EXHIBIT 2.7(a)(vi)
Noncompetition Agreement
This Noncompetition Agreement (“Agreement”) is made as of December 1, 2002, by and among Energetic Systems Inc., LLC, a Nevada limited liability company (“ESI”), UTeC Corporation, LLC, a Nevada limited liability company (“UTEC”), SEC Investment Corp. LLC, a Nevada limited liability company (“SIC”), DetaCorp Inc., LLC, a Nevada limited liability company (“DetaCorp”) and Energetic Properties, LLC, a Nevada limited liability company (“EP,” and collectively with UTEC and SIC, “Buyers,” and collectively with ESI, the “Buyers Group”), Slurry Explosive Corporation, an Oklahoma corporation (“SEC”), Universal Tech Corporation, an Oklahoma corporation (“Universal,” and collectively with SEC, “Sellers”), El Dorado Chemical Company, an Oklahoma corporation (“EDC”), LSB Chemical Corp., an Oklahoma corporation (“LSBCC,” and together with EDC, the “Shareholders”), Prime Financial Corporation, an Oklahoma corporation (“PFC”) and LSB Industries, Inc., a Delaware corporation (“LSB,” and collectively with the Sellers, the Shareholders and PFC, the “Sellers Group”).
RECITALS
| A. | SEC is a wholly-owned subsidiary of EDC, Universal is a wholly-owned subsidiary of LSBCC, and EDC, LSBCC and PFC are wholly-owned subsidiaries of LSB. |
| B. | Concurrently with the execution and delivery of this Agreement, Buyers are purchasing from Sellers the Assets pursuant to the terms and conditions of an asset purchase agreement made as of December 6, 2002 (the "Asset Purchase Agreement"). Section 2.7(a)(vi) of the Asset Purchase Agreement requires that a noncompetition agreement be executed and delivered by each member of the Seller Group at the Closing. |
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
Capitalized terms not expressly defined in this Agreement shall have the meanings ascribed to them in the Asset Purchase Agreement.
2. ACKNOWLEDGMENTS BY SELLER AND SHAREHOLDERS
Each Shareholder, PFC and LSB acknowledge that they have occupied a position of trust and confidence with each Seller prior to the date hereof and have had access to the following, any and all of which constitute confidential information of Sellers
(collectively the "Confidential Information"): (a) any and all trade secrets concerning the business and affairs of Sellers, product specifications, data, know-how, formulae, compositions, processes, designs, sketches, photographs, graphs, drawings, samples, inventions and ideas, past, current and planned research and development, current and planned manufacturing and distribution methods and processes, customer lists, current and anticipated customer requirements, price lists, market studies, business plans, computer software and programs (including object code and source code), database technologies, systems, processes, improvements, devices, know-how, discoveries, concepts, methods and information of Seller and any other information, however documented, of Seller that is a trade secret under applicable law; (b) any and all information concerning the business and affairs of Sellers (which includes historical financial statements, financial projections and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, contractors, agents, suppliers and potential suppliers, personnel training and techniques and materials, purchasing methods and techniques), however documented excluding information constituting Excluded Assets; and (c) any and all notes, analysis, compilations, studies, summaries and other material prepared by or for Sellers containing or based, in whole or in part, upon any information included in the foregoing.
Each member of the Seller Group acknowledges that (a) Buyer has required that each member of the Seller Group make the covenants set forth in Sections 3 and 4 of this Agreement as a condition to Buyer's purchase of the Assets; (b) the provisions of Sections 3 and 4 of this Agreement are reasonable and necessary to protect and preserve Buyers’ interests in and right to the use and operation of the Assets from and after Closing; and (c) Buyers would be irreparably damaged if any member of the Seller Group were to breach the covenants set forth in Sections 3 and 4 of this Agreement.
3. CONFIDENTIAL INFORMATION
Each member of the Seller Group acknowledges and agrees that the protection of the Confidential Information is necessary to protect and preserve the value of the Assets. Therefore, each member of the Seller Group hereby agrees not to disclose to any unauthorized Persons or use for its own account or for the benefit of any third party any Confidential information, whether or not such information is embodied in writing or other physical form, without Buyers’ written consent, unless and to the extent that the Confidential Information (a) is or becomes generally known to and available for use by the public other than as a result of a breach of the confidentiality obligations of any member of the Seller Group under this Agreement or any other Person bound by a duty of confidentiality to Buyers or any member of the Seller Group, (b) is disclosed to any member of the Seller Group by a third party legally entitled to do so, (c) is required to be disclosed pursuant to applicable law or the order or process of a court or administrative or regulatory agency, or (d) is required to be disclosed in connection with the defense of any legal action, regulatory inquiry or investigation, provided that with respect to sub clauses (c) and (d) of this sentence, Buyers shall be notified of such requirement prior to disclosure and the applicable member of the Seller Group shall disclose only so much of such Confidential Information as counsel to the Seller Group shall advise is required and,
at the election of Buyers, cooperate with Buyers in obtaining a protective order. Each member of the Seller Group agrees to deliver to Buyer at the time of execution of this Agreement, and at any other time Buyer may request, all documents, memoranda, notes, plans, records, reports and other documentation, models, components, devices or computer software, whether embodied in a disk or in other form (and all copies of all of the foregoing with the exception that members of the Seller Group may retain copies of financial information of Sellers), that contain Confidential Information and any other Confidential Information that each member of the Seller Group may then possess or have under their control.
4. NONCOMPETITION
As an inducement for Buyers to enter into the Asset Purchase Agreement and as additional consideration for the consideration to be paid to Sellers under the Asset Purchase Agreement, each member of the Seller Group agrees that:
| (a) | For a period of three years after the Closing no Seller nor any of their related or affiliated companies (including the other members of the Seller Group) will, without the prior written consent of Buyers, either directly or indirectly, engage or invest in any non-public company, own, manage, operate, finance or control in any manner (including, without limitation, as a shareholder, owner, partner, member, manager, independent contractor, consultant, or advisor) any business, organization, partnership, joint venture or enterprise which competes with the Business in any geographic area in which Sellers conducted the Business and/or sold their products in the three years prior to Closing. As used herein, the term “Business” means (i) the manufacturing, storage or distribution of packaged explosives products and related accessory products in the geographical area in which Sellers sold or distributed such products in the three years prior to Closing, (ii) the provision of blasting and explosive related services in the geographical area in which Sellers provided such services in the three years prior to Closing, and (iii) the sale and re-distribution of Low Density Ammonium Nitrate from Seller’s Hallowell, Kansas, and Pryor, Oklahoma sites. This Section 4(a) will not apply to third-party entities with whom any LSB-affiliated entity may merge, or to any third-party entities that may purchase any LSB-affiliated entity, provided that such merger partner or purchaser shall have been in the Business prior to such transaction. Each member of the Seller Group agrees that this covenant is reasonable with respect to its duration, geographical area and scope. |
| (b) | In the event of a breach by any member of the Seller Group of any covenant set forth in Subsection 4(a) of this Agreement, the term of such covenant will be extended by the period of the duration of such breach. |
5. REMEDIES
If any member of the Seller Group breaches the covenants set forth in Sections 3 or 4 of this Agreement, Buyers will be entitled to the following remedies:
| (a) | Damages from any member of the Seller Group. |
| (b) | In addition to its right to damages and any other rights it may have, to obtain injunctive or other equitable relief to restrain any breach or threatened breach or otherwise to specifically enforce the provisions of Sections 3 and 4 of this Agreement, it being agreed that money damages alone would be inadequate to compensate Buyers and would be an inadequate remedy for such breach. |
The rights and remedies of the parties to this Agreement are cumulative and not alternative.
6. SUCCESSORS AND ASSIGNS
This Agreement will be binding upon the Buyer Group and the Seller Group and will inure to the benefit of the Buyer Group and their respective affiliates, successors and assigns.
7. WAIVER
The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged, in whole or in part, by a waiver or renunciation of the claim or right except in writing; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party, or of the right of the party giving such notice or demand to require the other party, to take further action without notice or demand as provided in this Agreement.
8. GOVERNING LAW
This Agreement will be governed by the laws applied by courts of the State of Texas to contracts entered into within that state by parties residing within that state and having no connection to any other state.
9. JURISDICTION; SERVICE OF PROCESS
Any action or proceeding seeking to enforce any provision of, or based upon any right arising out of, this Agreement may be brought against any of the parties in the courts of the State of Texas, County of Dallas or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of Texas and each of the parties
consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding referred to in the preceding sentence may be served on any party anywhere in the world.
10. SEVERABILITY
Whenever possible, each provision and term of this Agreement win be interpreted in a manner to be effective and valid, but if any provision or term of this Agreement is held to be prohibited or invalid, then such provision or term will be ineffective only to the extent of such prohibition or invalidity, without invalidating or affecting in any manner whatsoever the remainder of such provision or term or the remaining provisions or terms of this Agreement. If any of the covenants set forth in Section 4 of this Agreement are held to be unreasonable, arbitrary or against public policy, such covenants will be considered divisible with respect to scope, time and geographic area, and in such lesser scope, time and geographic area, win be effective, binding and enforceable against each member of the Seller Group to the greatest extent permissible.
11. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and au of which, when taken together, will be deemed to constitute one and the same agreement.
12. SECTION HEADINGS, CONSTRUCTION
The headings of sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to "Section" or "Sections" refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word "Including" does not limit the preceding words or terms.
13. NOTICES
All notices, consents, waivers and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt); (b) sent by facsimile (with written confirmation of receipt), provided that a copy is also promptly mailed by registered mail, return receipt requested; or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to such other addresses and facsimile numbers as a party may designate by notice to the other parties):
Sellers, Shareholders, PFC and LSB:
LSB Industries, Inc.
Attention: David Shear
Address: 16 S. Pennsylvania, Oklahoma City, Oklahoma 73106
Fax no.: (405) 235-5067
E-mail address: dshear@lsb-okc.com
Buyers and ESI:
Energetic Systems, Inc.
Address: 5700 N. Portland, Suite 310, Oklahoma City, Oklahoma 73112
Attention: David Taylor
Fax no.: (405) 947-0768
E-mail address: davidtaylor.wimase@shaw.ca
with a mandatory copy to:
Jackson Walker L.L.P.
Attention: Lawrence A. Waks
Address: 100 Congress Avenue, Suite 1100, Austin, Texas 78701
Fax no.: (512) 236-2002
E-mail address: lwaks@jw.com
14. ENTIRE AGREEMENT
This Agreement and the Asset Purchase Agreement constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supersede all prior written and oral agreements and understandings between the parties with respect to the subject matter of this Agreement. This Agreement may not be amended except by a written agreement executed by the party to be charged with the amendment.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date first above written.
Buyers: Sellers:
Energetic Systems Inc. Slurry Explosive Corporation
By:__________________________ By: _______________________________
David Taylor, Manager Tony M. Shelby, Vice President
UTeC Corporation LLC Universal Tech Corporation
By:__________________________ By: _______________________________
David Taylor, Manager Tony M. Shelby, Vice President
SEC Investment Corp. LLC Shareholders:
El Dorado Chemical Company
By:__________________________ By: _______________________________
David Taylor, Manager Tony M. Shelby, Vice President
DetaCorp Inc., LLC LSB Chemical Corp.
By:__________________________ By: _______________________________
David Taylor, Manager Tony M. Shelby, Vice President
PFC:
Energetic Properties, LLC Prime Financial Corporation
By:_____________________________ By:_____________________________
David Taylor, Manager Tony M. Shelby, Vice President
LSB:
LSB Industries, Inc.
By:_____________________________
Tony M. Shelby, Vice President
EXHIBIT2.7(a)(vii)
ESCROW AGREEMENT
This Escrow Agreement (“Agreement”), is dated December 6, 2002, among SEC Investment Corp. LLC, a Nevada limited liability company ("Buyer"), Universal Tech Corporation, an Oklahoma corporation ("Seller"), and Jackson Walker L.L.P., a Texas limited liability partnership, as escrow agent ("Escrow Agent").
This is the Escrow Agreement referred to in the Asset Purchase Agreement dated December 6, 2002 (the "Purchase Agreement"), among Buyer and Seller and certain other parties thereto.
The parties, intending to be legally bound, hereby agree as follows:
1. ESTABLISHMENT OF ESCROW
| (a) | Buyer is depositing with Escrow Agent an amount equal to Two Hundred Fifty Thousand Seven Hundred Twenty-Two Dollars ($250,722) in immediately available funds (as reduced by any disbursements withdrawn under Section 4(h), the "Escrowed Funds"). Escrow Agent acknowledges receipt thereof. |
| (b) | Escrow Agent hereby agrees to act as escrow agent and to hold, safeguard and disburse the Escrowed Funds pursuant to the terms and conditions hereof. |
| (c) | The parties hereby agree that the Escrowed Funds shall be held by the Escrow Agent in an account or accounts from time to time in accordance with the terms and subject to the conditions of this Agreement. |
2. PURPOSE; INVESTMENT
The Escrowed Funds shall provide funds for the adjustment of the Purchase Price as set forth in Section 2.9 of the Purchase Agreement. Except as Buyer and Seller may from time to time jointly instruct Escrow Agent in writing, the Escrow Fund shall be invested from time to time, in a Escrow Agent’s trust account until disbursement of the entire Escrow Fund. Interest, if any, earned on the Escrowed Funds, shall be for the account of Seller
3. TERMINATION OF ESCROW
Escrow Agent shall pay and distribute the then amount of the Escrowed Funds as directed by (i) a joint written disbursement instruction(s) of Buyer and Seller, which is intended by Buyer and Seller to occur no later than March 4, 2003; or (ii) a final, nonappealable order of a court of competent jurisdiction. This Agreement will terminate upon such final distribution.
4. DUTIES OF ESCROW AGENT
| (a) | Escrow Agent shall not be under any duty to give the Escrowed Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder. |
| (b) | Escrow Agent shall not be liable for actions or omissions hereunder, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against Escrow Agent, the other parties hereto shall jointly and severally indemnify and hold harmless Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement. |
| (c) | Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent. |
| (d) | Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted by it in good faith in accordance with such advice. |
| (e) | Escrow Agent does not have any interest in the Escrowed Funds deposited hereunder but is serving as escrow holder only and has only possession thereof. Any payments of income from the Escrowed Funds shall be subject to withholding regulations then in force with respect to United States taxes. This Section 4(e) and Section 4(b) shall survive notwithstanding any termination of this Agreement or the resignation of Escrow Agent. |
| (f) | Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrowed Funds to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of Escrow Agent will take effect on the earlier of (i) the |
| | appointment of a successor (including a court of competent jurisdiction) or (ii) the day which is thirty (30) days after the date of delivery of its written notice of resignation to the other parties hereto. If, at that time, Escrow Agent has not received a designation of a successor Escrow Agent, Escrow Agent's sole responsibility after that time shall be to retain and safeguard the Escrowed Funds until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final, nonappealable order of a court of competent jurisdiction. |
| (g) | In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrowed Funds or in the event that Escrow Agent is in doubt as to what action it should take hereunder, Escrow Agent shall be entitled to retain the Escrowed Funds until Escrow Agent shall have received (i) a final, nonappealable order of a court of competent jurisdiction directing delivery of the Escrowed Funds or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrowed Funds, in which event Escrow Agent shall disburse the Escrowed Funds in accordance with such order or agreement. Any court order shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to Escrow Agent to the effect that the order is final and nonappealable. Escrow Agent shall act on such court order and legal opinion without further question. |
| (h) | Buyer and Seller shall pay Escrow Agent compensation (as payment in full) for the services to be rendered by Escrow Agent hereunder in the amount of Five Hundred dollars ($500) at the time of execution of this Agreement and agree to reimburse Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). Any such compensation and reimbursement to which Escrow Agent is entitled shall be borne fifty percent (50%) by Seller and fifty percent (50%) by Buyer. Any fees or expenses of Escrow Agent or its counsel that are not paid as provided for herein may be taken from the Escrowed Funds held by Escrow Agent hereunder. |
5. LIMITED RESPONSIBILITY
This Agreement expressly sets forth all the duties of Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this Agreement against Escrow Agent. Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement.
