EXHIBIT 2.1
CLAIM PURCHASE AGREEMENT
This Claim Purchase Agreement (this "Agreement") is made and entered into
as of the 12th day of October, 2006 by and among Darling International Inc.
(f/k/a Darling Delaware Company, Inc.), a Delaware corporation ("Seller"), and
Trust Company of the West, a California trust company, not in its individual
capacity but only as trustee of the trust established pursuant to an Individual
Trust Agreement, dated as of January 31, 1987, as amended, between The
Boilermaker-Blacksmith National Pension Trust and itself ("Purchaser").
R E C I T A L S:
A. Seller is party to an Energy Services Agreement dated as of February
28, 1990 (the "Services Agreement") with Newark Bay Cogeneration Partnership,
L.P. ("NBCP"), a subsidiary of Newmarket Power Company, LLC, a Delaware limited
liability company ("Company"), pursuant to which NBCP supplied steam to Seller.
B. Seller has alleged a breach of the Services Agreement by NBCP, and
NBCP has counterclaimed to collect certain invoiced charges from Seller.
Pursuant to the Services Agreement, Seller and NBCP submitted such claims to
arbitration and the arbitral panel, by order signed June 5 and June 6, 2006
ordered that NBCP pay to Seller the net amount of $7,397,300 (representing total
damages to Seller of $7,490,799 ("Total Damages"), net of $93,499 (the "Offset")
due from Seller to NBCP for steam delivered). The order of the arbitral panel
awarding a net amount of $7,397,300 (Total Damages less the Offset) is referred
to herein as the "Award" and the right of Seller to payment of $7,397,300 by
NBCP pursuant to the Award, together with all rights of Seller under applicable
law to enforce and collect such amount, including without limitation any rights
under any judgment confirming the Award and any judicial order granting
injunctive or other relief, is referred to herein as the "Claim".
C. Pursuant to the Services Agreement, the award is subject to review
in any court of competent jurisdiction in New Jersey. Seller moved to confirm
the Award, and subsequently, NBCP requested that the New Jersey Superior Court
vacate the award. Seller has opposed such request and has requested that the
Award be confirmed and that the court issue a preliminary injunction to prevent
NBCP from disposing of assets until the Claim is satisfied.
D. Purchaser desires to purchase from Seller, and Seller desires to
sell to Purchaser, the Claim, provided that the Award is confirmed in its
entirety, for the consideration and upon the terms and conditions contained in
this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises and covenants contained in this Agreement, and for their mutual
reliance, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; SALE AND TRANSFER OF THE CLAIM;
CONSIDERATION; CLOSING
1.1 Purchase Price. Subject to the terms and conditions of this
Agreement, the aggregate purchase price to be paid by Purchaser to Seller for
the purchase of the Claim shall be TWO MILLION TWO HUNDRED THOUSAND Dollars
($2,200,000) in cash (the "Purchase Price").
1.2 Closing Date. The consummation of the transactions contemplated by
this Agreement (the "Closing") shall take place at 10:00 a.m. on the date five
(5) business days after delivery to Purchaser of a judgment of the Superior
Court of New Jersey confirming the award in its entirety, at the offices of
O'Melveny & Myers LLP at Seven Times Square, New York, NY 10036 or such other
date, time and place as the parties shall mutually agree (the "Target Closing
Date"); provided that all conditions precedent and other matters required to be
completed as of the Closing Date have been or will be completed on such date
(the date of consummation of the purchase and sale of the Claim hereunder being
the "Closing Date").
1.3 Transfer of Claim; Payment of Purchase Price. On the Closing Date,
(i) Seller shall assign, transfer, convey and deliver to Purchaser, and
Purchaser shall acquire, all of Seller's right, title and interest in and to the
Claim, free and clear of all liens and encumbrances, liabilities and defects in
title, such transfer being deemed to be effective on the Closing Date and (ii)
Purchaser shall pay the Purchase Price, by wire transfer of immediately
available funds to Seller to the account(s) specified by Seller to Purchaser in
writing at least three (3) business days prior to the Closing. For clarity,
neither the Offset nor any stay issued by a court of competent jurisdiction
shall be considered an encumbrance for purposes of this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
As an inducement to Purchaser to enter into this Agreement and to
consummate the transactions contemplated by this Agreement, Seller hereby
represents, warrants and covenants to Purchaser as to the following matters as
of the date hereof. Seller shall be deemed to remake all of the following
representations, warranties and covenants as of the Closing Date.
