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EXHIBIT 2(c)
AGREEMENT TO BUY AND SELL
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This Agreement to Buy and Sell dated as of the 30th day of September ,
1994 (the "Agreement") by and between MOON REALTY, a partnership organized and
existing under the laws of the state of Louisiana ("Seller") and QUAKER STATE
CORPORATION, a corporation organized and existing under the laws of the state
of Delaware, its successors and assigns ("Buyer") (the "Agreement").
W I T N E S S E T H :
WHEREAS, Seller wishes to sell and the Buyer wishes to purchase on the terms
and conditions set forth herein that certain tract or tracts of land located at
2640 Valley View Drive, Shreveport, Louisiana, more particularly described in
the attached Exhibit A, and the improvements located thereon and certain
equipment more particularly described on the attached Exhibit C.
NOW, THEREFORE, in view of the foregoing, the Seller and Buyer agree as
follows:
(1) Property.
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Upon and subject to the following terms and conditions, Seller agrees to sell
to Buyer and Buyer agrees to purchase and accept from Seller the following
property (collectively, the "Property"):
(a) All that certain immovable property described on Exhibit "A" attached
hereto and made a part hereof (the "Land");
(b) All buildings and improvements located on the Land (the "Improvements");
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(c) All right, title and interest of Seller, if any, in and to (i) any land
lying in the bed of any street, road, avenue or alley, open or closed,
adjoining the Land, to the center line thereof, (ii) all leases, easements,
rights of way, servitudes, covenants and other rights appurtenant to the Land
and the Improvements (the "Appurtenant Rights");
(d) The leases described in Exhibit B (the "Leases"); and
(e) The equipment and fixtures (the "Equipment and Fixtures") described on
Exhibit "C" attached hereto and made a part hereof.
(2) Deposit.
There is no deposit or earnest money under this Agreement.
(3) Conveyance.
(a) Title to the Land and Improvements and Appurtenant Rights shall be
conveyed to Buyer at Closing (as hereinafter defined) by Limited Warranty Deed
in the form attached hereto as Exhibit "D", subject to the Permitted Exceptions
(as hereinafter defined), if any, and the following exceptions, reservations
and conditions:
(i) Zoning, building and all other applicable laws and ordinances;
(ii) Public roads and highways, located thereon; and
(iii) Servitudes, easements, licenses, restrictions and covenants that are
filed of record in the conveyance records of Caddo Parish, Louisiana,
and which do not interfere in a material way with the Buyer's
intended use of the Property.
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(b) Title to the Equipment and Fixtures shall be conveyed to Buyer at
Closing by a bill of sale (the "Bill of Sale") in the form attached hereto as
Exhibit "E".
(c) The conveyance of Seller's rights under the Leases shall be in the form
of the assignment (the "Assignment") attached as Exhibit F.
(d) IT IS THE EXPRESS INTENT OF THE PARTIES THAT THE PROPERTY WILL BE
CONVEYED BY SELLER TO BUYER IN "AS-IS, WHERE-IS" CONDITION WITH NO EXPRESS OR
IMPLIED WARRANTIES OR REPRESENTATIONS, INCLUDING BUT NOT LIMITED TO IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SUCH
DISCLAIMER TO BE INCLUDED IN THE DEED AND THE BILL OF SALE; PROVIDED, HOWEVER,
THAT THIS SUBPARAGRAPH (d) SHALL NOT ALTER THE WARRANTIES OF TITLE PROVIDED FOR
HEREIN.
(e) The Deed and the Bill of Sale shall include the following language:
Buyer acknowledges that Seller does not warrant that the Property, including
land, buildings, improvements, equipment and fixtures, is free from
redhibitory or latent defects or vices, and Buyer releases Seller of any
liability for redhibitory or latent defects or vices under La. Civil Code
Art. 2520-2548. Buyer declares that it does hereby waive the warranty of
fitness for intended purpose or guarantee against hidden or latent or
redhibitory vices under Louisiana law, including Civil Code Art. 2520-2548,
and that warranty imposed
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by La. Civil Code Art. 2476, and waives all rights relating to redhibition
and reduction of price pursuant to La. Civil Code Art. 2520-2548. Buyer
further acknowledges that the waivers and disclaimers contained in and/or
referred to in this paragraph have been brought to the attention of Buyer and
explained in detail and that Buyer has voluntarily and knowingly consented to
such waivers and disclaimers.