6. OWNERSHIP FOR TAX PURPOSES
Seller agrees that, for purposes of federal and other taxes based on income, Seller will be treated as the owner of the Escrowed Funds and that Seller will report all income,
if any, that is earned on, or derived from, the Escrowed Funds as its income in the taxable year or years in which such income is properly includible and pay any taxes attributable thereto.
7. NOTICES
All notices, Consents, waivers and other communications required or permitted under this Agreement shall be in writing and shall be deemed given to a party when (a) delivered to the appropriate address by hand or by a nationally recognized overnight courier service (costs prepaid); (b) sent by facsimile or e-mail (with confirmation by the transmitting equipment); or (c) received by the addressee, if sent by certified mail, return receipt requested, in each case to the following addresses and facsimile numbers and marked to the attention of the person (by name or title) designated below (or to such other address, facsimile number or person as a party may designate by notice to the other parties):
Seller:
LSB Industries, Inc.
Attention: David Shear
Address: 16 S. Pennsylvania, Oklahoma City, Oklahoma 73106
Fax no.: (405) 235-5067
E-mail address: dshear@lsb-okc.com
Buyer:
Energetic Systems, Inc.
Address: 5700 N. Portland, Suite 310, Oklahoma City, Oklahoma 73112
Attention: David Taylor
Fax no.: (405) 947-0768
E-mail address: davidtaylor.wimase@shaw.ca
with a mandatory copy to:
Jackson Walker L.L.P.
Attention: Lawrence A. Waks
Address: 100 Congress Avenue, Suite 1100, Austin, Texas 78701
Fax no.: (512) 236-2002
E-mail address: lwaks@jw.com
Escrow Agent:
Jackson Walker L.L.P.
Address: 100 Congress Avenue, Suite 1100, Austin, Texas 78701
Attention: Lawrence A. Waks, Esq.
Fax no.: (512) 236-2002
E-mail address: lwaks@jw.com
8. JURISDICTION; SERVICE OF PROCESS
Any Proceeding arising out of or relating to this Agreement may be brought in the courts of the State of Texas, County of Dallas, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of Texas, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such Proceeding and waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of the Proceeding shall be heard and determined only in any such court and agrees not to bring any Proceeding arising out of or relating to this Agreement in any other court. Process in any Proceeding referred to in the preceding sentence may be served on any party anywhere in the world.
9. EXECUTION OF AGREEMENT
This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile shall be deemed to be their original signatures for any purposes whatsoever.
10. WAIVER
The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement or the documents referred to in this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement or the documents referred to in this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement or the documents referred to in this Agreement.
11. ENTIRE AGREEMENT AND MODIFICATION
This Agreement supersedes all prior agreements among the parties with respect to its subject matter and constitutes (along with the documents referred to in this Agreement) a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. This Agreement may not be amended except by a written agreement executed by Buyer, Seller and Escrow Agent.
12. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Texas without regard to conflicts of law principles that would require the application of any other Law.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement on the date first written above.
Seller: Buyer:
Universal Tech Corporation SEC Investment Corp. LLC
By: ___________________________ By: _________________________
Tony M. Shelby, Vice President David Taylor, Manager
Escrow Agent:
Jackson Walker L.L.P.
By: ___________________________
David Rex, Partner
EXHIBIT 2.7(a)(xi)
TRANSITIONAL SERVICES AGREEMENT
This Transitional Services Agreement (“Agreement”) is made and entered into this 6th day of December, 2002 but effective as of 12:01 a.m. C.S.T. on December 1, 2002 (“Effective Date”) by and between LSB Industries, Inc. (“LSB”) and Energetic Systems Inc., LLC, UTeC Corporation, LLC, DetaCorp Inc., LLC, Energetic Properties, LLC, Slurry Explosive Manufacturing Corporation, LLC and SEC Investment Corp. LLC, (collectively “ESI”).
WHEREAS, ESI is purchasing certain assets and operations of two subsidiaries of LSB, Slurry Explosive Corporation (“SEC”) and Universal Tech Corporation (“UTeC,” and collectively with SEC, the “ESI Operations”), pursuant to that certain Asset Purchase Agreement of even date hereof (the “Purchase Agreement”);
WHEREAS, ESI does not have the capability to economically and efficiently provide and handle certain services necessary to operate the ESI Operations;
WHEREAS, LSB is willing to provide certain services to, for and on behalf of ESI relating to ESI and the ESI Operations, conditioned upon and subject to the terms and conditions as hereinafter set forth; and
WHEREAS, the execution and delivery of this Agreement by the parties hereto is a condition precedent of the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Service Retention. ESI hereby retains LSB to perform those services for and on behalf of ESI and the ESI Operations, that are described below, subject to the terms and conditions as hereinafter provided. LSB may perform any of these services at any LSB or affiliate location in Oklahoma City, Oklahoma, or at the location of ESI at 5700 N. Portland, Oklahoma City, Oklahoma. If Services are performed at such ESI office, ESI will provide adequate facilities and equipment to LSB to permit LSB to conveniently perform the Services hereunder.
2. Acceptance. LSB agrees to use reasonable commercial efforts to provide those services for ESI and the ESI Operations that are described below, subject to the terms and conditions of this Agreement.
3. Services.
A. Subject to the terms and provisions of this Agreement, LSB agrees to provide to ESI the following services for and relating to ESI and the ESI Operations.
1. Financial & Accounting Services. LSB shall:
(a) maintain and keep the financial books and records pertaining to ESI and the ESI Operations and perform and/or supervise the accounting functions in connection therewith.
(b) provide monthly financial statements, other reports and analysis as may be necessary.
(c) assist ESI’s auditors, to audit the books and records of ESI from time to time, with the cost and expense of such independent auditors to be paid solely by, and be the sole responsibility of, ESI.
2. Order Entry. LSB or any affiliate of LSB will continue to maintain for ESI an order entry system substantially similar to the order entry system provided for UTeC and SEC prior to the Effective Time. In particular, orders issued to ESI will be entered by LSB for the ESI Operations as received by ESI for ESI customers. Certain reports and data output pertaining to orders received by ESI from ESI’s customers shall be forwarded by LSB to ESI as reasonably requested by ESI. ESI shall provide LSB, at ESI’s cost, order documents for use in the order entry of ESI’s transactions.
3. Billings. As LSB has been providing for SEC and UTeC prior to the Effective Time, invoices to be issued by ESI will be generated by LSB’s data processing group for all sales by ESI from the ESI Operations to ESI’s customers. All reports and data output (including a copy of each invoice for the account of ESI) generated in conjunction with the billing for ESI shall be available to ESI at LSB’s offices in Oklahoma City, Oklahoma and at the request of ESI, LSB will send copies to such place as ESI may request in writing. ESI shall provide LSB with invoices and other necessary documents, in form usable by LSB’s data processing and computer groups, for use in billing of ESI’s transactions, with the cost thereof to be borne by ESI.
4. Credit Services. LSB will provide credit services for ESI, as follows: LSB’s credit department will (i) assist ESI in the collection of ESI's receivables, (ii) receive ESI receivables and apply cash from the ESI receivables to the account of ESI, and (iii) make recommendations to ESI with respect to approval or denial of request for credit. Inability to collect any receivable, for any reason, shall be the sole and exclusive responsibility of ESI and LSB shall not have any liability in connection therewith.
5. Payable Services. LSB shall keep and maintain certain of the books and records for ESI in connection with ESI’s payables and shall, upon receipt from ESI of an invoice from an ESI vendor, duly approved by certain officials, have checks prepared in connection with payment of such invoices. ESI shall designate and appoint with its bank certain individuals who shall have authority to sign, for and on behalf of ESI, ESI checks in payment of such approved invoices. The payment of all ESI’s payables and invoices shall be the sole and exclusive responsibility of ESI and LSB shall not have any responsibility or liability in connection therewith.
6. Assistance in Hiring Personnel and Payroll Preparation.
A. LSB will, from time to time, at the request of ESI, assist ESI in hiring such accounting and financial personnel as requested by ESI and make recommendations in connection therewith. Salaries and compensation of such personnel , and any other matter that may arise out of the hiring process and any employment of ESI employees, will be the sole and exclusive responsibility of ESI.
B. LSB may, with the consent or notice of ESI, retain such other parties or entities that are affiliated with or affiliates of LSB to carry out and perform and/or assist LSB in carrying out and performing the services LSB has agreed to perform hereunder for ESI. LSB may retain such other parties or entities that are not affiliated with or affiliates of LSB to carry out and perform the services that LSB has agreed to perform hereunder upon LSB having given ESI ten (10) days written notice prior to retaining such other parties or entities that are not affiliated with or affiliates of LSB to perform and carry out any of such services and ESI does not object to LSB retaining such other party or entity within the ten (10) days notice period.
C. Notwithstanding anything herein to the contrary, ESI shall assume all responsibility, risks and losses associated with the services provided hereunder by LSB and such other parties and entities LSB retains to perform such services and the recommendations made by LSB to hereunder; and neither LSB nor any of its directors, officers, employees, agents or affiliates shall have any liability or responsibility, in any manner whatsoever in connection therewith other than for willful misconduct.
D. All books and records of ESI shall be and remain the sole and exclusive property of ESI.
E. From the Effective Time through and including December 31, 2002, LSB or any affiliate of LSB will employ, or continue to employ, the personnel of SEC and UTeC that are identified by ESI prior to the Effective Date. During such period, LSB will continue to pay such employees and to provide them with the employee benefits that they are receiving as of the Effective Date. ESI will reimburse LSB for all such expenses incurred by LSB in association with such employment for such period, including without limitation payroll, vacation pay, insurance costs and deductibles or similar, health care claims, workers compensation claims and taxes.
4. Supplies. ESI authorizes LSB to purchase, for and on behalf of ESI such files, forms and other office supplies as LSB deems necessary to process and store ESI records, and the cost and expenses of such files, forms and office supplies to be borne by ESI, after discussion with ESI.
5. Payment of Service. In consideration of the services to be provided hereunder, ESI shall pay to LSB $15,000 for the month of December 2002 and $10,000 per month for every month thereafter until this Agreement is terminated in accordance with Section 6.A.
6. Term and Termination.
A. The term of this Agreement shall commence as of the Effective Time and shall terminate on completion of the March 2003 accounting cycle, unless extended by mutual consent, provided that the services under Section 3.A.6.E (employment of personnel) above shall terminate at midnight, December 31, 2002.
B. Upon termination of this Agreement, LSB will make available and deliver to ESI, at LSB’s offices in Oklahoma City, Oklahoma, all books and records of ESI in LSB’s possession as of the date of termination.
7. Releases and Indemnification.
A. ESI hereby relieves and releases LSB, its officers, directors, employees, agents, and affiliates from any and all liability or damages, cost or expense incurred by ESI, however caused, arising out of any of the (i) services provided by LSB or any other entity or person for and on behalf of ESI under this Agreement, other than for willful misconduct by LSB, or (ii) recommendations made by LSB in connection with this Agreement; or (iii) the failure or delay by LSB or any other person or entity to perform any of the services or any of the LSB’s obligations hereunder.
B. ESI further agrees to indemnify and hold LSB, its officers, directors, employees, agents and affiliates harmless from and against any and all losses, claims obligations, liabilities, penalties, causes of action, damages, costs and expenses (including without limitation, costs of defense, settlement and reasonable attorney’s fees and expenses) which any or all of them may hereafter be alleged to be liable for, suffer, incur, be responsible for or pay out, arising out of or resulting from any such services performed or to be performed hereunder or relating to this Agreement.
8. Assistance. ESI agrees to assist LSB in performing its services hereunder in any manner which LSB deems necessary and further agrees to furnish LSB in a timely manner with any documentation which LSB deems necessary to aid in performing its services to ESI hereunder.
9. Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party.
10. Entire Agreement. This Agreement contains and expresses the entire agreement of the parties and no other representations or conditions may be relied upon except as set out herein.
11. Modification. This Agreement may only be modified by the agreement of the parties hereto, in writing, and executed by both of the parties hereto.
12. Government Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Oklahoma.
13. Partial Invalidity and Captions. If any clause or provision of this Agreement is illegal, invalid, or unenforceable, then in such event, it is the intention of the parties hereto the remainder of this Agreement shall not be affected thereby and its is also the intention of the parties to this Agreement that in lieu of each clause or provision of this Agreement that is illegal or invalid or unenforceable, there be added as a part of this Agreement a clause or provision as similar in the terms to such illegal, invalid or unenforceable clause or provision as may be possible and be legal and valid and enforceable. The captions of each paragraph hereof are entered as a matter of convenience only and shall not be considered to be of any effect in the construction of the provision or provisions of this Agreement.
14. Notice. All notices in this Agreement provided to be given by either party hereto to the other shall be deemed to have been given, when made in writing and deposited in the United States mail, certified and postage prepaid, addressed as follows:
TO: LSB Industries, Inc. TO: Energetic Systems Inc., LLC
P.O. Box 754 5700 North Portland Avenue, Suite 310
Oklahoma City, OK 73101 Oklahoma City, OK 73101
COPY: Office of the General Counsel COPY: Lawrence W. Waks, Esq.
LSB Industries, Inc. Jackson Walker L.L.P.
P.O. Box 754 100 Congress Avenue, Suite 1100
Oklahoma City, Oklahoma 73101 Austin, Texas 78701
The address to which any notice, demand or other writing may be given, made, or sent to either party may be changed by written notice given by such party as above provided.
15. Waiver. No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver or any other breach or default or of any other right or remedy, unless such waiver is expressed in writing signed by the party to be bound. Furthermore, the failure of a party to exercise any right shall not be deemed a waiver of such future right or rights.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, the parties to the foregoing Agreement have hereunto set their hands the day and year first above written.
| Energetic Systems Inc., LLC | | Slurry Explosive Manufacturing Corporation, LLC |
| By:________________________________ | | By:________________________________ |
| David Taylor, Manager | | David Taylor, Manager |
| | | |
| UTeC Corporation LLC | | |
| By:________________________________ | | |
| David Taylor, Manager | | |
| | | |
| DetaCorp Inc., LLC | | LSB INDUSTRIES, INC. |
| By:________________________________ | | By:________________________________ |
| David Taylor, Manager | | Tony M. Shelby, Vice President |
| | | |
| SEC Investment Corp. LLC | | |
| By:________________________________ | | |
| David Taylor, Manager | | |
| | | |
| Energetic Properties, LLC | | |
| By:________________________________ | | |
| David Taylor, Manager | | |
EXHIBIT 2.7(a)(xii)
USE AND LICENSE AGREEMENT
This Use and License Agreement (the “Agreement”) is made and entered into by and between Energetic Systems Inc., LLC, a Nevada limited liability company (“ESI”), UTeC Corporation, LLC, a Nevada limited liability company (“UTeC”), SEC Investment Corp. LLC, a Nevada limited liability company (“SIC”), DetaCorp Inc., LLC, a Nevada limited liability company (“DetaCorp”), Energetic Properties, LLC, a Nevada limited liability company (“EP,” and collectively with DetaCorp, UTeC and SIC, “Buyers” and each individually, “Buyer”), Slurry Explosive Corporation, an Oklahoma corporation (“SEC”), Universal Tech Corporation, an Oklahoma corporation (“Universal,” and collectively with SEC, “Sellers” and each individually, “Seller”) to be effective 12:01 a.m. on December 1, 2002 (the “Effective Date”).