2.1 Organization. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
2.2 Authorization. Seller has full power and authority to enter into
this Agreement and to carry out the transactions contemplated hereby. The
execution, delivery and performance of this Agreement have been duly authorized
by all necessary action by Seller.
2.3 Binding Agreement. This Agreement has been duly and validly executed
and delivered by Seller and, assuming due and valid execution by Purchaser, this
Agreement constitutes a valid and binding obligation of Seller enforceable in
accordance with its terms subject to (a) applicable bankruptcy, reorganization,
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insolvency, moratorium and other laws affecting creditors' rights generally from
time to time in effect and (b) limitations on the enforcement of equitable
remedies.
2.4 No Violation. Neither the execution and delivery by Seller of this
Agreement, nor the consummation by Seller of the transactions contemplated
hereby, nor compliance with any of the provisions hereof by Seller, will (i)
violate, conflict with or result in a breach of such Seller's certificate of
incorporation or its by-laws, (ii) require any approval or consent of, or filing
with, any governmental agency or authority, other than such filings, if any, as
shall be required to notify the applicable court or courts of the assignment of
the Claim to Purchaser in the event of additional judicial proceedings following
confirmation of the Award, (iii) result in the creation of any lien, charge or
encumbrance affecting the Claim; (iv) violate any statute, law, rule or
regulation of any governmental authority to which Seller or the Claim may be
subject; or (v) violate any judgment of any court or governmental authority to
which Seller or the Claim may be subject.
2.5 Litigation. There is no pending or threatened litigation against
Seller affecting, or which could reasonably be expected to affect, the Claim or
the transactions contemplated hereby.
2.6 The Claim; Title; Assignability.
(a) A true and complete copy of the Award is attached hereto as
Exhibit A. The Claim is not subject to any right of offset, other than the
Offset, and is freely transferable, subject to the effect of a stay, if any,
issued by a court of competent jurisdiction or further judicial action upon an
appeal, if taken.
(b) Seller has good and marketable title to the Claim, and, upon
transfer of the Claim to Purchaser at Closing, the Claim will be free and clear
of all liens, pledges, claims, charges, security interests, liabilities,
options, rights of first refusal, restrictions or other encumbrances of any kind
whatsoever. Seller has not entered into any (i) agreement for the sale of the
Claim that would conflict with the transactions contemplated hereby or (ii) any
other agreement to compromise the Claim in any way.
2.7 Brokers and Finders. Neither Seller nor any affiliate thereof, nor
any officer or director thereof, has engaged any finder or broker in connection
with the transactions contemplated hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As an inducement to Seller to enter into this Agreement and to consummate
the transactions contemplated by this Agreement, Purchaser hereby represents,
warrants and covenants to Seller as to the following matters as of the date
hereof. Purchaser shall be deemed to remake all of the following
representations, warranties and covenants as of the Closing Date.
3.1 Organization. Trust Company of the West is a trust company duly
organized and validly existing under the laws of California.
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3.2 Authorization. Purchaser has full power and authority to enter into
this Agreement and to carry out the transactions contemplated hereby. The
execution, delivery and performance of this Agreement have been duly authorized
by all necessary action by Purchaser.
3.3 Binding Agreement. This Agreement has been duly and validly executed
and delivered by Purchaser and, assuming due and valid execution by Seller, this
Agreement constitutes a valid and binding obligation of Purchaser enforceable in
accordance with its terms subject to (i) applicable bankruptcy, reorganization,
insolvency, moratorium and other laws affecting creditors' rights generally from
time to time in effect and (ii) limitations on the enforcement of equitable
remedies.
3.4 No Violation. Neither the execution and delivery by Purchaser of
this Agreement nor the consummation of the transactions contemplated hereby by
Purchaser nor compliance with any of the provisions hereof by Purchaser, will
(i) violate, conflict with or result in a breach of any material provision of
Purchaser's organizational documents, (ii) require any approval or consent of,
or filing with, any governmental agency or authority, (iii) violate any statute,
law, rule or regulation of any governmental authority to which Purchaser may be
subject; or (iv) violate any judgment of any court or governmental authority to
which Purchaser may be subject.
