MASTER CONVEYANCE AGREEMENT
Master Conveyance Agreement (the "Agreement"), dated as of April 22, 1999,
among IMC Global Inc., a Delaware corporation ("Global"), The Vigoro
Corporation, a Delaware corporation ("Vigoro" and, together with Global, the
"Seller"), Xxxxxxx-Xxxxx, Inc., a Delaware corporation ("RC" or the
"Purchaser"), and United States Trust Company of New York, as Trustee (the
"Trustee"), under that certain indenture (the "Indenture"), dated April 22,
1999, with respect to the First Mortgage Notes due 2009 (the "First Mortgage
Notes") of the Purchaser.
Global and the Purchaser agree as follows for the benefit of each other and
for the Trustee, as collateral agent for the holders of the First Mortgage
Notes:
STATEMENTS
A. Global, Vigoro and Xxxxxxx-Xxxxx Group, Inc. (formerly known as R-C
Delaware Acquisition Inc.) have entered into that certain stock purchase
agreement dated as of January 21, 1999 (as amended, the "Stock Purchase
Agreement") pursuant to which the Purchaser, as assignee of certain rights of
Xxxxxxx-Xxxxx Group, Inc. under the Stock Purchase Agreement will purchase all
of the outstanding shares of IMC AgriBusiness Inc., a Delaware corporation
("AgriBusiness"), IMC Nitrogen Company, a Delaware corporation ("Nitrogen"), and
Xxxxxx'x Xx Services, Inc., a Kentucky corporation ("Xxxxxx'x" and, together
with AgriBusiness and Nitrogen, the "IMC Operating Companies").
B. In the Stock Purchase Agreement, Global and Vigoro have represented (the
"RE Representations") that one of the IMC Operating Companies has good and
marketable title to each of the parcels of the real property identified as the
Owned Premises on Schedule 2.3.23 of the Stock Purchase Agreement (each, a
"Parcel" and together the "Real Property") free and clear of any Encumbrance (as
defined in the Stock Purchase Agreement), easement, covenant or other
restriction, except for Encumbrances, easements, covenants and other
restrictions of record which do not affect materially and adversely the current
use, occupancy or marketability of title of the parcel subject thereto
("Permitted Title Matters").
C. In connection with the transaction contemplated by the Stock Purchase
Agreement, Purchaser is entering into a financing transaction for which the Real
Property or interests in the entities holding title to the Real Property are
intended to serve as collateral to be held by the Trustee. Purchaser has agreed
to transfer the Real Property listed on Schedule 1 and 2 hereto owned by the IMC
Operating Companies and Xxxxxxx-Xxxxx, Inc. or one of its subsidiaries, to one
of the Special Purpose Restricted Subsidiaries (as defined in the Indenture) on
or prior to September 15, 1999.
D. In furtherance of its obligations pursuant to Sections 3.4.1 and 6.5 of
the Stock Purchase Agreement, Seller hereby agrees to take the actions set forth
herein after the Closing (as defined in the Stock Purchase Agreement) to cause
all of the Real Property to conform to the RE Representations.
E. It is a condition to the closing of the offering of First Mortgage Notes
that the properties listed on Schedule 1 and 2 will be owned by one of the
Special Purpose Restricted Subsidiaries and that a pledge of their equity
interests will be granted to the Trustee as collateral agent for and on behalf
of the holders of the First Mortgage Notes. Purchaser hereby agrees to take the
actions set forth herein to satisfy its obligations under the Indenture.
Capitalized terms not defined herein shall have the meanings ascribed to such
terms in the Stock Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. Purchaser's Due Diligence Period
With respect to the Real Property listed on Schedule 1 attached, Purchaser
shall have until June 1, 1999 (the "Due Diligence Period") to notify Seller in
writing of each such Parcel which, in the view of Purchaser, does not conform to
the RE Representations (each, a "Title Notice"). Each such Title Notice for a
Parcel shall specify, as applicable, the current record owner (the "Record
Owner"), the name of the IMC Operating Company in which title should be vested,
any releases of liens ("Needed Releases") and any other correcting instruments
("Needed Correcting Instruments") which, in the view of Purchaser, are necessary
to cause such Parcel to conform to the RE Representations, and shall include a
copy of Purchaser's title report confirming such matters.