RECITALS
| A. | Each Seller is separately the Lessee or otherwise has the separate right to use certain equipment, vehicles and/or other personal property (the “Property”) by through and under those leases and agreements reflected in Exhibit “A” (collectively, the “Leases” and each individually, the “Lease”), copies of such Leases having been previously provided to Buyers. |
| B. | Effective December 1, 2002, Buyers are the owners of most of the assets of the Sellers, but not the Property, and Buyers desire to use the Property and obtain Sellers right, to purchase the Property, all subject to the covenants and agreements set forth herein. |
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Buyers and Sellers incorporate the foregoing recitals as a part of this Agreement, and further agree as follows:
1. GRANT OF LICENSE AND CONDITIONAL ASSIGNMENT OF PURCHASE OPTION. Subject to the terms, covenants and conditions hereinafter set forth, each Seller that is a party to each particular Lease does hereby a) license to Buyers the right to use the Property that is the subject of each Lease, and b) assign to Buyers any purchase option that the applicable Seller may have, provided that Buyers had paid to Sellers all amounts due to Sellers as required under this Agreement, including amounts to complete the lease payments relating to the subject Property, and all amounts that are required to exercise any purchase option.
2. TERM. Unless earlier terminated pursuant to the terms of this Agreement, the term of this Agreement shall commence on the Effective Date and shall continue for twelve (12)
months thereafter, at which time this Agreement shall automatically renew for successive twelve (12) month terms unless and until (i) Buyers or Sellers shall have given the other written notice at least two (2) months prior to the end of the then current twelve (12) month period that this Agreement shall terminate at the end of such twelve (12) month period with respect to all Property subject to any particular Lease described in said notice, or (ii) all of the Leases have been terminated or expired pursuant to the terms and conditions thereof (the “Term”).
2.1 Early Termination; Restriction on Right of Use. This Agreement may terminate prior to the end of the Term as follows:
2.1.1 Termination of Lease. With respect to each item of Property subject to a particular Lease, this Agreement shall automatically terminate as to that item of Property at the earlier of such time that either a) Sellers’ rights, privileges and obligations shall terminate under each of the respective Leases to which that item of Property is subject, and Sellers have no further rights in the Property subject to such Lease or b) the Property is no longer available for full and unrestricted use by the Buyer due to actions undertaken by or through the Lessor or Seller.
2.1.2 New or Assigned Lease. With respect to each item of Property subject to a particular Lease, this Agreement shall automatically terminate as to such Property on the same date that a lease is entered into between any Buyer and the holder of that Lease which covers all Property subject to that Lease or an assignment of that existing Lease to which such Property is subject is fully consummated in favor of any of the Buyers, all provided that, with respect to either such a new lease or assignment, Sellers are fully released from any future obligations under that particular Lease to which such Property is subject.
2.1.3 Purchase of Property. With respect to each item of Property subject to a particular Lease, this Agreement shall automatically terminate as to such Property on the same date that any of the Buyers purchases the Property and becomes the owners of that Property and Sellers are fully released from any future obligations to the holder of that particular Lease to which such Property is subject.
2.1.4 Uniform Lease. Solely with respect to the Lease reflected in SEC Item 4 of Exhibit A as “Standard Uniform Rental Service Agreement between Cintas Corporation and SEC, dated November 16, 2001, and continuing for 60 months with automatic renewals for like periods unless terminated 60 days before end of any term, regarding garment services for employee uniforms” (the “Uniform Lease”), Buyers may terminate this Agreement solely as to the Uniform Lease upon thirty (30) days written notice to Sellers prior to the effective date of such termination.
2.1.5 Default/Sellers’ Purchase of Property. At Sellers’ option, Sellers may terminate this Agreement as to all or any part of the Property as provided in
Sections 3.3 and 10.1 below. At Buyers’ option, Buyers may terminate this Agreement as to all or any part of the Property as provided in Section 10.2 below.
3. BUYERS’ OBLIGATIONS.
3.1 During the term of each Lease, Buyers, jointly and severally, agree and shall pay to Sellers an amount equal to all obligations of Sellers under the Leases which arise, occur or exist during the Term of this Agreement, including, without limitation, any installments, rent, tax or other payment obligations; any insurance obligations, any repair or maintenance obligations, and any other obligations arising under the Leases (the “Back-to-Back Payments”). It is understood and agreed that it is Buyers’ joint and several responsibility to make such payments to Sellers in order to allow Sellers to perform their respective obligations under the Leases directly with the holders of those Leases. It is further understood and agreed that Buyers shall be jointly and severally responsible for all liabilities, including without limitation, any late fees or penalties, arising under the Leases as a result of Buyers’ failure to timely perform the related Back-to-Back Payments.
3.2 Any Back-to-Back Payments requiring the payment of monies that cover a period of time that includes days outside the Term of this Agreement shall be reduced pro-rata to reflect the number of days of that period that fall within the Term of this Agreement (e.g. a rental payment under a Lease that covers the period November 15, 2002 to December 15, 2002 shall be reduced by multiplying the amount of that rental payment by the fraction of 15 (number of days within the Term) over 30 (number of days covered by the rental payment)).
3.3 Buyers shall make Back-to-Back Payments to Sellers in accordance with Sellers written advice for all Back-to-Back Payments due under all Leases for the following calendar month within ten (10) days of receipt by Buyers of such written advice. If the Buyers fail to timely make such Back-to-Back Payments, Sellers may, in their sole and absolute discretion, terminate this Agreement in whole or in part, and/or perform the related obligation under the respective Lease, and Buyers shall be jointly and severally responsible to immediately pay Sellers for any costs, expenses or damages related thereto.
3.4 Buyers shall use, maintain and insure the Property in a manner and in accordance with the particular Lease relating to the Property, maintain all legally required and appropriate licenses and permits relating to the Property, and comply with all governmental laws, rules, and regulations relating to the use the Property.
4. SELLERS’ OBLIGATIONS. To the extent Buyers have made the Back-to-Back Payments, the Sellers jointly and severally agree to timely perform the related payment obligation under the Leases that such Seller may owe to the holder of the Leases. It is understood and agreed that Sellers shall be jointly and severally responsible for all liabilities arising under the Leases as a result of Sellers’ failure to timely perform under the Leases (provided Buyers have timely performed the Back-to-Back Payments).
5. DISCLAIMER. SELLERS MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, CONCERNING THE PROPERTY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE OR WARRANTY AS TO THE CONDITION OF THE PROPERTY. ALL PROPERTY IS DELIVERED AND ACCEPTED ON AN “AS IS – WHERE IS” BASIS.
6. COMPLIANCE WITH APPLICABLE LAW. Buyers shall comply with all federal, state, county and local laws and ordinances applicable in connection with the Property and the use of the Property.
7. LIENS/ENCUMBRANCES. Buyers shall not encumber and Property.
8. INSPECTION. Sellers or their authorized representatives may at any reasonable time or times inspect the Property.
9. RISK OF LOSS. From and after the Effective Date through the end of the Term, all risk of loss in connection with the theft, damage or destruction of the Property, however incurred or occasioned, shall be on Buyers. Buyers shall promptly give Sellers written notice of any such theft, damage or destruction of the Property and shall promptly cause the affected part or parts of the Property to be replaced or restored as required by the related Lease.
10. DEFAULTS AND REMEDIES.
10.1 Sellers’ Remedy for Default. In the event Buyers fail to perform any of their obligations hereunder for any reason, Seller must give Buyers written notice of the default and five (5) business days to cure such default. In the event that Buyers fail to cure the default within such time period, Sellers have the right to elect to pursue any one or more of the following remedies: (a) immediately terminate this Agreement with respect to the Lease associated with the default, at which time, Buyers shall immediately deliver sole possession of all Property subject to that termination to Sellers; (b) pursue an action for enforcement of this Agreement; (c) pursue an action for damages; and/or (d) pursue any other remedy available at law or in equity.
10.2 Buyers’ Remedy for Default. In the event Sellers fail to perform any of their obligations hereunder for any reason, Buyers must give Sellers written notice of the default and five (5) business days to cure such default. In the event that Sellers fail to cure the default within such time period, Buyers have the right to elect to pursue any one or more of the following remedies: (a) immediately terminate this Agreement with respect to the Lease associated with the default, at which time, Buyers shall immediately deliver sole possession of all Property subject to that termination to Sellers; (b) pursue an action for enforcement of this Agreement; (c) pursue an action for damages; and/or (d) pursue any other remedy available at law or in equity.
11. PURCHASE OPTION. To the extent any of the Leases contain an option to purchase the Property subject to that Lease which may be exercised during the Term of this
Agreement, Buyers may notify Sellers of their desire to exercise such option to purchase at and identify to which Buyer that Property is to be transferred. If Buyers fully perform all obligations under the Lease arising in connection with the exercise of such option to purchase, and all obligations in connection with this Agreement, Sellers shall timely exercise such option to purchase with respect to that particular Property and shall cause title to that particular Property to be transferred to the identified Buyer, AS IS, WHERE IS AND WITH ALL FAULTS. It is understood and agreed (i) that Sellers shall provide no warranty, express or implied, in connection with the transfer of such Property, including any warranty of merchantability or of fitness for any particular purpose, and (ii) that Sellers have no obligation to advise Buyers of the existence of any purchase options or the terms thereof, including expiration dates.
12. MISCELLANEOUS.
12.1.1 Indemnity of Sellers. Buyers assume liability for and, jointly and severally, agree to defend, indemnify and hold Sellers and any Seller affiliate, harmless from and against any and damages, injury to persons or property, claims, liabilities, losses, penalties, charges or expenses (including reasonable attorneys fees) of any and all kinds imposed on, incurred by or asserted against any Seller or Seller affiliate, arising out of or relating to Buyers failure to comply with the terms of this Agreement, or Buyers’ use, possession or operation of any of the Property by, through or under Buyers. This Section 12.1.1 shall survive the expiration or earlier termination of this Agreement.
12.1.2 Indemnity of Buyers. Sellers assume liability for and, jointly and severally, agree to defend, indemnify and hold Buyers and any Buyer affiliate, harmless from and against any and damages, injury to persons or property, claims, liabilities, losses, penalties, charges or expenses (including reasonable attorneys fees) of any and all kinds imposed on, incurred by or asserted against any Buyer or Buyer affiliate, arising out of or relating to Sellers failure to comply with the terms of this Agreement or any actions, suits or proceedings brought by any lessors under any of the Leases as a result of this Agreement or the transactions contemplated hereby. This Section 12.1.2 shall survive the expiration or earlier termination of this Agreement.
12.2 Governing Applicable Law; Severability; Paragraph Headings. This Agreement and the rights and obligations of the parties shall be interpreted, construed and enforced in accordance with the applicable laws of the state of Oklahoma. If any term or provision of this Agreement shall to any extent be invalid or unenforceable, the remainder of this Agreement shall not be affected, and each provision of this Agreement shall be valid and enforced to the fullest extent permitted by applicable law. Furthermore, in lieu of such illegal, invalid, or unenforceable provision, there shall be added automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid and enforceable. The headings and titles to the Articles and Sections of this Agreement are for convenience only and shall have no effect on the interpretation of any part of this Agreement. The word “including” shall not be construed restrictively to limit or exclude other items not listed.
12.3 Time is of the Essence; Relationship; Successors and Assigns. Time is of the essence with respect to Buyers’ performance of their obligations and the exercise of any expansion, renewal or extension rights or other options granted to Buyers. This Agreement and the covenants and conditions in this Agreement shall inure only to the benefit of and be binding only upon Buyers and Sellers and their permitted successors and assigns. Neither Buyers nor Sellers may assign any of its rights or obligations under this Agreement without the prior written consent of the other parties’ notice representatives reflected below.
12.4 Full Agreement; Amendments. This Agreement contains the parties’ entire agreement regarding the subject matter hereof. All understandings, discussions, and agreements previously made between the parties, written or oral, are superseded by this Agreement, and neither party is relying upon any warranty, statement or representation not contained in this Agreement. The exhibits and riders attached hereto are incorporated herein and made a part of this Agreement for all purposes. This Agreement may be modified only by a written agreement signed by all parties.
12.5 Notices. Any notice, communication, request, reply or advice (severally and collectively referred to as “Notice”) in this Agreement required or allowed to be given, made or accepted by Sellers or Buyers to the other must be in writing and given to the representatives of Buyers or Sellers reflected below. Notice to Sellers’ representatives is notice to all Sellers, and notice to Buyers representatives is notice to all Buyers. Notice may, unless otherwise provided herein, be given or served (a) by depositing the same in the United States mail, postage paid, certified mail, and addressed to the party to be notified, with return receipt requested, (b) by delivering the same to such party or an agent of such party by hand or by a recognized overnight carrier, or (c) when appropriate, by sending via facsimile transmission addressed to the party to be notified. Notice will be effective the sooner of (1) receipt at the address transmitted, (2) three (3) days after such is deposited in the mail or with overnight carrier, or (3) when facsimile transmission is confirmed by the sending machine. For the purposes of notice, the addresses and facsimile numbers of the parties’ notice representatives are, until changed by written notice, as follows:
Sellers: | President SEC and UTeC Notice Representative 16 South Pennsylvania Avenue Oklahoma City, Oklahoma 73107 Facsimile: (405) 235-5067 |
With copies to: | General Counsel SEC and UTeC Notice Representative 16 South Pennsylvania Avenue Oklahoma City, Oklahoma 73107 Facsimile: (405) 235-5067 |
| Buyers: | President Energetic Systems Inc., LLC 5700 N. Portland Suite 310 Oklahoma City, Oklahoma 73112 Facsimile: (405) 947-0786 |
With copies to: | Lawrence A. Waks, Esq. Jackson Walker L.L.P. 100 Congress Avenue Suite 1100 Austin, Texas 78701 Facsimile: (512) 236-2002 |
12.6 Attorney’s Fees. In the event either party hereto fails to comply with any of the terms of this Agreement to be complied with on its part and the other party commences legal proceeding to enforce the terms of the Agreement, the prevailing party in any such proceeding shall receive from the other its reasonable attorneys fees.
12.7 Multiple Counterparts. This Agreement may be executed in a number of identical counterparts, each of which constitutes an original and all of which constitute, collectively, one agreement; but in making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart.
10.7 Assignment. This Agreement may not be assigned by Buyers without the prior written consent of Sellers. However, Buyers may divide up the Property among themselves as they determine in their sole discretion.
SIGNATURE PAGE TO FOLLOW
Executed to be effective as of the date first written above.
