EXHIBIT A
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), is made and
entered into as of the ___ day of __________, 1997, by and between IMC Global
Operations Inc., a Delaware corporation (together with its successors and
assigns, "Assignor") and Freeport-McMoRan Resource Partners, Limited
Partnership, a Delaware limited partnership (together with its successors and
assigns,"Assignee").
W I T N E S S E T H:
WHEREAS, Assignor holds an interest in certain sulphur and oil and gas
producing properties and certain facilities and other interests relating
thereto; and
WHEREAS, in connection with the proposed merger between Assignor's parent
company, IMC Global Inc., and an Affiliate of Assignor, Freeport-McMoRan Inc.,
(the "Merger"), Assignor hereby agrees to transfer to Assignee the interest in
the sulphur and oil and gas producing properties and the facilities and other
interests relating thereto which are identified herein.
NOW, THEREFORE, in consideration of good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by Assignor and
Assignee, Assignor and Assignee hereby agree as follows:
1. DEFINITIONS. As used herein, the following terms, when capitalized,
shall have the following meanings, unless the context dictates otherwise:
"Action" means any claim, suit, chose in action, arbitration, mediation,
inquiry, proceeding or investigation by or before any court, governmental or
other regulatory or administrative agency or commission or any other tribunal.
"Affiliate" means with respect to any Person, any Person that directly or
indirectly through one or more intermediaries, controls, is controlled by or is
under common control with such Person. As used in this definition, the term
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of the Person, whether
through ownership of voting securities, by contract or credit agreement, as
trustee or executor or otherwise.
"Applicable Law" means all applicable provisions of all (i) constitutions,
treaties, statutes, laws (including the common law), rules, regulations,
ordinances, codes or orders of any Governmental Authority, (ii) Consents by
Governmental Authorities and (iii) orders, decisions, injunctions, judgments,
awards and decrees of or agreements with any Governmental Authority.
EXHIBIT A
"Code" means the Internal Revenue Code of 1986, as amended.
"Consent" means any consent, approval, authorization, waiver, permit,
grant, franchise, concession, agreement, license, exemption or order of,
registration, certificate, declaration, or filing with, or report or notice to,
any Person, including but not limited to any Governmental Authority that is
required as a precondition to the transfer of one or more of the Assets.
"Containment" means any waste, pollutant, hazardous or toxic substance or
waste, petroleum, petroleum-based substance or waste, special waste, or any
constituent of any such substance or waste.
"Environmental Law" means all Applicable Law relating to or addressing the
environment, health or safety, including but not limited to OSHA and RCRA and
any state equivalent thereof or any successor statute.
"Fertilizer Business" means the business conducted by IMC-Agrico Company.
"Governmental Authority" means any federal, state, county, municipal or
other government, department, commission, board, court, agency, authority, or
any other instrumentality of any of them, or any other organization exercising
legislative, executive or judicial authority over any of the foregoing.
"Hydrocarbons" means crude oil and/or condensate, natural gas, distillate,
natural gas liquids and all products recovered in the processing of natural gas
liquids, including, without limitation natural gasoline, iso-butane, normal
butane, propane and ethane (including such methane allowable in commercial
ethane).
"Intellectual Property" means any and all United States and foreign (a)
patents (including design patents, industrial designs and utility models) and
patent applications (including docketed patent disclosures awaiting filing,
reissues, divisions, continuations-in-part and extensions), patent disclosures
awaiting filing determination, inventions, and improvements thereto, (b)
trademarks, service marks, trade names, trade dress, logos, business and product
names, slogans, and registrations and applications for registration thereof,
together with the goodwill of the businesses attributable thereto, (c)
copyrights (including software) and registrations thereof, (d) inventions,
processes, designs, formulae, trade secrets, know-how, industrial models,
confidential and technical information, manufacturing, engineering and technical
drawings, product specifications and confidential business information, (e)
intellectual property rights similar to the foregoing, and (f) copies and
tangible embodiments thereof (in whatever form or medium, including electronic
media).
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"Leased Real Property" means all interests (including offshore acreage)
leased pursuant to the Leases, together with all structures, facilities,
improvements, fixtures, systems, equipment, and items of real property which are
owned or leased by Assignor and presently located on the real property or other
acreage subject to the Leases, and all of Assignor's right, title and interest
in and to all easements, servitudes, licenses, rights, rights-of-way, operating
rights, franchises and appurtenances relating to the foregoing.
"Leases" means the leases set forth on Schedule 1 hereto.
