ASSET PURCHASE AND SALE AGREEMENT
BETWEEN
XXXXXX OIL COMPANY LTD
AND -
PLAINS MARKETING CANADA, L.P.
TABLE OF CONTENTS
Article 1 DEFINITIONS AND INTERPRETATION 3
1.1 Definitions...................................................... 3
1.2 Schedules........................................................ 23
1.3 Included Words................................................... 25
1.4 Invalidity of Provisions......................................... 25
1.5 Knowledge........................................................ 25
1.6 Headings......................................................... 26
1.7 Statutory References............................................. 26
Article 2 PURCHASE AND SALE 26
2.1 Purchase and Sale................................................ 26
2.2 Purchase Price................................................... 26
2.3 Adjustments Subsequent to Closing Date........................... 30
2.4 Sales and Value Added Taxes...................................... 32
2.5 Disputed Payments and Interest on Overdue Payments............... 33
2.6 Payments......................................................... 34
2.7 Transaction Costs................................................ 34
2.8 Working Stock Inventory.......................................... 34
Article 3 CLOSING 35
3.1 Transfer of Title................................................ 35
3.2 Payment of Consideration and Sales and Value Added Taxes......... 35
3.3 Conveyances and Agreements....................................... 36
3.4 Registration and Delivery of Conveyance Documents................ 40
3.5 Vendor's Closing Conditions...................................... 41
3.6 Purchaser's Closing Conditions................................... 43
3.7 Fulfillment of Conditions Precedent.............................. 47
Article 4 INTERIM MATTERS 48
4.1 Operation of the Assets.......................................... 48
4.2 Discharge of Security............................................ 50
4.3 Rights of First Refusal.......................................... 51
4.4 Insurance........................................................ 53
4.5 Damage to Assets................................................. 53
Article 5 REPRESENTATIONS AND WARRANTIES 54
5.1 Representations and Warranties of Vendor......................... 54
5.2 Disclaimer and Acknowledgement................................... 65
5.3 Representations and Warranties of Purchaser...................... 67
5.4 Survival of Representations and Warranties and Other Covenants... 68
Article 6 ENVIRONMENTAL MATTERS AND INDEMNITIES 70
6.1 Environmental Matters............................................ 70
6.2 General Indemnities.............................................. 75
6.3 Subrogation...................................................... 79
6.4 Due Diligence Completed After Closing............................ 79
6.5 Milk River....................................................... 80
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Article 7 EMPLOYEES 80
7.1 Offer of Employment.............................................. 80
Article 8 GENERAL 83
8.1 Further Assurances............................................... 83
8.2 Governing Law.................................................... 84
8.3 Waiver........................................................... 84
8.4 Time 85
8.5 Notices.......................................................... 85
8.6 Signs 87
8.7 Assignment....................................................... 87
8.8 Confidentiality.................................................. 88
8.9 Access to Records................................................ 90
8.10 Enurement........................................................ 90
8.11 Entire Agreement................................................. 91
ASSET PURCHASE AND SALE AGREEMENT
This ASSET PURCHASE AND SALE AGREEMENT is made the 28th day of February, 2001
BETWEEN:
XXXXXX OIL COMPANY LTD., a corporation incorporated under the laws of
Canada and carrying on business in Calgary, Alberta (hereinafter
called "Vendor")
- AND -
PLAINS MARKETING CANADA, L.P., a limited partnership formed under the
laws of Alberta and carrying on business in Calgary, Alberta
(hereinafter called "Purchaser")
WHEREAS Vendor wishes to sell, assign and convey the Assets to Purchaser and
Purchaser wishes to purchase and accept such assignment and conveyance of the
Assets from Vendor;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises,
mutual covenants, agreements and warranties hereinafter set forth and contained,
the parties hereto respectively covenant and agree as follows.
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ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement, including the recitals, this Article and the Schedules
attached hereto, unless the context otherwise requires, or unless otherwise
defined herein:
"ADJUSTED STATEMENT" has the meaning set forth in clause 2.3;
"AFFILIATE" means, with respect to the relationship between two (2) Persons,
that one of them controls, or is controlled by, the other or that both of them
are controlled by another Person where "control" means the direct or indirect
ownership of more than fifty percent (50%) of the issued and outstanding voting
securities or interests of the Person;
"AGREEMENT" means this Asset Purchase and Sale Agreement;
"ALLENBY LEASE" means the lease agreement with respect to the Allenby Repair
Shop Building, to be entered into between Vendor and Purchaser on the Closing
Date, substantially in the form attached as Schedule 22;
"ALLENBY REPAIR SHOP BUILDING" means a truck repair shop on Xxxxxx owned
property a short distance south of Lloydminster;
"APPLICABLE LAW" means:
(a) all federal, provincial, state, local and municipal laws, statutes,
by-laws, rules, regulations and orders;
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(b) all directives, guidelines, information letters, interim directives
and bulletins, of any Government Authorities; and
(c) all judgments, orders and decrees of all courts, arbitrators and
Government Authorities and bodies exercising similar functions in
actions or proceedings in which the Person in question is a party or
by which it is bound or having application to the transaction or event
in question;
"ASSETS" means the assets owned or leased by Vendor in the operations and
activities of the Business consisting of the following:
(a) Vendor's entire interest in the Pipelines;
(b) Vendor's entire interest in the Facilities;
(c) the Intangible Rights and Interests;
(d) the Linefill;
(e) the Inventory (of which excess Inventory is to be paid for separately
in accordance with Section 2.2(a));
(f) the Lands and Surface Rights;
(g) the Vehicles and the Spur Trailers;
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(h) the assets related to, or used in or held for use in the operations
of, Spur Services, including lab facilities and equipment and meter
provers and related equipment;
(i) the Lloydminster Warehouse;
(j) the Lloydminster Shop Building;
(k) the Allenby Repair Shop Building;
(l) the tools, spare parts, furniture, office equipment, office supplies,
shop supplies, communications equipment and all other ancillary
equipment used or held for use in operating the Business;
(m) the claims, causes of action, rights of recovery and rights of set-off
of Vendor against third parties relating to the Assets, including all
rights of Vendor under manufacturers', repairers' and vendors'
warranties and guarantees, liens, security interests, pledges or any
rights of payment; and
(n) all proceeds received or receivable on or after the Effective Time
from insurers or third parties in respect of unrepaired damage to any
of the Assets that occurred prior to the Closing Date;
but excludes the Excluded Assets;
"BODO FACILITY" means the assets described in the schematic titled "Bodo
Facility" in Schedule 1;
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"BUSINESS" means the following businesses carried on in British Columbia,
Alberta and Saskatchewan by Vendor's Supply and Transportation Department at the
Effective Time:
(a) the transportation and storage of Pipeline Substances by use of any
pipeline or tankage that Vendor operates or in which Vendor owns an
interest;
(b) the transportation of Pipeline Substances by trucks and/or trailers
owned by or operated under contract with Vendor;
(c) the marketing and trading of third party Pipeline Substances; and
(d) Spur Services and Spur Trucking;
"BUSINESS DAY" means any day of the week except a Saturday, a Sunday or any
statutory or legal holiday in Calgary, Alberta or in New York, New York;
"CACTUS LAKE FACILITY" means the assets described in the schematic titled
"Cactus Lake Facility" in Schedule 1;
"CAPITAL PROJECTS" means the projects described in Schedule 2;
"CLAIM" means any legal claim, written demand, loss, liability, cause of action,
penalty, fine, cost (including legal expenses of the claimant on a "solicitor
and his own client" basis and all reasonably incurred consulting fees and all
costs of complying with any
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order, rule, decree or direction of any Government Authority), pre- and post-
judgment interest, damages and expenses of every kind and character;
"CLOSING" means the completion of the transactions contemplated by this
Agreement and all matters incidental thereto in accordance with the terms and
conditions of this Agreement;
"CLOSING DATE" means the later of (i) February 28, 2001, and (ii) the fifth
(5th) Business Day following receipt of all regulatory approvals and all third
party consents with respect to the assignment of all agreements for which third
party consents are required for Closing as listed in Schedule 12, or (iii) such
other date as may be mutually agreed to, in writing, by the parties hereto;
"CLOSING TIME" means 10:00 a.m. Calgary time on the Closing Date;
"COMPETITION ACT" means the Competition Act (Canada), as amended;
"COMPETITION ACT APPROVAL" means that:
(a) the Commissioner of Competition (the "Commissioner") appointed under
the Competition Act has issued an advance ruling certificate pursuant
to Section 102 of the Competition Act in respect of the Reviewable
Transactions; or
(b) the Competition Act Notification has been given and either:
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(i) the applicable waiting period under Section 123 of the
Competition Act has expired without the Commissioner having
advised the parties that he intends to apply to the Competition
Tribunal for an order under Section 92 or Section 100 of the
Competition Act in respect of the Reviewable Transactions; or
(ii) the Commissioner has advised Purchaser that the Commissioner does
not intend at that time to apply to the Competition Tribunal for
an order under Section 92 of the Competition Act in respect of
the Reviewable Transactions;
"COMPETITION ACT NOTIFICATION" means an application for an advance ruling
certificate and a short form notification in respect of the Reviewable
Transactions pursuant to Sections 102 and 114 of the Competition Act;
"CONFIDENTIALITY AGREEMENT" means the Confidentiality Agreement between Vendor
and Purchaser dated October 20, 2000;
"CONTRACTS" means, as used in the Business:
(a) the contracts, leases and other agreements in Schedule 4 for the
transportation, supply, purchase, sale, use, exchange, transmission,
gathering, storage, terminalling, delivery, blending or marketing of
Pipeline Substances;
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(b) the contracts in Schedule 4 under which Vendor is entitled to use the
facilities, vehicles or property of a third party in connection with
Vendor's use of the Facilities and all contracts, agreements or
arrangements under and by virtue of which a third party has rights to
use any of the Facilities;
(c) the leases and use agreements in Schedule 4 to which Vendor is a party
as principal and not as agent in respect of Vehicles and the Enbridge
Lease;
(d) the contracts in Schedule 4 under which Vendor receives operational,
administrative, marketing or other services from third parties
exclusively in connection with the Assets;
(e) the contracts in Schedule 4 under which Vendor receives the services
of owners and operators of highway tractors;
(f) the operating agreements, dedication agreements, and contractual
rights, including rights of first refusal in Schedule 4; and
(g) the PanCanadian Reserves Dedication Agreement;
"COSTS" means all costs and expenses of every kind and nature relating to the
Assets including maintenance, capital and operating costs and property taxes,
including employee, consultant and contractor salaries, (grossed up in
accordance with subclause 2.2(c) to cover and account for general and
administrative expenses and overhead), and excluding other general and
administrative expenses, overhead and all
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costs and expenses incurred by Vendor in connection with the remediation
contemplated in subclause 6.1(a);
"DOLLAR" or "$" means a United States Dollar, unless otherwise indicated;
"EFFECTIVE TIME" means 7:00 a.m., Calgary time, on February 1, 2001;
"EMPLOYEE PLANS" has the meaning given in subclause 5.1(o);
"EMPLOYEES" has the meaning given in subclause 5.1(r);
"ENBRIDGE LEASE" means the lease by Vendor of one 56,000 barrel condensate tank
owned by Enbridge and located at their Kerrobert station;
"ENVIRONMENTAL APPROVALS" means all authorizations, orders, permits, licences,
approvals and registrations necessary as at the Effective Time pursuant to
Environmental Law for the use, operation or ownership of any of the Assets;
"ENVIRONMENTAL DEFICIENCY" means, with respect to the Assets, any Release, the
occurrence or existence of which results in a condition in existence at the
Closing Time that:
(a) does not comply with an Environmental Law; or
(b) would have an adverse offsite impact if there was migration or removal
of a Hazardous Substance that would constitute non-compliance with an
Environmental Law;
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and in either case a prudent operator would commence remediation of within three
(3) years of its identification and assessment;
"ENVIRONMENTAL LAW" means all Applicable Laws, any provision or condition of any
Environmental Approvals or other Governmental Approvals or any statute or other
law including, without limitation, any law relating to nuisance, trespass or
strict liability (Xxxxxxx x. Xxxxxxxx) in any case that regulates or relates to
the protection or clean-up of the environment, the use, treatment, storage,
transportation, handling or disposal of a Hazardous Substance, the preservation
or protection of soils, waterways, surface water, groundwater, drinking water,
air, wildlife, plants or other natural resources, or the public health and
public safety of persons or property;
"ENVIRONMENTAL LIABILITIES" means any and all Claims (including remedial,
removal, response, abatement, cleanup, investigative and monitoring costs or
otherwise) in respect of any Environmental Deficiency;
"EXCISE TAX ACT" means the Excise Tax Act (Canada), as amended;
"EXCLUDED ASSETS" means the assets, lands, substances and things described in
Schedule 1.1;
"FACILITIES" means the facilities that are described under the heading