SELLERS: BUYERS:
SLURRY EXPLOSIVE CORPORATION, ENERGETIC SYSTEMS INC., LLC
an Oklahoma corporation a Nevada limited liability company
By:_________________________________ By:_________________________________
Tony M. Shelby, Vice President David Taylor, Manager
UNVIERSAL TECH CORPORATION, UTEC CORPORATION, LLC
an Oklahoma corporation a Nevada limited liability company
By:_________________________________ By:_________________________________
Tony M. Shelby, Vice President David Taylor, Manager
SEC INVESTMENT CORP. LLC,
a Nevada limited liability company
By:________________________________
David Taylor, Manager
DETACORP INC., LLC,
a Nevada limited liability company
By:_________________________________
David Taylor, Manager
ENERGETIC PROPERTIES, LLC,
a Nevada limited liability company
By:________________________________
David Taylor, Manager
EXHIBIT “A”
LIST OF LEASES
Universal Tech Corporation
| 1. | Equipment Lease between United Leasing, Inc. and UTeC, commencing March 16, 2000, and continuing for 60 months, regarding G25E Daewoo Forklift. |
| 2. | Equipment Lease between United Leasing, Inc. and UTeC, commencing February 16, 2001, and continuing for 36 months, regarding 2001 Chevy Silverado pickup. |
| 3. | Equipment Lease between Sharp Financial Company and UTeC, commencing August 19, 2002, and continuing for 60 months, regarding Canon copier at R&D Lab, Riverton, Kansas. |
Slurry Explosive Corporation
| 1. | Equipment Lease #8 between United Leasing, Inc. and SEC last signed on December 9, 1999 and commencing on November 15, 1999, and continuing for 60 months, regarding a Plastic Tube Filling and Scaling Machine. |
| 2. | Master Rental Agreement between Associates Leasing, Inc. and SEC, commencing on December 30, 1998, and continuing for 60 months, regarding a new Daewoo Model G20S/LPS. |
| 3. | O.S.P. Program Sales Agreement between American Business Systems and SEC, dated September 25, 1998, and continuing for five years, regarding a copier machine. |
| 4. | Standard Uniform Rental Service Agreement between Cintas Corporation and SEC, dated November 16, 2001, and continuing for 60 months with automatic renewals for like periods unless terminated 60 days before end of any term, regarding garment services for employee uniforms. |
| 5. | Equipment Lease between G.W. Van Keppel Company/Associates Leasing, Inc. (assigned to Citicapital Commercial Leasing Corporation) and SEC, commencing September 22, 2000, and continuing 66 months, regarding Svadala hydraulic track drill. |
| 6. | Equipment Lease between Citicapital Commercial Leasing Corporation and SEC, commencing December 28, 2001, and continuing 60 months, regarding Svadala hydraulic track drill. |
| 7. | Equipment Lease #6 between United Leasing, Inc. and SEC, commencing February 15, 2001, and continuing 24 months, regarding 1995 International Tractor at Hallowell, Kansas Facility. |
| 8. | Equipment Lease #7 between United Leasing, Inc. and SEC, commencing February 15, 2001, and continuing 24 months, regarding 1995 International Tractor at Pryor, Oklahoma Facility. |
| 9. | Conditional Sale Agreement between Transport International Tool, Inc. and SEC, dated July 17, 2001, commencing October 1, 2001 and continuing 48 months, regarding the purchase of 49 over-the-road trailers. |
| 10. | Equipment Lease #1 between United Leasing, Inc. and SEC, commencing February 26, 2001, and continuing 36 months, regarding 2001 Chevy Silverado pickup at Pryor, Oklahoma Facility. |
| 11. | Equipment Lease #10 between United Leasing, Inc. and SEC, commencing January 15, 2002, and continuing 36 months, regarding 1999 Ford F-250 pickup at Hallowell, Kansas Facility. |
| 12. | Equipment Lease #2 between United Leasing, Inc. and SEC, commencing February 15, 1998, and continuing 60 months, regarding semi-tank trailer at Pryor, Oklahoma Facility. |
| 13. | Equipment Lease #5 between United Leasing, Inc. and SEC, commencing March 15, 1999, and continuing 60 months, regarding semi-tank trailer at Pryor, Oklahoma Facility. |
| 14. | Equipment Lease #3 between United Leasing, Inc. and SEC, commencing September 15, 1998, and continuing 60 months, regarding 1998 Mack pumper truck at Pryor, Oklahoma Facility. |
| 15. | Lease between R.K. Black, Inc. and SEC, commencing February 23, 1998, and continuing for 60 months, regarding two (2) Lanier copiers for SEC’s Oklahoma City, Oklahoma office. |
EXHIBIT 2.8
NON-PURCHASED INVENTORY USE AND PURCHASE AGREEMENT
This Non-Purchased Inventory Use and Purchase Agreement (“Agreement”) by and between the Buyers and Sellers, effective as of December 1, 2002. “Buyers” and “Sellers” are defined in the Asset Purchase Agreement (“APA”) effective December 1, 2002 by Energetic Systems Inc., LLC, a Nevada limited liability company, UTeC Corporation, LLC, a Nevada limited liability company, SEC Investment Corp. LLC, a Nevada limited liability company, DetaCorp Inc., LLC, a Nevada limited liability company, Energetic Properties, LLC, a Nevada limited liability company, Slurry Explosive Corporation, an Oklahoma corporation, Universal Tech Corporation, an Oklahoma corporation. In connection with the APA, and for good and valuable consideration, the parties have agreed as follows:
1. Defective Valeron. Buyers will take possession of the old Valeron Film (red and 806) for no charge, representing an $8,000 write-off by Sellers.
2. Other Valeron, Boxes and Bags Marked for Orica, Dyno Nobel, and Austin Powder. Buyers will take possession of all the Valeron, boxes and bags marked for Orica, Dyno Nobel and Austin Powder, with an estimated value of $75,000. Buyers will use such material in production on a priority basis until such material is fully used. Buyers will pay to Sellers Sellers’ full inventory value for such material within thirty (30) days of use by Buyers. Buyers shall retain the right to sell any remaining portion of such material to Orica, Dyno Nobel and Austin Powder. In the event of such sale, Buyers will cooperate with Sellers in assembling and shipping such inventory.
3. Ammonium Perchlorate. Buyers will take possession of all Ammonium Perchlorate (“AP”), with an estimated value of $72,675. Buyers will use such AP in the manufacturing of product on a priority basis until it is fully consumed. Buyers will pay Sellers full inventory value for the AP within thirty (30) days of use by Buyers.
4. U.S. Aluminum Powdered Aluminum. Buyers will take possession of the powdered aluminum manufactured by U.S. Aluminum that is usable in limited applications, with an estimated value of $30,250. Buyers will use such aluminum in the manufacturing of product on a priority basis until it is fully consumed. Buyers will pay Sellers full inventory value for such aluminum within thirty (30) days of use by Buyers.
5. Propellant. Buyers will take possession of and title to all propellant of Sellers wherever located, including Camden, Arkansas, Hallowell, Kansas and the PRUF plant at no cost.
6. Rocket Motors. Buyers will take possession of and title to all rocket motor inventory of Sellers wherever located at no cost. Sellers shall pay to Buyers the monies received by Sellers for rocket motors processed by Sellers totaling $16,877 within thirty (30) days of closing.
Executed to be effective as of the date first written above.
SELLERS: BUYERS:
SLURRY EXPLOSIVE CORPORATION, ENERGETIC SYSTEMS INC., LLC
an Oklahoma corporation a Nevada limited liability company
By:_________________________________ By:_________________________________
Tony M. Shelby, Vice President David Taylor, Manager
UNVIERSAL TECH CORPORATION, UTEC CORPORATION, LLC
an Oklahoma corporation a Nevada limited liability company
By:_________________________________ By:_________________________________
Tony M. Shelby, Vice President David Taylor, Manager
SEC INVESTMENT CORP. LLC,
a Nevada limited liability company
By:_________________________________
David Taylor, Manager
DETACORP INC., LLC,
a Nevada limited liability company
By:_________________________________
David Taylor, Manager
ENERGETIC PROPERTIES, LLC,
a Nevada limited liability company
By:_________________________________
David Taylor, Manager
EXHIBIT 7.3
Material Consents
None
EXHIBIT 7.4(a)
Legal Opinion - Sellers
December 6, 2002
Energetic Systems Inc., LLC
UTeC Corporation, LLC
SEC Investment Corp. LLC
DetaCorp Inc., LLC
Energetic Properties, LLC
5700 North Portland Avenue
Suite 310
Oklahoma City, Oklahoma 73112
RE: Asset Purchase Agreement
Ladies and Gentlemen:
I have acted as general counsel to Slurry Explosive Corporation, an Oklahoma corporation (“SEC”), Universal Tech Corporation, an Oklahoma corporation (“Universal”, and collectively with SEC, “Sellers”), El Dorado Chemical Company, an Oklahoma corporation (“EDC”), LSB Chemical Corp., an Oklahoma corporation (“LSBCC”), Prime Financial Corporation, an Oklahoma corporation (“PFC”), and LSB Industries, Inc., a Delaware corporation (“LSB”), in connection with the review, execution and delivery of and the transactions contemplated by the Asset Purchase Agreement, dated as of December 6, 2002 (the “Asset Purchase Agreement”), by and among the Sellers, EDC, LSB, LSBCC and PFC, and Energetic Systems Inc. LLC, a Nevada limited liability company (“ESI”), UTeC Corporation, LLC, a Nevada limited liability company (“UTECLLC”), SEC Investment Corp. LLC, a Nevada limited liability company (“SIC”), DetaCorp Inc., LLC, a Nevada limited liability company (“DetaCorp”) and Energetic Properties, LLC, a Nevada limited liability company (“EP” and collectively with ESI, UTECLLC, SIC and DetaCorp, “Buyers”).
This opinion is rendered to you pursuant to Section 7.4(a) of the Asset Purchase Agreement. Except as otherwise defined herein, capitalized terms used herein will have the same meaning as such terms are defined in the Asset Purchase Agreement.
1. In connection with the issuance of this letter, I have examined the following documents:
| 1.1 | Asset Purchase Agreement; |
| 1.3 | Noncompetition Agreement; |
| 1.4 | Orica Noncompetition Letter Agreement; |
| 1.6 | Assignment and Assumption Agreement; |
| 1.7 | Assignment and Assumption of Lease Agreement; |
| 1.8 | Assignment of Patents; |
| 1.9 | Assignment of Service Marks and Trademarks; |
| 1.10 | Transitional Services Agreement; |
| 1.11 | AN Supply Agreement; |
| 1.12 | Nitric Acid Supply Agreement; |
| 1.13 | The Use and License Agreement; |
| 1.14 | (A) Lease Agreements, Memorandums of Lease and Lessor Estoppel and Agreements with respect to the real property leases for (1) the Production Facility located at Hallowell, Kansas, (2) the Underwater Lab and PRUF plant located at Hallowell, Kansas, (3) the R&D lab located at Jayhawk, Kansas, and (4) the Pryor, Oklahoma facility; (B) Assignment and Assumptions of Lease for the Farmer’s Co-Op lease, the Industrial Track lease, the Oklahoma City office lease and the Dallas office lease; (C) a Lease Termination Agreement with respect to the Pryor, Oklahoma facility; |
| 1.15 | Certificate from the Secretary or Assistant Secretary of each Seller, EDC, LSBCC, PFC and LSB attesting to the resolutions of each such party and authorizing specific officers of each such party to execute the Transaction Documents, as such term is defined below, to which it is a party; |
| 1.16 | Certificate of Good Standing of SEC, issued by the Oklahoma Secretary of State on November 19, 2002; |
| 1.17 | Certificate of Good Standing of Universal, issued by the Oklahoma Secretary of State on November 19, 2002; |
| 1.18 | Certificates of Foreign Good Standing, Existence or Authority of each Seller listed on Schedule II attached hereto issued by the various Secretaries of State (the “Foreign Certificates”); |
| 1.19 | Certificates of Incorporation and Bylaws of each Seller, EDC, LSBCC, PFC and LSB; |
| 1.20 | Minute books of each of each Seller, EDC, LSBCC, PFC and LSB; |
| 1.21 | Unanimous Written Consents of the Board of Directors and Sole Shareholder of each Seller, EDC, LSBCC and PFC, dated November 18, 2002; and |
| 1.22 | Unanimous Written Consent of the Board of Directors of LSB, dated November 18, 2002. |
The documents referred to in paragraphs 1.1 through 1.12 above are referred to herein as the “Transaction Documents”.
I have also examined such matters of law and certificates of officers of each Seller, EDC, LSBCC, PFC and LSB as I deemed relevant or necessary as a basis of the opinions expressed herein.
| 2. | In rendering my opinion, I have assumed for the purposes of this opinion letter, the following: |
| 2.1 | The due execution and delivery, pursuant to due authorization, of the Transaction Documents by the parties thereto, other than the Sellers, EDC, LSBCC, PFC and LSB; |
| 2.2 | The legality, validity, binding effect on, and enforceability of the Transactions Documents against the parties thereto, other than the Sellers, EDC, LSBCC, PFC and LSB; |
| 2.3 | The genuineness of the signatures of all persons signing each document in connection with the transactions with respect to which this opinion is rendered, other than the signatures of persons signing on behalf of the Sellers, EDC, LSBCC, PFC and LSB; |
| 2.4 | The authority to sign in a representative capacity of the persons signing the Transaction Documents, other than on behalf of the Sellers, EDC, LSBCC, PFC and LSB; |
| 2.5 | The authenticity of all documents submitted to me as originals; |
| 2.6 | The conformity to authentic original documents of all documents submitted to me as certified, conformed or photo static copies; and |
| 2.7 | The accuracy and completeness of all public records reviewed by me. |
As to all questions of fact material to these opinions that have not been independently established, I have relied upon certificates or comparable documents of officers and representatives of each Seller, EDC, LSBCC, PFC and LSB and upon the representations and warranties of each Seller, EDC, LSBCC, PFC and LSB contained in the Transaction Documents.
| 3. | Based on the foregoing, and subject to the limitations, qualifications and exceptions set forth below and as may be provided in the Legal Opinion Accord of the ABA Section of Business Law (1991), and assuming the consummation of the transactions contemplated by the Transaction Documents, it is my opinion that: |
| 3.1 | Each Seller is a corporation incorporated and in good standing under the laws of the State of Oklahoma; |
| 3.2 | Based solely on the Foreign Certificates, each Seller is qualified as foreign corporation and in good standing in each jurisdiction in which it is authorized to do business; |
| 3.3 | Each Seller, EDC, LSBCC, PFC and LSB have full corporate power and authority to execute, deliver and perform the Transaction Documents to which it is a party; |
| 3.4 | Each of the Transaction Documents to which the each Seller, EDC, LSBCC, PFC and LSB is a party, is enforceable against such party, in accordance with its terms; |
| 3.5 | The execution, delivery and performance by each Seller of the Transaction Documents to which it is a party, (a) are not in contravention of any provision of its applicable certificate of incorporation or by-laws, (b) to my knowledge, will not violate any Oklahoma or United States federal law or regulation or order of any court or other Governmental Body to which it is subject or the Delaware General Corporation Law, or (c) except as set forth in Part 3.2 (b) of the Disclosure Letter, will not result in the breach or termination of, or constitute a default under, or result in the creation or imposition of any Encumbrance upon any of the Assets under, any material Seller Contract listed in Part 3.19 (a) of the Disclosure Letter; |
| 3.6 | To my knowledge, except as set forth in Parts 3.2 (c) of the Disclosure Letter and the filing of various collateral release documents, including UCC-3 terminations and partial releases and mortgage release with the appropriate Governmental Body, no consent, approval or authorization of, or declaration, filing or registration with, any Governmental Body is required by Sellers in connection with the execution and delivery of the Asset Purchase Agreement or the consummation of Contemplated Transactions; and |
| 3.7 | To my knowledge, except as set forth in Part 3.17 (a) of the Disclosure Letter, there is no Proceeding by or before any court or Governmental Body pending or overtly threatened against any Seller that challenges the validity of the Asset Purchase Agreement or any action taken or to be taken by any Seller pursuant to the Asset Purchase Agreement or in connection with the Contemplated Transactions. |
| 4. | I have expressed the foregoing opinions subject to the following qualifications, limitations and exceptions: |
| 4.1 | I am licensed to practice law in the State of Oklahoma. This opinion is limited to the laws of Oklahoma, the Delaware General Corporation Law and federal laws of the United States. I do not render any opinions as to the laws of any other jurisdiction and, as to Delaware, only as to the Delaware General Corporation Law. I am not licensed to practice law in the State of Delaware; |
| 4.2 | Provisions of the Transaction Documents which purport to indemnify the Buyers against, or release the Buyers from, liability for any of the Buyers’ acts are unenforceable to the extent such acts are determined to be unlawful, negligent, reckless, or constitute willful misconduct; |
| 4.3 | The enforceability of the Transaction Documents is subject to the effect of any applicable bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or similar laws relating to the rights of creditors and other laws relating to general principals of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding at law or in equity); |
| 4.4 | I express no opinion as to: |
| 4.4.1 | Any choice of law provision contained in the Transaction Documents; |
| 4.4.2 | The ability to obtain specific performance, injunctive or other equitable relief, whether sought in a proceeding at law or in equity, as a remedy for a default under the Transaction Documents; and |
| 4.4.3 | The enforceability of any provisions which purport to restrict, limit or prevent access to legal or equitable remedies or which purport to waive any legal rights. |
| 4.5 | The phrase “to my knowledge” or words of similar import as used herein, mean actual knowledge, without investigation, on the part of me and those attorneys in this office who have been involved in the transactions contemplated by the Transaction Documents. |
I have directed this letter solely to you. You may not use, circulate, quote or refer to this letter in connection with any transaction other than the transactions contemplated by the Transaction Documents. No other person may rely on this letter in any manner or for any purpose without the undersigned’s written authorization. I have issued this letter only with respect to the present status of Oklahoma and Delaware General Corporation Law and federal law and undertake no obligation to update or supplement this letter in response to subsequent changes in the law, facts, or future events affecting the transactions contemplated by any of the Transactional Documents.
