the giver of such Notice (provided that a confirmation copy is
sent no later than the next Business Day by documented overnight
delivery service). For purposes of Notice, the addresses of the
parties shall, until changed as hereinafter provided, be as
follows:
If to Seller:
Freeport-McMoRan Sulphur LLC
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Facsimile No: (000) 000-0000
With a copy to:
Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx,
L.L.P.
000 Xx. Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx XX, Esq.
Facsimile No: (000) 000-0000
If to MMR:
McMoRan Exploration Co.
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Facsimile No: (000) 000-0000
With a copy to:
Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx,
L.L.P.
000 Xx. Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx XX, Esq.
Facsimile No: (000)000-0000
If to MOXY:
McMoRan Oil & Gas LLC
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Facsimile No: (000) 000-0000
With a copy to:
Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx,
L.L.P.
000 Xx. Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx XX, Esq.
Facsimile No: 000-000-0000
If to Buyer:
Gulf Sulphur Services Ltd., LLP
c/o Savage Industries Inc.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Executive Vice President, Chemical Refining
and Industrial Services
Facsimile No: (000) 000-0000
with a copy to:
Gulf Sulphur Services Ltd., LLP
c/o Savage Industries Inc.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Executive Vice President and General
Counsel
Facsimile No: (000) 000-0000
and:
Gulf Sulphur Services Ltd., LLP
x/x XXX Xxxxxx Xxx.
Xxxxx 000
000 Xxxxxxxx Xxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Facsimile No: (000) 000-0000
and:
Altheimer & Xxxx
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx and Xxxxxxx X. Xxxxxxx
Facsimile No: (000) 000-0000
or such substituted persons or addresses of which any of the
parties may give Notice to the other in writing.
12.2 Waiver. The failure by any party to enforce any of its
rights hereunder shall not be deemed to be a waiver of such
rights, unless such waiver is an express written waiver which has
been signed by the waiving party. Waiver of any one breach shall
not be deemed to be a waiver of any other breach of the same or
any other provision hereof.
12.3 Expenses. Regardless of whether the transactions
contemplated by this Agreement are consummated, all expenses,
including fees for legal, accounting, investment banking,
financial and other advisory services, incurred in connection
with this Agreement and the transactions contemplated hereby
shall be borne by the party hereto incurring them.
Notwithstanding the foregoing, (a) Seller shall pay the cost of
all title commitments on the Real Property, (b) Buyer and Seller
shall each pay one-half (1/2) of the premiums for the owner's
policies of title insurance (including the fee for any survey
endorsement) to be issued to Buyer by the title company on the
Real Property at Closing, (c) Seller shall pay the cost of all
surveys on the Real Property, and (d) Buyer shall pay the fees,
taxes and costs for recording any deeds and assignments.
12.4 Interpretation.
(a) The table of contents and section headings contained herein
are inserted for convenience only and shall not affect in any way
the meaning or interpretation of this Agreement. Each of the
parties has participated substantially in the negotiation and
drafting of this Agreement and each party hereby disclaims any
defense or assertion in any litigation or arbitration that any
ambiguity herein should be construed against the draftsman.
(b) References to "Articles," "Sections" or "Schedules" shall be
Articles or Sections of or Schedules to this Agreement unless
otherwise specifically provided.
(c) Wherever the words "include," "includes," and "including"
are used herein, such words shall be deemed to be followed by the
words "without limitation."
(d) The word "or" is not exclusive.
(e) Words in the singular include the plural, and vice versa.
12.5 Integrated Agreement. This Agreement (along with the
Exhibits and Schedules referenced herein), the Buyer's Ancillary
Documents, the Seller's Ancillary Documents, the Confidentiality
Agreements, and the other documents and agreements to be executed
pursuant to such documents constitute the entire understanding
and agreement among the parties hereto with respect to the
subject matter hereof, and there are no agreements, covenants or
understandings, among the parties other than those set forth
herein or therein, all prior agreements and understandings being
superseded hereby. Except and as to the extent set forth in
Articles IV and V, and in any Schedule or Exhibit thereto or any
certificate delivered pursuant to Article VII, neither party
makes any representations or warranties whatsoever, and disclaims
all liability and responsibility for any representation or
warranty made or communicated orally or in writing to the other
party (including any information, opinion or advice that may have
been provided to the other party by any officer, director or
employee of such party, such party's counsel or accountants, or
any other agent, consultant or representative of such party, none
of which has been relied upon by the other party). Without
limiting the generality of the foregoing, this Agreement shall
not be governed by the warranties provided by Article 2 of the
Uniform Commercial Code or any similar laws adopted in any
jurisdiction. A disclosure set forth in a particular schedule in
the Disclosure Schedule shall be deemed to modify only the
representation and warranty to which such disclosure specifically
relates, and shall not be deemed disclosed with respect to any
other schedules in the Disclosure Schedule or other
representation or warranty.