2. Conveyances
(a) Seller agrees that, promptly after (but no later than September 15,
1999) Purchaser's delivery of a Title Notice identifying the current Record
Owner of any Parcel to be an entity other than one of the IMC Operating
Companies, Seller will, at Seller's sole expense, cause the Record Owner to
convey good and marketable title to such Parcel to the IMC Operating Company or
subsidiary thereof designated by Purchaser, in accordance with this Agreement,
together with all buildings and other improvements thereon, all fixtures
thereon, and all reversions, remainders, easements, rights-of-way,
appurtenances, tenements, hereditaments and water rights (if any) appertaining
to or otherwise benefiting such Parcel or any improvements thereon.
(b) Purchaser agrees that, as soon as possible (but no later than September
15, 1999), Purchaser shall convey good and marketable title to the Real Property
listed on Schedule 2 hereto to one of the Special Purpose Restricted
Subsidiaries, in accordance with this Agreement, together with all buildings and
other improvements thereon, all fixtures thereon, and all reversions,
remainders, easements, rights-of-way, appurtenances, tenements, hereditaments
and water rights (if any) appertaining to or otherwise benefiting such Parcel or
any improvements thereon.
3. Seller's Correction Of Other Title Matters
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Promptly after (but no later than September 15, 1999) receipt of Title
Notice from Purchaser in accordance with Section I identifying any Needed
Releases and/or Needed Correcting Instruments with respect to any Parcel of the
Real Property, Seller shall, at Seller's sole expense, deliver or cause to be
delivered to Purchaser such certificates of name change, certificates of merger,
Needed Releases and/or Needed Correcting Instruments, all legally sufficient and
in recordable form, as are necessary to cause such Parcel to conform to the RE
Representations; it being understood that upon such delivery, Seller shall have
fulfilled its obligation with respect to prompt delivery and shall not be held
responsible for delays caused by governmental bodies in processing or recording
any such document. If any Needed Release or Needed Correcting Instrument is
required as a result of a lease or a party in possession of a Parcel, Seller
also shall, at Seller's sole expense, deliver exclusive possession of such
Parcels to Purchaser.
4. Expenses
(a) As to the Real Property on Schedule 1, Seller shall pay all conveyance
and transfer taxes and recording fees for each Deed, Needed Release and Needed
Correcting Instrument. To the extent a lien relates to a liability for which
Purchaser would be entitled to indemnification under the Stock Purchase
Agreement, any liens to be paid by Seller in order to obtain Needed Releases
shall be paid and satisfied at Seller's expense. All expenses of operating the
Real Property shall be borne by the IMC Operating Companies according to the
Stock Purchase Agreement, notwithstanding any conveyance of title after the
Closing.
(b) As to the Real Property on Schedule 2, Purchaser shall pay all
conveyance and transfer taxes and recording fees for each Deed, Needed Release
and Needed Correcting Instrument.