(4) Purchase Price.
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The purchase price for the Property shall be $10,541,100. The parties
agree that $9,000,000 of the purchase price shall be allocated to Land and
Improvements and the remainder of the purchase price shall be allocated to the
Equipment and Fixtures. The purchase price attributable to Equipment and
Fixtures shall be payable to Seller at the First Closing (as hereinafter
defined) and the purchase price attributable to the remainder of the Property
shall be payable to Seller at the Second Closing (as hereinafter defined), said
purchase price, in each case, being payable by Buyer to Seller in cash, either
by wire transfer of immediately available funds or a certified check.
(5) Survey.
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Within fifteen (15) days after the Effective Date (as hereinafter defined)
hereof, Buyer may, at Buyer's sole cost and expense, obtain a current plat of
survey (the "Survey") of the Land and Improvements.
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(6) Title Commitment.
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Within ten (10) days after the Effective Date (as hereinafter defined)
hereof, Buyer shall deliver to Seller a title commitment (the "Title
Commitment") covering the Land on an ALTA form issued by a Title Insurance
Company acceptable to Buyer. The cost of the actual policy when issued shall
be paid by Buyer.
(7) Objections and Permitted Exceptions.
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Buyer shall have ten (10) days after receipt of the Title Commitment and the
Survey in which to object, in writing, to any matter therein, and those matters
to which Buyer does not object, in writing, shall become permitted exceptions
hereunder (the "Permitted Exceptions"). If within such ten (10) day period,
Buyer notifies Seller of any title or survey objections, Seller shall have ten
(10) days in which to cure or remove same, and Seller hereby agrees to make a
good faith effort to cure any Survey or title objections. If Seller is unable
to cure or remove such title and Survey objections to the satisfaction of Buyer
and the Title Company within such ten (10) day period, Buyer, at Buyer's option
and as Buyer's sole and exclusive remedy, shall either (a) terminate this
Agreement and neither party shall have any further rights or obligations
pursuant to this Agreement, or (b) waive any such Survey or title objections
or defects and accept such title as Seller is able to convey without offset,
reduction or abatement in the Purchase Price (with the uncured objections or
defects becoming Permitted Exceptions hereunder). Nothing in this
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Paragraph 7 shall relieve Seller from its obligation to convey title to the
Property free and clear of all monetary liens.
(8) Inspection.
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Upon reasonable advance notice to Seller, Buyer may, at Buyer's sole cost and
expense, examine and inspect the Property at any reasonable
time. Buyer shall and does hereby indemnify and hold Seller harmless from and
against any and all liability, loss, cost, expense and damage caused to or
incurred by Seller or the Property by any acts or omissions of Buyer (or its
agents or representatives) in connection with such inspection. Any information
relating to the Property provided by Seller to Buyer or obtained by Buyer in
the course of its inspection shall be treated as confidential information by
Buyer, to be made available only to such persons as may be reasonably necessary
to properly evaluate the Property and/or as may be needed by Buyer to secure
financing for the Property.
(9) Environmental matters.
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Seller makes no representation or warranty, either express or implied, with
regard to the Environmental Condition of the Property.
"Environmental Condition" shall mean the presence on the Property of any
"hazardous substance" as that term is defined in any federal, state,
county/parish, or municipal statute, ordinance, regulation, rule, order,
judgment, or decree, including, without limitation, (i) the Comprehensive
Environmental Response,
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Compensation and Liability Act of 1980, as amended; the Resource Conservation
and Recovery Act of 1976, as amended; the Clean Air Act; the Water Pollution
Control Act (the Clean Water Act); the Toxic Substances Control Act, the Safe
Drinking Water Act, and the Insecticide, Fungicide and Rodenticide Act, as
amended, and the state counterparts of those laws; and (ii) any material or
substance which is now listed in the United States Department of Transportation
Hazardous Materials Table (49 C.F.R. Section 172.101); and (iii) any
contaminant, oil, petroleum product or by-product, radioactive material or
by-product, any mining waste, toxic substance, hazardous waste, or other
material, the removal of which is required or the existence or management of
which is prohibited, penalized, or regulated by any federal, state, or local
government agency, authority, or unit.