"Facilities and Pipelines" in Schedule 1, the Linefill and all control and
monitoring facilities and equipment (other than those described in Schedule
1.1) used in connection with the operation of the facilities described in
Schedule 1;
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"GAAP" means Canadian generally accepted accounting principles at the Effective
Time;
"GOVERNMENTAL APPROVALS" means all authorizations, orders, permits, licences and
approvals that are:
(a) necessary or required for the use, operation or ownership of any of
the Assets; and
(b) issued pursuant to Applicable Law;
and includes all Environmental Approvals;
"GOVERNMENT AUTHORITY" means any federal, provincial, state or local government
or any department, agency, board or tribunal of or established by such
government that has jurisdiction over any of the Assets, or the Business;
"HAZARDOUS SUBSTANCE" means any quantity of asbestos in any form, urea
formaldehyde, PCBs, radon gas, crude oil or any fraction thereof, brine, all
forms of natural gas, petroleum and other hydrocarbons or by-products, any
toxic, infectious, reactive, radioactive, explosive, corrosive, ignitable or
flammable chemical, chemical compound or mixture thereof, any form of energy
(including heat, noise, electro-magnetic and atomic energy) and any other
hazardous or dangerous substance, material or waste, all as defined in or for
purposes of any Environmental Law, whether solid, liquid or gas, or any
combination thereof;
"HIRED EMPLOYEES" has the meaning given in subclause 7.1(b);
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"INCOME TAX ACT" means the Income Tax Act (Canada), as amended;
"INTANGIBLE RIGHTS AND INTERESTS " means the entire right, title, estate and
interest of Vendor in and to all property, rights and assets that are not
Facilities, Vehicles, Inventory or Excluded Assets but that relate to the
Facilities, Vehicles or Inventory, including the interest of Vendor in the
following property, rights and assets:
(a) the Contracts;
(b) the Surface Rights;
(c) the Governmental Approvals described in Schedule 5;
(d) the books, records, documents, plant and other reports, files, data,
interpretations, information, tapes, disks, papers and other records
that relate to or are necessary or useful in connection with any of
the Facilities or any of the Assets referred to in the other
subclauses of this definition, excluding any that are maintained by
Vendor solely for its income tax purposes;
(e) the licences, permits or authorizations from third parties described
in Schedule 5 that are used by Vendor for the purposes of the
Business, and that are not Government Approvals;
(f) the licences described in Schedule 6 relating to the use of third-
party software, processes and technology, but excluding those
described in Schedule 1.1; and
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(g) Customer lists and shipper information relevant to the Business;
"INTERIM STATEMENT" has the meaning given in subclause 2.2(c);
"INTERIM PERIOD" means the period of time from the Effective Time to and
including the Closing Date;
"INVENTORY" means, at a particular time, Pipeline Substances owned by Vendor,
for the purposes of the Business (other than any that are Excluded Assets and
Linefill) which, at the particular time were:
(a) Pipeline Substances contained within any storage facility included in
the Facilities;
(b) Pipeline Substances contained within any storage facility owned by a
third party and leased to Vendor;
(c) Pipeline Substances (including, without limitation, condensate in
feeder pipelines) contained within any third-party common carrier
pipeline system; or
(d) all other Pipeline Substances Vendor owns in any tanks used in the
Business, including tank bottoms, except as included in Working Stock
Inventory;
but shall not include:
(e) pipeline blend held in the Kerrobert Tanks;
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"INVENTORY VALUE" means the aggregate of the value of all or any portion of the
Inventory determined in accordance with Schedule 3;
"INVESTMENT CANADA ACT" means the Investment Canada Act (Canada), as amended;
"INVESTMENT CANADA APPROVAL" means the notice sent by the Minister (as defined
in the Investment Canada Act), in respect of the Reviewable Transactions,
pursuant to Section 21 of the Investment Canada Act that the Minister is
satisfied that the Reviewable Transactions are likely to be of net benefit to
Canada;
"KERROBERT TANKS" means the tankage at Kerrobert for storage of Pipeline
substances as contained in the schematic in Schedule 1 titled "Kerrobert
Terminal";
"LANDS" means the real properties on which the Assets are located, which are
described under the heading "List of Real Properties" in Schedule 1;
"LIBOR" means the rate of interest per annum which appears on page 3750 of the
Telerate Screen at approximately 11:00 a.m. (London, England time) on the date
at which the calculation of interest payable at such rate commences; or if such
Telerate screen is not available then the rate of interest per annum which
appears on the Reuters screen LIBOR 01 page at approximately 11:00 a.m. (London,
England time) on that date; or if such Reuters screen is not available then the
LIBOR Rate shall be the annual rate of interest offered by leading banks in the
London interbank market for delivery on that date, for a period equal to the
applicable period for which interest is payable at that rate;
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"LINEFILL" means the aggregate quantity of Petroleum Substances that is, at the
Effective Time, contained in the Pipelines except for the Wascana Pipeline,
which has been purged and is filled with nitrogen;
"LLOYDMINSTER OFFICE BUILDING" means Xxxxxx'x office building in Lloydminster;
"LLOYDMINSTER OFFICE LEASE" means the lease with respect to the Lloydminster
Office Building to be entered into between Vendor and Purchaser on the Closing
Date, substantially in the form attached as Schedule 24;
"LLOYDMINSTER SHOP AND WAREHOUSE LEASE" means the lease with respect to the
Lloydminster Warehouse and the Lloydminster Shop Building, substantially in the
form attached as Schedule 23;
"LLOYDMINSTER SHOP BUILDING" means the building located in Lloydminster on land
shared by the Lloydminster office building and used by Vendor for a shop;
"LLOYDMINSTER WAREHOUSE" means the building located in Lloydminster on land
shared by the Lloydminster office building and used by Vendor for a warehouse;
"LONE ROCK STATION PROPERTY" means the Manito Pipeline station located at Lone
Rock;
"MATERIAL" means that the Contract, change, fact, effect or other matter with
respect to which the word "Material" is used has a value, impact or effect that
has a significant impact on the value or operation of any of the Facilities or
Pipelines;
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"MATERIAL ADVERSE CHANGE" means a change, event, fact or omission in or
affecting the financial condition, assets, business or operations of the
Business that has a material adverse effect on the value of the Business, taken
as a whole, other than those resulting from industry-wide conditions or general
economic conditions affecting the industry in which the Business is carried on;
"XXXXXX TRANSPORTATION AGREEMENT" means the Xxxxxx Transportation Agreement to
be entered into between Vendor and Purchaser on the Closing Date, in the form
attached as Schedule 9;
"NEB APPROVALS" means the approvals of the National Energy Board (Canada)
pursuant to Section 74 of the National Energy Board Act (Canada) for the sale
and purchase of specific Assets contemplated herein;
"NON-COMPETITION AGREEMENT" means the Non-Competition Agreement to be entered
into between Vendor and Purchaser on the Closing Date, in the form attached as
Schedule 7;
"NORTH SASK FACILITY" means those assets described in the schematic titled
"North Sask Facility" in Schedule 1;
"PANCANADIAN" means PanCanadian Petroleum Limited;
"PANCANADIAN RESERVES DEDICATION AGREEMENT" means the agreement attached as
Schedule 10;
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"PERMITTED ENCUMBRANCES" means:
(a) written and fully executed easements, rights of way, servitudes,
permits, licences and other similar rights in land, including, without
limitation, rights of way and servitudes for railways, sewers, drains,
gas, oil and Pipeline Substances pipelines, water pipelines, gas and
water mains, electric light, power, telephone, communication,
computer, instrumentation or cable television conduits, poles, wires
and cables, including guy wires, footings and other associated
structures and facilities;
(b) liens imposed by statute securing the payment of taxes, assessments or
other charges levied by Government Authorities that are not due;
(c) rights of any Government Authority to levy taxes on the Assets or to
limit, control or regulate any of the Assets in any manner and all
Applicable Laws;
(d) undetermined or inchoate liens (including, without limitation,
processors', operators' and similar liens) against the Assets arising
in the ordinary course of business for Vendor's proportionate share of
the costs and expenses of operation of the Facilities, which costs and
expenses are not due or delinquent;
(e) mechanics', builders' and materialmen's liens in respect of services
rendered or goods supplied, but only in so far as such liens relate to
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goods or services that have been delivered and for which payment is
not due;
(f) liens granted in the ordinary course of business to a public gas,
electric, water or similar utility or Government Authority in
connection with the operation of the Assets in respect of which no
amount is due; and
(g) any reservations, limitations, provisos and conditions contained in
any original grants from the Crown of any Lands and all statutory
exceptions to title affecting such Lands;
provided that royalties, liens, mortgages, security interests and similar
encumbrances contained therein will only be Permitted Encumbrances to the extent
they are described or included in agreements described in subclauses (a) to (g)
above inclusive;
"PERSON" means any individual, corporation, company, unlimited liability
company, partnership, joint venture, trust, unincorporated association or any
judicial entity or a Government Authority;
"PIPELINE BLEND" means crude oil blended with diluent;
"PIPELINES" means the pipeline systems, including laterals, which are listed
under the heading "Facilities and Pipelines" in Schedule 1 hereto, together with
all Linefill;
"PIPELINE SUBSTANCES" means crude oil, condensate, butane and pipeline blend;
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"XXXXX XX XXXXXXX" means the offices of Xxxxxxx Xxxxx, Purchaser's counsel, at
0000 Xxxxxxx Xxxx Xxxx, 855 - 2nd Street SW, Calgary, Alberta, or as otherwise
agreed to by the parties;
"PRIME RATE" means the rate of interest expressed as a percentage per annum used
and announced from time to time by the Chase Manhattan Bank at New York, New
York, as its reference rate then in effect for determining interest rates on
Dollar commercial demand loans to customers in the United States; and each
change in the Prime Rate shall be effective from and including the date such
change is publicly announced as being effective;
"PURCHASE PRICE" has the meaning given in subclause 2.2(a);
"RELEASE" means to spill, leak, pump, pour, emit, empty, discharge, inject,
escape, migrate, xxxxx, dump or dispose into the environment (including the
atmosphere, soil, ground water and surface water) any Hazardous Substance, or as
"release" is otherwise defined in any Environmental Law, and where used as a
noun "Release" has a corresponding meaning;
"REPRESENTATIVES", with respect to a Party, means the directors, officers,
employees, agents, consultants or other authorized representatives of the party;
"REVENUE" means all benefits, revenue and income of every kind arising from the
ownership or operation of or otherwise relating to the Assets;
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"REVIEWABLE TRANSACTIONS" means the transactions contemplated herein, to the
extent they are subject to review under Part IX of the Competition Act or
Section 16 of the Investment Canada Act, as the case may be;
"RIGHT OF FIRST REFUSAL" means a right of first refusal, pre-emptive right of
purchase or similar right whereby a Person has the right to acquire or purchase
all or any of the Assets as a consequence of Vendor having agreed or proposed to
agree to sell the Assets to Purchaser in accordance with this Agreement;
"ROFR ASSETS" has the meaning given in clause 4.3;
"ROFR NOTICES" has the meaning given in clause 4.3;
"ROFR VALUE" has the meaning given in clause 4.3;
"SALES AND VALUE ADDED TAXES" means any federal, provincial, state, municipal or
local sales or use tax, tax on services, land or property transfer tax and
assessments or any other tax (other than income tax) that is payable as a
consequence of the sale of the Assets to Purchaser as contemplated by this
Agreement including the goods and services tax ("GST") established by and
administered pursuant to the Excise Tax Act;
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"SECURITY INTEREST" means any hypothec, mortgage, pledge, security interest,
encumbrance, lien, charge or deposit arrangement or any other arrangement or
condition that in substance secures payment or performance of an obligation and
includes the interest of a vendor or lessor under any conditional sale
agreement, capitalized lease or other title retention agreement;
"SPUR SERVICES" means the following:
(a) terminalling services at Kerrobert and Unity;
(b) SCADA (supervisory control and data acquisition) for the Pipelines;
(c) lab services at Unity and Kerrobert; and
(d) meter proving services using the ballistic prover of the Business;
"SPUR TRAILERS" means the trailers listed in Schedule 1.3 under the heading
"Spur Trailers";
"SPUR TRUCKING" means the portion of the Business that consists of the use and
operation of the Spur Trailers;
"SURFACE RIGHTS" means all rights of Vendor (whether fee simple estates,
leasehold estates, easements, licences, rights of way or rights of entry) to
enter upon, use or occupy the surface of the Lands;
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"TRANSITION SERVICES AGREEMENT" means the Transition Services Agreement to be
entered into between Vendor and Purchaser on the Closing Date, in the form
attached as Schedule 21;
"U.S. DOLLAR" or "U.S. $" means a United States Dollar;
"VEHICLES" means all of the light duty trucks, motor vehicles, and other
vehicles leased by Vendor and used primarily in the Business, which are
described in Schedule 1.3 under the heading "Vehicles";
"WASCANA TANKS" means tanks that form part of the Wascana Pipeline and are
composed of one (1) 96,000 barrel tank and two (2) 56,000 barrel tanks as
described on the schematic in Schedule 1 titled "Wascana Pipeline";
"WORKING STOCK INVENTORY" means that portion of the Inventory amounting to
30,000 bbls of Pipeline Blend and 70,000 barrels of condensate; and
"WORKING STOCK INVENTORY VALUE" means the aggregate of the value of the Working
Stock Inventory, determined in accordance with Schedule 3.