5. Indemnification
(a) Notwithstanding any provisions to the contrary or limiting Seller's
liability under Section 7.3.8(a) or 7.3.8(b) of the Stock Purchase Agreement,
Seller shall indemnify Purchaser and the Collateral Agent for the benefit of the
holders of the First Mortgage Notes by October 15, 1999 from and against any and
all Damages incurred by Purchaser by reason of or arising out of a breach of any
covenant of Seller contained in this Agreement, including, for any Parcel not
conveyed to an IMC Operating Company in accordance with this Agreement by
September 30, 1999, an amount equal to the full fair market value of such Parcel
not conveyed, determined by an appraisal prepared for Purchaser by Valuation
Research Corporation, or if Valuation Research Corporation does not exist, by
another independent appraiser of similar standing to be agreed to by Seller and
Purchaser, provided, however, that Seller shall be required to indemnify and
hold harmless Purchaser or any third party beneficiary under this Agreement only
to the extent that the aggregate amount required to be paid by Seller pursuant
to this Agreement together with any amount paid pursuant to Section 7.3 of the
Stock Purchase Agreement does not exceed 10% of the Purchase Price. It is
understood and agreed by the parties hereto that (i) all amounts paid by Seller
hereunder shall be included in calculating any limitation on the amounts to be
paid by Seller pursuant to Article VII of the Stock Purchase
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Agreement on account of the cap set forth in Section 7.3.8(d) of the Stock
Purchase Agreement, and (ii) any Damages incurred by any Purchaser Indemnitee
indemnified hereunder shall be excluded in calculating the amount of Damages
incurred by any Purchaser Indemnitee for purposes of the deductibles of Section
7.3.8 of the Stock Purchase Agreement.
(b) Purchaser shall indemnify the Collateral Agent for the benefit of the
holders of the First Mortgage Notes by September 30, 1999, from and against any
and all losses, damages, liabilities, costs and expenses (including attorney's
fees) incurred by the Collateral Agent by reason of or arising out of a breach
of any covenant of Purchaser contained in this Agreement, including, for any
Parcel listed on Schedule 2 not conveyed to a Special Purpose Restricted
Subsidiary in accordance with this Agreement by September 15, 1999, an amount
equal to the full fair market value of such Parcel not conveyed, determined by
an appraisal prepared for Purchaser by Valuation Research Corporation, or if
Valuation Research Corporation does not exist, by another independent appraiser
of similar standing to be agreed to by Seller and Purchaser, provided, however,
that Purchaser shall be required to indemnify and hold harmless the Collateral
Agent or any third party beneficiary under this Agreement only to the extent
that the aggregate amount required to be paid by Seller pursuant to this
paragraph 2(b) does not exceed $5,000,000.
(c) The indemnification provided for in this Agreement shall terminate on
October 15, 1999 (and no claims shall be made by Purchaser or any third party
beneficiary under this Agreement thereafter), except that the indemnification by
Seller or Purchaser, as the case may be, shall continue as to any Damages of
which Purchaser, the Collateral Agent or a third party beneficiary has notified
Seller or Purchaser, as the case may be, in accordance with the requirements of
this Agreement on or prior to the date such indemnification would otherwise
terminate in accordance with this Section 5, as to which the obligation of
Seller and Purchaser shall continue until the liability of Seller and Purchaser
shall have been determined pursuant to this Agreement, and Seller and Purchaser,
as the case may be, shall have reimbursed Purchaser, the Collateral Agent or
such third party beneficiary, as the case may be, for the full amount of such
Damages that are payable in accordance with this Agreement.
(d) Except to the extent remedies cannot be waived as a matter of law,
indemnification pursuant to the provisions of this section shall be the
exclusive remedy (including any remedy which any party would otherwise have
pursuant to the Stock Purchase Agreement) of Purchaser for any of the matters
identified on Schedule 1 or which become the subject of a Title Notice.
(e) The indemnification provisions in paragraphs (a) and (b) above are
several but not joint obligations of the Seller and the Purchaser. No amounts
paid under each of the above paragraphs shall be applied against the maximum
indemnification limits of the other.
(f) Notwithstanding any of the foregoing, Purchaser shall not give any
notice or make any claims or demands pursuant to the indemnification provisions
of the Stock Purchase Agreement until the later of (i) October 15, 1999 or (ii)
the date on which all indemnification obligations of Seller hereunder shall have
been satisfied.
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6. Purchaser Obligations
(a) On or before September 15, 1999, Purchaser shall deliver to the Trustee
an Officers' Certificate (as defined in the Indenture) stating (i) those Parcels
listed on Schedule 1 hereto that have been properly conveyed to one of the IMC
Operating Companies or a subsidiary thereof in accordance with Paragraph 2
entitled "Conveyances" and the entity to which each was conveyed, (ii) those
Parcels that have not been properly conveyed and (iii) that no Default or Event
of Default exists with respect to the Indenture. Purchaser shall also attach to
the Officers' Certificate a valuation report prepared in accordance with
Paragraph 5 entitled "Seller's Indemnification" for those Parcels listed in
clause (ii) above and shall apply the proceeds pursuant to Section 4.22 of the
Indenture.
