EXHIBIT 10.68
AGREEMENT FOR THE PURCHASE AND
SALE OF EMISSION REDUCTION CREDITS
THIS AGREEMENT is made as of the 22nd day of August, 2002 by and between
Xxxxxx Chemicals and Plastics Operating Limited Partnership, a Delaware limited
partnership ("Seller") and Weyerhaeuser Company, a Washington corporation
("Buyer").
WHEREAS, Seller is the owner of certain volatile organic compound ("VOC")
Emission Reduction Credits ("ERCs"), which are defined in and governed by the
Louisiana Air Pollution Control Act (33:III, Chapter 6, et seq.), including ERC
banking rules.
WHEREAS, Seller filed a voluntary petition for relief under chapter 11 of
the Bankruptcy Code, 11 U.S.C. Sections 101-1330 (as now in effect or hereafter
amended, the "Bankruptcy Code"), on April 3, 2001 in the United States
Bankruptcy Court for the District of Delaware (the "Bankruptcy Court").
WHEREAS, the subject ERCs result from emission reductions of VOC that were
created at Seller's Ascension Parish, Louisiana facility.
WHEREAS, in order to secure a Non-Attainment New Source Review ("NNSR")
permit for its Holden, Xxxxxxxxxx Parish, Louisiana facility under Louisiana
Department of Environmental Quality ("LDEQ") new source review regulations.
Buyer desires to purchase from Seller and Seller desires to sell to Buyer 87.2
tons per year ("tpy") of VOC ERCs as soon as they can reasonably do so and
subject to the approval of the Bankruptcy Court.
1. PURCHASE AND SALE OF ERCs. Subject to approval of the Bankruptcy
Court, Seller shall sell to Buyer, and Buyer shall purchase from Seller,
87.2 tpy of VOC ERCs (the "VOC ERCs"). The purchase price shall be
calculated on the basis of $5,000 per tpy VOC ERCs transferred to Buyer, or
a total purchase price of $436,000.00 (the "Purchase Price").
2. BANKRUPTCY COURT APPROVAL.
(a) Approval. Seller and Buyer acknowledge that, under the Bankruptcy
Laws, this Agreement and the sale of the VOC ERCs are subject to
Bankruptcy Court approval. Seller and Buyer acknowledge that to obtain
such approval, Seller must demonstrate that it has taken reasonable
steps to obtain the highest or best offer possible for the VOC ERCs,
including, but not limited to, giving notice of the transactions
contemplated by this Agreement to creditors and other interested
parties as ordered by the Bankruptcy Court, providing information
about the VOC ERCs to
responsible bidders, entertaining higher and better offers from
responsible bidders and, if necessary, conducting an auction.
(b) Motion for Sale Order. Within three (3) Business Days following
execution of this Agreement by Seller and Buyer, Seller shall file
with the Bankruptcy Court a motion, together with appropriate
supporting papers and notices, in form and substance reasonably
satisfactory to Buyer and its counsel (the "Sale Motion"), seeking the
entry of an order (the "Sale Order"), pursuant to Chapter 11 of the
United States Code Sections 105, 363 and 365, (i) authorizing and
approving, inter alia, the conveyance of the VOC ERCs on the terms and
conditions set forth herein, (ii) providing that the stay contained at
Rule 6004(g) of the Federal Rules of Bankruptcy Procedure shall not
apply and that the order shall be effective and enforceable
immediately upon entry, (iii) containing a finding that Buyer has paid
the highest value reasonably attainable for the VOC ERCs and has acted
in "good faith" within the meaning of Section 363(m) of the Bankruptcy
Code and (iv) authorizing the payment of the Xxxxxxx Money together
with all earnings thereon to be made to Seller as part of the Purchase
Price.
(c) Bid Procedures. From the date of this Agreement and through the
consummation of the transactions contemplated hereby or the
termination hereof, Buyer and Seller agree that Seller may inform any
and all interested parties that it intends to submit this Agreement to
the Bankruptcy Court and that any and all other bids or offers with
respect to the VOC ERCs must be presented to Seller prior to the
hearing on the Sale Motion.
(d) The obligations of the Seller to complete the sale of the VOC ERCs are
contingent upon the approval of this sale, if necessary, from the
Bankruptcy Court.
