EXHIBIT 10.26
FIRST AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE OF STOCK
This First Amendment to Agreement for Purchase and Sale of
Stock (the "First Amendment") is made and entered into October 2,
1995 by and between MIDCOAST HOLDINGS NO. ONE, INC., a Delaware
corporation (also hereinafter referred to as ("SELLER"), XXXX
GATEWAY PIPELINE COMPANY, a Delaware corporation (also hereinafter
referred to as either "XXXX GATEWAY" or "ASSIGNOR") ; and XXXX XX
SERVICES, INC., a Kansas Corporation (also hereinafter referred to
as "BUYER").
Whereas, MIDCOAST HOLDINGS NO. ONE, INC., and XXXX GATEWAY
PIPELINE COMPANY entered into that certain Agreement for Purchase
and Sale of Stock dated September 6, 1995 (the Agreement); and
Whereas, the parties thereto and Xxxx XX Services, Inc., now
agree to amend the Agreement as set out in this First Amendment;
NOW THEREFORE, for the mutual covenants and agreements set
forth below, the parties to this First Amendment agree as follows.
1. Defined Terms. All capitalized terms used in this First
Amendment shall have the meanings set forth in the Agreement,
unless otherwise defined herein.
2. Parties. Pursuant to Section 22 of the Agreement, Xxxx
Gateway Pipeline Company assigns the Agreement and the rights and
obligations therein to XXXX XX SERVICES, INC. XXXX XX SERVICES,
INC., accepts such assignment and agrees to be bound by and to
fulfill the rights and obligations thereunder.
3. H&W Pipeline/H&W Stock. Pursuant to Section 1 of the
Agreement, Buyer elects not to purchase the H&W Stock. All
references to H&W Pipeline Corporation in the Agreement shall be
void and have no force or effect.
4. Purchase Price. The second paragraph of Section 1 of
the Agreement is stricken and amended to read as follows:
The amount to be paid by Buyer to Seller is Four Million
Six Hundred Fifty Thousand and No/100 Dollars ($4,650,000) for
the Five Flags Stock, subject to any adjustments, including
but not limited to adjustments for Seller's pro rata share of
ad valorem taxes attributable to periods prior to the
Effective Date, set forth on the closing statement prepared by
and agreed upon between Buyer and Seller attached hereto as
Schedule 1 (the "Closing Statement"). Such payment shall be
made by wire transfer of immediately available funds to a bank
account designated by Seller.
5. Closing Date and Effective Date. Section 3 of the
Agreement is stricken and amended to read as follows:
3. Closing and Effective Date. The parties agree that
all conditions to closing in the Agreement have been satisfied
or waived, except to the extent and manner for resolution
agreed upon by the Parties after closing set forth on the
written attachment to this First Amendment ("Attachment 1"),
if any, and find it in their best interests to proceed to
closing immediately on the purchase and sale of the Five Flags
Stock this 2nd day of October 1995 at the offices of Seller at
0000 Xxxxxxxxx, Xxxxxxx, Xxxxx, at 11:00 a.m. or such other
hour on that date as the parties may mutually agree (the
"Closing" and/or "Closing Date"). Upon Closing, the Parties
agree that the purchase and sale of the Five Flags Stock shall
be effective October 1, 1995 at 7:00 a.m., Florida time (the
Effective Date).
6. Section 6 of the Agreement is amended by adding at the
end of said section after subparagraph (i) the following paragraph:
Buyer and Seller agree that the amounts attributable to
the liabilities and obligations set forth on the Closing
Statement shall not be settled pursuant to this Section 6, but
rather shall be settled as an adjustment to the Purchase Price
at Closing pursuant to Section 1, as amended by this First
Amendment.
7. Section 7 of the Agreement is amended by adding at the
end of said section a new paragraph:
Buyer and Seller agree that the amounts attributable to
the accounts or notes payable and the accounts or notes
receivable set forth on the Closing Statement shall not be
settled pursuant to this Section 7, but rather shall be
settled as an adjustment to the Purchase Price at Closing
pursuant to Section 1, as amended by this First Amendment.
8. A new Section 37 shall be added which provides as
follows:
37. Additional Indemnifications.
(a) Ad valorem taxes. Notwithstanding any language
to the contrary in this Agreement, Seller expressly
agrees to indemnify Buyer for a period of three (3) years
for any losses, tax payments, penalties and interest
attributable to any failure by Five Flags Pipe Line
Company or its owners to file complete renditions and/or
the necessary information or forms or returns with the
appropriate county official and/or to pay ad
valorem/property taxes for all periods prior to the
Effective Date with respect to ad valorem/property taxes
attributable to that company's property located in
Escambia County, Florida. This provision shall not be
subject to the limitations set forth in Sections 18, 19,
20, or 21. At the Closing, Seller shall execute, and
shall cause its parent corporation, Midcoast Energy
Resources, Inc., a Nevada corporation, to execute and
deliver to Buyer an original of the Indemnity Agreement
attached hereto as Exhibit "K".