1.2 SCHEDULES
The following schedules are attached to and form parts of, this Agreement:
Schedule 1 - Facilities and Pipelines
Schedule 1.1- Excluded Assets
Schedule 1.2- Committed Crude
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Schedule 1.3- Vehicles and Spur Trailers
Schedule 2 - Capital Projects
Schedule 3 - Inventory Valuation
Schedule 4 - Contracts
Schedule 5 - Governmental Approvals
Schedule 6 - Licences and Technology Agreements
Schedule 7 - Non-Competition Agreement
Schedule 8 - General Disclosure
Schedule 9 - Xxxxxx Transportation Agreement
Schedule 10 - PanCanadian Reserves Dedication Agreement
Schedule 11 - Price Allocation
Schedule 12 - Third Party Consents
Schedule 13 - Purchaser's Counsel's Opinion
Schedule 14 - Vendor's Counsel's Opinion
Schedule 15 - Authorized Expenditures
Schedule 16 - Trademark License Agreement
Schedule 17 - Employees
Schedule 18 - Environmental Disclosure
Schedule 19 - Form of Assignment of PanCanadian Reserves
Dedication Agreement
Schedule 20 - Insurance Coverage
Schedule 21 - Transition Services Agreement
Schedule 22 - Form of Lease for Allenby Truck Shop Building
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Schedule 23 - Form of Lease for Lloydminster Shop Building and
Lloydminster Warehouse
Schedule 24 - Form of Lease for Lloydminster Office Building
Schedule 25 - Consents and Title Deficiencies
1.3 INCLUDED WORDS
In this Agreement, words importing the singular include the plural and vice
versa. Where a term is defined in this Agreement, a capitalized derivative of
such term shall have a corresponding meaning, unless specifically provided
otherwise.
1.4 INVALIDITY OF PROVISIONS
If any of the provisions of this Agreement should be determined to be invalid,
illegal or unenforceable in any respect, the validity, legality or
enforceability of the remaining provisions herein shall not in any way be
affected or impaired thereby.
1.5 KNOWLEDGE
Where in this Agreement a representation or warranty is made on the basis of the
Knowledge of Vendor, such Knowledge consists only of the actual knowledge, as of
the date of signing this Agreement and the Closing Date, of the following
employees of Vendor: Xxxxxx Xxxxxxxx; Xxxxxx Xxxxxxxx; Xxxx Kers; Xxxx Xxxxxx;
Xxx Xxxxxx (only with respect to Contracts and subclause 5.1(bb)); Xxxxxxx Xxxxx
(only with respect to environmental matters); and Xxx Xxxxxxx (only with respect
to subclause 5.1(h)), but does not include the knowledge of any other individual
or any constructive, implied or imputed knowledge.
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1.6 HEADINGS
The headings of the articles and clauses of this Agreement and of the schedules
are inserted for convenience of reference only and shall not affect the meaning,
interpretation or construction of the provisions hereof.
1.7 STATUTORY REFERENCES
Any reference herein to a statute, shall include and be deemed to be a reference
to such statute and to the regulations made pursuant thereto, and all amendments
made thereto from time to time, and to any statute or regulation that has the
effect of supplementing or superceding the statutes so referred to or the
regulations made pursuant thereto.
ARTICLE 2
PURCHASE AND SALE
2.1 PURCHASE AND SALE
In accordance with, and subject to the terms and conditions of this Agreement
and for the consideration provided for herein, Vendor shall sell, assign and
convey the Assets to Purchaser, and Purchaser shall purchase, pay for and accept
the Assets from Vendor.
2.2 PURCHASE PRICE
(a) The aggregate purchase consideration to be paid by Purchaser to Vendor
for the Assets shall be One Hundred Fifty Four Million Six Hundred and
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Twenty-Five Thousand Dollars ($154,625,000) (the "Purchase Price").
The Purchase Price shall be adjusted upward by the Inventory Value of
the excess, if any, of the Inventory at the Effective Time over and
above the Working Stock Inventory at the Effective Time.
If Closing occurs, Vendor shall have been operating the Business for
the account of Purchaser during the Interim Period such that all
Revenue and Costs attributable to the Interim Period shall be for the
account of Purchaser. All tax returns, elections and other documents
filed and all other communications by Purchaser and Vendor with Canada
Customs and Revenue Agency (other than with respect to GST), shall
reflect this. As a result, at Closing, Vendor shall pay Purchaser (if
the amount is positive) or Purchaser shall pay Vendor (if the amount
is negative) the amount determined by deducting Costs attributable to
the Interim Period from Revenues attributable to the Interim Period.
Adjustments to the Purchase Price, and the foregoing payment to
reflect Revenues and Costs for the Interim Period, shall be subject to
adjustment in accordance with clause 2.3.
(b) The Purchase Price, after deducting the Inventory Value, shall be
allocated among the Assets as follows:
(i) to the Pipelines as set forth in Schedule 11;
(ii) to the Facilities as set forth in Schedule 11;
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(iii) to the Vehicles as set forth in Schedule 11;
(iv) to the Spur Trailers as set forth Schedule 11; and
(v) to the Intangible Rights and Interests $1.
(c) An interim accounting statement (with the computations and supporting
detail relating thereto) setting forth the amounts (estimated where
appropriate) payable at Closing (the "Interim Statement") shall be
delivered by Vendor to Purchaser not less than ten (10) days prior to
the Closing Date. For the purposes of the Interim Statement, amounts
shall be based upon Costs and Revenue determined on an accrual basis,
and adjusted as is appropriate under GAAP for expenses prepaid by
Vendor prior to the Effective Time and expenses accrued prior to the
Closing Date but paid (or to be paid) by Purchaser subsequent to the
Closing Date. To account entirely for overhead and general and
administrative expenses, there shall be included in Costs that portion
of salaries and wages paid to employees and consultants working within
Xxxxxx'x offices and hired by Vendor to the extent that they are
directly engaged in the conduct of Business, multiplied by a factor as
described below. For the purposes of determining the extent to which
employees engage in the Business in the Interim Period, employees
shall be instructed to keep track of the time which they spend
directly on the Business. Salaries for such employees shall be applied
to Costs pro rata, based on a 37 1/2 hour work week.
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Salaries for employees will be multiplied by a factor of 1.7 times
each employee's hourly rate based upon a 37.5 hour work week. The
factor will compensate for:
(i) All employee benefits including a vacation time appropriation;
(ii) All costs relating to the office building;
(iii) Incidental office supplies;
(iv) Computer systems services excluding actual time spent by
Information Systems employees directly engaged in work relating
to the business; and
(v) Other general administrative services not charged directly.
Costs for consultants working within Xxxxxx offices will be the consultant
charges for their services, multiplied by 1.4 times, to cover all costs
included above for employees, except for employee benefits, of which there
are none.
(d) Vendor and Purchaser agree that Vendor shall be entitled to, and
responsible for paying any taxes imposed by or under the Income Tax
Act or any provincial income tax legislation in respect of, any net
taxable income from the Business and the Assets up to the Effective
Time and, if Closing occurs, Purchaser shall be entitled to, and
responsible for paying any taxes imposed by or under the Income Tax
Act or any provincial
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income tax legislation in respect of, any net taxable income from the
Business and the Assets on and after the Effective Time.
2.3 ADJUSTMENTS SUBSEQUENT TO CLOSING DATE
(a) Within one hundred and twenty (120) days following the Closing Date,
Purchaser shall prepare and deliver to Vendor a reasonably detailed
statement of adjustments (with the computations relating thereto) to
the Interim Statement (the "Adjusted Statement"). Purchaser will make
available to Vendor all information reasonably required to verify
whether the proposed adjustments detailed on the Adjusted Statement
are correct. Within but no later than thirty (30) days following the
receipt of the Adjusted Statement, Vendor may elect to dispute the
Adjusted Statement by giving notice to Purchaser detailing each item
disputed by Vendor and setting forth the reasons for such dispute. If
Vendor shall not have given a timely dispute notice to Purchaser
disagreeing with the Adjusted Statement, Vendor shall be deemed to
have agreed with the Adjusted Statement. If Vendor gives a timely
dispute notice, Vendor and Purchaser shall work in good faith to
resolve any disputed items. If the parties cannot resolve such
disputed items within thirty (30) days following the date the dispute
notice is received, then either party may cause the matter to be
referred to a nationally recognized accounting firm, that has not
performed services for the party requesting arbitration during the
preceding twelve (12) months (the "Arbitrator"), by giving written
notice to
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the other party and to the Arbitrator. The fees and expenses of the
Arbitrator shall be borne 50% by Purchaser and 50% by Vendor. The
Arbitrator shall, within ninety (90) days following the date such
matter is referred to it, determine whether any adjustment proposed on
the Adjusted Statement that is the subject of disagreement among the
parties should be made; provided, however, that any adjustments shall
be in accordance with the definitions contained in this Agreement.
Such determinations by the Arbitrator shall be final and binding on
the parties for the purposes of computing any payment to be made under
this clause 2.3, and may be enforced by appropriate judicial or other
proceedings. Such payments, in either case, shall be made within
fifteen (15) days of completion of the receipt of the final
determination (whether by agreement of the parties or determination by
the Arbitrator).
(b) All Costs incurred and Revenues earned during the Interim Period shall
be determined on an accrual basis in accordance with GAAP.
(c) The Inventory Value for the purposes of clause 2.2 shall be subject to
final adjustment within the same 120-day period described in subclause
2.3(a) in accordance with Schedule 3.
(d) Each item referred to in this clause 2.3 shall, for the purposes of
the Interim Statement and the Adjusted Statement, be calculated and
paid in U.S. Dollars.
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Amounts incurred or received in Canadian dollars will be converted to
Dollars, on a monthly basis on the last day of each month using the rate of
exchange between the Canadian dollar and Dollars as quoted by the Bank of
Canada as the noon rate on the Business Day immediately preceding the day
for which the rate is required to be determined.
2.4 SALES AND VALUE ADDED TAXES
(a) Subject to subclause 2.4(b), Purchaser shall, at Closing, pay to
Vendor the amount of all Sales and Value Added Taxes, save and except
any which, pursuant to the provisions of Applicable Law, must be
remitted by Purchaser directly to a Governmental Authority. The amount
of each Sales or Value Added Tax payable to Vendor by Purchaser at
Closing shall be tendered to Vendor in the currency in which it is
payable pursuant to Applicable Law and timely remitted by Vendor to
the appropriate Government Authority in accordance with Applicable
Law.
(b) Vendor and Purchaser shall elect jointly pursuant to subsection 167(1)
of the Excise Tax Act with respect to the Assets. Purchaser shall
prepare and file the prescribed form within the time referred to in
subsection 167(1.1) of the Excise Tax Act. Vendor shall execute the
prescribed form at Closing.
(c) If the election contemplated in subclause 2.4(b) is determined to be
invalid then Purchaser shall pay, in timely fashion, to the
appropriate Government
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Authority any applicable GST and any interest or penalties thereon in
respect of the Assets.
(d) If it is determined by that Government Authority that an additional
amount of tax or interest or penalties should be assessed, Purchaser
shall be responsible for the payment of such additional amount. Vendor
will provide all assistance reasonably necessary to Purchaser if
Purchaser contests any such determination.
(e) If, as a result of any adjustments made pursuant to clause 2.3, the
amount of Sales and Value Added Taxes is increased or decreased, such
increase or decrease shall be for the account of Purchaser.