3.5 Brokers and Finders. Neither Purchaser nor any affiliate thereof nor
any officer or director thereof has engaged any finder or broker in connection
with the transactions contemplated hereunder.
3.6 Litigation. There is no pending or threatened litigation against
Purchaser affecting, or which could reasonably be expected to affect, the
transactions contemplated hereby.
ARTICLE IV
COVENANTS OF SELLER
4.1 Prosecution of Claim; No Enforcement. Until the earlier of the
termination of this Agreement pursuant to Article IX and the Closing, (i) Seller
shall take all commercially reasonable actions that are necessary or appropriate
to cause the Award to be confirmed by appropriate judicial process, and to
defend any motion for a stay and/or an appeal of any judgment confirming the
Award, and Seller shall use reasonable efforts to consult with Purchaser in
respect of any such defense, and (ii) Seller shall not take any action to
collect the Claim, including, without limitation, any action to file any lien in
respect of the Claim, or otherwise to enforce its rights in respect of the Claim
or the Award; provided that nothing herein shall prevent Seller from asserting
its right to the Offset.
ARTICLE V
ACKNOWLEDGEMENTS
5.1 Risk of Reversal. Purchaser acknowledges and agrees that its
obligation to purchase the Claim and to close the transactions contemplated by
this Agreement shall not be subject to the absence of any motion to stay, any
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order granting a stay or any appeal filed with respect to the Claim.
Furthermore, Purchaser acknowledges and agrees that the risk of any reversal of
a confirmed Award shall be borne solely by Purchaser.
5.2 Party in Interest. Both parties acknowledge that, until Closing,
Seller is the real party in interest in the action styled Darling International
Inc. v. Newark Bay Cogeneration Partnership, L.P. (Docket No. ESX-L -5160-06),
and, without limiting Seller's obligations under Article IV, any rights in the
Claim shall pass to Purchaser only at Closing.
5.3 Independent Decisions. The parties acknowledge that Seller's
decision to sell, and Purchaser's decision to purchase, the Claim may be based
on information or analyses not shared between them. The parties further
acknowledge that (i) neither has a duty to the other to disclose such
information and analyses and (ii) each has the ability and duty to obtain and
analyze all such information as may be necessary or desirable in connection
herewith.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY
The obligation of each party to effect the Closing shall be subject to the
satisfaction of the following condition on the Closing Date unless specifically
waived in writing:
6.1 Unfavorable Action or Proceeding. On the Closing Date, no orders,
decrees, judgments or injunctions of any court or governmental body shall be in
effect that challenge or seek to challenge, or that could prevent or cause the
rescission of, the Closing. For clarity, this paragraph relates only to an
order, decree, judgment or injunction respecting the purchase of the Claim
pursuant to this Agreement, and not to any order, decree, judgment or injunction
respecting the enforcement of the Award or any appeal therefrom.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER
Purchaser's obligation to effect the Closing shall be subject to the
satisfaction of each of the following additional conditions on or prior to the
Closing Date unless specifically waived in writing by Purchaser at or prior to
the Closing.
7.1 Signing and Delivery of Instruments and Transcript. Seller shall
have executed and delivered to Purchaser the Bill of Sale in the form of Exhibit
B attached hereto, together with such other instruments, certificates, consents
or other documents which are reasonably necessary to carry out the transactions
contemplated by this Agreement and to comply with the terms hereof. Seller shall
have (i) delivered to Purchaser true and correct copies of the record presented
to the court of competent jurisdiction for purposes of confirming the Award,
including all hearing transcripts and all exhibits presented to the court of
competent jurisdiction and (ii) executed and delivered to Purchaser for filing,
as reasonably necessary, with any applicable court(s) a notice of the assignment
of the Claim to Purchaser.
7.2 Performance of Covenants. Seller shall have in all material respects
performed or complied with each and all of the obligations, covenants,
agreements and conditions required to be performed or complied with by Seller on
or prior to the Closing Date.