Very truly yours,
David M. Shear
General Counsel
SCHEDULE I
FOREIGN CERTIFICATES
| Company | State |
| | |
| Slurry Explosive Corporation | Kansas |
| Slurry Explosive Corporation | Missouri |
| Slurry Explosive Corporation | New Mexico |
| Slurry Explosive Corporation | North Dakota |
| Slurry Explosive Corporation | Utah |
| Universal Tech Corporation | Kansas |
EXHIBIT 7.7
Assignment and Assumption of Lease Agreement
This Assignment and Assumption Agreement ("Assignment and Assumption Agreement") is made and entered into on December 6, 2002, by and among Slurry Explosive Corporation, an Oklahoma corporation ("Assignor"), and Slurry Explosive Manufacturing Corporation, LLC, a Nevada limited liability company ("Assignee").
WHEREAS, Assignor and Assignee are parties to that certain Asset Purchase Agreement dated on December 6, 2002 (the "Purchase Agreement"); and
WHEREAS, pursuant to the Purchase Agreement, Assignor has agreed to assign certain rights and agreements to Assignee, and Assignee has agreed to assume the US Bancorp Lease, as set forth herein.
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:
| 1. | Capitalized Terms. Capitalized terms used but not defined herein shall have the meanings for such terms that are set forth in the Purchase Agreement. |
| 2. | Assignment and Assumption. Effective as of 12:01 a.m. C.S.T. on December 1, 2002 (the "Effective Time"), Assignor hereby assigns, sells, transfers and sets over (collectively, the "Assignment") to Assignee all of Assignor's right, title, benefit, privileges and interest in and to, and all of Assignor's burdens, obligations and liabilities in connection with, the US Bancorp Lease. Assignee hereby accepts the Assignment and assumes and agrees to observe and perform all of the duties, obligations, terms, provisions and covenants, and to pay and discharge all of the liabilities of Assignor to be observed, performed, paid or discharged from and after the Closing, in connection with the US Bancorp Lease. |
| 3. | Further Actions. Each of the parties hereto covenants and agrees, at its own expense, to execute and deliver, at the request of the other party hereto, such further instruments of transfer and assignment and to take such other action as such other party may reasonably request to more effectively consummate the assignments and assumptions contemplated by this Assignment and Assumption Agreement. |
| 4. | Terms of the Purchase Agreement. The terms of the Purchase Agreement and the Disclosure Letter incorporated therein are incorporated herein by this reference. Assignor acknowledges and agrees that the terms contained in the Purchase Agreement shall not be superseded hereby but shall remain in full force and effect to the full extent provided therein. In the event of any conflict or inconsistency between the terms of the Purchase Agreement and the terms hereof, the terms of the Purchase Agreement shall govern. |
IN WITNESS WHEREOF, the parties have executed this Assignment and Assumption Agreement on the date first above written.
ASSIGNOR: ASSIGNEE:
Slurry Explosive Corporation Slurry Explosive Manufacturing
Corporation, LLC
_________________________ ___________________________
Tony M. Shelby, Vice President David Taylor, Manager
EXHIBIT 7.8
ENERGETIC SYSTEMS INC., LLC
UTEC CORPORATION, LLC
SEC INVESTMENT CORP. LLC
DETACORP INC., LLC
ENERGETIC PROPERTIES, LLC
SLURRY EXPLOSIVE MANUFACTURING CORPORATION, LLC
December 6, 2002
LSB Industries, Inc.
El Dorado Chemical Company
Northwest Financial Corporation
Slurry Explosive Corporation
16 South Pennsylvania Avenue
Oklahoma City, Oklahoma 73107
RE: Letter Agreement - Covenant Not to Compete
Dear Sirs:
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, this Letter Agreement shall confirm to each of you our agreement that each of the undersigned, as assigns of the business of Slurry Explosive Corporation and Universal Tech Corporation agree to not engage in the Restricted Activities (as defined in that certain Non-Competition Covenant dated November 1, 2001 and attached hereto (the “Noncompetition Agreement”)) other than as the business of Slurry Explosive Corporation or Universal Tech Corporation was conducted on the Closing Date (as defined in the Noncompetition Agreement).
Sincerely,
ENERGETICS SYSTEMS INC., LLC UTEC CORPORATION, LLC,
a Nevada limited liability company a Nevada limited liability company
By:___________________________ By:___________________________
David Taylor, Manager David Taylor, Manager
LSB Industries, Inc.
El Dorado Chemical Company
Northwest Financial Corporation
Slurry Explosive Corporation
December 6, 2002
Page 2
SEC INVESTMENT CORP. LLC., DETACORP INC., LLC.,
a Nevada limited liability company a Nevada limited liability company
By:___________________________ By:____________________________
David Taylor, Manager David Taylor, Manager
ENERGETIC PROPERTIES, LLC., SLURRY EXPLOSIVE MANUFACTURING
a Nevada limited liability company CORPORATION, LLC, Nevada limited liability
company
By:___________________________ By:____________________________
David Taylor, Manager David Taylor, Manager
EXHIBIT 7.11
Key Employees
None
EXHIBIT 7.13
Environmental Questionnaire
See attached
SLURRY
EXPLOSIVE
CORPORATION
16 South Pennsylvania · Oklahoma City, Ok 73107 · Phone 405-235-4546 · Fax 405-236-1209
VIA FEDERAL EXPRESS: 605743627698
May 17, 2010
David Rex
Jackson Walker L.L.P.
2439 North Central Expressway
Suite 600
Richardson, Texas 75080
RE: Environmental Site Assessment Questionnaire
Dear Mr. Rex:
Enclosed are the Environmental Site Assessment Questionnaires for the following locations:
| 1. | Universal Tech Corporation: |
| 2. | Slurry Explosive Corporation |
Sincerely,
/James Wm. Murray III/
James Wm. Murray III
Senior Associate General Counsel
JWM/ymq
Enclosures
Universal Tech Corporation
Environmental Site Assessment Questionnaire
Jayhawk Lab
8500 S.E. Jayhawk Drive
Riverton, Kansas 66770
The following Environmental Site Assessment Questionnaire is being prepared in connection with the proposed sale of certain assets of Universal Tech Corporation (“Company”) to certain affiliates of Energetic Systems Inc., LLC. You have been designated by the Company as the person most likely to have knowledge of the matters described below. Please answer the following questions to your knowledge either “YES,” “NO,” or “NS” if you are not sure as to the answer.
YES/NO/NS | 1. | Is the property used for an industrial use? |
YES/NO/NS | 2. | To the best of your knowledge, is any adjoining property used for an industrial use? |
YES/NO/NS | 3. | To the best of your knowledge, has the property been used for an industrial use in the past? |
YES/NO/NS | 4. | To the best of your knowledge, has any adjoining property been used for an industrial use in the past? |
YES/NO/NS | 5. | Is the property used as a gasoline station, motor repair facility, commercial printing facility, dry cleaners, photo developing laboratory, junkyard or landfill, or as a waste treatment, storage, disposal, processing, or recycling facility? |
YES/NO/NS | 6. | To the best of your knowledge, is any adjoining property used as a gasoline station, motor repair facility, commercial printing facility, dry cleaners, photo developing laboratory, junkyard or landfill, or as a waste treatment, storage, disposal, processing, or recycling facility? |
YES/NO/NS | 7. | To the best of your knowledge, has the property been used as a gasoline station, motor repair facility, commercial printing facility, dry cleaners, photo developing laboratory, junkyard or landfill, or as a waste treatment, storage, disposal, processing, or recycling facility in the past? |
YES/NO/NS | 8. | To the best of your knowledge, has any adjoining property been used as a gasoline station, motor repair facility, commercial printing facility, dry cleaners, photo developing laboratory, junkyard or landfill, or as a waste treatment, storage, disposal, processing, or recycling facility in the past? |
YES/NO/NS | 9. | Is there a maintenance or shop/service area located on the property? |
YES/NO/NS | 10. | To the best of your knowledge, has there ever been a maintenance or shop/service area located on the property? |
YES/NO/NS | 11. | Are there currently any damaged or discarded automotive or |
Environmental Site Assessment Questionnaire
Universal Tech Corporation
Plant Jayhawk Plant
| | | industrial batteries, or pesticides, paints, petroleum products, pesticides or other chemicals in individual containers of greater than five gallons in volume or fifty gallons in the aggregate, stored on or used at the property or at the facility located on the property? |
YES/NO/NS | 12. | To the best of your knowledge, in the past have there been any damaged or discarded automotive or industrial batteries, or pesticides, paints, petroleum products, pesticides or other chemicals in individual containers of greater than five gallons in volume or fifty gallons in the aggregate, stored on or used at the property or at the facility located on the property? |
YES/NO/NS | 13. | Are there currently any industrial drums (typically 55 gallon) or sacks of chemicals located on the property or at the facility located on the property? |
YES/NO/NS | 14. | To the best of your knowledge, have there been any industrial drums (typically 55 gallon) or sacks of chemicals located on the property or at the facility located on the property in the past? |
YES/NO/NS | 15. | To the best of your knowledge, has fill dirt been brought onto the property which originated from a contaminated site or which is of an unknown origin? |
YES/NO/NS | 16. | Are there currently any sumps, pits, ponds or lagoons located on the property in connection with waste treatment or waste disposal? |
YES/NO/NS | 17. | To the best of your knowledge, have there been any sumps, pits, ponds or lagoons located on the property in connection with waste treatment or waste disposal in the past? |
YES/NO/NS | 18. | Is there currently any visible sign of spillage, staining, residues or corrosion, other than by water, in any of the facilities located on the property? |
YES/NO/NS | 19. | To the best of your knowledge, has there been any visible signs of spillage, staining, residues or corrosion, other than by water, in any of the facilities located on the property in the past? |
YES/NO/NS | 20. | Is there currently any stained soil or pavement on the property? |
YES/NO/NS | 21. | To the best of your knowledge, has there been any stained soil or pavement on the property in the past? |
YES/NO/NS | 22. | Are there currently any above or underground storage tanks located on the property? |
YES/NO/NS | 23. | To the best of your knowledge, have there been any above or underground storage tanks located on the property in the past? |
YES/NO/NS | 24. | Are there currently any vent pipes, fill pipes or access ways indicating a fill pipe protruding from the ground on the property or adjacent to any structure located on the property? |
YES/NO/NS | 25. | To the best of your knowledge, have there been any vent pipes, fill pipes or access ways indicating a fill pipe protruding from the ground on the property or adjacent to any structure located on the property in the past? |
Environmental Site Assessment Questionnaire
Universal Tech Corporation
Plant Jayhawk Plant
YES/NO/NS | 26. | Are there currently any chemical or noxious odors on the property in violation of any environmental laws? |
YES/NO/NS | 27. | To the best of your knowledge, have there been any chemical or noxious odors on the property in violation of any environmental laws in the past? |
YES/NO/NS | 28. | If the property is served by a private well or non-public water system, has the Company identified contaminants in the well or system that exceed guidelines applicable to the water system? |
YES/NO/NS | 29. | To the best of your knowledge, if the property is served by a private well or non-public water system, has the well been designated as contaminated by any government environmental/health agency? |
YES/NO/NS | 30. | Does the property discharge waste water on or adjacent to the property other than storm water or into a sanitary sewer system? |
YES/NO/NS | 31. | To the best of your knowledge, have any hazardous substances, wastes or petroleum products, unidentified waste materials, tires, automotive or industrial batteries or any other waste materials been dumped above grade, buried and/or burned on the property in violation of any environmental laws? |
YES/NO/NS | 32. | Is there a transformer, capacitor, heavy electrical or any hydraulic equipment for which there are any records indicating the presence of PCBs? |
YES/NO/NS | 33. | To the best of your knowledge, are there currently any asbestos-containing material located in any facility located on the property? |
YES/NO/NS | 34. | To the best of your knowledge, has there been any asbestos-containing material located in any facility located on the property? |
YES/NO/NS | 35. | Do you have knowledge of hazardous substances, wastes or petroleum products being previously dumped, burned, buried or otherwise disposed of on the property in violation of any environmental laws? |
YES/NO/NS | 36. | Do you have any knowledge of environmental liens or governmental notification relating to past or current violations of environmental laws with respect to the property or any facility located on the property? |
YES/NO/NS | 37. | Do you have knowledge of any release of hazardous substances or petroleum products with respect to the property or any facility located on the property in violation of any environmental laws, or of any report or records pertaining thereto? |
YES/NO/NS | 38. | Do you have any knowledge of any environmental site assessment or report of the property or any facility located on the property that indicated the presence of hazardous substances or petroleum products on, or contamination of, the property or recommended further assessment of the property? |
YES/NO/NS | 39. | Do you have knowledge of any past, threatened, or pending |
Environmental Site Asessment Questionnaire
Universal Tech Corporation
Plant Jayhawk Plant
| | | lawsuits or administrative or regulatory proceedings concerning a release of any hazardous substance or petroleum products involving the property? |
YES/NO/NS | 40. | Do you have knowledge of any past or present violations of any regulatory permits related to hazardous substances, wastes, wastewater discharge or air emissions with respect to the property? |
| | | GOVERNMENT RECORDS/HISTORICAL SOURCES INQUIRY |
| | 41. | To the best of your knowledge, do any of the following Federal government record systems list the Property or any property within the circumference of the area noted below: |
YES/NO/NS | · | National Priorities List (NPL) - within 1 mile? |
YES/NO/NS | · | Comprehensive Environmental Response Compensation and Liability Information (CERCLIS) List - within ½ mile? |
YES/NO/NS | · | Resource Conservation and Recovery Act (RCRA) Notifier List - within 1 mile? |
| | | |
| | 42. | To the best of your knowledge, do any of the following state record systems list the property within the circumference of the area noted below? |
YES/NO/NS | · | List maintained by State environmental agency of hazardous waste sites identified for investigation or remediation that is the state agency equivalent to NPL - within approximately 1 mile? |
YES/NO/NS | · | List maintained by State environmental agency of sites identified for investigation or remediation that is the state equivalent to CERCLIS - within ½ mile? |
YES/NO/NS | · | Leaking Underground Storage Tank (LUST) List - within ½ mile? |
YES/NO/NS | · | Solid Waste/Landfill Facilities - within ½ mile? |
This Questionnaire was completed by:
Name: John Carver
Title: Vice President
Relationship to the Property: Owner
Address: 16 South Pennsylvania Avenue
Oklahoma City, Oklahoma 73107
Phone: (405) 235-4546
/John Carver/
Signature
Date December 2, 2002
Environmental Site Assessment Questionnaire
Universal Tech Corporation
Plant Jayhawk Plant
Universal Tech Corporation
Environmental Site Assessment Questionnaire
Underwater Lab
The following Environmental Site Assessment Questionnaire is being prepared in connection with the proposed sale of certain assets of Universal Tech Corporation (“Company”) to certain affiliates of Energetic Systems Inc., LLC. You have been designated by the Company as the person most likely to have knowledge of the matters described below. Please answer the following questions to your knowledge either “YES,” “NO,” or “NS” if you are not sure as to the answer.