(f) Vendor's GST registration number is 12071 7624 and Purchaser's GST
registration number is 892946211 RT001.
(g) Each of Purchaser and Vendor hereby indemnifies and agrees to save
harmless the other from and against any and all losses, costs,
expenses, fines, penalties or damages incurred by the other if the
indemnifying party fails to perform any of its obligations under this
clause 2.4.
2.5 DISPUTED PAYMENTS AND INTEREST ON OVERDUE PAYMENTS
If either party does not remit payment to the other party of an amount payable
after Closing to such party in accordance with the terms of this Agreement, then
the non-paying party shall pay interest on such amount to the other party at a
rate of
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interest equal to the Prime Rate plus four per cent (4%) per annum, from and
including the date such payment was due until it is paid.
2.6 PAYMENTS
All payments required to be made at or after Closing shall be made by bank
draft, unless the party to be paid provides its election to be paid by
electronic transfer of immediately available funds to a specified account to the
other party in writing not less than five (5) days prior to the day upon which
the payment in question is to be made.
2.7 TRANSACTION COSTS
Each party shall be responsible for its own costs incurred in connection with
the negotiation of this Agreement, and the completion of the transactions
contemplated hereby, including legal fees and fees of investment advisors,
except that Purchaser shall be responsible for all filing fees for Governmental
Approvals including those for Competition Act Approval.
2.8 WORKING STOCK INVENTORY
On Closing, Vendor shall transfer title to the Working Stock Inventory to
Purchaser, at no cost to Purchaser.
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ARTICLE 3
CLOSING
3.1 TRANSFER OF TITLE
Subject to the provisions of this Agreement, the transfer of beneficial
ownership and physical possession of the Assets and the assumption by Purchaser
of all risks associated with the Assets shall be effective upon the completion
of the Closing. Closing shall take place at the Place of Closing at the Closing
Time.
3.2 PAYMENT OF CONSIDERATION AND SALES AND VALUE ADDED TAXES
(a) At Closing, Purchaser shall pay the Purchase Price and Purchaser and
Vendor shall at Closing pay the other amounts required to be paid by
them hereunder, including those required to be paid pursuant to
subclause 2.2(a) including those in respect of the Interim Period.
(b) If the Closing does not occur by February 28, 2001, because of any
delay other than a delay caused by a breach of this Agreement by
Vendor, (including, without limitation, with respect to clause 3.7),
and the Closing Date is extended in accordance with this Agreement,
Purchaser shall pay Vendor, at the Closing, interest on the Purchase
Price (subject to reduction in accordance with subclause 4.3(b)), at
the rate of LIBOR plus one and one-half percent (1 1/2%) per annum
from February 28, 2001 to the Closing Date.
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3.3 CONVEYANCES AND AGREEMENTS
(a) At Closing Vendor shall deliver to Purchaser, fully executed by
Vendor, and by all third parties thereto in the case of documents
listed as requiring third party consents in Schedule 12, and in form
and substance satisfactory to Purchaser:
(i) general conveyances of the Inventory (at the Closing Date) and
the other Assets;
(ii) the Xxxxxx Transportation Agreement, the Non-Competition
Agreement, the Transition Services Agreement, the Allenby Lease,
the Lloydminster Office Lease, the Lloydminster Shop and
Warehouse Lease and the Spur Trademark User Agreement;
(iii) such specific transfers, assignments, directions, conveyances,
novations, real property transfers, surface lease assignments,
transfers of Governmental Approvals and other conveyances of the
Assets as may be reasonably required by Purchaser or by
Government Authorities;
(iv) assignment agreements with respect to each of the Contracts,
duly consented and agreed to by all third parties whose consent
is required pursuant to Schedule 12;
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(v) a written termination of any and all management and other
agreements to which Vendor is a party (except those that
Purchaser requests be kept in force); and
(vi) a statement of shipper's balances for each Pipeline as at the
Effective Time including the names of shippers on the Pipeline
and their respective inventories.
(b) A draft of each document referred to in subclause 3.3(a) shall be
delivered to Purchaser for review not later than seven Business Days
before the Closing Date. Purchaser shall, at Closing, execute all of
the documents referred to in subclauses 3.3(a)(i), (ii), (iii) and
(iv) that are in form and substance reasonably necessary to
effectively vest title to the Assets in Purchaser, and deliver an
executed original of each to Vendor.
(c) With respect to the agreements listed in Schedule 25 under the title
"Agreements Requiring Consent", Vendor shall use all commercially
reasonable efforts in the circumstances, both before and after the
Closing, at its sole cost and expense, to obtain consents required to
specific assignments of those agreements as are reasonably necessary
to effectively and fully assign Vendor's entire interest in those
agreements in the Purchaser. If Vendor, despite such efforts, is
unable to obtain such consents the Purchaser shall not be entitled to
refuse to Close under this Agreement because of the lack of such
consents and shall not have any
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remedy under this Agreement save and except that if the consent of
Enbridge Inc. cannot be obtained prior to Closing to the assignment of
the Letter Agreement originally between Interprovincial Pipeline
Limited and Wascana Pipeline Ltd. dated July 6, 1983, the parties
agree that the value of the Assets that would be affected by the
failure to obtain that consent is U.S. $5,000,000.00 and those Assets
shall, at Purchaser's option, be deleted from and cease to be subject
to this Agreement and the Purchase Price shall be reduced accordingly.
Following the Closing Date, Vendor shall continue to execute and
deliver, as soon as reasonably practical, to Purchaser further
specific transfers, assignments, directions, conveyances, novations,
surface lease assignments and other conveyances of the Assets as are
reasonably necessary to effectively vest title to the Assets in
Purchaser, and to fully assign Vendor's interest in the Contracts to
Purchaser. Purchaser shall execute all such documents if so required.
With respect to the deficiencies and required consents and novations
noted in Schedule 25 under the title "Land: Deficiencies and Consents"
or any intervening claims with respect to the Assets that are
registered prior to the Closing, Vendor agrees that, prior to Closing,
it will use all commercially reasonable efforts to remedy those
deficiencies and obtain the necessary consents and novations.
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To the extent that any of these deficiencies have not been remedied
prior to Closing, the Vendor's obligation to do so will survive
Closing until the deficiencies have been remedied.
All of the obligations of Vendor under this paragraph 3.3(c) shall be
undertaken at the sole cost and expense of Vendor.
(d) Purchaser shall enter into a perpetual, irrevocable royalty-free
license in favour of Vendor in respect of any Vendor-owned software
conveyed to Purchaser. If permitted pursuant to the terms of the
applicable licence agreement, and if it can be done without
incremental cost to Purchaser, Vendor shall retain the right to use:
(i) the licences, permits or authorizations from third parties
described in Schedule 5 that are, prior to Closing, used by
Vendor for the purposes of the Business and that are not
Government Approvals; and
(ii) the licences described in Schedule 6 relating to the use of
third-party software, processes and technology;
to the extent required by Vendor for its business other than the Business.
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3.4 REGISTRATION AND DELIVERY OF CONVEYANCE DOCUMENTS
Purchaser shall be responsible for causing and bearing the third-party costs of
the necessary registrations, including registrations of transfers of
Governmental Approvals; and
(a) deliveries to third parties of all conveyance documents delivered to
Purchaser pursuant to the terms of this Agreement.
(b) If, prior to or after the Closing Date, a Government Authority
requires as a pre-requisite to or a condition of the transfer of any
Governmental Approval, a security deposit, such amount shall be paid
by Purchaser to such Government Authority when due and if any amount
had been included as a credit to Vendor in respect of the matter, in
calculations made pursuant to subclause 2.3(a) the benefit of which
cannot be transferred to Purchaser, such credit shall be removed for
the purposes of the Adjusted Statement.
(c) If Vendor is unable to resign as operator of a Facility effective at
or prior to completion of the Closing, Vendor shall, as soon as
practicable, give notice of resignation and perform all such acts as
may be necessary or reasonably requested by Purchaser from time to
time in order to facilitate an orderly transfer of operatorship; as
soon as reasonably possible after Closing and if possible prior to the
period provided for in the relevant operating or joint venture
agreement. Purchaser will provide Vendor, after
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the Closing, with all necessary staff, support and administrative
services and other back-up as are required to perform the duties of
such operator at no cost to Vendor until such time as Vendor is able
to resign as operator.
(d) Xxxxxx Oil USA, Inc. and Purchaser shall enter into an agreement in
the form attached as Schedule 16 pursuant to which Purchaser shall
have the right to use the "Spur" trademark for a period of one (1)
year immediately following Closing.
3.5 VENDOR'S CLOSING CONDITIONS
The obligation of Vendor to complete the sale of the Assets pursuant to this
Agreement is subject to the satisfaction, on or prior to the Closing Date, of
the following conditions precedent:
(a) PAYMENT: Purchaser shall have made the payment to be made pursuant to
clause 3.2 at the Closing;
(b) APPROVALS: The NEB Approvals, the Investment Canada Approvals and the
Competition Act Approval shall have been obtained;
(c) AGREEMENTS: Purchaser shall have executed and delivered to Vendor the
agreements and other documents described in subclauses 3.3(a)(i),
(ii), (iii) and (iv) to which Purchaser is to be a party;
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(d) REPRESENTATIONS AND WARRANTIES: All representations and warranties of
Purchaser set forth in clause 5.3 shall, except where a specific time
is otherwise indicated, be true and correct on the Closing Date as if
made then, in each case except for inaccuracies which are not in the
aggregate Material, and a certificate to that effect from a senior
officer of Purchaser shall have been delivered to Vendor;
(e) COVENANTS AND AGREEMENTS: Purchaser shall have complied with and
performed in all material respects with the covenants and agreements
required by this Agreement to be complied with and performed by
Purchaser at or prior to the Closing Date and a certificate to that
effect from Purchaser shall have been delivered to Vendor;
(f) CERTIFIED RESOLUTIONS: Purchaser shall have tendered to Vendor a
certificate of the secretary of PMC (Nova Scotia) Company ("PMC") that
PMC's board of directors has authorized and approved the transactions
herein contemplated;
(g) SUITS: No action, suit or proceeding by a third party before any court
or Government Authority having jurisdiction shall be pending against
Vendor or Purchaser or any of their Affiliates or any of the officers
or directors of any of them, seeking to restrain or prohibit the
consummation of the transactions contemplated hereby or any Material
part thereof or
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questioning the legality or validity thereof, and the Closing shall
not violate any order or decree of any court or Government Authority;
and
(h) OPINIONS: Legal counsel to Purchaser shall have delivered an opinion
in the form attached as Schedule 13.
The conditions set forth in this clause 3.5 shall be for the sole benefit of
Vendor and may, without prejudice to any of the rights of Vendor hereunder be
waived by it in writing, in whole or in part, at any time. In the event that
any of the foregoing conditions are not satisfied or complied with, or waived by
Vendor, at or before the Closing Date, Vendor shall be entitled to rescind or
terminate this Agreement by written notice to Purchaser on or before the Closing
Date.