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7.3 Status of Award. The Award shall have been confirmed in its entirety
by a court of competent jurisdiction in the State of New Jersey and entered as a
judgment; and Seller shall have delivered to Purchaser true and complete copies
of all related judicial orders and opinions, certified by an officer of Seller.
7.4 Representations True and Correct. The representations and warranties
of Seller in Article II hereof shall be true and correct on and as of the
Closing Date.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
Seller's obligation to effect the Closing shall be subject to the
satisfaction of each of the following additional conditions on or prior to the
Closing Date unless specifically waived in writing by Seller at or prior to the
Closing.
8.1 Performance of Covenants. Purchaser shall have in all material
respects performed or complied with each and all of the obligations, covenants,
agreements and conditions required to be performed or complied with by Purchaser
on or prior to the Closing Date.
8.2 Representations True and Correct. The representations and warranties
of Purchaser in Article III hereof shall be true and correct on and as of the
Closing Date.
ARTICLE IX TERMINATION
9.1 Termination. This Agreement may be terminated at any time prior to
Closing:
(a) by the mutual written consent of the parties;
(b) by Purchaser if any of the conditions in Article VI or VII
have not been satisfied as of the Target Closing Date or if satisfaction of any
condition in Article VI or VII is or becomes impossible and Purchaser has not
waived such condition in writing on or before the Target Closing Date;
(c) by Seller if any of the conditions in Article VI or VIII have
not been satisfied as of the Target Closing Date;
(d) by Purchaser or Seller if the Superior Court of New Jersey
shall have entered a judgment in respect of the Award and such judgment does not
confirm the Award in its entirety; or
(e) by Purchaser or Seller if the Closing has not occurred (other
than through the failure of any party seeking to terminate this Agreement to
comply fully with its obligations under this Agreement) on or before December
31, 2006.
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9.2 Termination Consequences. If this Agreement is terminated pursuant
to Section 9.1, (a) all further obligations of the parties under this Agreement
shall terminate, except that the obligations in Sections 11.3, 11.8, and 11.11
shall survive, (b) each party shall pay the costs and expenses incurred by it in
connection with this Agreement, and (c) nothing shall prevent any party hereto
from pursuing any of its legal rights or remedies that may be granted to any
such party by law against any other party to this Agreement.
ARTICLE X
SURVIVAL AND INDEMNIFICATION
10.1 Survival. Except as expressly set forth in this Agreement to the
contrary, all representations, warranties, covenants, agreements and
indemnifications, respectively, contained in this Agreement or in any document
delivered pursuant hereto shall be deemed to be material and to have been relied
upon by the other parties hereto, and shall continue to be fully effective and
enforceable following the Closing Date without any time limitation.
10.2 Indemnification by Seller. Seller shall keep and save Purchaser and
its directors, officers, employees, agents and other representatives
(collectively, the "Purchaser Indemnified Parties"), forever harmless from and
shall indemnify and defend the Purchaser Indemnified Parties against any and all
obligations, judgments, liabilities, penalties, violations, fees, fines, claims,
losses, costs, demands, damages, liens, encumbrances and expenses including
reasonable attorneys' fees (collectively, "Damages"), to the extent connected
with or arising or resulting from (a) any breach of any representation or
warranty of Seller under this Agreement or (b) any breach or default by Seller
of any covenant or agreement of Seller under this Agreement.
10.3 Indemnification by Purchaser. Purchaser shall keep and save Seller
and its directors, officers, employees, agents and other representatives
(collectively, "Seller Indemnified Parties"), forever harmless from and shall
indemnify and defend the Seller Indemnified Parties against any and all Damages,
to the extent connected with or arising or resulting from (a) any breach of any
representation or warranty of Purchaser under this Agreement or (b) any breach
or default by Purchaser of any covenant or agreement of Purchaser under this
Agreement.
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 Further Assurances and Cooperation. Seller shall execute,
acknowledge and deliver to Purchaser any and all other assignments, consents,
approvals, conveyances, assurances and, subject to any obligation of Seller to
NBCP to maintain the confidentiality of information, which obligation has not
been waived by NBCP, copies of all documents, instruments and books and records
related to the Claim or the Award reasonably requested by Purchaser at any time
and shall take any and all other actions reasonably requested by Purchaser at
any time for the purpose of more effectively assigning, transferring, granting,
conveying and confirming to Purchaser, the Claim, and enabling Purchaser to
collect the Claim, including, without limitation, cooperating with Purchaser in
connection with any judicial action required to enforce the Claim or any
additional judicial or arbitral proceeding, including, but not limited to,
defending against a stay motion or an appeal, related to the Award or the Claim.