Buyer may, at Buyer's sole expense, conduct an environmental site assessment
(the "Assessment") by qualified environmental consultants acceptable to Seller
to determine the Environmental Condition of the Land and Improvements.
However, Buyer agrees that the Assessment which may be conducted by Buyer shall
not be conducted until such time that all of the Agreement Conditions and the
Funding Condition (which are defined in Paragraph 15 of this Agreement) have
been satisfied. A copy of the Assessment shall be provided promptly by Buyer
to Seller. Buyer may, at Buyer's sole expense, conduct any additional test
studies and investigations recommended in the Assessment. Buyer may, at
Buyer's sole expense,
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undertake such investigation and remediation of the Land and Improvements as
may be necessary or appropriate to comply with applicable laws, regulations or
government orders regarding the Environmental Condition of the Land and
Improvements or as may be recommended by the environmental consultants. Buyer
agrees that Seller shall have no obligation to perform the remediations of the
Land and Improvements recommended by the environmental consultants in the
Assessment, if any, and Buyer shall defend, indemnify, and hold harmless Seller
in the same manner as set forth in Paragraph 11 of this Agreement from any
liabilities to any party or entity or government agency for, with respect to,
or as a result of the Environmental Condition of the property irrespective of
whether the Assessment is conducted before or after the Second Closing.
At such time that the Agreement Conditions and the Funding Condition have
been satisfied, Seller shall provide Buyer with access to the Land and
Improvements to perform the Assessment, any additional tests, studies and
investigations recommended in the Assessment, and any remediation of the Land
and Improvements. In the event that Buyer exercises its right to take such
action, Buyer shall, to the extent practicable, undertake these actions in a
manner that will not unreasonably disrupt the business operations conducted on
the Land. After the completion of any investigation or remediation undertaken
by Buyer, Buyer shall restore the surface and existing structures to a
condition substantially similar to
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that existing at the time immediately prior to such action taken by Buyer.
Buyer shall indemnify and hold Seller harmless from and against any loss,
cost, expense or liability arising, directly or indirectly, from the
performance of the Assessment, additional tests, studies, and investigations,
and any remediation performed by Buyer, its agents, employees and contractors.
(10) Access to information regarding the Property.
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Seller agrees to make available to Buyer any information, documents, surveys
or reports within Seller's possession or control regarding any environmental
assessments or audits of the Property, underground storage tanks located on the
Property or engineering reports or assessments regarding the Property.
(11) Indemnification.
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Buyer shall defend, indemnify and hold harmless Seller from any and all
liabilities (including strict liability), actions, demands, penalties, losses,
out-of-pocket costs or expenses (including, without limitation, reasonable
consultant's fees, investigation and laboratory fees, attorney's fees and
expenses and remedial costs), suits, clean-up costs, costs of any settlement or
judgment and claims of any and every kind whatsoever which may now or in the
future be paid, incurred or suffered by or asserted against Seller by any
person or entity or government agency for, with respect to, or as a result of
the Environmental Condition of the Property or Buyer's actions or omissions
after the Closing.
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The representations, covenants, warranties and indemnifications contained in
this paragraph shall survive the Closing.
(12) Seller's representations and warranties.
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Seller hereby represents and warrants to Buyer that:
(a) Seller is a partnership duly organized, validly existing and in good
standing under the laws of the state of Louisiana and has full power and
authority to own and operate its properties, to lease the properties it leases,
and to carry on and conduct its business as it is now being carried on and
conducted.
(b) Seller has full power and authority to enter into this Agreement and to
consummate fully the transactions contemplated herein and that any and all
necessary partnership action and proceedings for consummation of such
transactions have been taken. Seller will deliver to Buyer at the Closing, any
and all certificates, resolutions, powers of attorney or other documents deemed
necessary by the Buyer to document the due authorization of the actions taken
by the Seller pursuant to this Agreement (the "Seller's Authorization
Documents").