(b) Imbalances. Notwithstanding any language to
the contrary in the Agreement, Seller expressly agrees to
indemnify Buyer for any loss or losses attributable to
gas supply or gas transportation imbalances on the Five
Flags Pipe Line Company pipeline system, provided such
loss or losses arise from a matter identified by Buyer
within three (3) months from the Effective Date, provided
however, Five Flags Pipe Line Company shall have the
obligation to collect any imbalances in its favor to
offset any claims hereunder. This provision shall not
be subject to the limitations set forth in Sections 18,
19, 20, or 21. At the Closing, Seller shall execute, and
shall cause its parent corporation, Midcoast Energy
Resources, Inc., a Nevada corporation, to execute and
deliver to Buyer an original of the Indemnity Agreement
attached hereto as Exhibit "L".
(c) Defense of Matters in (a) or (b). Notice of
any claim for indemnification under subparagraphs (a) or
(b) or Exhibit "K" or "L" shall be given promptly to
Seller stating in reasonable detail the nature of such
claim and the amount thereof. If an action, suit or
proceeding is brought against Buyer or Seller with
respect to a matter indemnified pursuant to this Section
37, Seller or its parent corporation shall have the right
to assume the defense of any such action, suit or
proceeding. Buyer shall have the right in such instance
to participate in the defense of any such action, suit or
proceeding at its own expense, which in such event, all
Parties shall cooperate fully with each other and their
counsel in order to ensure a proper and adequate defense.
If Seller refuses or declines to defend such action, suit
or proceeding, Buyer shall have the right, at the expense
of Seller, to defend such action, suit or proceeding with
counsel of its own choosing.
9. Balance Sheet. Section 4(f) is amended to provide that
the Five Flags Balance Sheet to be attached as Schedule 4(f-2) will
be dated September 30, 1995.
10. Other Provisions in Agreement. All other provisions
in the Agreement not modified by this First Amendment shall remain
valid and in effect.
IN WITNESS WHEREOF, the Parties have executed or caused this
First Amendment to be executed in multiple originals by duly
authorized officers as of the day and year first above written.
MIDCOAST HOLDINGS NO. ONE, INC.
By: ______________________________
Xxx X. Xxxxxxx, President
XXXX XX SERVICES, INC.
By: ______________________________
Xxxxx Xxxxxxxx, Vice-President
XXXX GATEWAY PIPELINE COMPANY
By: ______________________________
Xxxx X. Xxxxxxx, President
ATTACHMENT 1
TO FIRST AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE OF STOCK
1. Satisfaction of Closing Conditions. The Parties agree
that the following conditions to Closing have not yet been met or
waived, but that it is in their best interest to proceed with
Closing immediately with the following understandings with respect
to said unfulfilled conditions:
NONE
SCHEDULE 1
TO AGREEMENT FOR PURCHASE AND SALE OF STOCK October 2, 1995
CLOSING STATEMENT
PURCHASE PRICE $4,650,000.00
ADD: ACCOUNTS RECEIVABLE
Outstanding Customer Invoices Not Paid
Month Customer Invoice # Volume Rate $ Amount
May-95 Premier Gas 0000-00-0000 2,905 0.113 $ 328.27
Xxx-00 Xxxxxxxx Xxxx 0000-00-0000 (1,340) 0.125 $ (167.50)
May-95 Prior Intrastate 0000-00-0000 3,300 0.02 $ 66.00
Xxx-00 Xxxxxxxx Xxxx 0000-00-0000 4,027 0.126 $ 503.38
Jun-95 Premier Gas 0000-00-0000 4,965 0.113 $ 561.05
Jun-95 Prior Intrastate 0000-00-0000 73,121 0.02 $ 1,462.42
Jul-95 Champion Not Invoiced 3,767 0.125 $ 470.87
Jul-95 Premier Not Invoiced 4,677 0.113 $ 528.50
Aug-95 Okaloosa Gas 0000-00-0000 $11,334.00
Aug-95 Champion Intl 0000-00-0000 4,516 0.125 $ 564.50
Aug-95 Champion Est/Not Inv. 4,247 0.113 $ 530.88
Aug-95 Premier Est/Not Inv. 4,247 0.113 $ 479.91
Sep-95 Okaloosa Gas Not Invoiced $11,334.00
Sep-95 Champion Int Not Invoiced 3,927 0.12 $ 490.88
Sep-95 Premier Not Invoiced 5,707 0.113 $ 644.89
Sep-95 Champion Not Invoiced 8,210 0.125 $ 1,026.25
Sep-95 XXXX Not Invoiced 91,807 0.03 $ 2,754,21
$32,912.51
(continued)
LESS: PAYABLES TO BE BACKED OUT OF PURCHASE PRICE
ESTIMATED COSTS
ELECTRIC XXXX $ 215.00
TELEPHONE XXXX $ 260.00
WATER XXXX $ 20.00
PROPERTY TAXES Jan'95-Sep'95 $ 11,636.93
PIPE SAFETY $ (1,290.20)
FIX NEWLY DMGD PIPE NEAR AIR PRODUCTS $ 7,000.00
SOUTHERN FLOW $ 206.00
$ 18,047.74
NET INCREASE TO PURCHASE PRICE $ 14,864.77
___________
Net Amount Due $4,664,864.77
SELLER BUYER
MIDCOAST NO. ONE HOLDINGS, INC. XXXX XX SERVICES, INC.
___________________________________ _________________________________
Xxx X. Xxxxxxx, President Xxxxx Xxxxxxxx, Vice President