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For clarity, the parties agree that, from and after the Closing, Purchaser shall
conduct the defense against any motion for a stay or an appeal, at Purchaser's
expense, with the cooperation of Seller as provided herein.
11.2 Successors and Assigns. All of the terms and provisions of this
Agreement shall be binding upon and shall inure to the benefit of and be
enforceable by the respective successors and assigns of the parties hereto;
provided, however, that no party hereto may assign any of its rights or delegate
any of its duties under this Agreement without the prior written consent of the
other party.
11.3 Governing Law; Venue. This Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York without regard to its conflict of laws provisions that if applied might
require the application of the laws of another jurisdiction. The parties hereby
waive their right to claim in any proceeding involving this Agreement that the
law of any jurisdiction other than the State of New York shall apply to such
dispute; and the parties hereby covenant that they shall assert no such claim in
any dispute arising under this Agreement. Any proceeding which arises out of or
relates in any way to the subject matter of this Agreement may be brought in any
court of competent jurisdiction in the State, County or City of New York. The
parties hereby consent to the jurisdiction of the State of New York and waive
their right to challenge any proceeding involving or relating to this Agreement
on the basis of lack of jurisdiction over the Person or forum non conveniens.
11.4 Amendments. This Agreement may not be amended other than by written
instrument making specific reference to this Agreement signed by the parties
hereto.
11.5 Exhibits and Schedules. All exhibits and schedules referred to in
this Agreement shall be attached hereto and are incorporated by reference
herein.
11.6 Notices. Any notice, demand or communication required, permitted, or
desired to be given hereunder shall be deemed effectively given when personally
delivered, when received by telegraphic or other electronic means (including
facsimile) or overnight courier, or five (5) calendar days after being deposited
in the United States mail, with postage prepaid thereon, certified or registered
mail, return receipt requested, addressed as follows:
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If to Seller: Darling International Inc.
251 O'Connor Ridge Blvd., Suite 300
Irving, Texas 75038
Attention: General Counsel
Facsimile No.: (972) 281-4475
With a copy to Salvatore A. Romanello
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Facsimile No.: (212) 310-8007
If to Purchaser: C/O Trust Company of the West
200 Park Avenue, Suite 2200
New York, New York 10166
Attn: Brian J. Daly
Telephone No.: (212) 771-4000
Telecopier No.: (212) 771-4066
with a copy (which shall not constitute Trust Company of the West
notice) to: 865 S. Figueroa Street, Suite 2100
Los Angeles, CA 90017
Attn: R. Blair Thomas
Telephone No.: 213-244-0000
Telecopier No.: 213-244-0604
and O'Melveny & Myers LLP
Times Square Tower
7 Times Square
New York, New York 10036
Attn: Todd R. Triller, Esq.
Telephone No.: (212) 326-2000
or at such other address as one party may designate by notice hereunder to
the other parties.
11.7 Headings. The section and other headings contained in this Agreement
and in the exhibits and schedules to this Agreement are included for the purpose
of convenient reference only and shall not restrict, amplify, modify or
otherwise affect in any way the meaning or interpretation of this Agreement or
the exhibits and schedules hereto.
11.8 Confidentiality and Publicity. The parties hereto shall hold in
confidence the information contained in this Agreement, and all information
related to this Agreement, which is not otherwise known to the public, including
the existence of this Agreement, shall be held by each party hereto as
confidential and shall not be disclosed without the prior written consent of the
other party; provided, however, that nothing herein shall (i) restrict either
party from communicating with its investors, lenders and advisors, (ii) restrict
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Purchaser from communicating with the Company, its shareholders, affiliates and
advisors, (iii) prevent either party from complying with applicable law
including Federal securities laws or (iv) restrict Seller from appropriate
communications with the court, the Company and NBCP in connection with the
action styled Darling International Inc. v. Newark Bay Cogeneration Partnership,
L.P. (Docket No. ESX-L -5160-06).