3.6 PURCHASER'S CLOSING CONDITIONS
The obligation of Purchaser to complete the purchase of the Assets pursuant to
this Agreement is subject to the satisfaction, at or prior to the Closing Date,
of the following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES: All representations and warranties of
Vendor set forth in clause 5.1 shall, except where a specific time is
otherwise indicated, be true and correct on the Closing Date as if
made then, in each case except for inaccuracies that are not in the
aggregate Material and a certificate of Vendor to that effect shall
have been delivered to Purchaser;
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(b) COVENANTS AND AGREEMENTS: Vendor shall have complied with and
performed all covenants and agreements required by this Agreement to
be complied with and performed by Vendor at or prior to the Closing
Date and a certificate to that effect from Vendor shall have been
delivered to Purchaser;
(c) CERTIFIED RESOLUTION: Vendor shall have tendered to Purchaser a
certificate of Vendor's secretary that Vendor's board of directors has
authorized and approved the transactions herein contemplated;
(d) AGREEMENTS: Vendor, and all third parties in the case of documents
identified in Schedule 12 as requiring consents from third parties,
shall have executed and delivered to Purchaser the agreements and
other documents referred to in subclause 3.3(a), and Vendor shall have
delivered an updated Schedule 4 four (4) Business Days prior to
Closing, certified by Vendor to be correct as of the date delivered,
and Vendor shall on the Closing Date have delivered a further updated
Schedule 4, effective as of Closing, certified by Vendor to be correct
and accurate as of the Closing Date;
(e) APPROVALS: The Investment Canada Approval, the NEB Approvals and the
Competition Act Approval, appropriate certificates and declarations
under sales tax legislation in the Provinces of Saskatchewan and
British
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Columbia and necessary motor transport approvals shall have been
obtained;
(f) SUITS: No action, suit or proceeding by a third party before any court
or Government Authority having jurisdiction shall be pending against
Vendor or Purchaser or any of their Affiliates or any of the directors
or officers of any of them, seeking to restrain or prohibit the
consummation of the transactions contemplated hereby or any Material
part thereof or questioning the legality or validity thereof, and the
Closing shall not violate any order or decree of any court or
Government Authority;
(g) NO DAMAGE: Subject to clause 4.5, Purchaser, acting reasonably, shall
be satisfied that all of the Pipelines, Facilities, Vehicles and Spur
Trailers are on the Closing Date operational and able to be used in
the Business in all Material respects, except as noted in Schedule 8,
and the parties agree, solely for the purposes of this subclause
3.6(g) that if, between the Effective Date and the Closing Date, any
of such Assets are damaged or destroyed by fire or other casualty and
the aggregate loss of or damage to such Assets exceeds U.S. One
Million Dollars (US $1,000,000) such Assets are not operational and
are unable to be used in the Business in a Material respect;
(h) NO CLAIMS: Purchaser, acting reasonably, shall be satisfied that no
situation or occurrence has arisen or taken place in relation to the
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Business or the Assets between the Effective Date and the Closing Date
which would reasonably be expected to give rise to a net (after taking
into account recovery by way of insurance or from any third party, the
likelihood of which recovery has been reasonably established):
(i) liability of Purchaser, or
(ii) obligation of Purchaser to indemnify Vendor under this Agreement,
in excess of U.S. One Million Dollars (US $1,000,000);
(i) PANCANADIAN: Vendor and Purchaser shall have executed and delivered a
written agreement in the form attached hereto as Schedule 19 whereby
Vendor assigns the PanCanadian Reserves Dedication Agreement to
Purchaser and Vendor is indemnified by Purchaser in respect of all
obligations of Vendor accruing thereunder after the Closing Time;
(j) OPINIONS: Legal counsel to Vendor shall have delivered an opinion in
the form attached as Schedule 14.
The conditions set forth in this clause 3.6 shall be for the sole benefit of
Purchaser and may, without prejudice to any of the rights of Purchaser
hereunder, be waived by it in writing, in whole or in part, at any time. In the
event that any of the foregoing conditions are not satisfied or complied with,
or waived by Purchaser, at or before the Closing Date, Purchaser shall be
entitled to rescind and terminate this Agreement by written notice to Vendor on
or before the Closing Date;
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3.7 FULFILLMENT OF CONDITIONS PRECEDENT
Each of the parties will timely and diligently take all actions within its
control that are reasonably necessary to cause the fulfillment of the conditions
precedent set forth in clauses 3.5 and 3.6, and Purchaser hereby covenants that
it will forthwith prepare and file all documents and take all action reasonably
necessary to obtain the NEB Approvals, the Competition Act Approval and the
Investment Canada Approval (collectively the "Material Regulatory Approvals")
and the approvals referred to in subclause 3.6(e). Vendor will forthwith
provide all information and documents required, in respect of it and the Assets
and take all steps reasonably required, in order to complete and submit filings
and applications necessary to obtain the aforementioned approvals. If any of the
Material Regulatory Approvals have not been obtained by the ninetieth (90th) day
following the date of this Agreement, and Closing has not then occurred, either
Vendor or Purchaser may thereafter and any time prior to all of the Material
Regulatory Approvals having been obtained and all other conditions precedent to
Closing having been satisfied or waived, in its sole and absolute discretion, on
written notice to the other, terminate this Agreement, and in that event neither
party shall thereafter have any obligation to the other hereunder, except
pursuant to clause 8.8.
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ARTICLE 4
INTERIM MATTERS
4.1 OPERATION OF THE ASSETS
From the Effective Time until the Closing Date, Vendor covenants that it:
(a) has operated and will operate the Assets in a prudent manner and in
accordance with Vendor's historical practices, good industry
practices, applicable Contracts and Applicable Laws but Vendor, in
performing its obligations under subclauses 4.1(a) and 4.1(b), shall
not be liable to Purchaser for any economic loss of Purchaser of any
kind or nature whatsoever including, without limitation, loss of
revenue, loss of profit or loss of opportunity in connection with such
operations to the extent it results from any act or omission of Vendor
in good faith for the purposes of operating the Assets or the
safeguarding of life or property;
(b) has maintained and shall maintain Pipeline Substances inventory at
levels that are appropriate for the purpose of the Business and
consistent with Vendor's historical practices;
(c) has not voted and shall not vote in favour or incur any capital
expenditure, other than those described in Schedule 2, in respect of
the Assets without Purchaser's prior written consent, unless:
(i) such expenditure is required in an emergency to protect persons
or property;
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(ii) such expenditure is required to comply with Applicable Law;
(iii) such expenditure must be undertaken by Vendor by virtue of the
same having been approved by other Persons pursuant to a voting
procedure or other provision of an agreement relating to any of
the Assets, the effect of which is to require Vendor to advance
its share of such capital expenditure; or
(iv) Vendor's share of such expenditure is less than US $20,000;
(d) has given and shall give Purchaser's employees and advisors all
reasonable access to its files and records and operations, accounting
and administrative personnel of Vendor in respect of the Business and
the Assets as is necessary to permit Purchaser to be ready to take
over the Business and the Assets at the Closing Date;
(e) has provided and shall provide reasonable physical access to the
Facilities and Vehicles to Purchaser's employees and advisors, such
access to be at Purchaser's sole risk and expense and, in exercising
its rights to access, Purchaser has taken and shall take all
reasonable steps so as to minimize any impact on the conduct by Vendor
of the Business;
(f) has not and shall not, without first obtaining Purchaser's written
approval (which shall not be unreasonably withheld or delayed) enter
into, or amend the terms of, any Contract having a term in excess of
thirty (30) Days;
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(g) has maintained and shall maintain its books, records and accounts in
accordance with GAAP and in the normal manner consistent with current
practice;
(h) has not, and shall not create, assume or permit to exist any Security
Interest on any of the Assets except for Permitted Encumbrances;
(i) has not assigned, leased or otherwise disposed, and shall not sell,
assign, lease or otherwise dispose of any of the Assets, except for
Pipeline Substances in the ordinary course of business, without first
obtaining Purchaser's written approval; and
(j) subject to subclause 4.1(i), has not and shall not solicit or accept
any other bids for the purchase or sale of any of the Assets.
4.2 DISCHARGE OF SECURITY
Vendor shall deliver on the Closing Date:
(a) a release and discharge of any Security Interest (other than Permitted
Encumbrances) held by any third party encumbering the Assets or any
part or portion thereof (and, where such releases and discharges have
been registered prior to the Closing Date, evidence of such
registration); or
(b) if acceptable to Purchaser acting reasonably, written confirmation
from the third party encumbrancer that it has no interest in the
relevant Asset
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together with the undertaking of the third party to
discharge the Security Interest within a reasonable time.
If any such Security Interest continues to be registered at any office of any
Government Authority, Vendor shall either arrange for the discharge of the same
forthwith after the Closing Date, or deliver a registrable discharge thereof to
Purchaser at Closing. All costs associated with the registration of any such
registrable discharge hereunder (including legal costs) shall be for Vendor's
account; and Vendor shall promptly reimburse Purchaser for such costs upon
receipt of an invoice from Purchaser in respect of them. The obligations of
Vendor pursuant to this clause 4.2 shall survive Closing indefinitely.
4.3 RIGHTS OF FIRST REFUSAL
(a) The Bodo Facility, the Cactus Lake Facility and the North Sask
Facility and the Intangible Rights and Interests associated with them
respectively (collectively the "ROFR Assets") are subject to separate
Rights of First Refusal. A portion of the Base Purchase Price is
hereby allocated among the ROFR Assets as set forth in Schedule 11 and
each of the three amounts so allocated is herein called a "ROFR
Value." Vendor shall on or before the third (3rd) Business Day
immediately following the date of this Agreement, serve all of the
notices (herein the "ROFR Notices") required pursuant to Section 6.2
of the "Bodo Facility Joint Venture Agreement" dated August 1, 1988,
clause 1104 of the "Joint Venture Agreement -
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Cactus Lake Pipeline" dated October 8, 1981 and Section 6.2 of the
"North Sask Pipeline System Joint Venture Agreement" dated August 1,
1996, respectively, and shall otherwise comply with the provisions
thereof. Vendor shall provide Purchaser with copies of all
correspondence sent or received by Vendor in connection with such
efforts contemporaneously with the receipt or sending thereof. The
ROFR Value allocated to each of the ROFR Assets shall be used as the
cash purchase price for the purposes of each of the ROFR Notices
respectively. The ROFR Notices shall comply with the said agreements,
shall use the ROFR Values and shall otherwise be in form and substance
satisfactory to Vendor.
(b) If a Right of First Refusal is exercised prior to Closing, the ROFR
Assets that are subject thereto shall thereupon cease to be part of
the Assets. The Purchase Price shall be reduced by the ROFR Value
allocated to those ROFR Assets pursuant to subclause 4.3(a) and the
ROFR Value shall be deducted from the appropriate UCC class in
Schedule 11. No adjustments shall be made pursuant to subclause 2.2(c)
or clause 2.3 nor shall any payments or elections be required pursuant
to clause 2.4 in respect of any ROFR Assets ceasing to be part of the
Assets as aforesaid.
(c) If any of the Rights of First Refusal have not been waived or lapsed
prior to the Closing Date, Vendor shall with respect to those ROFR
Assets for which the applicable Rights of First Refusal have not been
waived or have not lapsed (the "Constrained Assets"), deliver to
Osler, Xxxxxx & Harcourt
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LLP or such other person as Vendor and Purchaser may agree (the
"Escrow Agent") all documents contemplated by subclauses 3.6(a), (d)
and (i) relating to the Constrained Assets.
Purchaser shall deliver to the Escrow Agent the portion of the
Purchase Price applicable to the Constrained Assets, to be held in
trust in accordance with the terms of the Escrow Agreement. Should a
third party exercise a Right of First Refusal in respect of any
portion of the Constrained Assets, the said portion of the Constrained
Assets shall not be sold to Purchaser but shall be deleted from and
cease to be subject to this Agreement. Purchaser shall nevertheless
purchase the balance of the Constrained Assets when the Rights of
First Refusal in respect thereof have expired or been waived.
4.4 INSURANCE
Until Closing Vendor shall maintain insurance coverage on all insurable Assets
and in respect of the Business, in accordance with Schedule 20, and its
practices (including, without limitation, self-insurance and deductibles), in
effect immediately prior to the Effective Time.