3. XXXXXXX MONEY AND BALANCE OF THE PURCHASE PRICE PAYMENT.
(a) Simultaneous with the execution of this Agreement, Buyer shall wire to
Cantor Xxxxxxxxxx Brokerage, L.P. ("CF"), $45,235.00, which shall
consist of a deposit on the Purchase Price in the amount of $43,600.00
(the "Xxxxxxx Money"), and CF's commission in the amount of $1,635.00,
corresponding to a 3.75% brokerage commission fee on the Purchase
Price (the "Commission") (the Xxxxxxx Money together with the
Commission shall hereinafter be referred to as the "Xxxxxxx
Deposit.") The Xxxxxxx Money shall be applied to the Purchase Price,
which shall be calculated in accordance with Section 1 above. The
Xxxxxxx Deposit shall be refundable to Buyer upon termination of this
Agreement pursuant to Section 13.
(b) If fewer than 87.2 tpy of VOC ERCs are determined by LDEQ to be
transferable to Buyer at the time of transfer request by and between
Buyer
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and Seller, Seller agrees to deliver and Buyer agrees to accept all
VOC ERCs determined by LDEQ to be transferable to Buyer; the Purchase
Price shall be reduced by $5,000 for each tpy below 87.2 tpy that is
transferred to Buyer (the "Adjusted Purchase Price") and the
Commission shall be adjusted to reflect a 3.75% of the Adjusted
Purchase Price.
(c) Within three (3) business days from the receipt of the notice from
LDEQ of the transfer of the VOC ERCs to Buyer, Buyer shall wire to CF
the Purchase Price, minus the Xxxxxxx Deposit (the "Balance") plus
Buyer's share of the Commission corresponding to 1.875% of the
Purchase Price. Immediately upon receipt of the Balance, CF shall
transfer to Seller in cash by wire the Purchase Price minus the
Commission.
(d) Upon Buyer's payment of the Purchase Price, the VOC ERCs shall become
the sole property of Buyer and Buyer shall have no recourse against
Seller in the event of change of law governing the creation, transfer,
or use of VOC ERCs.
4. TRANSFER OF ERCs. Within five (5) business days from the Bankruptcy
Court Order and upon CFs receipt of the Xxxxxxx Money, Seller and Buyer
shall submit such paperwork as necessary to direct the LDEQ to immediately
transfer the VOC ERCs from Seller to Buyer. Seller and Buyer shall use good
faith efforts and take reasonable actions necessary to promptly transfer
the VOC ERCs to Buyer. Buyer shall be solely responsible for any fee or tax
associated with the transfer of the VOC ERCs (the "Transfer Fee").
5. REPRESENTATIONS. Seller and Buyer represent and warrant that each of
the respective parties have the full corporate power and authority to
perform their respective obligations under this Agreement. Seller
represents and warrants that it owns the VOC ERCs; that no litigation is
pending or, to the Seller's knowledge, threatened with respect to the VOC
ERCs; and that the execution and delivery of this Agreement will not result
in any conflict or violation of the Articles of Incorporation or the Bylaws
of Seller. Seller does not represent or warrant that the Seller's VOC ERC
transfer application will be approved by the LDEQ, that the ERCs can be
used by Buyer, or that the LDEQ will approve their transfer to Seller's
plan approval. Seller makes no representations or warranty regarding the
future use or marketability of the VOC ERCs.
6. BROKER'S FEES. Buyer and Seller shall split equally the Commission.
Buyer represents and warrants to Seller, and Seller represents and warrants
to Buyer that, aside from CF, no broker or finder has been engaged by it,
respectively, in connection with this Agreement. By executing this
Agreement Buyer and Seller direct CF to take actions specified in Section 3
of this Agreement.
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7. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of
which constitute the same instrument, and may be executed by facsimile
copy.
8. SEVERABILITY. In the event any provision of this Agreement is held
invalid, the parties shall promptly renegotiate in good faith the terms of
this Agreement as near as possible to its original intent and effect.
9. ADDITIONAL DOCUMENTS. At the request of either party, the other party
shall execute and deliver such additional documents and do such other acts
and things as may be reasonably necessary to assume and carry out the full
intent and purpose of this Agreement.
10. ENTIRETY. This Agreement sets forth the entire agreement of the
parties with respect to the matters contained herein and supersedes and
replaces all prior understandings, negotiations, and agreements.