(b) On or before September 15, 1999, Purchaser shall deliver to the Trustee
an Officers' Certificate (as defined in the Indenture) stating (i) those Parcels
listed on Schedule 2 hereto that have been properly conveyed to one of the
Special Purpose Restricted Subsidiaries in accordance with Paragraph 2 entitled
"Conveyances" and the entity to which each was conveyed, (ii) those Parcels that
have not been properly conveyed and (iii) that no Default or Event of Default
exists with respect to the Indenture. Purchaser shall also attach to the
Officers' Certificate a valuation report prepared in accordance with Paragraph 5
entitled "Indemnification" for those Parcels listed in clause (ii) above and
shall apply the proceeds pursuant to Section 4.22 of the Indenture.
7. Sellers' Representations
Other than with respect to Article VII of the Stock Purchase Agreement,
this Agreement shall be considered an Ancillary Document for purposes of the
Stock Purchase Agreement.
8. General Provisions
(a) Time of Essence. Time is of the essence of each and every provision of
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this Agreement.
(b) Successors and Assigns. This Agreement shall be binding upon and inure
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to the benefit of the parties and their respective successors and assigns.
(c) Notices. Notices under this Agreement shall be in writing and if
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personally delivered, delivered by courier, or telefaxed shall be effective when
received. If mailed, a notice shall be deemed effective on the third business
day after deposited as registered or certified mail, postage prepaid, return
receipt requested, directed to the other party at the address shown above. All
notices to Seller shall be given to Seller at 0000 Xxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx 00000-0000, to the attention of General Counsel with a copy to Sidley &
Austin, Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, to the attention of
Xxxxx X. Xxxxx. All notices to Purchaser shall be given to Purchaser at
Xxxxxxx-Xxxxx, Inc., 00 Xxxxxxxxxxx Xxxxx, Xxxxx 0000, XX, XX 00000 to
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the attention of Xxxxxx Xxxxx, with a copy to Dechert Price & Xxxxxx, 00 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: Xxxxxx Xxxxx Young, Esq.,
Telecopier: (000) 000-0000. All notices to the Trustee shall be given to Trustee
at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, XX, XX 00000-0000 to the attention of Xxxxx
X. Xxxxx, with a copy to Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, 0000 Xxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000, Attention: Xxxxx X. Xxxx, Esq.,
Telecopier: (000) 000-0000. Any party may change its address for notices by at
least five (5) days advance written notice to the other.
(d) Waiver. Failure of either party at any time to require performance of
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any provision of this Agreement shall not limit the party's right to enforce the
provision. Waiver of any breach of any provision shall not be a waiver of any
succeeding breach of the provision or a waiver of the provision itself or any
other provision.
(e) Applicable Law. This Agreement shall be construed, applied and enforced
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in accordance with the laws of the State of New York.
(f) Changes in Writing. This Agreement and any of its terms may only be
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changed, waived, discharged or terminated by a written instrument signed by the
party against whom enforcement of the change, waiver, discharge or termination
is sought.
(g) Invalidity of Provisions. In the event any provision of this Agreement
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is declared invalid or is unenforceable for any reason, such provision shall be
deleted from such document and shall not invalidate any other provision
contained in this Agreement.
(h) Counterparts. This Agreement may be executed simultaneously or in
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
in duplicate as of the day and year first above written.
SELLER: IMC GLOBAL INC.