12.6 Choice of Law. The validity of this Agreement, the
construction of its terms and the determination of the rights and
duties of the parties hereto in accordance therewith shall be
governed by and construed in accordance with the laws of the
State of Delaware applicable to contracts made and to be
performed wholly within such State. Each of Buyer, and the
Seller consents to the exclusive jurisdiction of the state courts
of and federal courts located in the State of Delaware for the
enforcement of the obligations evidenced by this Agreement and
any dispute arising out of this Agreement, and expressly waives
any defense based upon venue or forum non conveniens.
12.7 Guaranty. Each of MMR and MOXY hereby unconditionally,
absolutely, continuingly and irrevocably guarantees, as a primary
obligor and not merely as a surety, to Buyer the performance by
Seller of all of its covenants, agreements, obligations and
liabilities arising under or pursuant to this Agreement, whether
direct or indirect, absolute or contingent, now or hereafter
existing, or due or to become due (the "Seller Liabilities").
Buyer shall not be required to seek to enforce or resort to any
remedies against Seller on account of Seller Liabilities. Each
of MMR's and MOXY's obligations and liabilities to Buyer under
this Section 12.7 shall in no way be impaired, affected, reduced
or released by reason of the voluntary or involuntary
liquidation, dissolution, sale or other disposition of all of
substantially all of the assets of Seller or the marshaling of
assets and liabilities, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization,
arrangement, composition with creditors or readjustment of, or
other similar proceedings or any other inability to pay or
perform affecting, Seller or any of its assets, or any allegation
concerning, or contest of the legality or validity of, the
indemnification obligations under this Agreement.
12.8 Parties in Interest and Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and no party hereto may assign its
rights or obligations hereunder without the prior written consent
of the other party, except that Buyer may assign its rights to a
wholly-owned subsidiary hereunder as long as Buyer is not
relieved of its obligations hereunder. Nothing in this Agreement
is intended or shall be construed to confer upon or to give any
person other than the parties hereto any rights or remedies under
or by reason of this Agreement; provided that IMC shall have the
rights of a third party beneficiary with respect to the rights of
Buyer hereunder.
12.9 Amendment. Unless otherwise provided herein, this Agreement
may be amended only by an agreement in writing signed by each
party hereto.
12.10 Counterparts. This Agreement may be executed by the
parties in one or more counterparts, all of which shall be deemed
an original, but all of which taken together shall constitute one
and the same instrument.
12.11 Specific Performance. Each party agrees that if either
party fails to consummate the transactions contemplated herein
for any reason other than as permitted by Section 11.1, such
failure will cause irreparable injury, the amount of which will
be impossible to estimate and which cannot be adequately
compensated. Accordingly, the parties agree that in such event,
in addition to any other remedy which may be available at law or
in equity, the other party consents to and shall be entitled to
specific performance and injunctive relief, without posting bond
or other security, and without the necessity of proving actual
damages.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement, all as of the day and year first above written.
FREEPORT-McMoRan SULPHUR LLC
By: /s/ Xxxxxxx X. Adkersen
------------------------
Name: Xxxxxxx X. Adkersen
Title:
McMoRan EXPLORATION CO.
By: /s/ Xxxxxxx X. Adkersen
-----------------------
Name: Xxxxxxx X. Adkersen
Title:
McMoRan OIL & GAS LLC
By: /s/ Xxxxxxx X. Adkersen
------------------------
Name: Xxxxxxx X. Adkersen
Title:
GULF SULPHUR SERVICES LTD., LLP
By:Sulphur Assets Holding Company, LLC
Its: General Partner
By: Savage Industries Inc.
Its: Member
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxxxx
Title:
