EXHIBIT 10.78
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT, dated as of October 3, 2002 is by and between
Xxxxxx Chemicals and Plastics Operating Limited Partnership, a Delaware limited
partnership ("Seller") and CROMPTON MANUFACTURING COMPANY, INC., a New Jersey
corporation ("Purchaser").
RECITALS
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, Seller is the owner of 500 Class B (voting) shares as well as
306,344 Class C (non-voting) shares of stock (collectively, the "Shares") of
Monochem Inc. ("Monochem"), and is the owner of certain other land, building and
equipment that are used in the operation of Monochem.
WHEREAS, Seller desires to sell the Assets (as hereinafter defined) to
Purchaser and Purchaser desires to acquire the Assets from Seller upon the terms
and conditions contained in this Agreement and subject to the approval of the
Bankruptcy Court of the transactions contemplated hereunder.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged and for the mutual promises contained
herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. The following terms used in this Agreement shall have the
following meanings:
"Affiliate" means, with respect to any Person, any other Person who is
directly or indirectly controlling, controlled by or under the common
control with such Person. For the purposes of this definition, the term
"control," when used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of
the management and policies of such Person, whether through the ownership
of voting securities, by contract or otherwise.
"Agreement" means this Purchase Agreement, together with the Schedules
hereto.
"Acquisition Proposal" has the meaning set forth in Section 8.1(e).
"Assets" has the meaning set forth in Section 2.1.
"Bankruptcy Code" has the meaning set forth in the Recitals.
"Bankruptcy Court" has the meaning set forth in the Recitals.
"Bankruptcy Laws" means the Bankruptcy Code, as amended, the Federal Rules
of Bankruptcy Procedure, as amended, and the local rules of the Bankruptcy
Court.
"Beneficiary" has the meaning set forth in Section 2.4(d)
"Bid Procedures Order" has the meaning set forth in Section 6.3.
"Business Day" means any day that is not a Saturday, a Sunday or a day on
which financial institutions in the City of New York, New York are
permitted or required to close.
"Closing" has the meaning set forth in Section 2.5.
"Closing Date" has the meaning set forth in Section 2.5.
"Competing Transaction" has the meaning set forth in Section 8.1(e).
"Competing Bid" has the meaning set forth in Section 6.3.
"Consent" means any consent, waiver, approval, order or authorization of,
or registration, declaration or filing with or notice to, any Governmental
Entity or other Person.
"Contracts" means the Restated Basic Agreement, dated as of January 1, 1982
between Seller and Purchaser (each through their predecessors in interest,
Xxxxxx, Inc. and Uniroyal, Inc., respectively), as thereafter amended from
time to time, and (ii) Restated Operating Agreement, dated as of January 1,
1982 between Seller and Purchaser (each through their predecessors in
interest, Xxxxxx, Inc. and Uniroyal, Inc., respectively) and Monochem,
Inc., as thereafter amended from time to time.
"Deposit" has the meaning set forth is Section 5.5.
"Electric Agreement" has the meaning set forth in Section 5.5.
"Entergy" has the meaning set forth in Section 5.5.
"Final Order" has the meaning set forth in Section 7.1(b).
"Equipment" has the meaning set forth in Section 2.1(c).
-2-
"General Partner" means BCP Management, Inc., a Delaware corporation, in
its capacity as general partner of Seller.
"Governmental Entity" means any Foreign or United States federal, state,
local or municipal government, court, administrative agency or commission
or other governmental or other regulatory authority or agency.
"Liabilities" means obligations of any nature, known or unknown, whether
absolute, accrued, contingent or otherwise, whether due or to become due
and whether or not required to be reflected or reserved against on a
balance sheet under generally accepted accounting principles.
"Lien" means, with respect to any property or asset, any mortgage, lien,
pledge, security interest or other encumbrance.
"Monochem Charges" shall have the meaning set forth in Section 2.4(b)(iii)
"Payee" has the meaning set forth in Section 2.4(d).
"Payor" has the meaning set forth in Section 2.4(d).
"Permitted Liens" means (i) Liens listed or described on Schedule 1.1; (ii)
easements, covenants, rights-of-way and other encumbrances or restrictions
of record; (iii) Liens related to Taxes not yet due or payable; (iv) Liens
or restrictions arising as a matter of Law; and (v) Liens that are created,
suffered or assumed by Purchaser.
"Person" means an individual, corporation, partnership, limited liability
company, association, trust or other entity or organization, including
without limitation, a Governmental Entity.
"Personal Property Taxes" has the meaning set forth in Section 2.4(b)(ii)
"Proration Items" has the meaning set forth in Section 2.4(a).
"Purchase Price" has the meaning set forth in Section 2.3.
"Real Property" has the meaning set forth in Section 2.1(b).
"Real Property Taxes" has the meaning set forth in Section 2.4(b)(i)
"Recipient" has the meaning set forth in Section 2.4(d).
"Right of First Refusal" has the meaning set forth in Section 6.2.
"Sale Motion" has the meaning set forth in Section 6.2.
"Sale Order" has the meaning set forth in Section 6.2.
"Securities Act" means the Securities Act of 1933 as amended.
-3-
"Seller" has the meaning set forth in the Preamble.
"Tax" or "Taxes" means any federal, state, local or foreign tax of any kind
whatsoever (including any interest, penalty or addition thereto, whether
disputed or not), including but not limited to any real property, personal
property, sales, use or transfer tax.
ARTICLE II
PURCHASE AND SALE
2.1 Purchase and Sale. Subject to the conditions to Closing set forth in
Article VII of this Agreement, at the Closing Seller will transfer, sell, assign
and convey to Purchaser the following assets (such assets being referred to as
the "Assets"):
(a) The Shares;
(b) Real Property: The real property or interests therein listed or
described in Schedule 2.1(b) (the "Real Property");
(c) Equipment: The equipment listed or described on Schedule 2.1(c)
(collectively, the "Equipment");
(d) The Contracts.
2.2 Excluded Assets: Seller shall not sell and Purchaser shall not
purchase or acquire and the Assets shall not include
(a) the Seller's computer system equipment located in the south end
of the former Monochem Administration Building, and
(b) the analyzer spare parts and repair equipment located in the
north end of the former Monochem Administration Building.
2.3 Purchase Price. In consideration of the sale, transfer and conveyance
of the Assets, and in reliance upon the representations and warranties made
herein by Seller, Purchaser in payment of the Assets shall pay to Seller the
amount of Five Hundred Seventy Five Thousand United States Dollars ($575,000) by
wire transfer in cash at Closing (the "Purchase Price").
2.4 Prorations.
(a) At Closing, Real Property Taxes, Personal Property Taxes and
Monochem Charges including, without limitation, accruals or prepayments thereof
(all as individually defined below and collectively called the "Proration
Items"), shall be prorated directly between the Seller and the Purchaser as
provided in this Section 2.4.
(b) For purposes of this Agreement, the capitalized terms set forth
below shall have the following meanings:
-4-
(i) "Real Property Taxes" shall mean ad valorem taxes imposed
upon Seller with respect to the Real Property, general assessments imposed with
respect to the Real Property and special assessments upon the Real Property;
(ii) "Personal Property Taxes" shall mean ad valorem taxes
imposed upon the Assets other than the Real Property;
(iii) "Monochem Charges" shall mean invoices issued by Monochem
in due course to Seller for utilities delivered by Monochem to Seller and a
reconciliation and appropriate settlement of all accruals and prepayments made
by Monochem or for Monochem by the Seller or Purchaser from January 1, 2002
through the Closing date. .
(c) All Real Property Taxes, Personal Property Taxes, and Monochem
Charges shall be apportioned through the Closing Date, with Seller being
responsible for, and receiving the benefit of, all Proration Items attributable
to the period prior to 11:59 P.M., Louisiana time on the Closing Date, and
Purchaser being responsible for, and receiving the benefit of all Proration
Items attributable to the period after 11:59 P.M., Louisiana time, on the
Closing Date. As soon as practicable, but within ten (10) Business Days after
the Closing Date, representatives of Seller and Purchaser will examine all
relevant books and records, as of the Closing Date in order to make the
determination of the apportionments. Payments in respect thereof shall be made
to the appropriate party by check within seven (7) Business Days after such
determination. To the extent certain Proration Items, such as Real Property
Taxes and Personal Property Taxes, are not known as of the Closing Date,
apportionment shall be made on the basis of the best available evidence, such as
the prior years' tax bills, and such estimated apportionment will be deemed
final and conclusive.
(d) If either party (the "Payor") pays a Proration Item for which the
other party (the "Payee") is obligated in whole or in part under this Section
2.4 the Payor shall present to the Payee evidence of payment and a statement
setting forth the Payee's proportionate share of such Proration Item, and the
Payee shall promptly pay such share to the Payor. If either party (the
"Recipient") receives payments of a Proration Item to which the other party (the
"Beneficiary") is entitled in whole or in part under this Agreement, the
Recipient shall promptly pay such share to the Beneficiary.
(e) If there exists as of the Closing Date any pending appeals of ad
valorem tax assessments with regard to any Assets, the continued prosecution
and/or settlement of such appeals shall be subject to the direction and control
of Purchaser with respect to assessments for the year within which the Closing
occurs.
2.5 Closing. Unless this Agreement has been terminated and the
transactions contemplated under this Agreement have been abandoned pursuant to
Section 8.1, and subject to the fulfillment or, if permitted, waiver of the
conditions set forth in Article VII the closing of the transactions contemplated
by this Agreement (the "Closing") will take place on the second (2nd) Business
Day following the fulfillment or, if permissible, waiver of the conditions set
forth in Article VII, unless another date or time is agreed to in writing by the
parties to this Agreement (the "Closing Date"). The Closing will occur at the
offices of the Debtor in Geismar, Louisiana,
-5-
at 10:00 A.M. on the Closing Date, with Closing to be effective as of 11:59
p.m., Louisiana time, on the Closing Date.
(a) At the Closing, Seller will deliver to Purchaser the following
documents, in form and substance reasonably satisfactory to Purchaser, duly
executed as required: (i) certificate of existence or certificate of good
standing of Seller, as of a date within thirty (30) days prior to the Closing
Date, from the secretary of state of the Seller's state of incorporation or
organization, (ii) incumbency and "bring down" certificates from the secretary
of the General Partner(iii) a xxxx of sale conveying to Purchaser the Equipment
subject only to the Permitted Liens; (iv) an assignment to Purchaser of the
Contracts; (v) deeds (act of sale) conveying to Purchaser title (with warranty
only as against grantor's acts) to the Real Property referred to in items 1, 2,
3, 4, and 5 of Schedule 2.1(b) hereto, subject only to the Permitted Liens; (vi)
easements, servitudes or rights of way conveying the Real Property referred to
in items 6, 7, 9, and 10 of Schedule 2.1(b) hereto to Purchaser; (vii) the lease
referred to in item 8 of Schedule 2.1(b) hereto;(vi) all certificates
representing the shares, duly endorsed for transfer or accompanied by
instruments of transfer reasonably satisfactory in form and substance to
Purchaser (viii) resignations of those directors of Monochem who were appointed
by Seller, and the resignations of those officers of Monochem who are present or
former employees of Seller, effective as at the Closing Date.
(b) At the Closing, Purchaser will deliver to Seller the following
documents, in form and substance reasonably satisfactory to Seller, duly
executed as required: (i) an agreement assuming the Contracts, (ii) certificate
of existence or certificate of good standing of Purchaser, as of a date within
thirty (30) days prior to the Closing Date, from the secretary of state of the
Purchaser's state of incorporation or organization, (iii) incumbency and "bring
down" certificates from the secretary of Purchaser, and (iv) document(s)
conveying a right of way permitting Seller or its successors-in-interest the use
of and access to the HCL line running through the Monochem property.
(c) At the Closing, Purchaser will pay the Purchase Price, via wire
transfer of immediately available funds to an account designated by Seller.
2.6 Limitation of Liability. PURCHASER ACKNOWLEDGES AND AGREES THAT
PURCHASER AND ITS REPRESENTATIVES HAVE THE EXPERIENCE AND KNOWLEDGE TO EVALUATE
THE CONDITION OF THE ASSETS; THAT PURCHASER AND ITS REPRESENTATIVES, BEFORE THE
DATE HEREOF, HAVE HAD SUCH ACCESS TO THE ASSETS AS PURCHASER AND ITS
REPRESENTATIVES SHALL HAVE REQUESTED; THAT PURCHASER AND ITS REPRESENTATIVES
SHALL HAVE HAD A FULL OPPORTUNITY TO MEET WITH APPROPRIATE MANAGEMENT OF SELLER
OR ITS AFFILIATES TO DISCUSS THE ASSETS; AND THAT, IN DETERMINING TO ACQUIRE THE
EQUIPMENT, PURCHASER HAS MADE ITS OWN INVESTIGATION INTO, AND BASED THEREON,
PURCHASER HAS MADE ITS OWN INDEPENDENT JUDGMENT CONCERNING THE ASSETS. IT IS
THEREFORE EXPRESSLY UNDERSTOOD AND AGREED THAT PURCHASER ACCEPTS THE CONDITION
OF THE ASSETS "AS IS, WHERE IS" SUBJECT ONLY TO THE EXPRESS REPRESENTATIONS AND
WARRANTIES CONTAINED IN THIS AGREEMENT AND SUCH EXPRESS WARRANTIES OF TITLE AS
ARE REFLECTED IN DOCUMENTS BY
-6-
WHICH SELLER CONVEYS TO PURCHASER THE REAL PROPERTY AND THE EQUIPMENT, AND
WITHOUT ANY IMPLIED REPRESENTATION, WARRANTY OR GUARANTEE AS TO MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE AS TO THE CONDITION, SIZE, EXTENT,
QUANTITY, TYPE OR VALUE OF SUCH ASSETS, AND SELLER AND ITS AFFILIATES,
INCLUDING, WITHOUT LIMITATION, THE GENERAL PARTNER, HEREBY EXPRESSLY DISCLAIM
ANY AND ALL SUCH IMPLIED REPRESENTATIONS, WARRANTIES OR GUARANTEES. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, SUBJECT ONLY TO THE EXPRESS
REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT AND SUCH EXPRESS
WARRANTIES OF TITLE AS ARE REFLECTED IN DOCUMENTS BY WHICH AT CLOSING SELLER
CONVEYS TO PURCHASER THE REAL PROPERTY AND THE EQUIPMENT, NONE OF SELLER OR ANY
OF ITS AFFILIATES, INCLUDING, WITHOUT LIMITATION, THE GENERAL PARTNER MAKES ANY
IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO (i) ANY INFORMATION OR
DOCUMENTS MADE AVAILABLE TO PURCHASER OR ITS COUNSEL, ACCOUNTANTS OR ADVISORS
WITH RESPECT TO THE ASSETS OR (ii) THE CONDITION OF THE ASSETS, INCLUDING
WITHOUT LIMITATION, THE ENVIRONMENTAL CONDITION AND COMPLIANCE WITH ANY
ENVIRONMENTAL LAWS OR OTHER LAWS. NOTWITHSTANDING THE FOREGOING, IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT PURCHASER IS NOT ASSUMING THE LIABILITY OF SELLER IN
RESPECT OF THE ENVIRONMENTAL CONDITION OF THE REAL PROPERTY OR COMPLIANCE WITH
ANY ENVIRONMENTAL LAWS AS AND TO THE EXTENT SUCH LIABILITY IS PREDICATED ON THE
CONDITION OF THE REAL PROPERTY PRIOR TO CLOSING OR THE OPERATIONS OR ACTIVITIES
OF SELLER PRIOR TO CLOSING.
2.7 Excluded Liabilities. Except as expressly provided herein, Purchaser
shall not assume or become liable for any Liabilities associated with the Real
Property, Equipment and Contracts except those Liabilities arising following the
Closing Date.
2.8 Title to the Assets. Seller shall be obligated to convey to Purchaser
merchantable title to the Assets, free and clear of all Liens, except the
Permitted Liens.
2.9 Assumption. Seller shall assume and assign to Purchaser the Contracts,
pursuant to Section 365 of the Bankruptcy Code; provided, however, that
Purchaser shall assume responsibility for the performance and satisfaction of
Liabilities under the Contracts to the extent that such Liabilities arise on or
after the Closing Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
3.1 Organization. Seller is a limited partnership duly formed, validly
existing and in good standing as a limited partnership under the laws of the
State of Delaware.
3.2 Authority. Subject to Bankruptcy Court approval, (i) the execution and
delivery of this Agreement by Seller have been or will prior to Closing be duly
authorized by the Board of
-7-
Directors of the General Partner and (ii) this Agreement is a valid and binding
obligation of Seller, enforceable against Seller in accordance with its terms.
3.3 Title to Real Property. Subject to the Bankruptcy Court approval, at
the Closing Seller will convey to Purchaser title to the Real Property free and
clear of all Liens except for Permitted Liens.
3.4 Title to Other Assets. Subject to the Bankruptcy Court approval, at
the Closing Seller will convey to Purchaser title to the Assets other than the
Real Property, free and clear of all Liens except for the Permitted Liens;
provided, however, this Section 3.4 shall not apply to item 5 on Schedule 2.1(c)
and Seller makes no representation or warranty with regard to such item.
3.5 Real Property. Schedule 2.1(b) contains a true and correct list and
description of each parcel of Real Property and interests therein. Except as
disclosed on Schedule 3.5, Seller has not received written notice from any
Governmental Entity alleging, nor does Seller have knowledge, that the Real
Property or any improvements thereon are in violation of any applicable state or
local use or occupancy laws, use restrictions, building ordinances, zoning
ordinances and health and safety ordinances. To Seller's knowledge, there are no
pending or threatened condemnations, planned public improvements, annexation,
special assessments, zoning or subdivision changes, or other similar adverse
claims that are affecting or could affect the Real Property. There are no leases
under which Seller is the lessor or landlord relating to any of the Real
Property (or any portion thereof). Except for Permitted Liens, Seller has not
entered into any other agreements, written or oral, granting any other person or
entity any rights with respect to any of the Real Property.
3.6 Share Ownership. The Shares comprise all of the share interest held,
directly or indirectly, by Seller and its Affiliates in Monochem.
3.7 Consents and Approvals. Subject to Bankruptcy Court approval, to the
knowledge of Seller, no Consent is required with respect to Seller in connection
with the execution, delivery or performance by Seller of its obligations under
this Agreement, except for Consents, the failure of which to obtain or to make
would not have, individually or in the aggregate, a material adverse effect on
Seller's ability to consummate the transactions contemplated by this Agreement.
3.8 Conflicts and Defaults. Neither the execution and delivery of this
Agreement by Seller nor the performance by Seller of the transactions
contemplated hereby will, to Seller's knowledge, violate or constitute an
occurrence of default under any provision of, or conflict with, or result in
acceleration of any obligation under, or give rise to a right by any party to
terminate its obligations under, any material contract, sales commitment,
purchase order, security agreement, mortgage, conveyance to secure debt, note,
deed, loan, Lien, lease, agreement, instrument, order, judgment, decree, or
other arrangement to which Seller is a party or is bound. Seller is not in
violation of any of its organizational documents.
-8-
3.9 Litigation. There is no litigation pending or, to the knowledge of
Seller, threatened against Seller that is reasonably likely to prevent or impair
the ability of Seller to consummate the transactions contemplated by this
Agreement.
3.10 Environmental Claims. Seller has not received any written notice,
demand, letter, claim or request for information alleging that it may be in
violation of or liable under any environmental law in respect of the Real
Property.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
4.1 Organization. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of New Jersey.
4.2 Corporate Authority. Purchaser has the requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by Purchaser and the consummation by it of the transactions contemplated to be
performed hereunder have been duly authorized by all necessary corporate
actions. This Agreement is a valid and binding obligation of Purchaser,
enforceable against it in accordance with the terms hereof except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally.
4.3 Conflicts and Defaults. Neither the execution and delivery of this
Agreement by Purchaser nor the performance by Purchaser of the transactions
contemplated hereby will, to Purchaser's knowledge, violate or constitute an
occurrence of default under any provision of, or conflict with, or result in
acceleration of any obligation under, or give rise to a right by any party to
terminate its obligations under, any material contract, sales commitment,
purchase order, security agreement, mortgage, conveyance to secure debt, note,
deed, loan, Lien, lease, agreement, instrument, order, judgment, decree, or
other arrangement to which Purchaser is a party or is bound. Purchaser is not in
violation of any of its organizational documents.
4.4 Securities Laws. Purchaser is purchasing the Shares for its own
account and for the purpose of investment and is not purchasing the Shares
hereunder (a) in connection with the offer or sale of the Shares to others or
(b) with a view to (i) the distribution of the Shares within the meanings of the
Securities Act, (ii) underwriting any such distribution, or (iii) engaging in
conduct which may violate any federal or state securities law. Purchaser
understands that the Shares have not been registered under the Securities Act or
any state securities laws and that the Shares may not be transferred or sold
except pursuant to the Securities Act or an exemption thereto.
4.5 Consents and Approvals. No Consent is required with respect to
Purchaser in connection with the execution, delivery or performance by Purchaser
of its obligations under this Agreement except for Consents, the failure of
which to obtain or to make would not have, individually or in the aggregate, a
material adverse effect on Purchaser's ability to consummate the transactions
contemplated by this Agreement.
-9-
4.6 Adequate Funds. Purchaser has sufficient unencumbered funds to pay in
cash the Purchase Price and all of its fees and expenses relating to this
Agreement and the transactions contemplated hereby.
ARTICLE V
CERTAIN ADDITIONAL COVENANTS OF SELLER AND PURCHASER
5.1 Satisfaction of Conditions.
(a) Each party to this Agreement shall use reasonable commercial
efforts to satisfy promptly all conditions precedent to the obligations of the
other party to consummate the transactions contemplated by this Agreement.
(b) Each party shall use reasonable commercial efforts, and pay all
expenses arising from those reasonable commercial efforts to obtain any
licenses, permits or Consents, as are required in connection with the
consummation of the transactions contemplated hereby and to effect all necessary
registrations and filings.
(c) Subject to the terms and conditions hereof, Purchaser agrees to
use reasonable commercial efforts to take, or cause to be taken, all action and
to do, or cause to be done, all other things necessary, proper or advisable to
consummate and make effective the transactions contemplated by this Agreement no
later than the Closing Date;
(d) Seller shall cooperate with Purchaser to extend to Purchaser the
full benefit of the Environmental Indemnity Agreement between Seller and Xxxxxx
Chemical, Inc. (f/k/a Xxxxxx, Inc.) dated November 30, 1987; and
(e) Seller covenants to Purchaser that Seller with regard to the
chemical lines located on the Monochem site but which run to or from Seller's
adjacent facility, take the following actions: (i) in regard to all such lines
that are removed from service, that such lines be purged and certified as being
free of chemicals and that (ii) in regard to all such lines that are not removed
from service but that are instead kept in full or partial service for the
benefit of an operator of Seller's adjacent facility, that the operator of that
facility repair and maintain such lines in a manner appropriate to protect
against safety or other liabilities accruing to Purchaser or Monochem as a
result of the condition or operation of those lines.
5.2 Further Assurances. From and after the Closing, each of Seller and
Purchaser shall execute and deliver, in the name and on behalf of Seller or
Purchaser, as appropriate, any assignments or assurances and take and do, in the
name and on behalf of Seller or Purchaser, as appropriate, any other actions and
things reasonably necessary to carry out the intention of this Agreement.
5.3 Notice of Breaches. Purchaser will promptly, and in any event prior to
the Closing, notify Seller in writing if Purchaser becomes aware prior to the
Closing that any representation or warranty made by Seller in this Agreement is
inaccurate or untrue in any material respect.
-10-
5.4 Settlement of Accounts. Within ten (10) Business Days after the date
of this Agreement, Seller shall pay, to Purchaser, the amount of $720,283.96
representing amounts owed to Purchaser for Purchaser's April 2002 and May 2002
conversion cost invoices to Monochem (net of agreed-upon adjustments) and
certain other items heretofore identified in Schedule 5.4. Purchaser and Seller
acknowledge and agree that upon payment by Purchaser of (a) the amounts set
forth on Schedule 5.4 and (b) the Monochem Charges through the Closing Date,
there will be no cure amounts associated with the Contracts.
5.5 Entergy Deposit. Purchaser shall use its best efforts to assist Seller
in obtaining the refund of the $250,000 security deposit (the "Deposit") paid by
Seller to Entergy Gulf States, Inc. ("Entergy") on behalf of Monochem in
accordance with the terms of the Agreement for Electric Service dated December
1, 2001 and all predecessor agreements thereto (collectively, the "Electric
Agreement"). Within three (3) Business Days following the Closing Date, the
parties hereto agree that Purchaser and Monochem shall enter into discussions
with Entergy and take all necessary actions (including the payment of a new
security deposit) to obtain a refund of the Deposit to Seller within ten (10)
Business Days following Closing and to pay any security deposit required by
Entergy in connection with the Electric Agreement. The term "best efforts" shall
not be deemed to require Purchaser to initiate formal legal proceedings against
Entergy for recovery of the Deposit.
5.6 Use of HCL Line. Seller or its successor-in-interest shall xxxxx
Xxxxxxxx reasonable access upon request to and use of the HCL line running from
the BASF facility through Monochem property to the perimeter Line of Purchaser's
Geismar facility.
ARTICLE VI
BANKRUPTCY COURT APPROVAL
6.1 Approval. Seller and Purchaser acknowledge that, under the Bankruptcy
Laws this Agreement and the sale of the Assets are subject to Bankruptcy Court
approval. Seller and Purchaser 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 Assets, 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 Assets to responsible bidders, entertaining higher and better offers
from responsible bidders and, if necessary, conducting an auction.
6.2 Motion for Sale Order. Within three (3) Business Days following
execution of this Agreement by Seller and Purchaser, Seller shall file with the
Bankruptcy Court (and thereafter diligently pursue) a motion, together with
appropriate supporting papers and notices, in form and substance reasonably
satisfactory to Purchaser 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 Assets on free and clear of all Liens (except the Permitted
Liens) pursuant to Section 363(f) of the Bankruptcy Code on the terms and
conditions set forth herein, (ii) authorizing the assumption of the Contracts
and assignment thereof to Purchaser, (iii) providing that the stay contained at
Rule 6004(g) of the Federal Rules of Bankruptcy Procedure shall not apply and
that the order
-11-
shall be effective and enforceable immediately upon entry, (iv) containing a
finding that Purchaser has paid the highest value reasonably attainable for the
Assets and has acted in "good faith" within the meaning of Section 363(m) of the
Bankruptcy Code, (v) authorizing modifications to the Bid Procedures Order to
reduce the amount of the overbid increment and modify Purchaser's right of first
refusal as provided for in the Restated Basic Agreement with respect to any
Competing Bid ("Right of First Refusal") and (vi) providing that this Agreement
and the transactions and instruments contemplated hereby shall be specifically
performable and enforceable against and binding upon, and not subject to
avoidance by, the Seller or any chapter 7 or chapter 11 trustee of the Seller
and its estate.
6.3 Bid Procedures. From the date of this Agreement and through the
consummation of the transactions contemplated hereby or the termination hereof,
Purchaser 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 Assets (the "Competing Bids")
must be presented to Seller prior to the hearing on the Sale Motion in
accordance with the procedures and deadlines set forth in the Bankruptcy Court
Order dated October 10, 2001 (the "Bid Procedures Order").
6.4 Approval of Bankruptcy Court. The obligations of the Seller and
Purchaser to complete the sale of the Assets are contingent upon the approval of
this sale, if necessary, from the Bankruptcy Court on or before the Closing
Date.
ARTICLE VII
CONDITIONS TO PURCHASE AND SALE
7.1 Conditions to the Obligations of Each Party. The obligations of Seller
and Purchaser to consummate the transactions contemplated by this Agreement are
subject to the satisfaction of the following conditions:
(a) no judgment, injunction, order or decree shall prohibit the
consummation of the transactions contemplated under this Agreement; and
(b) the Sale Order shall have been obtained and become a Final Order.
For purposes of this Agreement, a "Final Order" shall mean an order of the
Bankruptcy Court (i) the operation or effect of which has not been stayed,
reversed or amended and (ii) as to which (A) the time to appeal, seek review or
rehearing has expired and no appeal or petition for review or rehearing was
filed or, if filed, has been denied or withdrawn, or (B) an appeal, petition for
review or rehearing has been filed but as to which Purchaser, in its sole and
absolute discretion, elects to proceed with Closing.
7.2 Conditions to the Obligations of Seller. The obligation of Seller to
consummate the transactions contemplated by this Agreement is subject to the
satisfaction (or written waiver by Seller) of each of the following further
conditions:
(a) Purchaser shall have performed and complied with in all material
respects all obligations and covenants required to be performed or complied with
by it under this Agreement at or prior to the Closing Date;
-12-
(b) the representations and warranties of Purchaser contained in
Article IV of this Agreement and in any certificate or other writing delivered
by Purchaser pursuant to this Agreement shall be true in all material respects
at and as of the Closing Date as if made at and as of such time (other than
representations and warranties made as of a specific time or date which shall
have been true at and as of such time or date) and Seller shall have received a
certificate signed by an executive officer of Purchaser on behalf of Purchaser
to the foregoing effect;
(c) at the Closing, Purchaser will deliver to Seller the Purchase
Price via wire transfer of immediately available funds to an account designated
by Seller; and
(d) at the Closing, Purchaser will deliver to Seller (i) document(s)
conveying a right of way, in form and substance reasonably satisfactory to
Seller, duly executed as required, permitting Seller or its successor in
interest use of and access to the HCL line running through the Monochem property
and (ii) an assignment and assumption agreement by which Purchaser assumes the
Contracts.
7.3 Conditions to the Obligations of Purchaser. The obligation of
Purchaser to consummate the transactions contemplated hereunder is subject to
the satisfaction (or written waiver by Purchaser) of each of the following
further conditions:
(a) Seller shall have performed and complied with in all material
respects all material obligations and covenants required to be performed or
complied with by it under this Agreement at or prior to the Closing Date;
(b) the representations and warranties of Seller contained in Article
V of this Agreement and in any certificate or other writing delivered by Seller
pursuant to this Agreement shall be true in all material respects at and as of
the Closing Date as if made at and as of such time (other than representations
and warranties made as of a specific time or date which shall have been true at
and as of such time or date.
(c) At or prior to Closing, Purchaser and Xxxxxx Chemical, Inc.
("BCI") shall have entered into a letter agreement substantially in the form set
forth in Exhibit A hereto, providing for indemnity to Purchaser under the terms
of the Environmental Indemnity Agreement between BCI and Seller dated November
30, 1987.
ARTICLE VIII
TERMINATION
8.1 Termination. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the Closing:
(a) by mutual written consent of Seller and Purchaser.
(b) by Purchaser, at any time following the sixth (6th) Business Day
after the execution and delivery of this Agreement if Seller shall not have
filed the Sale Motion with the Bankruptcy Court prior to Purchaser's notice of
termination pursuant to this subsection 8.1(b).
-13-
(c) by Purchaser, after the six (6) month anniversary of this
Agreement, if Purchaser is not then in material breach of this Agreement, and if
any of the conditions set forth in Sections 7.1 and 7.3 hereof, to which the
obligations of Purchaser are subject, have not been fulfilled or waived, unless
such fulfillment has been frustrated or made impossible by any act or failure to
act of Purchaser.
(d) by Purchaser, if within sixty (60) days from the date hereof, a
Final Order has not been issued by the Bankruptcy Court.
(e) by Seller (i) if Seller receives an offer or proposal (an
"Acquisition Proposal") from any Person other than Purchaser 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.
(f) by Purchaser, 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, Purchaser is not in
material breach of this Agreement.
(g) by Seller, if (i) after the six (6) month anniversary of this
Agreement, so long as Seller is not then in material breach of this Agreement,
and if any of the conditions set forth in Sections 7.1 and 7.2 hereof, to which
the obligations of Seller are subject, have not been fulfilled or waived, unless
such fulfillment has been frustrated or made impossible by any act or failure to
act of Seller, or (ii) Purchaser materially breaches its obligations under this
Agreement, provided, that Seller is not in material breach of this Agreement.
(h) Effect of Termination. Upon termination of this Agreement
pursuant to Section 8.1 hereof, all obligations and liabilities of the parties
hereunder shall terminate, except for the provisions of Sections 10.4, 10.7 and
10.9. The aforesaid provisions shall survive such termination for the longest
period legally permissible.
ARTICLE IX
NO SURVIVAL
9.1 Survival of Representations and Warranties. The representations and
warranties of the parties contained in this Agreement shall terminate upon
Closing.
ARTICLE X
MISCELLANEOUS
10.1 Entire Agreement. This Agreement, including the Exhibits to this
Agreement, constitute the entire agreement of the parties to this Agreement with
respect to the subject matter
-14-
hereof and thereof and supersede all prior agreements and undertakings, both
written and oral, with respect to the subject matter hereof and thereof.
10.2 Notices. All notices, requests and other communications to any party
hereunder shall be in writing (including facsimile) and shall be given
if to Seller to:
Xxxxxx Chemicals and Plastics Operating Limited Partnership
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx
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.
if to Purchaser to:
Crompton Manufacturing Company, Inc.
Xxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxx
with a copy, which shall not alone constitute notice, to:
Crompton Corporation
Xxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
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 10.2 and the appropriate confirmation is
received, or (ii) if given by any other means, when delivered at the address
specified in this Section 10.2.
(a) Purchaser and Seller acknowledge and agree that the execution of
this Agreement shall not constitute a waiver of Purchaser's Right of First
Refusal; provided, however,
-15-
that in the event of a Competing Bid, Purchaser shall adhere to the procedures
with respect to its right of first refusal set forth in Bid Procedures Order and
the Sale Order.