By: /s/ Xxxx Xxxxx
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Its: Sr. VP of Corporate Development
THE VIGORO CORPORATION
By: /s/ Xxxx Xxxxx
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Its: Sr. VP of Corporate Development
PURCHASER XXXXXXX-XXXXX, INC.,
a Delaware corporation
By: /s/ G. Xxxxxxx Xxxxxxxx
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Its:
TRUSTEE UNITED STATES TRUST COMPANY OF NEW YORK
a bank and trust company organized under the
banking laws of New York
By: /s/ Xxxxx X. Xxxxx
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Its: Vice President
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Schedule 1
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List of Real Property of IMC
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Schedule 2
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List of Real Property of Xxxxxxx Xxxxx
*ALL SITES ARE RETAIL UNLESS OTHERWISE NOTED
OWNED PREMISES
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MARYLAND
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1. 00000 Xxxxx Xxxxxxx Xx., Xxxxxx, XX (Xxxxxxxx County)
2. 00000 Xxxxxx Xxxx - Xx. 000, Xxxxxx, XX (Xxxx County)
3. 000 Xxxxxxx Xxxxxx, Xxxx Xxxx, XX (Worcester County)
NORTH CAROLINA
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1. Highway 55, Alliance, NC (Pamlico County)
2. Xxx. 00, Xxxxx Xxxx Xx., Xxxxxxxx, XX (Xxxxxx County)
3. Xxxxx Xxxx 0000, Xxxxx, XX (Pitt County)
4. 0000 Xxx Xxxx Xxxxxxx, Xxxxxxxx, XX (aka Maysville) (Onslow County)
5. Xxxxxxx 000 Xxxx, Xxxxxxxx, XX (Beaufort County)
6. 0000 Xxx. 00-X, Xxxxxxxxx, XX (Yadkin County)
7. 0000 Xxxxx Xxxxxx Xxxx, Xxxxx Xxxxxx, XX (Guilford County)
8. Xxx. 00 Xxxxx, Xxxxxxxx, XX (Xxxxxxx County)
9. Xxxxxxx 00, Xxxxxxxx, XX (Xxxxxxx County)
10. Xxxxx Chapel Road, Xxxxxxxxx City (aka Weeksville), NC (Pasquotank
County)
11. 00000 Xxxxx Xxxxx Xxxx, Xxxxxxxxx, XX (Hyde County)
12. X. Xxxxxx Xxxxxx, Xxxxxxxxx, XX (Pitt County)
13. Albermarle Street, Hertford, NC (Perquimans County)
14. 000 X. Xxxxxxxxxx Xxxxxx, XxXxxxxx, XX (Lenoir County)
15. Business Xxx. 00 Xxxx, Xxxxxxxxxx, XX (Scotland County)
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16. Xxxxxxxxxx Xxx., 000 Xxxx, Xxxxxxxxx, XX (Xxxxxxx County)
17. 0000 Xxxx Xxxxxx, Xxxxxxxxxxxx, XX (Hertford County)
18. Xxxxxxx Street, New Bern, NC (Xxxxxx County) (New Bern Nitgrogen
Terminal)
19. 0000 X. Xxxxxx Xxxxxx, Xxx Xxxx, XX (Xxxxxx County) (Blend Plant)
20. 000 Xxxxxxxx, Xxx Xxxx, XX (Xxxxxx County) ("Potash" Plant)
21. Xxx 000X, Xxx. 0, Xxxxxxxxxxxx, XX (Xxxxxx County)
22. Clay Street, Hwy. 11, Pink Hill, NC (Lenoir County)
23. Hwy. 111 S., Pink Hill, NC (Lenoir County) (Surplus Property)
24. 0000 XX Xxx. 00X, Xxxxxxxx, XX (Washington County) (Mallinckrodt
Storage Terminal and Retail Site)
25. 000 Xxxx Xxxxx Xxxx, Xxxxxxxxx, XX (Xxxxx County)
26. 000 X. Xxxxxx Xxxxxx, Xxx Xxxxxxx, XX (Xxxxxxx County) (Buildings)
27. 0000 Xxxxx Xxxx, Xxxxx Xxxxx, XX (Xxxxxxxx County)
28. Autryville Highway, Salemburg, NC (Xxxxxxx County)
29. Xxx. 00, Xxxxxxxx, XX (Currituck County)
30. 000 Xxxxxxxx Xxxxxx Xxxx, Xxxxxx, XX (Cleveland County)
31. Old Xxxxx Road, Sophia, NC (Xxxxxxxx County) (Blend Plant)
32. 0000 Xxxxxxxxxxxx Xxxx, Xxxxxxxxxxx, XX (Iredell County)
33. 0000 X. Xx. Xxxxx Xx. Xxx., Xxxxxxx, XX (Edgecombe County)
34. 0000 X. Xx. Xxxxx Xx. Xxx., Xxxxxxx, XX (Edgecombe County) (Telone
Repackaging Plant) (Distribution Ctr.)