"Liabilities" means any and all claims, debts, costs, indebtedness,
liabilities and obligations, absolute or contingent, matured or not matured,
liquidated or unliquidated, accrued or unaccrued, known or unknown, whenever
arising, including all costs and expenses related thereto and including, without
limitation, those claims, debts, costs, indebtedness, liabilities and
obligations arising under any law, rule, regulation, Action, threatened Action,
order or consent decree of any governmental entity or any award of any
arbitrator of any kind, and those arising under any contract, commitments or
undertaking.
"Lien" means any interest in property held by someone other than the owner
of the property, including a mortgage, pledge, hypothecation, claim, security
interest, pledge, encumbrance, lease, sublease, license, occupancy agreement,
adverse claim or interest, conditional sale, easement, servitude, covenant,
encroachment, burden, title defect, title retention agreement, voting trust
agreement, option, lien, right of first refusal, right of rescission, charge or
other restriction or limitation of any nature whatsoever.
"Permit" means any foreign, federal, state, municipal and local permit,
license, registration, consent, order, administrative consent order,
certificate, approval or other authorization with respect to Assignor necessary
for the ownership or use of any Asset or the conduct of the Transferred Business
as it is currently conducted or has been previously conducted.
"Person" means any natural person, firm, partnership, limited liability
company, association, corporation, company, trust, business trust, Governmental
Authority or other entity.
"Release" means any release, spill, emission, leaking, pumping, injection,
deposit, disposal, discharge, dispersal, leaching or migration of a Contaminant
into the indoor or outdoor environment or into or out of any Leased Real
Property, including the movement of Contaminants through or in the air, soil,
surface water, groundwater or Leased Real Property.
"Remedial Action " means actions required to (i) clean up, remove, treat
or in any other way address Contaminants in the indoor or outdoor environment;
(ii) prevent the Release or threatened Release or minimize the further Release
of Contaminants or (iii) investigate and determine if a
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EXHIBIT A
remedial response is needed and to design such a response and post-remedial
investigation, monitoring, operation and maintenance and care.
"Tax" means any federal, state, provincial, local, foreign or other income,
alternative minimum, accumulated earnings, personal holding company, franchise,
capital stock, net worth, capital, profits, windfall profits, gross receipts,
value added, sales, use, goods and services, excise, customs duties, transfer,
conveyance, mortgage, registration, stamp, documentary, recording, premium,
severance, environmental (including taxes under Section 59(A) of the Code), real
property, personal property, ad valorem, intangible, rent, occupancy, license,
occupational, employment, unemployment insurance, social security, disability,
workers' compensation, payroll, healthcare, withholding, estimated or similar
tax, duty or other governmental charge or assessment or deficiencies thereof,
including all interest and penalties thereon and additions thereto whether
disputed or not.
"Transferred Businesses" means, collectively: (i) the businesses and
operations of Assignor to the extent relating to the exploration, production,
development, processing, transportation, storage, terminalling, sale, purchase
or marketing of sulphur, in whatever form, and of sulphuric acid, or the
provision of other services in connection therewith, including, without
limitation, the operations conducted from the Leased Real Property, but
expressly excluding the purchase and processing of sulphur by IMC-Agrico
Company; (ii) the businesses and operations of Assignor to the extent relating
to the exploration, production, development, processing, transportation, sale,
purchase or marketing of Hydrocarbons produced or allocable to the Leased Real
Property, or the provision of other services in connection therewith; (iii) to
the extent not already included in the description set forth in (i) or (ii) of
this definition, all businesses and operations located on the Leased Real
Property or using or consuming any of the Assets.