10.3 Amendments; No Waivers.
(a) Any provision of this Agreement may be amended or waived prior to
the Closing Date if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by Seller and Purchaser or in the case of a
waiver, by the party against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
10.4 Expenses. All costs and expenses incurred in connection with this
Agreement shall be paid by the party incurring such cost or expense.
10.5 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties to this Agreement and their
respective successors and assigns. Notwithstanding anything contained in this
Agreement to the contrary, nothing in this Agreement, expressed or implied, is
intended to confer on any person other than the parties to this Agreement or
their respective successors and permitted assigns, any rights, remedies
obligations or liabilities under or by reason of this Agreement. Neither this
Agreement nor any of the rights or obligations hereunder may be assigned by any
party without the prior written consent of the other party to this Agreement. No
such assignment shall relieve Purchaser of any of its liabilities or obligations
under this Agreement.
10.6 Certain Interpretive Matters.
(a) Unless the context otherwise requires, (i) all references in this
Agreement to Sections, Articles or Schedules are to Sections, Articles or
Schedules of or to this Agreement, (ii) each term defined in this Agreement has
the meaning ascribed to it and (iii) words in the singular include the plural
and vice versa. All references to "$" or dollar amounts will be to lawful
currency of the United States of America.
(b) Titles and headings to Sections in this Agreement are inserted
for convenience of reference only, and are not intended to be a part of or to
affect the meaning or interpretation of this Agreement. No provision of this
Agreement will be interpreted in favor of, or against, any of the parties to
this Agreement by reason of the extent to which any such party or its counsel
participated in the drafting thereof or by reason of the extent to which any
such provision is inconsistent with any prior draft hereof or thereof.
10.7 Governing Law and Jurisdiction. This Agreement shall be construed in
accordance with and governed by the internal substantive law of the State of
Delaware regardless of the laws that might otherwise govern under principles of
conflict of laws applicable thereto. This Agreement is also subject to any
applicable order or act of the Bankruptcy Court. In the event either party shall
institute a legal action as a result of the default in the other party's
-16-
performance under this Agreement, any such action shall be brought exclusively
in the Bankruptcy Court which shall retain exclusive jurisdiction with respect
to the interpretation, performance, and enforcement of this Agreement.
10.8 Counterparts; Effectiveness. This Agreement may be executed in two or
more counterparts (including by means of facsimile signature pages), all of
which shall be considered one and the same agreement, and shall become effective
when one or more such counterparts have been signed by each of the parties
hereto and delivered to the other party (solely for purposes of effectiveness of
this Agreement, such delivery may be in the form of facsimile signature pages).
10.9 Severability. If any term, provision, covenant or restriction of this
Agreement is determined by a Governmental Entity to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement will remain in full force and effect and will in
no way be affected, impaired or invalidated.
[SIGNATURES ON FOLLOWING PAGE]
-17-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
PURCHASER:
CROMPTON MANUFACTURING
COMPANY, INC.
By:
------------------------------------------
Name:
Title:
SELLER:
XXXXXX CHEMICALS AND PLASTICS
OPERATING LIMITED PARTNERSHIP
By: BCP Management Inc., its General Partner
By:
------------------------------------------
Name:
Title:
-18-
SCHEDULE 1.1
PERMITTED LIENS
a. Rights-of-way among BCP, Monochem, and Crompton each to the others
b. Louisiana Intrastate Gas Corporation right-of-way across BCP for a
natural gas pipeline paralleling east side of railroad and a pipe lateral to
BCP. Portion now crosses Xxxxxx Chemical, Inc. Only lateral is affected.
c. Cypress Gas Pipeline right-of-way across BCP for a natural gas
pipeline lateral to BCP.
d. Rubicon, Inc. right-of-way across BCP for electrical feeders P3 and
P4.
e. Rubicon, Inc. right-of-way across BCP for electrical feeders P13 and
P14.
f. Air Liquide America Corporation right-of-way across BCP for a nitrogen
pipeline to Crompton.
g. Gulf South Pipeline Co. right-of-way across BCP for a natural gas
pipeline to BCP.
h. Acadian Gas Pipeline System right-of-way across BCP for a natural gas
pipeline lateral to BCP.
i. Acadian Gas Pipeline System right-of-way across BCP for a natural gas
pipeline lateral to Rubicon.
j. Air Liquide America Corporation easements across BCP as stated in the
Operating Agreement and the Restated Second Operating Agreement.
k. Air Liquide America Corporation 8" oxygen pipeline right-of-way as
described in Pipeline Agreement dated February 1, 1990.
l. In addition the following servitude will be created: a servitude and
right-of-way over land within the parcel of land identified on Exhibit D as
"Monochem, Inc. 1.865 Ac." and on Exhibit I as Parcel 4 upon which existing
telephone and electrical lines and conduits are presently located until such
services exit these parcels of land.]
-1-
SCHEDULE 2.1(b)
REAL PROPERTY
1. A parcel of land of approximately 3.9 acres, shown on the attached Exhibit
1 hereto as Parcel 1, along with the buildings known as the "Monochem
Maintenance Building" and the former "Monochem Administration Building",
both currently owned by Seller.
2. A parcel of land of approximately 16.9 acres, shown on Exhibit 1 hereto as
Parcel 3.
3. Building, on Parcel 4 shown on Exhibit 1 hereto, that is contiguous with
the "Monochem Substation".
4. A parcel of land of approximately 0.03 acres, shown on Exhibit 1 hereto as
Parcel 5, currently used as an air compressor platform.
5. The following utility lines:
(a) The two (2) 12-inch fire water lines that currently run from the
Monochem facility south across Seller's property to the perimeter
line of Purchaser's Geismar facility.