(c) Seller's performance hereunder shall not constitute a breach of any
other agreement to which Seller is a party which default, either singly or in
combination with other defaults, would have a material adverse effect on
Seller's ability to sell the Property.
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(d) Consummation of the transactions contemplated in this agreement will not
result in a violation by Seller of any applicable federal, state or local law,
statute, regulation or ordinance or any judgment or decree to which Seller is
subject.
(e) Except as disclosed on Exhibit "G" hereto, there are no consents of
third parties which are necessary in order for Seller to carry out and
consummate the transactions contemplated by this Agreement.
(f) Seller is not a party to any material action, suit, arbitration,
governmental investigation or other administrative proceeding pending, or, to
Seller's knowledge, threatened, which challenges Seller's right to sell the
Property.
The representations and warranties set forth in this Paragraph 12 shall
survive the Closing.
(13) Buyer's Representations and Warranties.
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Buyer hereby represents and warrants to Seller that:
(a) Buyer is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and is in good standing as a
foreign corporation in the State of Louisiana.
(b) Buyer has full power and authority to enter into this Agreement and to
consummate the transactions contemplated herein and any and all necessary
corporate action and proceedings for consummation of such transactions have
been taken. Buyer will deliver to Seller at the Closing, any and all
certificates,
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resolutions, powers of attorney or other documents deemed necessary by Seller
to document the due authorization of the actions taken by the Buyer pursuant to
this Agreement (the "Buyer's Authorization Documents").
(c) Consummation of the transactions contemplated in this Agreement will not
result in a violation by Buyer of any applicable federal, state or local law,
statute, regulation or ordinance or any judgment or decree to which Buyer is
subject.
(d) Buyer is not a party to any material action, suit, arbitration,
governmental investigation or other administrative proceeding pending, or, to
Buyer's knowledge, threatened, which challenges Buyer's right to purchase the
Property.
(e) Buyer has not received notice of any violations, which have not been
cured, of any federal, state or local laws, statutes, orders or processes or
arbitrator's orders applicable to it and the operation of its business on the
Property which, either singly or in the aggregate, would have a material
adverse effect on Buyer's ability to purchase the Property.
The representations and warranties set forth in this Paragraph 13 shall
survive the Closing.
(14) Prorations and adjustments.
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All ad valorem taxes for 1994 shall be paid by Buyer, and the Buyer shall
assume the obligation to pay the taxes in full at such time as they become due.
Rents due under the Leases shall be prorated as of the Closing Date.
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(15) Move to Port Site.
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Seller has been engaged in negotiations with the Caddo-Bossier Parishes Port
Commission (the "Port Commission") and the Industrial Development Board of the
Parish of Caddo, Inc. (the "IDB") regarding the sale of the Land and
Improvements to the IDB/Port Commission for $9,000,000 and the relocation of
substantially all of the manufacturing and business operations conducted at the
Property to a new facility (the "Port Facility") to be constructed at the Port
Commission's port on Red River. A letter of intent dated July 12, 1994, has
been executed by Seller and the Caddo-Bossier Parish Port Commissions, a copy
of which letter is attached hereto as Exhibit "H." Buyer agrees that the
obligations imposed on Buyer in this Agreement are subject to the terms and
conditions of the July 12, 1994 letter of intent attached hereto as Exhibit
"H."