4.5 DAMAGE TO ASSETS
If, prior to the Closing Date, any of the Assets shall be damaged or destroyed
by fire or other casualty or shall be taken by way of expropriation or under the
right of eminent domain or proceedings for such purposes shall be pending or
threatened and the
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aggregate loss of, or damage to, such Assets does not exceed U.S. One Million
Dollars (US $1,000,000.00), Purchaser shall purchase such Assets notwithstanding
any such damage, destruction or taking (actual, pending or threatened), without
reduction of the Purchase Price therefor, and Vendor shall at the Closing pay to
Purchaser any and all amounts paid to Vendor by third parties by reason of the
damage, destruction or taking of such Assets and shall assign, transfer and set
over unto Purchaser all of the right, title, estate and interest of Vendor in
and to any unpaid awards or other payments from third parties arising out of the
damage, destruction, taking or pending or threatened taking to or of such
Assets. Vendor shall not voluntarily compromise, settle or adjust any material
amounts payable by reason of any damage, destruction, taking or pending or
threatened taking of or to such Assets without first obtaining the written
consent of Purchaser. Vendor shall provide written notice to Purchaser of any
such occurrence contemplated by this clause 4.5, and of any situation or
occurrence contemplated by subclause 3.6(h), immediately upon the Knowledge of
the Vendor of such occurrence or situation.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
5.1 REPRESENTATIONS AND WARRANTIES OF VENDOR
Vendor hereby represents, warrants and covenants to and with Purchaser that:
[REGARDING CORPORATE MATTERS]
(a) STANDING: Vendor was duly incorporated and organized and is validly
subsisting and in good standing under the laws of the jurisdiction in
which
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it was incorporated and the laws of the jurisdictions in which the Assets
are located;
(b) REQUISITE CORPORATE AUTHORITY: Vendor has:
(i) all requisite power and authority to enter into this Agreement
and to perform its obligations under this Agreement; and
(ii) has taken all board and other action necessary to authorize,
approve and ratify the sale of the Assets in accordance with this
Agreement;
(c) NO CONFLICTS: The execution and delivery of this Agreement, the
consummation by Vendor of the transactions contemplated herein and the
fulfillment of and compliance with the terms and conditions hereof do
not and will not constitute or result in a Material breach of or
Materially violate or be in Material conflict with any of the
constating or governing documents of Vendor or, any provisions of any
other agreement or instrument to which Vendor is a party or by which
Vendor is bound, or any Applicable Law;
(d) EXECUTION AND ENFORCEABILITY: This Agreement has been duly executed
and delivered by Vendor and all conveyancing and other agreements and
documents executed and delivered by Vendor pursuant hereto shall be
duly executed and delivered by Vendor; and this Agreement does, and
such agreements and documents will, constitute legal, valid and
binding
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obligations of Vendor enforceable against it in accordance with their
respective terms;
(e) REGULATORY AUTHORIZATIONS: Except for the Competition Act Approval,
the NEB Approvals, the Investment Canada Approval and motor transport
approvals, no authorization or approval or other action by, or notice
to or filing with, any Government Authority is required for the due
execution, delivery and performance by Vendor of this Agreement except
those whose absence does not have a Material effect adverse to Vendor
or Purchaser on the operation of the Business, the use of the Assets
or the performance of this Agreement;
(f) CANADIAN RESIDENCY: Vendor is not a non-resident of Canada within the
meaning of the Income Tax Act;
(g) FINDER'S FEES OR CONSULTING FEES: Vendor has not incurred any
obligation or liability, contingent or otherwise, for brokers',
consulting, legal or finders' fees in respect of the transaction
contemplated herein for which Purchaser shall have any obligation or
liability;
[REGARDING THE BUSINESS]
(h) NO JUDGMENTS, LAWSUITS OR CLAIMS: Except as disclosed in Schedule 8,
there are no actions, suits, Claims or proceedings by a third person
before any court or Governmental Authority having jurisdiction (and to
the Knowledge of Vendor, it has not received written notice
threatening any
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such action, suit, Claim or proceeding) and there are no judgments
unsatisfied against Vendor in respect of the Assets or any consent
decrees or injunctions to which Vendor is subject in respect of the
Assets, for or in respect of which Purchaser would have any material
liability after the Closing Date; and in particular, without
limitation, all proceedings in respect of the arbitration between
PanCanadian Limited and Vendor have been fully and finally concluded
and all claims against Vendor in respect of the award in that
arbitration have been satisfied and Purchaser shall not have any
liability in respect of any claim that was the subject matter of that
arbitration;
(i) NO DEFAULT UNDER LAWS: To the Knowledge of Vendor, Vendor has not
received any written notice that it is in violation of any Applicable
Law (other than Environmental Laws). Vendor is not in default or
violation of any Applicable Law (other than Environmental Laws) that
would materially, adversely affect the ability of Vendor to perform
its obligations under this Agreement;
(j) [INTENTIONALLY LEFT BLANK];
(k) TITLE: Vendor has good and valid title to the Assets subject only to:
(i) Permitted Encumbrances;
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(ii) any other encumbrance or defect the existence of which does not
have a Material, adverse affect on the ownership, operation,
use or value of any of the Assets; and
(iii) all ad valorem, property, and similar taxes and assessments
based on or measured by ownership of the Assets as at the
Effective Time and on the Closing Date or the production of
Pipeline Substances or the receipt of proceeds therefrom
payable by it prior to the Closing Date and for all prior
periods have been properly paid and discharged or will be paid
by Vendor;
(l) SECURITY INTERESTS: Except for any that are Permitted Encumbrances or
will be fully released and discharged at or before the Closing, there
are no Security Interests held by third parties in respect of the
Assets on which any liability remains outstanding;
(m) PRE-EMPTIVE RIGHTS: Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated herein
give rise to any:
(i) requirement to obtain the consent of any person except as
provided in this Agreement; nor
(ii) right of first offer or first refusal, option or similar pre-
emptive right to franchise;
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except in relation to the ROFR Assets;
(n) AUTHORIZED EXPENDITURES: Except as specifically disclosed in Schedule
15, there are no Material outstanding authorizations for expenditure
or outstanding financial commitments respecting the Assets, pursuant
to which expenditures are or may be required to be made and for which
Purchaser will be liable or in respect of which any amount remains
unexpended;
(o) EMPLOYEE PLANS: Schedule 17 identifies each retirement, pension,
bonus, stock purchase, profit sharing, stock option, deferred
compensation, severance or termination pay, insurance, medical,
hospital, dental, vision care, drug, sick leave, disability, salary
continuation, vacation and incentive compensation plan or arrangement
that is maintained, or otherwise contributed to or required to be
contributed to, by Vendor for the benefit of employees or former
employees of the Business (collectively, the "Employee Plans") and a
true and complete copy of each Employee Plan has been furnished to
Purchaser. There are no written Claims by any employee covered under
the Employee Plans or by any other persons that allege a breach of
fiduciary duty or violation of law and which may result in liability
to Purchaser; and to the Knowledge of Vendor, there is no basis for
any such Claim;
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(p) NO NOTICE: There are not, to the Knowledge of Vendor, any complaints
or other proceedings of any kind involving Vendor before any pension
board or committee relating to any Employee Plan;
(q) COLLECTIVE AGREEMENTS: Vendor has not made any contracts with any
labour union or employee association nor made commitments to or
conducted negotiations with any labour union or employee association
with respect to any future agreements and to the Knowledge of Vendor
there are no current attempts to organize or establish any labour
union or employee association with respect to any Employees of the
Business;
(r) EMPLOYEES: Schedule 17 contains a complete and accurate list of the
names of all individuals who are full-time, part-time or casual
employees of the Business (collectively, the "Employees") as of the
date of this Agreement, specifying the length of hire, title or
classification for each such Employee. Vendor has provided to
Purchaser a written summary of the salaries, commissions and bonus
entitlements for each Employee. Vendor is not a party to any written
contract for consulting services on an ongoing basis which can not be
terminated within ninety (90) days of the Closing Date. There are no
Claims outstanding nor are there any orders, decisions, directions or
convictions currently registered or outstanding by any tribunal or
agency against or in respect of the Business under or in respect of
any employment legislation;
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(s) WORKERS' COMPENSATION: Vendor is not in arrears under any Applicable
Law regarding workers' compensation for any amounts whatsoever, in
respect of which any Person may be entitled to charge Purchaser or to
have a Security Interest in the Assets;
(t) CONTRACTS:
(i) the
(A) Contracts constitute all of the contracts, leases, rights
and other agreements of the kind described in the
definition of "Contracts", except for such contracts,
leases, rights and other agreements that do not result in
a net cost or net loss to Purchaser; and
(B) Vendor is not in breach, default or violation of any
provision of any Contract, which would have an adverse
effect on the Business or the Assets; in excess of U.S.
Two Hundred Thousand Dollars (US$200,000.00) in aggregate;
(ii) that part of Schedule 1 appearing under the heading "Lands" and
Schedule 5 inclusive, respectively contain complete and
accurate lists of all:
(A) Surface Rights,
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(B) Governmental Approvals,
(C) licences, permits or authorizations from third parties
other than those otherwise described in this subclause
5.1(t), and
(D) licences relating to the use of third-party software,
processes and technology,
that are Material to the Business; and
(iii) the version of Schedule 4 to be provided four (4) Business Days
prior to Closing, pursuant to subclause 3.6(d), shall identify
all requirements for consents relating to the assignment of the
Contracts;
(u) PURCHASE OBLIGATIONS: Except as set forth in Schedule 8, there are no
obligations to deliver Petroleum Substances (i) under contracts having
a term in excess of thirty (30) days; or (ii) at a price below
published and recognized market clearing prices; adjusted for location
and quality consistent with the historical practices of Vendor; nor to
purchase Petroleum Substances (y) under contracts having a term in
excess of thirty (30) days, or (z) at a price above published and
recognized market clearing prices, adjusted for location and quality
consistent with the historical practices of Vendor;
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(v) SUBSTANTIALLY ALL: The Assets have been used in the Business and
constitute substantially all of the property that Vendor reasonably
regarded as necessary for carrying on the Business or a portion
thereof;
(w) E & H TAXES: All of the Assets that constitute tangible personal
property, within the meaning and for the purposes of the Education and
Health Tax Act (Saskatchewan), are property in respect of which tax
due prior to the Effective Time has already been paid under such
legislation;
(x) INSURANCE: Schedule 20 sets forth under the heading "Insurance" a
complete and accurate description of all of the insurance coverages
carried by Vendor with respect to the Business;
(y) MATERIAL CHANGE: Since January 1, 2001, except as disclosed in
Schedule 8, there has not been any Material change adverse to the
Assets or any Material amendment to any Contract;
(z) ENVIRONMENTAL MATTERS: Except as disclosed in Schedule 18, to the
Knowledge of Vendor:
(i) Vendor:
(A) has obtained all Material Environmental Approvals for the
Business and all such Material Environmental Approvals are
valid and in full force and effect; and
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(B) is in substantial compliance with all such Material
Environmental Approvals;
(ii) all Material Environmental Approvals necessary in order to
obtain and maintain the operating authorities listed in
Schedule 5 have been obtained;
(iii) there are no existing Environmental Deficiencies or
Environmental Liabilities that are Material;
(iv) except as disclosed in Schedule 18, there is no underground
storage tank, asbestos, urea formaldehyde foam insulation or
radioactive substance in or on the Facilities or the Lands, in
respect of which Purchaser is or may be responsible or liable
for a material amount under Environmental Laws in existence at
the Effective Time;
(v) there are no polychlorinated biphenyls in storage or Released
on the Lands; and
(vi) Vendor has made available to Purchaser all material information
contained in files, documents and records in its possession or
in the possession of its consultants related to the
environmental condition of the Assets and Purchaser covenants,
except to the extent required by any Applicable Law or
otherwise authorized in writing by Vendor, not to be
unreasonably withheld, that Purchaser or its
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Representatives shall not divulge and shall keep confidential
any information contained in such materials made available
herein;
(aa) TARIFFS:
As of the Closing Date there are no circumstances pursuant to which, immediately
following Closing, the provisions of the Xxxxxx Transportation Agreement would
require Purchaser to reduce transportation tariffs chargeable to Vendor; and
(bb) BUTANE:
To the Knowledge of Vendor, immediately following Closing, the blend value of
butane as part of the diluent stream for the Manito Pipeline should be
substantially as it was before Closing, with a substantially similar potential
for generating returns.
5.2 DISCLAIMER AND ACKNOWLEDGEMENT
Except as expressly set forth in this Agreement:
(a) the Assets are sold on an "as is" basis and, other than as expressly
set forth in clauses 5.1, 6.1 and 6.2 and the parties acknowledge and
confirm that Vendor makes no representation, warranty or covenant as
to the Assets or the Business including, without limitation, as to the
quality, physical condition, past operation, merchantability or
fitness for any purpose of any of the Assets or the Business;
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(b) except for liability for a breach of the warranties and
representations in subclause 5.1(z), the sole liability for Vendor in
respect of environmental matters including, without limitation,
Environmental Deficiencies and Environmental Liabilities is set out in
clause 6.1 and Vendor makes no other representation, warranty or
indemnity and incurs no other obligation or liability to Purchaser of
any kind or nature, with respect to environmental matters;
(c) Purchaser does not make, and Vendor does not make, any representation,
warranty or indemnity whatsoever except as and to the extent expressly
set forth in Articles 5 and 6. In particular the parties agree that
except for the representations and warranties set forth in Article 5,
Vendor makes no representation in respect of any liability and
disclaims any responsibility for any representation or warranty which
may have been made or alleged to have been made and which is contained
in any instrument or document relative hereto or the transactions
herein provided for, or contained in any statement or information made
or communicated (orally or in writing) to Purchaser including, without
limitation, any opinion, information or advice which may have been
provided to Purchaser or its Representatives by Vendor or its
Representatives;
(d) Purchaser specifically acknowledges and confirms that in agreeing to
enter into and to consummate the transaction contemplated herein, it
has
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relied, and will continue to rely, upon its own economic evaluations
and projections as the same relate to the Assets.