YES/NO/NS | 1. | Is the property used for an industrial use? |
YES/NO/NS | 2. | To the best of your knowledge, is any adjoining property used for an industrial use? |
YES/NO/NS | 3. | To the best of your knowledge, has the property been used for an industrial use in the past? |
YES/NO/NS | 4. | To the best of your knowledge, has any adjoining property been used for an industrial use in the past? |
YES/NO/NS | 5. | Is the property used as a gasoline station, motor repair facility, commercial printing facility, dry cleaners, photo developing laboratory, junkyard or landfill, or as a waste treatment, storage, disposal, processing, or recycling facility? |
YES/NO/NS | 6. | To the best of your knowledge, is any adjoining property used as a gasoline station, motor repair facility, commercial printing facility, dry cleaners, photo developing laboratory, junkyard or landfill, or as a waste treatment, storage, disposal, processing, or recycling facility? |
YES/NO/NS | 7. | To the best of your knowledge, has the property been used as a gasoline station, motor repair facility, commercial printing facility, dry cleaners, photo developing laboratory, junkyard or landfill, or as a waste treatment, storage, disposal, processing, or recycling facility in the past? |
YES/NO/NS | 8. | To the best of your knowledge, has any adjoining property been used as a gasoline station, motor repair facility, commercial printing facility, dry cleaners, photo developing laboratory, junkyard or landfill, or as a waste treatment, storage, disposal, processing, or recycling facility in the past? |
YES/NO/NS | 9. | Is there a maintenance or shop/service area located on the property? |
YES/NO/NS | 10. | To the best of your knowledge, has there ever been a maintenance or shop/service area located on the property? |
YES/NO/NS | 11. | Are there currently any damaged or discarded automotive or |
Environmental Site Assessment Questionnaire
Universal Tech Corporation
Plant Underwater Lab
| | | industrial batteries, or pesticides, paints, petroleum products, pesticides or other chemicals in individual containers of greater than five gallons in volume or fifty gallons in the aggregate, stored on or used at the property or at the facility located on the property? |
YES/NO/NS | 12. | To the best of your knowledge, in the past have there been any damaged or discarded automotive or industrial batteries, or pesticides, paints, petroleum products, pesticides or other chemicals in individual containers of greater than five gallons in volume or fifty gallons in the aggregate, stored on or used at the property or at the facility located on the property? |
YES/NO/NS | 13. | Are there currently any industrial drums (typically 55 gallon) or sacks of chemicals located on the property or at the facility located on the property? |
YES/NO/NS | 14. | To the best of your knowledge, have there been any industrial drums (typically 55 gallon) or sacks of chemicals located on the property or at the facility located on the property in the past? |
YES/NO/NS | 15. | To the best of your knowledge, has fill dirt been brought onto the property which originated from a contaminated site or which is of an unknown origin? |
YES/NO/NS | 16. | Are there currently any sumps, pits, ponds or lagoons located on the property in connection with waste treatment or waste disposal? |
YES/NO/NS | 17. | To the best of your knowledge, have there been any sumps, pits, ponds or lagoons located on the property in connection with waste treatment or waste disposal in the past? |
YES/NO/NS | 18. | Is there currently any visible sign of spillage, staining, residues or corrosion, other than by water, in any of the facilities located on the property? |
YES/NO/NS | 19. | To the best of your knowledge, has there been any visible signs of spillage, staining, residues or corrosion, other than by water, in any of the facilities located on the property in the past? |
YES/NO/NS | 20. | Is there currently any stained soil or pavement on the property? |
YES/NO/NS | 21. | To the best of your knowledge, has there been any stained soil or pavement on the property in the past? |
YES/NO/NS | 22. | Are there currently any above or underground storage tanks located on the property? |
YES/NO/NS | 23. | To the best of your knowledge, have there been any above or underground storage tanks located on the property in the past? |
YES/NO/NS | 24. | Are there currently any vent pipes, fill pipes or access ways indicating a fill pipe protruding from the ground on the property or adjacent to any structure located on the property? |
YES/NO/NS | 25. | To the best of your knowledge, have there been any vent pipes, fill pipes or access ways indicating a fill pipe protruding from the ground on the property or adjacent to any structure located on the property in the past? |
Environmental Site Assessment Questionnaire
Universal Tech Corporation
Plant Underwater Lab
YES/NO/NS | 26. | Are there currently any chemical or noxious odors on the property in violation of any environmental laws? |
YES/NO/NS | 27. | To the best of your knowledge, have there been any chemical or noxious odors on the property in violation of any environmental laws in the past? |
YES/NO/NS | 28. | If the property is served by a private well or non-public water system, has the Company identified contaminants in the well or system that exceed guidelines applicable to the water system? |
YES/NO/NS | 29. | To the best of your knowledge, if the property is served by a private well or non-public water system, has the well been designated as contaminated by any government environmental/health agency? |
YES/NO/NS | 30. | Does the property discharge waste water on or adjacent to the property other than storm water or into a sanitary sewer system? |
YES/NO/NS | 31. | To the best of your knowledge, have any hazardous substances, wastes or petroleum products, unidentified waste materials, tires, automotive or industrial batteries or any other waste materials been dumped above grade, buried and/or burned on the property in violation of any environmental laws? |
YES/NO/NS | 32. | Is there a transformer, capacitor, heavy electrical or any hydraulic equipment for which there are any records indicating the presence of PCBs? |
YES/NO/NS | 33. | To the best of your knowledge, are there currently any asbestos-containing material located in any facility located on the property? |
YES/NO/NS | 34. | To the best of your knowledge, has there been any asbestos-containing material located in any facility located on the property? |
YES/NO/NS | 35. | Do you have knowledge of hazardous substances, wastes or petroleum products being previously dumped, burned, buried or otherwise disposed of on the property in violation of any environmental laws? |
YES/NO/NS | 36. | Do you have any knowledge of environmental liens or governmental notification relating to past or current violations of environmental laws with respect to the property or any facility located on the property? |
YES/NO/NS | 37. | Do you have knowledge of any release of hazardous substances or petroleum products with respect to the property or any facility located on the property in violation of any environmental laws, or of any report or records pertaining thereto? |
YES/NO/NS | 38. | Do you have any knowledge of any environmental site assessment or report of the property or any facility located on the property that indicated the presence of hazardous substances or petroleum products on, or contamination of, the property or recommended further assessment of the property? |
YES/NO/NS | 39. | Do you have knowledge of any past, threatened, or pending |
Environmental Site Assessment Questionnaire
Universal Tech Corporation
Plant Underwater Lab
| | | lawsuits or administrative or regulatory proceedings concerning a release of any hazardous substance or petroleum products involving the property? |
YES/NO/NS | 40. | Do you have knowledge of any past or present violations of any regulatory permits related to hazardous substances, wastes, wastewater discharge or air emissions with respect to the property? |
| | | GOVERNMENT RECORDS/HISTORICAL SOURCES INQUIRY |
| | 41. | To the best of your knowledge, do any of the following Federal government record systems list the Property or any property within the circumference of the area noted below: |
YES/NO/NS | · | National Priorities List (NPL) - within 1 mile? |
YES/NO/NS | · | Comprehensive Environmental Response Compensation and Liability Information (CERCLIS) List - within ½ mile? |
YES/NO/NS | · | Resource Conservation and Recovery Act (RCRA) Notifier List - within 1 mile? |
| | | |
| | 42. | To the best of your knowledge, do any of the following state record systems list the property within the circumference of the area noted below? |
YES/NO/NS | · | List maintained by State environmental agency of hazardous waste sites identified for investigation or remediation that is the state agency equivalent to NPL - within approximately 1 mile? |
YES/NO/NS | · | List maintained by State environmental agency of sites identified for investigation or remediation that is the state equivalent to CERCLIS - within ½ mile? |
YES/NO/NS | · | Leaking Underground Storage Tank (LUST) List - within ½ mile? |
YES/NO/NS | · | Solid Waste/Landfill Facilities - within ½ mile? |
This Questionnaire was completed by:
Name: John Carver
Title: Vice President
Relationship to the Property: Lessee
Address: 16 South Pennsylvania Avenue
Oklahoma City, Oklahoma 73107
Phone: (405) 235-4546
/John Carver/
Signature
Date December 2, 2002
Environmental Site Assessment Questionnaire
Universal Tech Corporation
Plant Underwater Lab
Universal Tech Corporation
Environmental Site Assessment Questionnaire
PRUF Plant
The following Environmental Site Assessment Questionnaire is being prepared in connection with the proposed sale of certain assets of Universal Tech Corporation (“Company”) to certain affiliates of Energetic Systems Inc., LLC. You have been designated by the Company as the person most likely to have knowledge of the matters described below. Please answer the following questions to your knowledge either “YES,” “NO,” or “NS” if you are not sure as to the answer.
YES/NO/NS | 1. | Is the property used for an industrial use? |
YES/NO/NS | 2. | To the best of your knowledge, is any adjoining property used for an industrial use? |
YES/NO/NS | 3. | To the best of your knowledge, has the property been used for an industrial use in the past? |
YES/NO/NS | 4. | To the best of your knowledge, has any adjoining property been used for an industrial use in the past? |
| YES/NO/NS | 5. | Is the property used as a gasoline station, motor repair facility, commercial printing facility, dry cleaners, photo developing laboratory, junkyard or landfill, or as a waste treatment, storage, disposal, processing, or recycling facility? |
YES/NO/NS | 6. | To the best of your knowledge, is any adjoining property used as a gasoline station, motor repair facility, commercial printing facility, dry cleaners, photo developing laboratory, junkyard or landfill, or as a waste treatment, storage, disposal, processing, or recycling facility? |
YES/NO/NS | 7. | To the best of your knowledge, has the property been used as a gasoline station, motor repair facility, commercial printing facility, dry cleaners, photo developing laboratory, junkyard or landfill, or as a waste treatment, storage, disposal, processing, or recycling facility in the past? |
YES/NO/NS | 8. | To the best of your knowledge, has any adjoining property been used as a gasoline station, motor repair facility, commercial printing facility, dry cleaners, photo developing laboratory, junkyard or landfill, or as a waste treatment, storage, disposal, processing, or recycling facility in the past? |
YES/NO/NS | 9. | Is there a maintenance or shop/service area located on the property? |
YES/NO/NS | 10. | To the best of your knowledge, has there ever been a maintenance or shop/service area located on the property? |
YES/NO/NS | 11. | Are there currently any damaged or discarded automotive or |
Environmental Site Assessment Questionnaire
Universal Tech Corporation
Plant Pruf
| | | industrial batteries, or pesticides, paints, petroleum products, pesticides or other chemicals in individual containers of greater than five gallons in volume or fifty gallons in the aggregate, stored on or used at the property or at the facility located on the property? |
YES/NO/NS | 12. | To the best of your knowledge, in the past have there been any damaged or discarded automotive or industrial batteries, or pesticides, paints, petroleum products, pesticides or other chemicals in individual containers of greater than five gallons in volume or fifty gallons in the aggregate, stored on or used at the property or at the facility located on the property? |
YES/NO/NS | 13. | Are there currently any industrial drums (typically 55 gallon) or sacks of chemicals located on the property or at the facility located on the property? |
YES/NO/NS | 14. | To the best of your knowledge, have there been any industrial drums (typically 55 gallon) or sacks of chemicals located on the property or at the facility located on the property in the past? |
YES/NO/NS | 15. | To the best of your knowledge, has fill dirt been brought onto the property which originated from a contaminated site or which is of an unknown origin? |
YES/NO/NS | 16. | Are there currently any sumps, pits, ponds or lagoons located on the property in connection with waste treatment or waste disposal? |
YES/NO/NS | 17. | To the best of your knowledge, have there been any sumps, pits, ponds or lagoons located on the property in connection with waste treatment or waste disposal in the past? |
YES/NO/NS | 18. | Is there currently any visible sign of spillage, staining, residues or corrosion, other than by water, in any of the facilities located on the property? |
YES/NO/NS | 19. | To the best of your knowledge, has there been any visible signs of spillage, staining, residues or corrosion, other than by water, in any of the facilities located on the property in the past? |
YES/NO/NS | 20. | Is there currently any stained soil or pavement on the property? |
YES/NO/NS | 21. | To the best of your knowledge, has there been any stained soil or pavement on the property in the past? |
YES/NO/NS | 22. | Are there currently any above or underground storage tanks located on the property? |
YES/NO/NS | 23. | To the best of your knowledge, have there been any above or underground storage tanks located on the property in the past? |
YES/NO/NS | 24. | Are there currently any vent pipes, fill pipes or access ways indicating a fill pipe protruding from the ground on the property or adjacent to any structure located on the property? |
YES/NO/NS | 25. | To the best of your knowledge, have there been any vent pipes, fill pipes or access ways indicating a fill pipe protruding from the ground on the property or adjacent to any structure located on the property in the past? |
Environmental Site Assessment Questionnaire
Universal Tech Corporation
Plant Pruf
YES/NO/NS | 26. | Are there currently any chemical or noxious odors on the property in violation of any environmental laws? |
YES/NO/NS | 27. | To the best of your knowledge, have there been any chemical or noxious odors on the property in violation of any environmental laws in the past? |
YES/NO/NS | 28. | If the property is served by a private well or non-public water system, has the Company identified contaminants in the well or system that exceed guidelines applicable to the water system? |
YES/NO/NS | 29. | To the best of your knowledge, if the property is served by a private well or non-public water system, has the well been designated as contaminated by any government environmental/health agency? |
YES/NO/NS | 30. | Does the property discharge waste water on or adjacent to the property other than storm water or into a sanitary sewer system? |
YES/NO/NS | 31. | To the best of your knowledge, have any hazardous substances, wastes or petroleum products, unidentified waste materials, tires, automotive or industrial batteries or any other waste materials been dumped above grade, buried and/or burned on the property in violation of any environmental laws? |
YES/NO/NS | 32. | Is there a transformer, capacitor, heavy electrical or any hydraulic equipment for which there are any records indicating the presence of PCBs? |
YES/NO/NS | 33. | To the best of your knowledge, are there currently any asbestos-containing material located in any facility located on the property? |
YES/NO/NS | 34. | To the best of your knowledge, has there been any asbestos-containing material located in any facility located on the property? |
YES/NO/NS | 35. | Do you have knowledge of hazardous substances, wastes or petroleum products being previously dumped, burned, buried or otherwise disposed of on the property in violation of any environmental laws? |
YES/NO/NS | 36. | Do you have any knowledge of environmental liens or governmental notification relating to past or current violations of environmental laws with respect to the property or any facility located on the property? |
YES/NO/NS | 37. | Do you have knowledge of any release of hazardous substances or petroleum products with respect to the property or any facility located on the property in violation of any environmental laws, or of any report or records pertaining thereto? |
YES/NO/NS | 38. | Do you have any knowledge of any environmental site assessment or report of the property or any facility located on the property that indicated the presence of hazardous substances or petroleum products on, or contamination of, the property or recommended further assessment of the property? |
YES/NO/NS | 39. | Do you have knowledge of any past, threatened, or pending |
Environmental Site Assessment Questionnaire
Universal Tech Corporation
Plant Pruf
| | | lawsuits or administrative or regulatory proceedings concerning a release of any hazardous substance or petroleum products involving the property? |
YES/NO/NS | 40. | Do you have knowledge of any past or present violations of any regulatory permits related to hazardous substances, wastes, wastewater discharge or air emissions with respect to the property? |
| | | GOVERNMENT RECORDS/HISTORICAL SOURCES INQUIRY |
| | 41. | To the best of your knowledge, do any of the following Federal government record systems list the Property or any property within the circumference of the area noted below: |
YES/NO/NS | · | National Priorities List (NPL) - within 1 mile? |
YES/NO/NS | · | Comprehensive Environmental Response Compensation and Liability Information (CERCLIS) List - within ½ mile? |
YES/NO/NS | · | Resource Conservation and Recovery Act (RCRA) Notifier List - within 1 mile? |
| | | |
| | 42. | To the best of your knowledge, do any of the following state record systems list the property within the circumference of the area noted below? |
YES/NO/NS | · | List maintained by State environmental agency of hazardous waste sites identified for investigation or remediation that is the state agency equivalent to NPL - within approximately 1 mile? |
YES/NO/NS | · | List maintained by State environmental agency of sites identified for investigation or remediation that is the state equivalent to CERCLIS - within ½ mile? |
YES/NO/NS | · | Leaking Underground Storage Tank (LUST) List - within ½ mile? |
YES/NO/NS | · | Solid Waste/Landfill Facilities - within ½ mile? |
This Questionnaire was completed by:
Name: John Carver
Title: Vice President
Relationship to the Property: Lessee
Address: 16 South Pennsylvania Avenue
Oklahoma City, Oklahoma 73107
Phone: (405) 235-4546
/John Carver/
Signature
Date December 2, 2002
Environmental Site Assessment Questionnaire
Universal Tech Corporation
Plant Pruf
Universal Tech Corporation
Environmental Site Assessment Questionnaire
Hallowell Rail Siding
The following Environmental Site Assessment Questionnaire is being prepared in connection with the proposed sale of certain assets of Universal Tech Corporation (“Company”) to certain affiliates of Energetic Systems Inc., LLC. You have been designated by the Company as the person most likely to have knowledge of the matters described below. Please answer the following questions to your knowledge either “YES,” “NO,” or “NS” if you are not sure as to the answer.