2. ASSIGNMENT. Assignor hereby conveys, sells, assigns, transfers and
delivers to Assignee any and all right, title and interest of Assignor in or to
(collectively, the "Assets"):
(i) The assets listed on Schedule 1 attached hereto and made a part
hereof;
(ii) All of the assets physically located on any of the Leased Real
Property;
(iii) All books, records and information of Assignor recorded on
any form of media whether owned, leased or licensed by Assignor, including
magnetic disk, computer drives or microfiche, to the extent the same
primarily relate to and primarily used by or primarily in connection with
the Transferred Business or any Asset; all advertising materials, catalogs,
price lists, correspondence, mailing lists, lists of customers,
distribution lists, photographs, production data, sales and promotional
materials and records, purchasing materials and records, personnel records,
manufacturing and quality control records and
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procedures, blueprints, specifications, drawings, schematics, research and
development files, records, data and laboratory books, Intellectual
Property filings or registrations, media materials and plates, accounting
records, sales order files, litigation files, logs, seismic and geophysical
information, geological and chemical data and information, reserve studies
and evaluations, fluid samples, well cores, title abstracts and opinions,
production data and reports, well testing data and reports, and maps, to
the extent that same primarily relate to and are used primarily by or
primarily in connection with the Transferred Business or any Asset;
(iv) All cash, credits, prepaid expenses, amounts on deposit,
deferred charges, advance payments, security deposits and prepaid items
owned by, accrued in favor of or held by Assignor thereof to the extent
relating primarily to the Transferred Businesses or any Asset;
(v) All notes, accounts receivable, rights to payment or other
evidence of indebtedness generated by Assignor primarily in connection with
the Transferred Businesses or any Asset; all cash and cash equivalents paid
in respect of any such notes, accounts receivable, rights to payment or
other indebtedness; and all Liens, letters of credit, guarantees or bonds
to secure the payment of all such amounts;
(vi) All of the right, title and interest of Assignor in and to all
contracts and agreements between Assignor, on the one hand and any third
party to the extent made by or for the primary benefit of the Transferred
Businesses or any Asset; provided that the Assignor assigns the rights
under the Agreement for Sulphur Supply dated as of July 1, 1993 (the "IMCAC
Sulphur Agreement") among Assignor, Assignee and IMC-Agrico Company
("IMCAC") other than its rights to act as a buyer on behalf of IMCAC;
(vii) All asserted and unasserted Actions now owned by Assignor
and that are related primarily arise primarily out of the Transferred
Businesses or any of the Assets, including any claim for royalty refunds or
rebates from any land owner, including the United States, and any claim for
balancing of Hydrocarbons;
(viii) All Consents and Permits held by Assignor for the primary
benefit of the Transferred Businesses or any Asset;
(ix) All machinery, equipment, furniture, furnishings, automobiles,
trucks, vehicles, vessels, boats, aircraft, tools, dies, molds, xxxxx,
casing, tubing, pumping units, engines, platforms, derricks, separators,
compressors, flow lines, tanks, pipelines, chemicals, power generation and
transmission equipment, communication systems, meters, motors, parts and
similar property (including, but not limited to, any of the foregoing
purchased
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EXHIBIT A
subject to any conditional sales or title retention agreement in favor of
any other Person or subject to any financed lease in favor of any other
Person) to the extent used primarily in connection with the Transferred
Businesses or any Asset;
(x) All servitudes, easements, rights of way, operating rights,
exploration rights, sharing agreements, balancing agreements, pooling or
unitization agreements, farmout or farming agreements, unit designation and
pooling orders or other rights or agreements which bear primarily upon or
are for the primary benefit of the Transferred Businesses or any Asset;
(xi) All sulphur, Hydrocarbons or other minerals to the extent
produced from or are allocable to the interest of Assignor in and to any of
the Leased Real Property.
(xii) All Intellectual Property owned or licensed by Assignor and
all rights thereunder or in respect thereof to the extent relating
primarily to or used primarily or held primarily for use in connection with
the Transferred Businesses or any Asset, including, but not limited to,
rights to xxx for and remedies against past, present and future
infringements thereof, and rights of protection of interests therein under
the laws of any jurisdiction worldwide; and
(xiii) The Leases.
3. ASSUMPTION OF ASSUMED LIABILITIES. Subject to the terms and
conditions set forth in this Agreement, Assignee shall assume and agree to pay,
honor and discharge when due, and take all action necessary or appropriate under
Applicable Law to assume, effective on or prior to the date hereof, all
Liabilities arising from or in connection with the ownership, acquisition,
conduct or operation (past, present or future) of the Transferred Businesses (or
any predecessor to the Transferred Businesses) or any Assets or relating to the
ownership or use of the Assets, whether arising before, on or after the date
hereof and whether related to the current, past or future operations of the
Transferred Businesses (collectively, the "ASSUMED LIABILITIES"). Without
limitation of the foregoing, Assumed Liabilities include:
(a) Any and all Liabilities related to the contracts and agreements
described in Section 2 above;
(b) (ii) All Liabilities related to, associated with or arising out
of (A) the occupancy, operation, use or control of any of the Leased Real
Property, (B) the operations of the Transferred Businesses (or any
predecessor thereto), in each case incurred under or imposed by any
Environmental Law (including without limitation any Release or threatened
Release of any Contaminant on, in, at, to, beneath or from the Leased Real
Property, including, without limitation, all facilities, improvements,
structures and equipment thereon,
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EXHIBIT A
surface water thereon or adjacent thereto and soil or groundwater
thereunder or any conditions whatsoever on, in, at, under or in the
vicinity of such real property), (C) the generation, handling
transportation, storage, discharge or disposal of any Contaminant in
connection with the Transferred Businesses, (D) any Remedial Action
required under any Environmental Law in connection with the Transferred
Businesses; or (E) any violation of any Environmental Law in connection
with the operations of the Transferred Businesses;
(c) Any sales, use, transfer, stamp, recording, documentary or
similar Taxes or any fees and disbursements of counsel, accountants, real
estate agents, appraisers, financial advisors, actuaries, consultants or
title companies or other similar charges, in each case arising out of the
assignment, transfer or delivery to the Company of the Transferred
Businesses or Assets pursuant to Section 2 in each case; and
(d) Any Liabilities arising out of or related to litigation related
to the current, past or future operations of the Transferred Businesses.