5.3 REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents, warrants and covenants to and with Vendor that:
(a) STANDING: Purchaser is a limited partnership duly formed and is
validly subsisting and in good standing under the laws of Alberta and
is registered to do business under the laws of the Provinces of
Alberta, Saskatchewan and British Columbia;
(b) REQUISITE AUTHORITY: Purchaser has:
(i) all requisite power and authority to enter into this Agreement
and to perform its obligations under this Agreement; and
(ii) taken all corporate and partnership action necessary to authorize
the purchase of the Assets in accordance with this Agreement;
(c) NO CONFLICTS: The execution and delivery of this Agreement, the
consummation by Purchaser of the transactions contemplated herein and
the fulfillment of and compliance with the terms and conditions hereof
do not and will not result in a breach of or violate, or be in
conflict with, any of its constating or governing documents or the
provisions of any other agreement or instrument to which Purchaser is
a party or is bound, or any Applicable Law;
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(d) EXECUTION AND ENFORCEABILITY: This Agreement has been duly executed
and delivered by Purchaser, and all conveyancing and other agreements
and documents required hereunder to be executed and delivered by them
pursuant hereto shall be duly executed and delivered by it; and this
Agreement does, and such agreements and documents will, constitute
legal, valid and binding obligations of and Purchaser enforceable
against it in accordance with their respective terms;
(e) AUTHORIZATIONS: Except for the Competition Act Approval, the NEB
Approvals, the Investment Canada Approval, and the motor transport
approvals, no authorization or approval or other action by, or notice
to or filing with, any Government Authority is required for the due
execution, delivery and performance by Purchaser of this Agreement;
and
(f) FINDER'S FEES: Purchaser has not incurred any obligation or liability,
contingent or otherwise, for brokers', consulting, legal or finders'
fees in respect of the transaction contemplated herein for which
Vendor shall have any responsibility.
5.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND OTHER COVENANTS
Notwithstanding anything to the contrary herein expressed or implied and
notwithstanding the Closing or the covenants, representations and warranties in
any other agreements or documents delivered at Closing or prior or subsequent
thereto or investigations by the parties hereto or their counsel, the covenants,
representations and
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warranties set forth in clauses 5.1 and 5.3 shall survive Closing and shall
continue and remain in full force and effect for the benefit of the parties for
a period:
(a) in the case of the covenants, representations and warranties in
subclause 5.1(h), (i) or (t), for a period of two (2) years after
Closing; and
(b) in the case of all other covenants, representations and warranties of
Vendor in clause 5.1 or Purchaser in clause 5.3, for a period of one
(1) year after Closing;
no claim in respect of such covenants, representations and warranties shall be
made or be enforceable unless written notice of such claim is given by the
claimant to the other party within:
(c) in the case of a third party claim that allegedly constitutes a breach
of the covenants, representations and warranties in subclause 5.1(h),
(i) or (t), within two (2) years of the Closing Date; and
(d) in the case of all other alleged breaches of the other representations
and warranties of Vendor under clause 5.1 or Purchaser under clause
5.3 within one (1) year of the Closing Date.
The covenants, representations and warranties set forth in subclauses 5.1 and
5.3 shall be deemed to apply to all assignments, conveyances, transfers and
documents conveying any of the Assets from Vendor to Purchaser and there shall
not be any merger of any covenant, representation or warranty in such
assignments, conveyances,
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transfers or documents notwithstanding any rule of law, equity or statute to the
contrary and all such rules are hereby waived. Notwithstanding any other
provision of this Agreement, no party can rely on, or recover any damages in
respect of, a breach of a representation and warranty or a breach of this
Agreement if it actually knew of the breach prior to completion of Closing and
had not given notice thereof. For purposes of this clause 5.4 knowledge of
Purchaser shall mean the actual knowledge of Xxxxx Xxxxxxx, Xxxxx Xxxxxxxx, Xxxx
Xxxxxx and Xxxxxx Xxxxxx.
ARTICLE 6
ENVIRONMENTAL MATTERS AND INDEMNITIES
6.1 ENVIRONMENTAL MATTERS
(a) If Closing occurs, Vendor shall immediately commence, at its sole cost
and expense, to remediate (to the minimum standards required by
Environmental Law) the Environmental Deficiencies identified in:
(i) the report from Cactus Environmental dated December 5, 2000, and
existing on or near the Lone Rock Station Property at January 1,
2001; and
(ii) the drawing by Xxxxxxx Associates Ltd. attached as part of
Schedule 18, described as a Phase II Environmental Site
Investigation, Estimated Extent of Impact and dated 01/02/19
(File No.: S133210, Drawing No. S1332.1-9) with respect to the
Dulwich property;
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which expenditures by Vendor shall not apply to satisfy or be
subject to the deductibles set forth in subclause 6.1(b) or the
limitations on Vendor's liability in clause 5.4.
(b) Vendor's only responsibility for Environmental Deficiencies or
Environmental Liabilities, other than under subclause 6.1(a), whether
to remediate or otherwise, shall be as follows:
(i) Vendor shall remediate Environmental Deficiencies and satisfy
Environmental Liabilities in respect of those specifically
identified and verifiable Environmental Deficiencies:
(A) that exist before Closing, and
(B) of which Purchaser notifies Vendor in writing, with
reasonable detail of such Environmental Deficiencies and
Environmental Liabilities, before January 31, 2002,
and Vendor's responsibility for such specifically identified and
verifiable Environmental Deficiencies is further limited as
follows:
(C) remediation of such Environmental Deficiencies for which
Vendor is responsible under subclause 6.1(b) shall be to
minimum standards required by Environmental Laws under
Vendor's direct control; and
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(D) notwithstanding anything to the contrary:
(I) Vendor shall not be responsible for any Environmental
Deficiency until the aggregate amount incurred by
Purchaser to remediate to minimum standards required by
Environmental Law all Environmental Deficiencies that
existed at the Closing Time exceeds US $300,000, and
thereafter (subject to the aggregate limit in (B)
below) Vendor shall be responsible for the costs to
remediate which exceed US $20,000 for each
Environmental Deficiency for a total of not more than
10 Environmental Deficiencies as chosen by Purchaser;
and
(II) Subject only to any liability arising from a breach of
the representation and warranty in subclause 5.1(z),
Vendor shall not have any liability whatsoever for
Environmental Deficiencies or Environmental Liabilities
whether for remediation or otherwise, after Vendor has
expended or incurred a cumulative total of US
$2,250,000 under this subclause 6.1(b).
(c) Where Purchaser undertakes remediation of such Environmental
Deficiencies pursuant to subclause 6.1(b), the only costs incurred in
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respect of such Environmental Deficiencies that shall be applied for
the purpose of the amounts under subclause 6.1(b)(i)(D)(I) will be
those costs incurred in order to bring such conditions into compliance
with the minimum standards required by Environmental Law using
reasonably necessary and cost effective means that are in accordance
with generally accepted practices in the environmental remediation
industry.
(d) Purchaser shall be responsible for and hereby indemnifies and agrees
to save harmless Vendor from and against all Environmental Liabilities
or Environmental Deficiencies with respect to the Assets or the
Business whether existing or occurring before or after the Effective
Time, other than those for which, and then only to the extent that,
Vendor is expressly responsible under subclause 6.1(a) and 6.1(b).
Purchaser shall also be responsible to take over and complete for its
own account any remediation work or other Environmental Deficiencies
or Environmental Liabilities, in respect of the Assets or the Business
after Vendor has expended or incurred a cumulative total of US
$2,250,000. Purchaser's obligations to indemnify Vendor under this
subclause 6.1(d) shall not extend to any liability that constitutes a
breach of Vendor's warranty under subclause 5.1(z), whether or not
notice of such breach has been given within any time period prescribed
by this Agreement.
(e) For the purposes of calculating all dollar amounts set forth in this
clause 6.1, only third party costs shall be included. Without
restricting the
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foregoing, no costs shall be allocated to any remediation efforts for
a party's overhead, depreciation, cost of capital, employees or
consultants (other than consultants contained primarily in connection
with the remediation of a specific Environmental Deficiency) or
opportunity costs. For the purpose of measuring costs incurred in
Canadian dollars against the limits in this Article 6, conversion of
the Canadian dollar costs to U.S. dollars shall be done on a monthly
basis, on the basis described in subclause 2.3(d).
(f) For greater clarity, Purchaser covenants and agrees that it or its
Representatives shall provide or make necessary arrangements for
Vendor or its Representatives to be provided with access to the
Assets, Lands and Facilities after Closing in order to complete the
work in respect of an Environmental Deficiency for which Vendor is
responsible under clause 6.1. Vendor covenants that it or its
Representatives shall make all reasonable efforts not to interfere
with the operations of Purchaser at the Assets, Lands or Facilities in
question. Such licence shall permit Vendor or its Representatives to
enter, occupy and use the Assets, Lands or Facilities, or portions
thereof, with such persons (including former employees of Vendor that
have become employees of Purchaser), materials, vehicles and equipment
as Vendor, acting reasonably, considers appropriate in order to
conduct such work and Purchaser shall, subject to the immediately
preceding sentence of this subclause 6.1(f), co-
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operate, on a commercially reasonable basis, in carrying out any tests
with respect to the Assets, Lands or Facilities as part of such work.
6.2 GENERAL INDEMNITIES
(a) In respect of Claims other than those to which clause 6.1 applies,
Vendor shall be solely liable for all such Claims suffered, sustained,
paid or incurred by Purchaser, and indemnify, defend and hold harmless
Purchaser from and against all such Claims suffered, sustained, paid
or incurred by Purchaser, in respect of:
(i) indebtedness incurred prior to the Effective Time by Vendor in
connection with the Business, including accounts payable;
(ii) claims relating to personal injuries which occurred prior to
the Effective Time;
(iii) breaches or alleged breach of contract of Vendor in relation to
the Business which occurred prior to the Effective Time; and
(iv) any obligations to refund monies to or compensate third persons
in respect of charges for the use of the Assets that arose
prior to the Effective Time.
(b) In respect of Claims other than those to which clause 6.1 or subclause
6.2(a) applies, if Closing occurs, Purchaser shall:
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(i) be solely liable for all such Claims suffered, sustained, paid
or incurred by Vendor; and
(ii) indemnify, defend and hold harmless Vendor from and against
such Claims suffered, sustained, paid or incurred by Vendor;
in respect of acts or omissions relating to the Assets or operations
in respect thereof whether occurring before or after the Effective
Time, except to the extent such Claims constitute a breach of a
representation, warranty or covenant of Vendor under subclause 3.3(c)
or clause 5.1, whether or not notice is given to Vendor within the
prescribed period in clause 5.4.
(c) Notwithstanding any other provision of this Agreement, Vendor shall:
(i) be solely liable for all Claims suffered, sustained, paid or
incurred; and
(ii) indemnify, defend and hold harmless Purchaser from and against
all such Claims suffered, sustained, paid or incurred;
by Vendor's employees in respect of any occupational, health, safety
or other employment-related matter arising in respect of any act or
omission of Vendor relating to the Assets or operations in respect
thereof occurring on or prior to the Closing Date, and in relation to
any of the Hired Employees' entitlement or alleged entitlement to
Vendor's pension plan.
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(d) Subject to subclause 6.2(f), each party shall be liable for, and shall
indemnify, defend and hold harmless the other party from and against,
all Claims that the other party suffers, sustains, pays or incurs as a
result of an inaccuracy in a certificate delivered pursuant to
subclause 3.5(e) or (f) or 3.6(a) or (c) or a breach of a
representation or warranty made by the indemnifying party in clause
5.1 or 5.3, as the case may be, except to the extent that the other
party actually knew of the inaccuracy or breach at or prior to the
completion of the Closing and had not given notice of that inaccuracy
or breach to the party whose certificate, representation or warranty
it was, or such Claims are caused by the gross negligence or willful
misconduct of the party otherwise entitled to indemnification. For
purposes of this subclause 6.2(d), knowledge of Purchaser shall mean
the actual knowledge of Xxxxx Xxxxxxx, Xxxxx Xxxxxxxx, Xxxx Xxxxxx and
Xxxxxx Xxxxxx.
(e) If, after Closing, a Claim is asserted by a third party in
circumstances which do or may give rise to a liability or obligation
to indemnify under clause 6.1 or 6.2, the party against whom the Claim
is asserted shall forthwith give written notice thereof to the other
party and the parties shall consult and cooperate in respect thereof
and in determining whether the Claim and any legal proceedings
relating thereto should be resisted, compromised or settled. Each
party shall make available to the other all information in its
possession or to which it has access that is or may be
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relevant to the particular Claim. Purchaser shall provide Vendor with
access to the Assets to which the Claim relates if reasonably required
by Vendor for the purpose of defending the Claim. No Claim, if
advanced by a third party, shall be settled or compromised without the
prior written consent of the indemnifying party hereunder, which
consent shall not be unreasonably withheld except that if a party
having the benefit of this indemnity is prepared to fully and finally
relinquish and forego that benefit it may settle or compromise any
claim, regardless of amount, without the consent of the indemnifying
party. If any such Claim relates exclusively to a period prior to or
on the Effective Time, Vendor shall have exclusive conduct of the
Claim and all legal proceedings relating thereto and if any such Claim
relates exclusively to a period after the Effective Time, Purchaser
shall have exclusive conduct of the Claim and all legal proceedings
relating thereto.