Buyer has entered into this Agreement in the expectation that it will be able
to (a) enter into a definitive agreement or agreements with the IDB pursuant to
which the IDB will commit to purchase the property from Buyer at a purchase
price of $9,000,000 subject only to the condition that title be good and
merchantable and that the Land and Improvements be free of "Environmental
Conditions" which are in violation of applicable local, state or federal law or
regulation, (b) enter into a definitive agreement with the IDB pursuant to
which the IDB will commit to lease the Land and Improvements to Buyer for the
period during which the
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Buyer is preparing the Port Facility for occupancy at a rent not to exceed
$45,000 per month and pursuant to which the IDB will lease a portion of the
Land and Improvements to Buyer for use subsequent to the move by Buyer to the
Port Facility, and (c) enter into a definitive agreement with the Port
Commission pursuant to which the Buyer will commit to obtain a twenty year
leasehold estate coupled with a nominal price purchase option for a prepaid
rent of approximately $1,000,000 (collectively referred to herein as the
"Agreement Conditions"). In order to complete the purchase commitment
contemplated under subparagraph (a) above, the IDB will need to secure and
confirm funding for the $9,000,000 necessary to enable the IDB to purchase the
Land and Improvements (the "Funding Condition"). For purposes of this
Agreement, the Funding Condition shall be deemed to have been satisfied at such
time that the IDB confirms to Buyer by written notice that it stands ready,
willing and able to consummate the purchase of the Land and Improvements for
$9,000,000, subject to such other terms and conditions as may be negotiated
between the IDB and Buyer. After the Effective Date, Buyer agrees to
cooperate with Seller in Seller's efforts to satisfy the Agreement Conditions
and the Funding Condition for the purpose of facilitating the proposed move
to the port site. Following the execution hereof, Buyer agrees to proceed
with reasonable diligence and dispatch to complete the negotiations with the
IDB and the Port Commission regarding the satisfaction of the
Agreement Conditions and the Funding Condition.
(16) Closing.
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(a) The consummation of the purchase and sale of the Property contemplated
by this Agreement shall take place in two separate closings. The first closing
("First Closing") shall take place on or before the date the transactions
contemplated in that certain
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Stock Exchange Agreement between Westland Oil Company, Inc. and Quaker State
Corporation dated as of August 3, 1994 are consummated (the "First Closing
Date") at such time and place as the Seller and Buyer may agree upon.
(b) At the First Closing, Seller shall deliver to Buyer the following:
i. the Bill of Sale; and
ii. the Seller's authorization documents.
(c) At the First Closing, Buyer shall deliver to Seller the following:
i. the purchase price attributable to the Fixtures and Equipment; and
ii. the Buyer's authorization documents.
(d) The second closing shall take place on a date (the "Second Closing
Date") agreeable to Seller and Buyer within twenty-one (21) days of written
notice from Seller to Buyer that the Funding Condition and Agreement Conditions
have been satisfied. At the Second Closing, Seller shall deliver to Buyer the
following:
i. the Deed;
ii. the Assignment; and
iii. the Seller's authorization documents.
(e) At the Second Closing, Buyer shall deliver to Seller the following:
i. the purchase price attributable to the Land and Improvements, less the
rent proration; and
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ii. the Buyer's authorization documents.
(17) Default by Buyer.
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In the event that Buyer defaults hereunder, Seller may avail itself of such
remedies as are provided by operation of law. Seller is specifically granted
the right to sue for specific performance of the Buyer's obligations. In the
event the Buyer should default under any of the provisions of this Agreement
and the Seller should employ attorneys or incur other expenses for the
collection of amounts payable hereunder or the enforcement of performance or
observance of any obligation or agreement on the part of Buyer contained
herein, the Buyer agrees that it will pay to the Seller the reasonable fees of
such attorneys and reimburse the Seller for such other expenses and amounts
paid by the Seller.
(18) Default by Seller.
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In the event that Seller defaults hereunder, Buyer may avail itself of such
remedies provided by operation of law. Buyer is specifically granted the right
to sue for specific performance of the Seller's obligations. In the event the
Seller should default under any of the provisions of this Agreement and the
Buyer should employ attorneys or incur other expenses for the collection of
amounts payable hereunder or the enforcement of performance or observance of
any obligation or agreement on the part of Seller contained herein, the Seller
agrees that it will pay to the Buyer the reasonable fees of such attorneys and
reimburse the Buyer for such other expenses and amounts paid by the Buyer.
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(19) Casualty loss.
