ASSIGNMENT OF FIXED PRICE PURCHASE OPTION
El Dorado Nitrogen, L.P. (“Assignor”) and Bayer
MaterialScience LLC (“Assignee”) hereby enter into
this Assignment of Fixed Price Purchase Option (“Assignment”) as
of June 23, 2009 (“Effective Date”) in reference
to the following:
WHEREAS, Assignor is the successor to
El Dorado Nitrogen Company (“Lessee”) under a certain
Lease Agreement dated as of June 27, 1997 (the “Lease”) with Xxxxx Fargo Bank
Northwest, N.A., successor in interest to Boatmen’s Trust Company of Texas, as
Lessor.
WHEREAS, Section 22 of the Lease grants
an end of lease term Fixed Price Purchase Option (“Purchase Option”) to purchase
the personal property subject to the Lease (the “Nitric Acid Plant”) under
certain conditions.
WHEREAS, by letter dated May 19, 2008,
a copy of which is attached hereto, Assignee instructed Assignor to exercise the
Purchase Option and notified Assignor that Assignee intends to pay the Fixed
Price Purchase Option Amount directly to the Lessor.
WHEREAS, Assignee has determined that
it desires to acquire the rights of the Assignor in connection with the exercise
of the Purchase Option, including purchasing the Nitric Acid Plant directly from
Lessor in connection with the exercise of the Purchase Option, and to facilitate
such acquisition, Assignee has requested that Assignor assign to Assignee all of
its rights and obligations relating solely to the Purchase Option.
WHEREAS,
Assignor entered into the Participation Agreement dated as of June 27, 1997,
with Lessor, BAL Investment & Advisory, Inc., successor in interest to
Security Pacific Leasing Corporation (the “Owner Participant”),
Wilmington Trust Company, as Indenture Trustee, Bayerische Landesbank, New York
Branch, as Note Purchaser, and Bank of America National Trust and Savings
Association, as Construction Loan Agent.
WHEREAS, by letter dated May 21, 2008,
Assignor notified the Lessor and the Owner Participant of its election to
exercise the Fixed Price Purchase Option in the name of the
Assignee.
WHEREAS,
Assignor desires to assist Assignee in purchasing the Nitric Acid Plant directly
from the Lessor by means of assigning Assignor’s rights relating to the Purchase
Option to Assignee as permitted by Section 19 of the Lease.
WHEREAS,
concurrently with such assignment, Assignee shall confirm that the Bayer Letter
shall remain fully in effect after giving effect to such
assignment.
NOW,
THEREFORE, for value received, the parties agree as follows:
AGREEMENT
1.
The Preamble above is incorporated in this Assignment as though each had been
fully repeated in this Section.
2.
Assignor hereby assigns and transfers to Assignee all of Assignor’s rights and
obligations relating to the Purchase Option.
3.
Assignee hereby assumes and agrees to perform all of Assignor’s obligations
relating to the Purchase Option, including the purchase of the Nitric Acid Plant
directly from Lessor and the payment of the Fixed Price Purchase Option Amount
in respect thereof.
4.
Assignee shall make direct arrangements with Lessor and its counsel to purchase
the Nitric Acid Plant. Assignee shall pay all transaction costs
(excluding legal costs) in connection with the exercise of the Purchase Option
and purchase of the Nitric Acid Plant.
5.
Assignee shall reimburse Assignor for all reasonable legal costs incurred by
Assignor in the preparation and execution of documents related to the Purchase
Option and purchase of the Nitric Acid Plant.
6.
Assignor makes no warranties or representations with respect to this Assignment,
and Assignor expressly disclaims any such warranties and
representations.
7.
This Assignment shall be binding upon and inure to the benefit of the parties
and their assigns and successors.
8.
If any provision in this Assignment is held invalid, the remaining provisions
shall continue in full force and effect.
9.
This Assignment shall be governed by and construed according to the laws
of the State of Texas.
10.
This Assignment may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
11.
This
document expresses the entire agreement between the parties concerning the
subject matter hereof and supersedes all previous oral or written agreements
between the parties concerning the subject matter hereof.
2
12.
Capitalized
terms used herein and not defined herein shall have the meanings assigned to
such terms in the Lease.
IN
WITNESS WHEREOF, the parties have executed this Assignment on the date first
written above.
EL DORADO NITROGEN, L.P.,
a Texas limited
partnership
By:_________________________________
Name:_______________________________
Title:________________________________
BAYER MATERIALSCIENCE
LLC,
a Delaware limited liability
company
By:_________________________________
Name:_______________________________
Title:________________________________