(f) no claim for indemnity under subclause 6.2(d) shall be made or be
enforceable by either of the parties, whether by legal proceedings or
otherwise, unless:
(i) written notice of such Claim in compliance with subclause 6.2(e),
is given by the party seeking to be indemnified to the other
party within the period of one (1) year following the Closing
Date unless such claim of indemnity relates to matters addressed
in
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subclause 5.1(h), (i) or (t), in which case such notice shall be
given within the period of two years following the Closing Date;
and
(ii) the amount of the Claims exceed US $20,000.00 in aggregate except
that this provision shall not apply to limit recovery in respect
of Claims that result from a willful breach of this Agreement;
Claims pursuant to subclause 6.2(a), (b) or (c) may be made at any
time after Closing.
6.3 SUBROGATION
To the extent permitted by Applicable Law or the applicable Contract, Purchaser
shall be subrogated to all rights of Vendor in respect of any liabilities
assumed by, or in respect of which indemnification is given by, Purchaser
hereunder. Purchaser and Vendor shall provide reasonable cooperation, at the
sole cost and expense of Purchaser, in the defence of any such liability.
6.4 DUE DILIGENCE COMPLETED AFTER CLOSING
Purchaser will, at the sole expense of Purchaser, carry out a smart pig test on
the Manito 10" blend and 4"/6" condensate Pipelines, the Milk River 6" line and
the North Saskatchewan 10" river crossing that may not be completed prior to
Closing but will be completed as soon as practicable and, in any event, no later
than ninety (90) days after the date of this Agreement. If the test discloses
that any portion of those Pipelines to have less than fifty per cent (50%) of
the original wall thickness, Vendor will repair those
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portions of the Pipelines at no cost to Purchaser in respect of those repairs
(but Vendor shall not be liable to Purchaser for any business interruption, loss
of profit or other indirect or incidental claims arising from such repairs).
Purchaser shall provide Vendor with access and a licence to use the Lands
required in order to effect such repairs within one (1) year of the Closing Date
and during a period that includes May to November.
6.5 MILK RIVER
Vendor will compensate Purchaser for any reductions to the Milk River tariffs
mandated by the National Energy Board with respect to the Milk River complaint
as described in Schedule 8 that exceed a percentage reduction of twenty percent
(20%) of the currently posted tariffs. The value of the compensation will be
calculated by multiplying the Milk River revenues for the calendar year 2000 (US
$3,318,000) times any percentage reduction in excess of 20% times a factor of
eight.
ARTICLE 7
EMPLOYEES
7.1 OFFER OF EMPLOYMENT
(a) Purchaser shall extend offers of continuous employment to those
Employees of Vendor named in Schedule 17. Purchaser shall provide the
offers of employment to Vendor for approval at least ten (10) Business
Days before the Closing Date. All offers of employment shall provide
for overall compensation and benefits that is at least as beneficial
for each
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Employee as those which currently exist for such Employee, so as to
fully mitigate the loss of employment with Vendor. In particular, each
offer of employment shall provide for:
(i) a compensation package that is at least as beneficial as the
current compensation and benefits package for the particular
Employee, including the provision of benefits with effect from
the Closing Date which are no less favourable than those
provided under the Employee Plans. Notwithstanding the
foregoing, Purchaser shall not be obligated to replicate the
defined benefit section of Vendor's registered pension plan,
however, Purchaser shall, either through a registered pension
plan or a group registered retirement savings plan, provide
defined contribution benefits to Hired Employees for service
after the Closing Date which are no less favourable as those
provided under the defined contribution section of Vendor's
registered pension plan;
(ii) recognition of the particular Employee's years of service with
Vendor (which service shall include service in any corporations
or businesses with predecessor companies acquired by Vendor)
for all employment purposes, including for determination of
severance; and
(iii) vacation that recognizes the same number of years of service as
are recognized by Vendor, which may include prior industry
service.
(b) For all Employees of Vendor who accept the offer of employment of
Purchaser made pursuant to subclause 7.1(a) ("Hired Employees"),
Purchaser shall indemnify and save harmless Vendor with respect to all
Claims against Vendor made by any Hired Employees as a consequence of
the termination of such Hired Employee by Purchaser at any time after
the Closing Date.
(c) Purchaser shall not have any liability to Vendor (i) with respect to
any employee who does not accept Purchaser's offer of employment, or
(ii) any and all employees of Vendor whom are not listed in Schedule
17, and Vendor shall indemnify and save harmless Purchaser from all
such Claims, subject to Purchaser having performed its obligations
under Section 7.1.
(d) For three (3) years after Closing Vendor shall not, and guarantees
that none of its Affiliates shall hire, either as an employee,
consultant or independent contractor, or in any other capacity or
relationship, any of the Hired Employees without first having received
written confirmation from Purchaser that the particular individual is
not and will not be employed by Purchaser.
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(e) Each Hired Employee shall cease to participate in and accrue benefits
under the Employee Plans on and after the Closing Date.
Purchaser:
(i) shall have no responsibility for any benefit claims incurred
within the meaning of the Employee Plans;
(ii) shall be responsible under the replacement benefit plans to be
established by Purchaser as set out in subclause 7.1(a) for all
benefit claims incurred by the Hired Employees on and after the
Closing Date; and
(iii) shall not assume any liability for any benefits accrued prior
to the Closing Date by Hired Employees under Vendor's
registered pension plan.
ARTICLE 8
GENERAL
8.1 FURTHER ASSURANCES
At the Closing and thereafter as may be necessary and without further
consideration, the parties hereto shall execute, acknowledge and deliver such
other documents, novations, instruments and agreements and shall do such other
things as may be necessary to carry out their respective obligations under this
Agreement.
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8.2 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
the Province of Alberta and the laws of Canada having application therein.
Subject to clause 8.3, each party hereby irrevocably and unconditionally
consents to submit to the jurisdiction of the Court of Queen's Bench of Alberta,
Judicial District of Calgary, for any actions, suits or proceedings arising out
of or relating to this Agreement and the transactions contemplated hereby (and
agrees not to commence any action, suit or proceeding relating thereto except in
such courts) and further agrees that services of any process, summons, notice or
document by registered or certified mail to the address hereinafter set forth
shall be effective service of process for any action, suit or proceeding brought
against the party in any such Court. The parties hereby irrevocably and
unconditionally waive any objection to the venue of any action, suit or
proceeding arising out of this Agreement or the transaction contemplated hereby
being in the Courts of the Province of Alberta and further irrevocably and
unconditionally waive and agree not to plead or claim in any such court that any
such action, suit or proceeding brought in any such Court has been brought in an
inconvenient forum.
8.3 WAIVER
No waiver by any party of any, or any breach, of the covenants, provisions,
conditions or terms of this Agreement shall be of any effect or be binding upon
the party alleged to have waived, unless such waiver is expressed in writing.
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8.4 TIME
Time shall be of the essence of this Agreement.
8.5 NOTICES
(a) The address for all notices, communications and statements
(hereinafter called "notices") of each of the parties hereto shall be
as follows:
Vendor: Xxxxxx Oil Company Ltd.
0000, 000 - 0xx Xxxxxx X.X.
Xxxxxxx, XX X0X 0X0
Attention: Corporate Secretary
Telecopier No.: (000) 000-0000
Xxxxxx Oil Corporation
000 Xxxx Xxxxx Xxxxxx
X.X. Xxx 0000
Xx Xxxxxx, XX 00000-0000
Attention: Corporate Secretary
Telecopier No.: (000) 000-0000
Purchaser: Plains Marketing Canada, L.P.
c/o Plains Marketing, LP
000 Xxxx Xxxxxx, Xxxxx 0000 (77002)
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
-and-
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Plains Marketing, L.P.
c/o Plains Marketing, LP
000 Xxxx Xxxxxx, Xxxxx 0000 (77002)
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxxx X. Xxxxxxxx
Telecopier No.: (000) 000-0000
(b) All notices required, permitted or contemplated hereunder shall be in
writing, and shall be deemed to be sufficiently given and received if
given:
(i) by delivery to the recipient during the normal working hours of
the recipient at the address set forth above, and notices so
given shall be deemed received by the addressee when actually
delivered if delivered during the normal working hours of a
Business Day, or at the commencement of the next ensuing
Business Day if not delivered during the normal working hours
of a Business Day;
(ii) by telecopier directed to the recipient at that party's
telecopier number set forth above, and notices so given shall
be deemed to have been received by the addressee thereof when
actually received by it if received during the normal working
hours of a Business Day, or at the commencement of the next
ensuing Business Day if not received during the normal working
hours of a Business Day; or
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(c) Either party hereto may from time to time change its address for
service hereunder by giving written notice to the other.
8.6 SIGNS
After Closing, Purchaser shall forthwith remove any signs which indicate
Vendor's ownership or operation of the Assets, except in relation to the use of
the Spur logo, as contemplated by this Agreement. It shall be the
responsibility of Purchaser, where necessary, to erect or install any signs that
may be required by Government Authorities indicating Purchaser to be the
operator of the Assets and to notify suppliers, contractors, Government
Authorities and any other third party of Purchaser's interest in the Assets.
Purchaser and Vendor acknowledge that Vendor shall, on the Closing Date, close
out all websites that it has established respecting the Business.
8.7 ASSIGNMENT
Neither party may assign its rights or obligations under this Agreement, either
in whole or in part, to any party without having received the written approval
of the other party, such approval not to be unreasonably withheld.
Notwithstanding the foregoing, Purchaser may assign this Agreement and its
rights and obligations hereunder to an Affiliate, provided that notwithstanding
an assignment to an Affiliate, Purchaser shall remain liable for all obligations
of such Affiliate.
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8.8 CONFIDENTIALITY
(a) The Confidentiality Agreement shall terminate upon completion of the
Closing.
(b) Each party shall keep in strict confidence:
(i) this Agreement and its contents; and
(ii) all non-public information relating to Vendor's business that
has been continuously maintained, and is continuously
maintained, in strict confidence by Vendor.
Vendor shall also keep in strict confidence all information relating
to the Assets and the Business both before and for three years after
Closing. Vendor acknowledges that none of the Hired Employees will be
bound by any confidentiality obligations to Vendor or any other Person
(other than Purchaser) in relation to the Assets or the Business.
Neither party shall disclose any non-public information that is likely
or intended to cause any third party to commence a claim against the
other party in respect of the Assets or the Business. A party may
disclose the fact of this Agreement, the contents of this Agreement
and any of the aforementioned information to:
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(iii) any court or to any Government Authority if required to do so
by Applicable Law but such party shall, to the extent possible,
ensure that the disclosure is made on a confidential basis; and
(iv) to its consultants, advisors and legal counsel retained in
connection with the transaction contemplated by this Agreement,
provided that disclosure is made on a confidential basis.
(c) If Closing does not occur, all confidential information delivered by
Vendor to Purchaser in connection with the Assets or the transaction
contemplated by this Agreement and that is not subject to the
provision of the Confidentiality Agreements shall, at Vendor's
request, be returned to Vendor by Purchaser and Purchaser shall not
retain copies of any of the returned material.
(d) Each party will discuss with, and obtain the written approval of, the
other party drafts of all press releases relating to the transactions
contemplated by this Agreement, prior to the release or publication of
such releases, which approval may be reasonably withheld; provided
that neither party may withhold its approval of the disclosure of
matters required to be disclosed by the other party under Applicable
Law or the rules of any stock exchange upon which the securities of
the disclosing party are traded.
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8.9 ACCESS TO RECORDS
Vendor shall have reasonable access to all books, records, data, etc. during
business hours on reasonable terms if required for the purpose of any tax
proceedings or audit.
8.10 ENUREMENT
This Agreement shall be binding upon and shall enure to the benefit of the
parties hereto and their respective trustees, receivers, receiver-managers,
successors and permitted assigns.
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8.11 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the parties with respect to
its subject matter hereof.
IN WITNESS WHEREOF the parties hereto have executed this Agreement effective as
of the date first above written.
XXXXXX OIL COMPANY LTD.
Per:
-----------------------------------------
Per:
-----------------------------------------
PLAINS MARKETING CANADA, L.P., BY
ITS GENERAL PARTNER PMC (NOVA
SCOTIA) COMPANY
Per:
-----------------------------------------