11. TIME IS OF THE ESSENCE. Time is of the essence in this Agreement.
Failure of a party to insist upon the strict performance of any provision
of this Agreement shall not constitute a waiver or estoppel against
asserting the right to require full and timely performance in the future,
nor shall a waiver or estoppel in one instance constitute a waiver or
estoppel with respect to a later breach.
12. NOTICE. All notices and other communications in connection with this
Agreement shall be sent to the following addresses:
For Seller:
Xxxxxx Chemicals and Plastics Operating Limited Partnership
Xxxxxxx 00
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxxxxxx Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy, which shall not alone constitute notice, to:
Xxxxx, Day, Xxxxxx & Xxxxx
0000 XxxXxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
For Buyer:
Weyerhaeuser Company
17391 Florida Xxxxxxxxx
Xxxx Xxxxxx Xxx 000
0
Xxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxx
Manufacturing Lumber Manager
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to:
Xx. Xxxxxxx X. Xxxx
Area Regulatory Affairs Manager
00 Xxx Xxxx Xxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxxxx, Xxxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
And a copy to:
Cantor Xxxxxxxxxx EBS
00 Xxx Xxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
Telephone No.: (000) 000-0000 (ext. 6)
Facsimile No.: (000) 000-0000
or such other address or facsimile number as such party may hereafter specify
for such purpose by notice to the other party to this Agreement. Each such
notice, request or other communication shall be effective (i) if given by
facsimile transmission, when such facsimile is transmitted to the facsimile
number specified in this Section 12 and the appropriate confirmation is
received, or (ii) if given by any other means, when delivered at the address
specified in this Section 12.
13. TERMINATION. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned:
(a) by mutual written consent of Seller and Buyer.
(b) by Buyer, at any time following the third (3rd) business day
after the execution and delivery of this Agreement if Seller
shall not have filed the Sale Motion with the Bankruptcy
Court.
(c) by Buyer at any time following the tenth (10th) business day
after (i) the Bankruptcy Court has entered the Sale Order and
(ii) upon the receipt of documentation necessary from Buyer to
file such transfer application if Seller does not submit a
written request for the transfer of the VOC ERCs to the LDEQ.
Buyer agrees that it
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will furnish Seller with all such necessary documents within
five (5) days of execution of this Agreement.
(d) by Seller (i) if Seller receives an offer or proposal (an
"Acquisition Proposal") from any Person other than Buyer
relating to any acquisition of all or any part of the Assets
(a "Competing Transaction") and Seller determines, in its
reasonable sole discretion, that (A) such Acquisition
Proposal, if accepted, is likely to be consummated, and (B)
such Acquisition Proposal would, if consummated, result in a
transaction that is more favorable to Seller and its creditor
constituencies with respect to financial terms than the
transactions contemplated by this Agreement, or (ii) for any
reason for which termination by Seller is authorized by the
Bankruptcy Court.
(e) by Buyer, if Seller fails to consummate the transactions
contemplated by this Agreement and such failure to consummate
the transactions is because (i) Seller accepts an Acquisition
Proposal, or (ii) Seller breaches its obligations under this
Agreement, provided, that, Buyer is not in material breach of
this Agreement.
(f) Upon termination of this Agreement pursuant to Section 13
hereof, all obligations and liabilities of the parties
hereunder shall terminate, except for the provisions of
Sections 8 and 14. The aforesaid provisions shall survive such
termination for the longest period legally permissible.
(g) Terminations made per this Section 13 shall be made by written
notice to Seller or Buyer and shall be effective upon Seller's
or Buyer's receipt of such notice. Within three (3) business
days of Seller's or Buyer's receipt of such notice Seller
shall remit to Buyer the Xxxxxxx Deposit.
(h) In the event of termination of this Agreement pursuant to this
Section 13, Buyer shall not be entitled to a reimbursement of
the Transfer Fee.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF LOUISIANA.
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Executed as of the date first above written.
SELLER:
XXXXXX CHEMICALS AND
PLASTICS OPERATING LIMITED
PARTNERSHIP
By: BCP MANAGEMENT, INC. AS GENERAL PARTNER
By: /s/ Xxxxxxxx X. Xxxxx, Xx.
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Its: SENIOR VICE PRESIDENT - OPERATIONS
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Title
BUYER:
WEYERHAEUSER COMPANY
By: /s/ Xxxxxx X. Xxxx
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Its: Mfg. Manager
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Title
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