35. 000 Xxxx Xxxxxx, Xxxxxxx, XX (Edgecombe County) (Corporate Office)
36. 000 X. Xx. Xxxxx Xxxxxx, Xxxxxxx, XX (Edgecombe County) (Tarboro
Distribution Ctr.)
37. Main & Xxxxxx Streets, Tarboro, NC (Xxxxxxxx County) (Car Wash)
38. N. Water St. Extension & N. Side, Tarboro, NC (Xxxxxxxx County) (Vacant
Lot)
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39. St. Xxxxx Street, Tarboro, NC (Xxxxxxxx County) (Whse. Albemarle
Bldg.#13 & 14)
40. Albermarie Avenue, Tarboro, NC (Xxxxxxxx County) (Vacant Land)
41. 00 Xxxxx Xxxx, Xxxxxxx, XX (Xxxxxxxx County) (Lot)
42. Xxxxx Xxxx 0000, Xxxxx Xxxx, XX (aka Pentego) (Beaufort County)
43. Xxxxxxx 00, Xxxxxxx, XX (Xxxxx County)
44. Xxxxxxx 00 Xxxxxxxx, Xxxxxxxxx, XX (Xxxxxx County)
45. Xxxxxx Xxxxxx Xxxx, Xxxxxxxx, XX (Xxxxxx County)
46. Xxxxx Xxxxx Xxxxxx, Xxxxxx, XX (Duplin County)
47. 000 X. Xxxx Xxxxxx, Xxxxxxxxxxx, XX (Xxxxxx County) (Williamston
Xxxxxxxx Xxxxxxxx)
00. 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX (Xxxxxx County)
49. 000 Xxxxx Xxx Xxxxxx, Xxxxxxxxxxx, XX (Yadkin County) (Retail and
Distribution Ctr.)
VIRGINIA
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1. 000 Xxx Xxxxxx XX, Xxxxxxxx, XX (Washington County)
2. 00000 Xxxxxxxx Xxx. Xx. 00, Xxxxxxxx, XX (aka Cape Xxxxxxx) (Accomack
County)
3. Xxx Xxxxx Xxxxx Xxxxxx, Xxxxx, XX (Xxxxx County)
4. Xxx. 00, Xxxxx Xxxx, XX (Mecklenburg County)
5. 000 Xxxxx Xxxxxx, Xxxxxxx, XX (Pittsylvania County)
6. 000 Xxxxxxxxx Xxxx Xx., Xxxxxxxxxx, XX (Chesapeake City County)
7. 0000 Xxxxxx X. Xxxxxxxx Xxxx, Xxxxxxxx Xxxx, XX (Halifax County)
8. 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, XX (Danville Circuit Court)
9. 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, XX (Xxxxxxxx County) (Blend Plant)
10. Xxxxxxx 000, Xxx Xxxxx, XX (Xxxxxxxxx County)
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11. 000 X. Xxxxxxxxx, Xxxxx Xxxx, XX (Mecklenburg County)
12. 000 Xxxxxxxx Xxxx, Xxxx Xxxxx, XX (King Xxxxxxx County) (West Point
Seed Plant and Retail Site)
13. Xxxxxxx 00 X., Xxxxxxxxxxx, XX (Xxxxxxxxx County) (Distribution Ctr.).
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