4. CONSENTS. In the event that Assignor shall be unable to transfer any
of the Assets to Assignee prior to the date hereof due to the failure of
Assignor to obtain any necessary Consents, Assignor: (i) shall continue to seek
the necessary Consents, in accordance with this Agreement; (ii) shall hold such
Assets for the benefit of Assignee and cooperate with Assignee in any lawful and
economically feasible arrangement to insure that Assignee shall receive the
benefits thereof, (iii) shall hold or cause to be held for the account of
Assignee all accounts receivable or accounts payable related to Assignee's
interest in any such Assets accrued as, and accruing after, the date hereof,
(iv) shall make available to Assignee all information relating to such Assets to
the extent making such information available is permitted by Applicable Law and
the contractual arrangements relating to such Assets, (v) shall not assign,
transfer, otherwise dispose of or xxxxx x Xxxx upon any such Assets to any
Person other than Assignee, and (vi) shall upon obtaining the necessary Consents
relating to such Assets, promptly take such action as may be necessary to
complete the transfer to Assignee of such Assets, including without limitation,
all accrued accounts payable and accrued accounts receivable related to such
Assets. Any transfer of an Asset after the date hereof shall be effective as of
the date hereof.
5. FURTHER ASSURANCES.
(a) The transfer of the Assets and the assumption of the liabilities
and obligations contemplated herein shall be further evidenced by the execution
and delivery by the parties hereto of such acts of transfer, conveyance and
assumption as may be reasonably requested by any party. Each of the parties
hereto will execute and deliver, and cause all other relevant Persons to execute
and deliver, such further instruments of conveyance, assumption and assignment
and will take such
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other actions (including, without limitation, (i) any changes or amendments
to or redelivery of such instruments of conveyance, assumption and assignment
that may be necessary to vest in the Assignee title to or other applicable
rights in the Assets and (ii) the delivery of originals of stock certificates
and other similar documents of title) as any other party may reasonably
request in order to effectuate the purposes of this Agreement.
(b) Assignor shall execute and deliver such further instruments of
conveyance, assumption and assignment and shall take such other actions,
including, without limitation, any changes or amendments to or redelivery of
such instruments of conveyance, assumption and assignment, that may be necessary
to vest in the Assignee title to or other applicable rights in the Assets,
including without limitation any assets that may arise in the future. Without
limiting the foregoing in any manner, Assignor shall immediately notify the
appropriate Assignee in the event Assignor obtains knowledge of or reason to
believe that certain assets have not been properly transferred to Assignee and
shall take all action necessary to have such assets properly transferred to
Assignee as set forth herein.
(c) Notwithstanding anything herein to the contrary, Assignor agrees
to cause IMCAC prior to the date of the Merger (i) to consent to the assignment
to Assignee of Assignor's interest in the IMCAC Sulphur Agreement; and (ii) to
execute an amendment to the IMCAC Sulphur Agreement reasonably necessary to
reflect the fact that Assignee is the successor in interest to Assignor and that
the rights and obligations of the parties have been divided as set forth in
Section 2(a)(vi) above. In addition to the foregoing, Assignee and IMC Global
Inc. (which will become the indirect parent of IMCAC following the Merger) have
previously executed a letter agreement clarifying the provisions of Section III
of the IMCAC Sulphur Agreement.