YES/NO/NS | 1. | Is the property used for an industrial use? |
YES/NO/NS | 2. | To the best of your knowledge, is any adjoining property used for an industrial use? |
YES/NO/NS | 3. | To the best of your knowledge, has the property been used for an industrial use in the past? |
YES/NO/NS | 4. | To the best of your knowledge, has any adjoining property been used for an industrial use in the past? |
YES/NO/NS | 5. | Is the property used as a gasoline station, motor repair facility, commercial printing facility, dry cleaners, photo developing laboratory, junkyard or landfill, or as a waste treatment, storage, disposal, processing, or recycling facility? |
YES/NO/NS | 6. | To the best of your knowledge, is any adjoining property used as a gasoline station, motor repair facility, commercial printing facility, dry cleaners, photo developing laboratory, junkyard or landfill, or as a waste treatment, storage, disposal, processing, or recycling facility? |
YES/NO/NS | 7. | To the best of your knowledge, has the property been used as a gasoline station, motor repair facility, commercial printing facility, dry cleaners, photo developing laboratory, junkyard or landfill, or as a waste treatment, storage, disposal, processing, or recycling facility in the past? |
YES/NO/NS | 8. | To the best of your knowledge, has any adjoining property been used as a gasoline station, motor repair facility, commercial printing facility, dry cleaners, photo developing laboratory, junkyard or landfill, or as a waste treatment, storage, disposal, processing, or recycling facility in the past? |
YES/NO/NS | 9. | Is there a maintenance or shop/service area located on the property? |
YES/NO/NS | 10. | To the best of your knowledge, has there ever been a maintenance or shop/service area located on the property? |
YES/NO/NS | 11. | Are there currently any damaged or discarded automotive or |
Environmental Site Assessment Questionnaire
Universal Tech Corporation
Plant Rail
| | | industrial batteries, or pesticides, paints, petroleum products, pesticides or other chemicals in individual containers of greater than five gallons in volume or fifty gallons in the aggregate, stored on or used at the property or at the facility located on the property? |
YES/NO/NS | 12. | To the best of your knowledge, in the past have there been any damaged or discarded automotive or industrial batteries, or pesticides, paints, petroleum products, pesticides or other chemicals in individual containers of greater than five gallons in volume or fifty gallons in the aggregate, stored on or used at the property or at the facility located on the property? |
YES/NO/NS | 13. | Are there currently any industrial drums (typically 55 gallon) or sacks of chemicals located on the property or at the facility located on the property? |
YES/NO/NS | 14. | To the best of your knowledge, have there been any industrial drums (typically 55 gallon) or sacks of chemicals located on the property or at the facility located on the property in the past? |
YES/NO/NS | 15. | To the best of your knowledge, has fill dirt been brought onto the property which originated from a contaminated site or which is of an unknown origin? |
YES/NO/NS | 16. | Are there currently any sumps, pits, ponds or lagoons located on the property in connection with waste treatment or waste disposal? |
YES/NO/NS | 17. | To the best of your knowledge, have there been any sumps, pits, ponds or lagoons located on the property in connection with waste treatment or waste disposal in the past? |
YES/NO/NS | 18. | Is there currently any visible sign of spillage, staining, residues or corrosion, other than by water, in any of the facilities located on the property? |
YES/NO/NS | 19. | To the best of your knowledge, has there been any visible signs of spillage, staining, residues or corrosion, other than by water, in any of the facilities located on the property in the past? |
YES/NO/NS | 20. | Is there currently any stained soil or pavement on the property? |
YES/NO/NS | 21. | To the best of your knowledge, has there been any stained soil or pavement on the property in the past? |
YES/NO/NS | 22. | Are there currently any above or underground storage tanks located on the property? |
YES/NO/NS | 23. | To the best of your knowledge, have there been any above or underground storage tanks located on the property in the past? |
YES/NO/NS | 24. | Are there currently any vent pipes, fill pipes or access ways indicating a fill pipe protruding from the ground on the property or adjacent to any structure located on the property? |
YES/NO/NS | 25. | To the best of your knowledge, have there been any vent pipes, fill pipes or access ways indicating a fill pipe protruding from the ground on the property or adjacent to any structure located on the property in the past? |
Environmental Site Assessment Questionnaire
Universal Tech Corporation
Plant Rail
YES/NO/NS | 26. | Are there currently any chemical or noxious odors on the property in violation of any environmental laws? |
YES/NO/NS | 27. | To the best of your knowledge, have there been any chemical or noxious odors on the property in violation of any environmental laws in the past? |
YES/NO/NS | 28. | If the property is served by a private well or non-public water system, has the Company identified contaminants in the well or system that exceed guidelines applicable to the water system? |
YES/NO/NS | 29. | To the best of your knowledge, if the property is served by a private well or non-public water system, has the well been designated as contaminated by any government environmental/health agency? |
YES/NO/NS | 30. | Does the property discharge waste water on or adjacent to the property other than storm water or into a sanitary sewer system? |
YES/NO/NS | 31. | To the best of your knowledge, have any hazardous substances, wastes or petroleum products, unidentified waste materials, tires, automotive or industrial batteries or any other waste materials been dumped above grade, buried and/or burned on the property in violation of any environmental laws? |
YES/NO/NS | 32. | Is there a transformer, capacitor, heavy electrical or any hydraulic equipment for which there are any records indicating the presence of PCBs? |
YES/NO/NS | 33. | To the best of your knowledge, are there currently any asbestos-containing material located in any facility located on the property? |
YES/NO/NS | 34. | To the best of your knowledge, has there been any asbestos-containing material located in any facility located on the property? |
YES/NO/NS | 35. | Do you have knowledge of hazardous substances, wastes or petroleum products being previously dumped, burned, buried or otherwise disposed of on the property in violation of any environmental laws? |
YES/NO/NS | 36. | Do you have any knowledge of environmental liens or governmental notification relating to past or current violations of environmental laws with respect to the property or any facility located on the property? |
YES/NO/NS | 37. | Do you have knowledge of any release of hazardous substances or petroleum products with respect to the property or any facility located on the property in violation of any environmental laws, or of any report or records pertaining thereto? |
YES/NO/NS | 38. | Do you have any knowledge of any environmental site assessment or report of the property or any facility located on the property that indicated the presence of hazardous substances or petroleum products on, or contamination of, the property or recommended further assessment of the property? |
YES/NO/NS | 39. | Do you have knowledge of any past, threatened, or pending |
Environmental Site Assessment Questionnaire
Universal Tech Corporation
Plant Rail
| | | lawsuits or administrative or regulatory proceedings concerning a release of any hazardous substance or petroleum products involving the property? |
YES/NO/NS | 40. | Do you have knowledge of any past or present violations of any regulatory permits related to hazardous substances, wastes, wastewater discharge or air emissions with respect to the property? |
| | | GOVERNMENT RECORDS/HISTORICAL SOURCES INQUIRY |
| | 41. | To the best of your knowledge, do any of the following Federal government record systems list the Property or any property within the circumference of the area noted below: |
YES/NO/NS | · | National Priorities List (NPL) - within 1 mile? |
YES/NO/NS | · | Comprehensive Environmental Response Compensation and Liability Information (CERCLIS) List - within ½ mile? |
YES/NO/NS | · | Resource Conservation and Recovery Act (RCRA) Notifier List - within 1 mile? |
| | | |
| | 42. | To the best of your knowledge, do any of the following state record systems list the property within the circumference of the area noted below? |
YES/NO/NS | · | List maintained by State environmental agency of hazardous waste sites identified for investigation or remediation that is the state agency equivalent to NPL - within approximately 1 mile? |
YES/NO/NS | · | List maintained by State environmental agency of sites identified for investigation or remediation that is the state equivalent to CERCLIS - within ½ mile? |
YES/NO/NS | · | Leaking Underground Storage Tank (LUST) List - within ½ mile? |
YES/NO/NS | · | Solid Waste/Landfill Facilities - within ½ mile? |
This Questionnaire was completed by:
Name: John Carver
Title: Vice President
Relationship to the Property: Lessee
Address: 16 South Pennsylvania Avenue
Oklahoma City, Oklahoma 73107
Phone: (405) 235-4546
/John Carver/
Signature
Date December 2, 2002
Environmental Site Assessment Questionnaire
Universal Tech Corporation
Plant Rail
Universal Tech Corporation
Environmental Site Assessment Questionnaire
Hallowell Plant
3600 N.W. 74th
Columbus, Kansas 66725
The following Environmental Site Assessment Questionnaire is being prepared in connection with the proposed sale of certain assets of Universal Tech Corporation (“Company”) to certain affiliates of Energetic Systems Inc., LLC. You have been designated by the Company as the person most likely to have knowledge of the matters described below. Please answer the following questions to your knowledge either “YES,” “NO,” or “NS” if you are not sure as to the answer.
YES/NO/NS | 1. | Is the property used for an industrial use? |
YES/NO/NS | 2. | To the best of your knowledge, is any adjoining property used for an industrial use? |
YES/NO/NS | 3. | To the best of your knowledge, has the property been used for an industrial use in the past? |
YES/NO/NS | 4. | To the best of your knowledge, has any adjoining property been used for an industrial use in the past? |
YES/NO/NS | 5. | Is the property used as a gasoline station, motor repair facility, commercial printing facility, dry cleaners, photo developing laboratory, junkyard or landfill, or as a waste treatment, storage, disposal, processing, or recycling facility? |
YES/NO/NS | 6. | To the best of your knowledge, is any adjoining property used as a gasoline station, motor repair facility, commercial printing facility, dry cleaners, photo developing laboratory, junkyard or landfill, or as a waste treatment, storage, disposal, processing, or recycling facility? |
YES/NO/NS | 7. | To the best of your knowledge, has the property been used as a gasoline station, motor repair facility, commercial printing facility, dry cleaners, photo developing laboratory, junkyard or landfill, or as a waste treatment, storage, disposal, processing, or recycling facility in the past? |
YES/NO/NS | 8. | To the best of your knowledge, has any adjoining property been used as a gasoline station, motor repair facility, commercial printing facility, dry cleaners, photo developing laboratory, junkyard or landfill, or as a waste treatment, storage, disposal, processing, or recycling facility in the past? |
YES/NO/NS | 9. | Is there a maintenance or shop/service area located on the property? |
YES/NO/NS | 10. | To the best of your knowledge, has there ever been a maintenance or shop/service area located on the property? |
YES/NO/NS | 11. | Are there currently any damaged or discarded automotive or |
Environmental Site Assessment Questionnaire
Universal Tech Corporation
Plant Hallowell Plant
| | | industrial batteries, or pesticides, paints, petroleum products, pesticides or other chemicals in individual containers of greater than five gallons in volume or fifty gallons in the aggregate, stored on or used at the property or at the facility located on the property? |
YES/NO/NS | 12. | To the best of your knowledge, in the past have there been any damaged or discarded automotive or industrial batteries, or pesticides, paints, petroleum products, pesticides or other chemicals in individual containers of greater than five gallons in volume or fifty gallons in the aggregate, stored on or used at the property or at the facility located on the property? |
YES/NO/NS | 13. | Are there currently any industrial drums (typically 55 gallon) or sacks of chemicals located on the property or at the facility located on the property? |
YES/NO/NS | 14. | To the best of your knowledge, have there been any industrial drums (typically 55 gallon) or sacks of chemicals located on the property or at the facility located on the property in the past? |
YES/NO/NS | 15. | To the best of your knowledge, has fill dirt been brought onto the property which originated from a contaminated site or which is of an unknown origin? |
YES/NO/NS | 16. | Are there currently any sumps, pits, ponds or lagoons located on the property in connection with waste treatment or waste disposal? |
YES/NO/NS | 17. | To the best of your knowledge, have there been any sumps, pits, ponds or lagoons located on the property in connection with waste treatment or waste disposal in the past? |
YES/NO/NS | 18. | Is there currently any visible sign of spillage, staining, residues or corrosion, other than by water, in any of the facilities located on the property? |
YES/NO/NS | 19. | To the best of your knowledge, has there been any visible signs of spillage, staining, residues or corrosion, other than by water, in any of the facilities located on the property in the past? |
YES/NO/NS | 20. | Is there currently any stained soil or pavement on the property? |
YES/NO/NS | 21. | To the best of your knowledge, has there been any stained soil or pavement on the property in the past? |
YES/NO/NS | 22. | Are there currently any above or underground storage tanks located on the property? |
YES/NO/NS | 23. | To the best of your knowledge, have there been any above or underground storage tanks located on the property in the past? |
YES/NO/NS | 24. | Are there currently any vent pipes, fill pipes or access ways indicating a fill pipe protruding from the ground on the property or adjacent to any structure located on the property? |
YES/NO/NS | 25. | To the best of your knowledge, have there been any vent pipes, fill pipes or access ways indicating a fill pipe protruding from the ground on the property or adjacent to any structure located on the property in the past? |
Environmental Site Assessment Questionnaire
Universal Tech Corporation
Plant Hallowell Plant
YES/NO/NS | 26. | Are there currently any chemical or noxious odors on the property in violation of any environmental laws? |
YES/NO/NS | 27. | To the best of your knowledge, have there been any chemical or noxious odors on the property in violation of any environmental laws in the past? |
YES/NO/NS | 28. | If the property is served by a private well or non-public water system, has the Company identified contaminants in the well or system that exceed guidelines applicable to the water system? |
YES/NO/NS | 29. | To the best of your knowledge, if the property is served by a private well or non-public water system, has the well been designated as contaminated by any government environmental/health agency? |
YES/NO/NS | 30. | Does the property discharge waste water on or adjacent to the property other than storm water or into a sanitary sewer system? |
YES/NO/NS | 31. | To the best of your knowledge, have any hazardous substances, wastes or petroleum products, unidentified waste materials, tires, automotive or industrial batteries or any other waste materials been dumped above grade, buried and/or burned on the property in violation of any environmental laws? |
YES/NO/NS | 32. | Is there a transformer, capacitor, heavy electrical or any hydraulic equipment for which there are any records indicating the presence of PCBs? |
YES/NO/NS | 33. | To the best of your knowledge, are there currently any asbestos-containing material located in any facility located on the property? |
YES/NO/NS | 34. | To the best of your knowledge, has there been any asbestos-containing material located in any facility located on the property? |
YES/NO/NS | 35. | Do you have knowledge of hazardous substances, wastes or petroleum products being previously dumped, burned, buried or otherwise disposed of on the property in violation of any environmental laws? |
YES/NO/NS | 36. | Do you have any knowledge of environmental liens or governmental notification relating to past or current violations of environmental laws with respect to the property or any facility located on the property? |
YES/NO/NS | 37. | Do you have knowledge of any release of hazardous substances or petroleum products with respect to the property or any facility located on the property in violation of any environmental laws, or of any report or records pertaining thereto? |
YES/NO/NS | 38. | Do you have any knowledge of any environmental site assessment or report of the property or any facility located on the property that indicated the presence of hazardous substances or petroleum products on, or contamination of, the property or recommended further assessment of the property? |
YES/NO/NS | 39. | Do you have knowledge of any past, threatened, or pending |
Environmental Site Assessment Questionnaire
Universal Tech Corporation
Plant Hallowell Plant
| | | lawsuits or administrative or regulatory proceedings concerning a release of any hazardous substance or petroleum products involving the property? |
| YES/NO/NS | 40. | Do you have knowledge of any past or present violations of any regulatory permits related to hazardous substances, wastes, wastewater discharge or air emissions with respect to the property? |
| | | GOVERNMENT RECORDS/HISTORICAL SOURCES INQUIRY |
| | 41. | To the best of your knowledge, do any of the following Federal government record systems list the Property or any property within the circumference of the area noted below: |
YES/NO/NS | · | National Priorities List (NPL) - within 1 mile? |
YES/NO/NS | · | Comprehensive Environmental Response Compensation and Liability Information (CERCLIS) List - within ½ mile? |
YES/NO/NS | · | Resource Conservation and Recovery Act (RCRA) Notifier List - within 1 mile? |
| | | |
| | 42. | To the best of your knowledge, do any of the following state record systems list the property within the circumference of the area noted below? |
YES/NO/NS | · | List maintained by State environmental agency of hazardous waste sites identified for investigation or remediation that is the state agency equivalent to NPL - within approximately 1 mile? |
YES/NO/NS | · | List maintained by State environmental agency of sites identified for investigation or remediation that is the state equivalent to CERCLIS - within ½ mile? |
YES/NO/NS | · | Leaking Underground Storage Tank (LUST) List - within ½ mile? |
YES/NO/NS | · | Solid Waste/Landfill Facilities - within ½ mile? |
This Questionnaire was completed by:
Name: John Carver
Title: Vice President
Relationship to the Property: Owner
Address: 16 South Pennsylvania Avenue
Oklahoma City, Oklahoma 73107
Phone: (405) 235-4546
/John Carver/
Signature
Date December 2, 2002
Environmental Site Assessment Questionnaire
Universal Tech Corporation
Plant Hallowell Plant
Slurry Explosive Corporation
Environmental Site Assessment Questionnaire
Hwy. 69A & Carbide Road
Pryor, Oklahoma 74361
The following Environmental Site Assessment Questionnaire is being prepared in connection with the proposed sale of certain assets of Slurry Explosive Corporation (“Company”) to certain affiliates of Energetic Systems Inc., LLC. You have been designated by the Company as the person most likely to have knowledge of the matters described below. Please answer the following questions to your knowledge either “YES,” “NO,” or “NS” if you are not sure as to the answer.