(b) The utility lines carrying steam, clarified water, demineralized
water, and nitrogen, running from the Monochem facility to the
perimeter line of Purchaser's Geismar facility, along existing
servitudes or rights-of-way, to the extent these lines are not
currently owned by Monochem or Purchaser.
(c) The utility line carrying clarified water from the Monochem
facility to the perimeter line of the Rubicon facility, along
existing servitudes or rights-of-way.
(d) The utility lines carrying electricity from the Monochem facility
to the perimeter line of the Rubicon facility.
6. Easements (servitudes) and rights of way permitting use of and access to
the following, to the extent that same are currently located on property of
the Seller.
(a) The two (2) 12-inch fire water lines referred to in 5(a) above.
(b) The utility lines carrying steam, clarified water, demineralized
water, and nitrogen, referred to in 5(b) above.
(c) The utility lines carrying clarified water referred to in 5(c)
above.
(d) The utility lines carrying electricity from the Monochem facility
to the perimeter line of the Rubicon facility, as referred to in
5(d) above, if and to the extent access is not currently
permitted under existing servitudes or rights-of-way.
7. A servitude (or equivalent) fifty (50) feet in width to provide access to
the Monochem Substation, as shown on Exhibit 1 hereto.
-2-
8. A lease, for a term of twenty (20) years with option for renewal for two
additional ten (10) year periods, at an annual rental of $100 which may be
prepaid, and on other terms and conditions as are mutually agreed between
Seller and Purchaser, of the land of approximately 0.8 acres, shown on
Exhibit 1 hereto as Parcel 4.
9. A right of way over those portions of Avenue "L" not included in the
property conveyed to Purchaser as part of the Assets, for access to lands
owned by Monochem or being conveyed to Purchaser as part of the Assets, for
purposes of normal operations of Monochem.
10. A right of way over 00xx Xxxxxx from "E" Avenue to "L" Avenue, to the
extent Monochem does not currently own such right of way, for access to
lands owned by Monochem or being conveyed to Purchaser as part of the
Assets, for purposes of normal operations of Monochem.
-3-
SCHEDULE 2.1(c)
EQUIPMENT
1. The office furniture and equipment presently located in the "Monochem
Maintenance Building" and the former "Monochem Administration Building", as
referred to under item "1" of Schedule 2.1(b).
2. All spare parts. tools, and stationary and mobile equipment currently owned
by Seller that are required to operate and maintain Monochem facilities and
the Complex electrical distribution system. For the avoidance of doubt, the
spare parts shall include spare parts designated on the internal accounting
records of Seller as belonging to the Monochem operation, and any other
spare parts that are currently in the Monochem Maintenance Building.
3. All electrical equipment and other equipment, in the Monochem Substation,
currently owned by Seller.
4. All electrical equipment and other equipment in the building located on
Parcel 4 as shown on Exhibit 1 to Schedule 2.1(b) required to support the
Complex electrical grid.
5. Seller's title and interest, if any, in the equipment and facilities that
comprise the Monochem water intake structure and equipment on the
Mississippi River
-1-
SCHEDULE 3.5
NOTICES OF VIOLATIONS
None.
-2-
SCHEDULE 5.4
SETTLEMENT OF ACCOUNTS
INTER-COMPANY ITEMS ON MONOCHEM'S BALANCE SHEET (PAID BY BCP)
Bank Cash - Minimum Balance (Whitney) $ 2,500.00
Prepaid Franchise Tax (May through December) 616.00
Other Deferred Charges - Anion Resin Beds (May through December) 24,570.00
------------------
Total owed to BCP by Crompton $ 27,686.00
------------------
ITEMS OWED TO CROMPTON FOR MONOCHEM (BCP'S BALANCE SHEET)
Accounts Payable Owed to Crompton
Invoice for April Conversion #402282 $ 446,745.23
Adjusted for Capital Cost (111,912.96)
--------------------
Adjusted Invoice Total $ 334,832.27
Invoice for May Conversion #402337 413,137.69
(reduced by Hydroscope $22,103.40)
Total owed to Crompton by BCP $ 747,969.96
------------------
Net Balance Owed to Crompton $ 720,283.96
==================
-3-
EXHIBIT A
LETTER AGREEMENT
[Crompton Letterhead]
October ______, 2002
Xxxxxx Chemical, Inc.
Attention: Xxxxx X. Xxxxxx, Esq.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Re: Environmental Indemnity Agreement dated November 30, 1987
between Xxxxxx Chemical, Inc. ("BCI") and Xxxxxx Chemicals
and Plastics Operating Limited Partnership ("BCP"), (the
"Indemnity Agreement")
Dear Xxxxx:
This letter will commemorate the mutual agreement of the parties relating
to certain BCI indemnification obligations under the Indemnity Agreement.
Crompton Manufacturing Company, Inc. ("Crompton") and BCP have entered into
a certain Purchase Agreement dated October ___, 2002 (the "Purchase Agreement")
for the sale to Crompton of all the outstanding shares of Monochem, Inc.
("Monochem") owned by BCP and certain other BCP assets.
BCI hereby acknowledges and agrees that following the consummation of the
transactions contemplated by the Purchase Agreement, BCI will indemnify Crompton
in the same manner and to the same extent provided to BCP with respect to
Monochem under the terms of the Indemnity Agreement for claims which have been
incurred by BCP and/or Crompton and submitted in writing to BCI on or before
November 30, 2002, whether or not costs and expenses associated with such claims
are incurred before or after November 30, 2002.
-1-
If the foregoing correctly sets forth our mutual understanding, please so
signify by signing this letter in the space indicated below.
Very truly yours,
CROMPTON MANUFACTURING
COMPANY, INC.
By:
----------------------------------
Title:
-------------------------------
AGREED AND ACCEPTED:
XXXXXX CHEMICAL, INC.
By:
------------------------------
Title:
---------------------------
-2-