11.9 Gender and Number; Construction. All references to the neuter gender
shall include the feminine or masculine gender and vice versa, where applicable,
and all references to the singular shall include the plural and vice versa,
where applicable. Unless otherwise expressly provided, the word "including"
followed by a listing does not limit the preceding words or terms and shall mean
"including, without limitation."
11.10 Third Party Beneficiary. None of the provisions contained in this
Agreement are intended by the parties, nor shall they be deemed, to confer any
benefit on any person not a party to this Agreement.
11.11 Expenses and Attorneys' Fees. Except as otherwise provided in this
Agreement, each party shall bear and pay its own costs and expenses relating to
the preparation of this Agreement and to the transactions contemplated by, or
the performance of or compliance with any condition or covenant set forth in,
this Agreement, including, without limitation, the disbursements and fees of
their respective attorneys, accountants, advisors, agents and other
representatives, incidental to the preparation and carrying out of this
Agreement, whether or not the transactions contemplated hereby are consummated.
Notwithstanding anything to the contrary herein, Purchaser shall pay Seller's
reasonable costs and expenses (including without limitation attorneys' fees) of
actions taken by Seller (i) after the entry of judgment confirming the Award and
prior to the Closing to defend any motion for a stay or appeal of such judgment
or (ii) following Closing, in cooperating with Purchaser in any such defense as
contemplated by Section 11.1.
11.12 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement, binding on all of the
parties hereto. The parties agree that facsimile copies of signatures shall be
deemed originals for all purposes hereof and that a party may produce such
copies, without the need to produce original signatures, to prove the existence
of this Agreement in any proceeding brought hereunder.
11.13 Entire Agreement. This Agreement, the exhibits, the schedules and
the documents referred to in this Agreement contain the entire understanding
between the parties with respect to the transactions contemplated hereby and
supersede all prior or contemporaneous agreements, understandings,
representations and statements, oral or written, between the parties on the
subject matter hereof (the "Superseded Agreements"), which Superseded Agreements
shall be of no further force or effect.
11.14 No Waiver. Any term, covenant or condition of this Agreement may be
waived at any time by the party which is entitled to the benefit thereof but
only by a written notice signed by the party expressly waiving such term or
condition. The subsequent acceptance of performance hereunder by a party shall
not be deemed to be a waiver of any preceding breach by any other party of any
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term, covenant or condition of this Agreement, other than the failure of such
other party to perform the particular duties so accepted, regardless of the
accepting party's knowledge of such preceding breach at the time of acceptance
of such performance. The waiver of any term, covenant or condition shall not be
construed as a waiver of any other term, covenant or condition of this
Agreement.
11.15 Severability. If any term, provision, condition or covenant of this
Agreement or the application thereof to any party or circumstance shall be held
to be invalid or unenforceable to any extent in any jurisdiction, then the
remainder of this Agreement and the application of such term, provision,
condition or covenant in any other jurisdiction or to persons or circumstances
other than those as to whom or which it is held to be invalid or unenforceable,
shall not be affected thereby, and each term, provision, condition and covenant
of this Agreement shall be valid and enforceable to the fullest extent permitted
by law.
11.16 No Consequential Damages. Notwithstanding anything to the contrary
elsewhere in this Agreement, neither party shall, in any event, be liable to the
other party for any consequential, special, exemplary or punitive damages
relating to the breach or alleged breach or nonperformance or alleged
nonperformance of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been entered into as of the day
and year first above written.
SELLER:
DARLING INTERNATIONAL INC
By: /s/ Randall C. Stuewe
---------------------------------------
Name: Randall C. Stuewe
-------------------------------------
Its: Chief Executive Officer
--------------------------------------
PURCHASER:
TRUST COMPANY OF THE WEST, not in its
individual capacity but only as Trustee of
the Trust established pursuant to an
Individual Trust Agreement dated as of
January 31, 1987, as amended, between the
Boilermaker-Blacksmith Pension Trust and
itself
By: /s/ Brian J. Daly
---------------------------------------
Name: Brian J. Daly
Title: Managing Director
By: /s/ Brian O'Connor
---------------------------------------
Name: Brian O'Connor
Title: Vice President
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