YES/NO/NS | 1. | Is the property used for an industrial use? |
YES/NO/NS | 2. | To the best of your knowledge, is any adjoining property used for an industrial use? |
YES/NO/NS | 3. | To the best of your knowledge, has the property been used for an industrial use in the past? |
YES/NO/NS | 4. | To the best of your knowledge, has any adjoining property been used for an industrial use in the past? |
YES/NO/NS | 5. | Is the property used as a gasoline station, motor repair facility, commercial printing facility, dry cleaners, photo developing laboratory, junkyard or landfill, or as a waste treatment, storage, disposal, processing, or recycling facility? |
YES/NO/NS | 6. | To the best of your knowledge, is any adjoining property used as a gasoline station, motor repair facility, commercial printing facility, dry cleaners, photo developing laboratory, junkyard or landfill, or as a waste treatment, storage, disposal, processing, or recycling facility? |
YES/NO/NS | 7. | To the best of your knowledge, has the property been used as a gasoline station, motor repair facility, commercial printing facility, dry cleaners, photo developing laboratory, junkyard or landfill, or as a waste treatment, storage, disposal, processing, or recycling facility in the past? |
YES/NO/NS | 8. | To the best of your knowledge, has any adjoining property been used as a gasoline station, motor repair facility, commercial printing facility, dry cleaners, photo developing laboratory, junkyard or landfill, or as a waste treatment, storage, disposal, processing, or recycling facility in the past? |
YES/NO/NS | 9. | Is there a maintenance or shop/service area located on the property? |
YES/NO/NS | 10. | To the best of your knowledge, has there ever been a maintenance or shop/service area located on the property? |
YES/NO/NS | 11. | Are there currently any damaged or discarded automotive or |
Environmental Site Assessment Questionnaire
Universal Tech Corporation
Plant Pryor
| | | industrial batteries, or pesticides, paints, petroleum products, pesticides or other chemicals in individual containers of greater than five gallons in volume or fifty gallons in the aggregate, stored on or used at the property or at the facility located on the property? |
| YES/NO/NS | 12. | To the best of your knowledge, in the past have there been any damaged or discarded automotive or industrial batteries, or pesticides, paints, petroleum products, pesticides or other chemicals in individual containers of greater than five gallons in volume or fifty gallons in the aggregate, stored on or used at the property or at the facility located on the property? |
YES/NO/NS | 13. | Are there currently any industrial drums (typically 55 gallon) or sacks of chemicals located on the property or at the facility located on the property? |
YES/NO/NS | 14. | To the best of your knowledge, have there been any industrial drums (typically 55 gallon) or sacks of chemicals located on the property or at the facility located on the property in the past? |
YES/NO/NS | 15. | To the best of your knowledge, has fill dirt been brought onto the property which originated from a contaminated site or which is of an unknown origin? |
YES/NO/NS | 16. | Are there currently any sumps, pits, ponds or lagoons located on the property in connection with waste treatment or waste disposal? |
YES/NO/NS | 17. | To the best of your knowledge, have there been any sumps, pits, ponds or lagoons located on the property in connection with waste treatment or waste disposal in the past? |
YES/NO/NS | 18. | Is there currently any visible sign of spillage, staining, residues or corrosion, other than by water, in any of the facilities located on the property? |
YES/NO/NS | 19. | To the best of your knowledge, has there been any visible signs of spillage, staining, residues or corrosion, other than by water, in any of the facilities located on the property in the past? |
YES/NO/NS | 20. | Is there currently any stained soil or pavement on the property? |
YES/NO/NS | 21. | To the best of your knowledge, has there been any stained soil or pavement on the property in the past? |
YES/NO/NS | 22. | Are there currently any above or underground storage tanks located on the property? |
YES/NO/NS | 23. | To the best of your knowledge, have there been any above or underground storage tanks located on the property in the past? |
YES/NO/NS | 24. | Are there currently any vent pipes, fill pipes or access ways indicating a fill pipe protruding from the ground on the property or adjacent to any structure located on the property? |
YES/NO/NS | 25. | To the best of your knowledge, have there been any vent pipes, fill pipes or access ways indicating a fill pipe protruding from the ground on the property or adjacent to any structure located on the property in the past? |
Environmental Site Assessment Questionnaire
Universal Tech Corporation
Plant Pryor
YES/NO/NS | 26. | Are there currently any chemical or noxious odors on the property in violation of any environmental laws? |
YES/NO/NS | 27. | To the best of your knowledge, have there been any chemical or noxious odors on the property in violation of any environmental laws in the past? |
YES/NO/NS | 28. | If the property is served by a private well or non-public water system, has the Company identified contaminants in the well or system that exceed guidelines applicable to the water system? |
YES/NO/NS | 29. | To the best of your knowledge, if the property is served by a private well or non-public water system, has the well been designated as contaminated by any government environmental/health agency? |
YES/NO/NS | 30. | Does the property discharge waste water on or adjacent to the property other than storm water or into a sanitary sewer system? |
YES/NO/NS | 31. | To the best of your knowledge, have any hazardous substances, wastes or petroleum products, unidentified waste materials, tires, automotive or industrial batteries or any other waste materials been dumped above grade, buried and/or burned on the property in violation of any environmental laws? |
YES/NO/NS | 32. | Is there a transformer, capacitor, heavy electrical or any hydraulic equipment for which there are any records indicating the presence of PCBs? |
YES/NO/NS | 33. | To the best of your knowledge, are there currently any asbestos-containing material located in any facility located on the property? |
YES/NO/NS | 34. | To the best of your knowledge, has there been any asbestos-containing material located in any facility located on the property? |
YES/NO/NS | 35. | Do you have knowledge of hazardous substances, wastes or petroleum products being previously dumped, burned, buried or otherwise disposed of on the property in violation of any environmental laws? |
YES/NO/NS | 36. | Do you have any knowledge of environmental liens or governmental notification relating to past or current violations of environmental laws with respect to the property or any facility located on the property? |
YES/NO/NS | 37. | Do you have knowledge of any release of hazardous substances or petroleum products with respect to the property or any facility located on the property in violation of any environmental laws, or of any report or records pertaining thereto? |
YES/NO/NS | 38. | Do you have any knowledge of any environmental site assessment or report of the property or any facility located on the property that indicated the presence of hazardous substances or petroleum products on, or contamination of, the property or recommended further assessment of the property? |
YES/NO/NS | 39. | Do you have knowledge of any past, threatened, or pending |
Environmentalj Site Assessment Questionnaire
Universal Tech Corporation
Plant Pryor
| | | lawsuits or administrative or regulatory proceedings concerning a release of any hazardous substance or petroleum products involving the property? |
YES/NO/NS | 40. | Do you have knowledge of any past or present violations of any regulatory permits related to hazardous substances, wastes, wastewater discharge or air emissions with respect to the property? |
| | | GOVERNMENT RECORDS/HISTORICAL SOURCES INQUIRY |
| | 41. | To the best of your knowledge, do any of the following Federal government record systems list the Property or any property within the circumference of the area noted below: |
YES/NO/NS | · | National Priorities List (NPL) - within 1 mile? |
YES/NO/NS | · | Comprehensive Environmental Response Compensation and Liability Information (CERCLIS) List - within ½ mile? |
YES/NO/NS | · | Resource Conservation and Recovery Act (RCRA) Notifier List - within 1 mile? |
| | | |
| | 42. | To the best of your knowledge, do any of the following state record systems list the property within the circumference of the area noted below? |
YES/NO/NS | · | List maintained by State environmental agency of hazardous waste sites identified for investigation or remediation that is the state agency equivalent to NPL - within approximately 1 mile? |
YES/NO/NS | · | List maintained by State environmental agency of sites identified for investigation or remediation that is the state equivalent to CERCLIS - within ½ mile? |
YES/NO/NS | · | Leaking Underground Storage Tank (LUST) List - within ½ mile? |
YES/NO/NS | · | Solid Waste/Landfill Facilities - within ½ mile? |
This Questionnaire was completed by:
Name: John Carver
Title: Vice President
Relationship to the Property: Owner
Address: 16 South Pennsylvania Avenue
Oklahoma City, Oklahoma 73107
Phone: (405) 235-4546
/John Carver/
Signature
Date December 2, 2002
EXHIBIT 8.3
Required Consents
None
EXHIBIT 8.4
Legal Opinion - Buyers
December 6, 2002
LSB Industries Inc.
Slurry Explosive Corporation
Universal Tech Corporation
El Dorado Chemical Company
LSB Chemical Corp.
Prime Financial Corporation
16 S. Pennsylvania Avenue
Oklahoma City, Oklahoma 73106
Gentlemen:
We have acted as special counsel to Energetic Systems Inc., LLC, UTeC Corporation, LLC, SEC Investment Corp. LLC, DetaCorp Inc., LLC and Energetic Properties, LLC (collectively, "Buyers"), in connection with the Asset Purchase Agreement dated December 6, 2002 (the "Agreement"), by and among Buyers and LSB Industries, Inc., Slurry Explosive Corporation, Universal Tech Corporation, El Dorado Chemical Company, LSB Chemical Corp. and Prime Financial Corporation (collectively, “Sellers”). This is the Opinion Letter contemplated by Section 8.4(a) of the Agreement. All capitalized terms used in this Opinion Letter without definition have the respective meanings given to them in the Agreement or the Accord referred to below.
This Opinion Letter is governed by, and shall be interpreted in accordance with, the Legal Opinion Accord (the "Accord") of the ABA Section of Business Law (1991). Consequently, it is subject to a number of qualifications, exceptions, definitions, limitations on coverage and other limitations, all as more particularly described in the Accord, and this Opinion Letter should be read in conjunction therewith. The law covered by the opinions expressed herein is limited to the Federal Law of the United States and the Law of the States of Texas.
In basing the opinions set forth herein on "our knowledge" or words of similar import, such words signify that, in the course of our representation of Buyers as described in this Opinion Letter, no facts have come to our attention that would give the attorneys within our firm, who have been directly involved in representing the Buyers in connection with the transactions described in the Agreement, actual knowledge or actual notice that any such opinions or other matters are not accurate. Except as stated in this Opinion Letter, we have not undertaken any investigation or verification of such matters.
Based upon the foregoing, our opinion is as follows:
| 1. | The Agreement, the Assignment and Assumption Agreement, the Assignment and Assumption of Lease Agreement, the Escrow Agreement, AN Supply Agreement, the Nitric Acid Supply Agreement, the Noncompetition Agreement, the Use and License Agreement, the Transitional Services Agreement and the Orica Noncompetition Letter Agreement (collectively, the “Transaction Agreements”) are enforceable against the Buyers that are parties thereto. |
| 2. | Each Buyer is a limited liability company duly organized, validly existing and in good standing under the laws of its state of organization with corporate power and authority to execute and deliver the Transaction Agreements to which it is a party and consummate the Contemplated Transactions. |
| 3. | Neither the execution and delivery of the Transaction Agreements nor the consummation of the Contemplated Transactions to our knowledge (a) violates any provision of the articles of organization of any Buyer; (b) breaches or constitutes a default (or an event that, with notice or lapse of time or both, would constitute a default) under any agreement or commitment to which Buyer is party, or (c) violates any statute, law, regulation or rule or any judgment, decree or order of any court or Governmental Body applicable to Buyer. |
| 4. | To our knowledge, there is no Proceeding by or before any court or Governmental Body pending or threatened against or involving any Buyer that questions or challenges the validity of the Transaction Agreements or any action taken or to be taken by any Buyer pursuant to the Transaction Agreements or in connection with the Contemplated Transactions. |
This Opinion Letter also incorporates by reference the Other Common Texas Qualifications contained in the Report of the Legal Opinions Committee Regarding Legal Opinions in Business Transactions (the "Texas Report") of the Business Law Section of the State Bar of Texas (1992), and this opinion should be read in conjunction with the Texas Report.
Very truly yours,
Jackson Walker L.L.P.