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If the Property or any part thereof suffers minor damage prior to closing
from fire or other casualty, Seller shall repair same prior to closing at
Seller's sole cost and expense, and the Closing shall be delayed a reasonable
period of time to allow the repairs. If the Property suffers major damage
prior to Closing, Buyer shall proceed to Closing, whereupon the proceeds of any
insurance covering such damage shall be assigned to Buyer at Closing with no
reduction or abatement in the purchase price. For purposes of this Agreement,
major damage shall mean damage or destruction, the cost of repairing which
exceeds $100,000 and minor damage shall mean damage or destruction, the cost of
repairing which is $100,000 or less.
(20) Brokerage.
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Each party hereto warrants to the other party that it has not engaged the
services of a broker or finder in connection with this transaction and that it
will indemnify each other party to this Agreement from and against any claim
for a brokerage commission, finder's fee, or the like from anyone claiming that
such a commission is owed by virtue of a contract with the party against whom
indemnification is sought under this paragraph.
(21) Effective Date.
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The effective date of this Agreement (the "Effective Date") shall be the date
this Agreement is executed by the last to sign of the Seller and Buyer.
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(22) Notices.
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All notices, requests and communications ("Notice") under this Agreement
shall be given in writing and shall be delivered by U. S. Express Mail, Federal
Express or other overnight courier to the Seller and Buyer at the addresses
indicated below:
(a) If to Seller: Moon Realty
ATTENTION: Mr. L. David Myatt
P.O. Box 8098
Shreveport, LA 71148
with a copy to:
Cook, Yancey, King & Galloway
ATTENTION: Jerald R. Harper
P. O. Box 22260
Shreveport, LA 71120-2260
(b) If to Buyer: Quaker State Corporation
255 Elm Street
Oil City, PA 16301
ATT: Herbert M. Baum
Telecopier No.: (814) 676-7920
with a copy to:
Kirkpatrick & Lockhart
1500 Oliver Building
Pittsburgh, PA 15222
ATT: Charles J. Queenan, Jr., Esq.
Telecopier No.: (412) 355-6501
(23) Assignment, Successors and Assigns.
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Buyer may assign this Agreement without Seller's prior written consent,
provided, however, such assignment shall not relieve Buyer of any of its
obligations hereunder. This Agreement shall be binding upon and inure to the
benefit of the successors and permitted assigns of the parties hereto.
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(24) Entire Agreement; Modification.
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This Agreement, as defined in the recitals hereto, and its Exhibits
constitute the entire agreement by and between the parties hereto with respect
to the subject matter contained herein and therein, and except as set forth
herein and therein, no representations, warranties or agreements, either oral
or written, with respect to such matters shall be binding upon either of the
parties. This Agreement may not be modified or amended except by an instrument
in writing signed by or on behalf of the parties hereto.
(25) Interpretation.
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The headings and titles to provisions contained herein are for convenience
only, and shall not be deemed to modify or affect the rights and duties of the
parties to this Agreement.
(26) Counterparts.
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This Agreement may be executed in two or more counterparts each of which
shall be deemed an original but all of which together shall constitute one and
the same instrument.
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IN WITNESS WHEREOF, the Seller and Buyer have signed this Agreement in the
presence of the undersigned competent witnesses on the dates set forth beneath
their respective signatures.
WITNESSES: MOON REALTY
/s/ Jerald R. Harper By: /s/ L. David Myatt
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L. David Myatt, Partner
/s/ Ben Warren, Jr. Date: 9/30/94
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By: /s/ Dennis M. Myatt
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Dennis M. Myatt, Jr., Partner
Date: 9/30/94
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QUAKER STATE CORPORATION
/s/ Gerald W. Callahan By: /s/ Conrad A. Conrad
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Date: 9/30/94
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/s/ Herbert M. Baum
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LIST OF OMITTED EXHIBITS - AGREEMENT TO BUY AND SELL
A. Description of Land to be Purchased and Sold
B. List of Leases
C. Description of Equipment and Fixtures to be Purchased and Sold
D. Form of Limited Warranty Deed
E. Form of Bill of Sale
F. Form of Assignment of Rights under Leases
G. List of Necessary Consents
H. Letter of Intent Dated July 12, 1994 Between Seller and Caddo-Bossier
Parish Port Commission
Quaker State hereby agrees to furnish supplementally to the Commission
upon request a copy of any omitted exhibit.