6. "AS-IS, WHERE-IS." Each of the parties hereto understands and agrees
that no party hereto is, in this Agreement or in any other agreement or document
contemplated by this Agreement or otherwise, representing or warranting in any
way (a) as to the value or freedom from encumbrance of, or any other matter
concerning, any of the Assets or (b) as to the legal sufficiency to convey title
to any Asset, it being understood that except as otherwise set forth in this
Agreement or in any ancillary transfer document, the Assets are being conveyed
"As-is, Where-is," except for rights or actions in warranty against predecessors
in title (other than Assignor or any prior or current Affiliates thereof). It
is understood and agreed that Assignee shall bear the economic and legal risk
that any conveyance of the Assets shall prove to be insufficient or that
Assignor's title to any such assets shall be other than good and marketable and
free from encumbrances. Similarly, each party hereto understands and agrees
that no party hereto is representing or warranting in any way that the obtaining
of any Consents or approvals or the making of any filings or applications
contemplated by this Agreement will satisfy the provisions of any or all
applicable agreements or the requirements of any or all applicable laws or
judgments, it being agreed and understood that Assignee shall bear the economic
and legal risk that any necessary Consents are not obtained or that any
requirements
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of law or judgments are not complied with. Notwithstanding the foregoing,
the parties shall use reasonable efforts to obtain all Consents, and to make
all filings and applications which may be required for the consummation of
the transactions contemplated by this Agreement, including, without
limitation, all applicable regulatory filings or consents under federal or
state environmental laws.
7. CONSENTS. Assignor and Assignee hereby acknowledge that, under
certain conditions, under certain of the contracts and agreements described on
Schedule 1 hereto, Homestake Mining Company (formerly Felmont Oil Corporation)
may have a right of first refusal and a right to consent to certain transfers of
Assignor's rights and interests under such documents (the "Homestake Refusal
Right"). Without acknowledging that any of the transfers made pursuant to this
Agreement are subject to the Homestake Refusal Right, Assignor and Assignee
hereby agree as follows:
(a) Assignor agrees that it will comply with the instructions of Assignee
with respect to whether and in what manner Assignor treats any of the
assignments described in this Agreement as being subject to the Homestake
Refusal Right:;
(b) Assignor agrees that it will structure the assignments pursuant to
this Agreement in any manner that Assignee reasonably requests, including,
without limitation, as a contribution of the Transferred Businesses and the
Assets into a newly-formed subsidiary followed by a transfer of the stock of
said subsidiary; and
(c) Assignee hereby covenants and agrees to defend, indemnify and hold
harmless Assignor and its officers, directors, employees, agents, advisors,
representatives, contractors and subcontractors and each of their respective
heirs, executors, successors and assigns from and against all claims,
liabilities, obligations, losses, fines, costs, royalties, penalties,
proceedings, deficiencies, or damages (whether absolute or accrued, conditional
or otherwise and whether or not resulting from third party claims), including
out-of-pocket expenses and reasonable attorneys' and accountants' fees incurred
in the investigation or defense of any of the same or asserting any of their
respective rights hereunder, to the extent resulting from or arising out of the
compliance by Assignor with any of the directions or requests made by Assignee
in respect of subsections (a) and (b) of this section.
8. NOTICES. All notices, requests and other communications under this
Agreement to any party hereto shall be in writing (including facsimile or
similar writing) and shall be given
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EXHIBIT A
If to Assignor, to:
IMC Global Operations Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopier: (000) 000-0000
If to Assignee, to:
Freeport-McMoRan Resource Partners, Limited Partnership
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Telecopier: (000) 000-0000
or to such other address or telecopier number as such party may hereafter
specify for the purpose by notice to the other parties. Each such notice,
request or other communication shall be effective (i) if given by facsimile,
when such facsimile is transmitted to the telecopier number specified in this
Section and transmission of the appropriate number of pages is confirmed or
(ii) if given by any other means, when delivered at the address specified in
this Section 6.
9. AMENDMENT AND WAIVER. This Agreement may not be altered or amended,
nor may rights hereunder be waived, except by an instrument in writing executed
by each party, or in the case of a waiver by an instrument in writing executed
by the party against whom such waiver is to be effective. No waiver of any
term, provision or condition of or failure to exercise or delay in exercising
any rights or remedies under this Agreement, in any one or more instances, shall
be deemed to be, or construed as, a further or continuing waiver of any such
term, provision, condition, right or remedy or as a waiver of any other term,
provision or condition of this Agreement.
10. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original instrument but all of
which together shall constitute but one and the same Agreement.
11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH,
AND GOVERNED BY, THE LAWS OF THE STATE OF DELAWARE.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
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EXHIBIT A
ASSIGNOR
IMC GLOBAL OPERATIONS INC.
By:
-------------------------------------
Name:
Title:
ASSIGNEE
FREEPORT-MCMORAN RESOURCE PARTNERS, LIMITED
PARTNERSHIP
By:
-------------------------------------
Name:
Title:
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EXHIBIT A
This Exhibit excludes Schedule 1 to the Assignment and Assumption
Agreement which contained a general description of certain assets, contracts
and agreements being assigned to the Company. The Company will furnish the
Commission a copy of this Schedule upon request.
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