Exhibit 10.52
EXHIBIT A
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ASSET PURCHASE AGREEMENT
dated as of
March 7, 2002
between
BORDEN CHEMICALS AND PLASTICS OPERATING
LIMITED PARTNERSHIP
and
FORMOSA PLASTICS CORPORATION, DELAWARE
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TABLE OF CONTENTS
PAGE
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1. DEFINITIONS ..............................................................l
1.1 Definitions .......................................................1
2. PURCHASE AND SALE OF THE ASSETS AND LIABILITIES ..........................6
2.1 Sale and Transfer of the Assets ...................................6
2.2 The Excluded Assets ...............................................7
2.3 Liabilities .......................................................8
2.4 Purchase Price ....................................................8
2.5 Prorations .......................................................10
2.6 Closing ..........................................................11
2.7 Limitation of Liability ..........................................12
3. NONASSIGNABLE INTERESTS AND CURE PAYMENTS ...............................12
4. REPRESENTATIONS AND WARRANTIES OF SELLER ................................13
4.1 Organization .....................................................13
4.2 Financial Statement ..............................................13
4.3 Authority ........................................................13
4.4 Real Property ....................................................13
4.5 Title to Other Assets ............................................13
4.6 Assumed Contracts ................................................13
4.7 No Violation of Laws or Permits ..................................13
4.8 Pending or Threatened Litigation .................................14
4.9 Employees ........................................................14
4.10 Employee Benefits ................................................14
4.11 Environment Matters ..............................................14
4.12 Supply Contracts .................................................15
4.13 Customer Contracts ...............................................15
4.14 Sufficiency of Assets ............................................15
5. REPRESENTATIONS AND WARRANTIES OF ACQUIROR ..............................15
5.1 Organization and Qualification ...................................15
5.2 Authority ........................................................15
5.3 Conflicts and Defaults ...........................................15
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TABLE OF CONTENTS
(continued)
PAGE
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5.4 Consents and Approvals............................................15
5.5 Disclosure of Information.........................................16
5.6 Brokers and Finders...............................................16
5.7 Funds for the Acquisition.........................................16
6. CERTAIN ADDITIONAL COVENANTS OF SELLER AND ACQUIROR......................16
6.1 Disclosure Supplements............................................16
6.2 Satisfaction of Conditions........................................16
6.3 Further Assurances................................................17
6.4 Employee Matters..................................................17
6.5 Notice of Breaches................................................18
6.6 Access to the Business, Books, Records and Personnel..............18
6.7 Continued Operation and Maintenance...............................18
6.8 Casualty and Condemnation.........................................19
6.9 Selection of Confidential Contracts...............................19
6.10 Illiopolis Plant Volume...........................................20
6.11 Cooperation.......................................................20
6.12 No Transfer of Assets.............................................20
6.13 Geismar, Louisiana................................................20
6.14 Computer Access...................................................20
6.15 Borden Environmental Indemnity....................................20
6.16 Alternative Transaction Provisions................................21
6.17 Broker and Finders................................................21
7. BANKRUPTCY COURT APPROVAL................................................21
7.1 Approval..........................................................21
7.2 Bid Procedures Motion and Order...................................21
7.3 Sale Motion.......................................................22
7.4 Breakup Fee; Expense Reimbursement................................23
8. CONDITIONS TO THE TRANSFER...............................................23
8.1 Conditions to the Obligations of Each Party.......................23
8.2 Conditions to the Obligations of Seller...........................23
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TABLE OF CONTENTS
(continued)
PAGE
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8.3 Conditions to the Obligations of Acquiror.........................24
9. TERMINATION; REMEDIES;...................................................25
9.1 Termination.......................................................25
9.2 Effect of Termination.............................................26
9.3 Remedies..........................................................26
10. TAX MATTERS..............................................................27
10.1 Transfer Taxes....................................................27
11. NO SURVIVAL..............................................................27
11.1 Survival of Representations and Warranties........................27
12. MISCELLANEOUS............................................................27
12.1 Entire Agreement..................................................27
12.2 Notices...........................................................27
12.3 Amendments; No Waivers............................................28
12.4 Expenses..........................................................28
12.5 Successors and Assigns............................................29
12.6 Certain Interpretive Matters......................................29
12.7 Governing Law and Jurisdiction....................................29
12.8 Counterparts; Effectiveness.......................................29
12.9 Severability......................................................29
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ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT (this "Agreement") dated as of March 7, 2002,
between BORDEN CHEMICALS AND PLASTICS OPERATING LIMITED PARTNERSHIP, a Delaware
limited partnership ("Seller"), and FORMOSA PLASTICS CORPORATION, DELAWARE, a
Delaware corporation, ("Acquiror").
RECITALS:
A. Seller is engaged in the business of the research development,
manufacture, marketing, distribution and sale of products manufactured at a
plant located in Illiopolis, Illinois, which business utilizes certain research
equipment and books and records located at Geismar, Louisiana, but related to
the products manufactured at the Illiopolis Plant (the "Business").
B. On April 3, 2001, Seller, together with its subsidiary BCP Finance
Corporation, a Delaware corporation ("BCP") (Seller and BCP collectively
referred to herein as the "Debtors"), filed voluntary petitions for relief under
chapter 11 of the Bankruptcy Code, 11 U.S.C. (S)(S) 101-1330 (as now in effect
or hereafter amended, the "Bankrupcy Code") in the United States Bankruptcy
Court for the District of Delaware (the "Bankruptcy Court"), and the Debtors'
chapter 11 cases (the "Bankruptcy Cases") have been consolidated for procedural
purposes only and are being administered jointly as Case No. 01-1268 (PJW).
C. The Debtors are continuing in possession of their respective
properties and are operating their businesses as debtors in possession pursuant
to sections 1107 and 1108 of the Bankruptcy Code.
D. Seller desires to sell and Acquiror desires to purchase, pursuant
to section 363(b) of the Bankruptcy Code, certain of the assets used by Seller
in the conduct of the Business, and Seller desires to assume and assign to
Acquiror and Acquiror desires to accept, pursuant to section 365 of the
Bankruptcy Code, certain of the executory contracts to which Seller is a party,
all on the terms and subject to the conditions hereinafter set forth.
E. Seller and Acquiror have determined to enter into this Agreement
which, among other things, provides for Seller to sell, transfer and convey
("Transfer") to Acquiror, and Acquiror to purchase and acquire from Seller, all
of the Assets (as hereinafter defined).
NOW, THEREFORE, in consideration of the representations warranties,
covenants and agreements set forth in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledges Acquiror and Seller hereby agree as follows:
1. DEFINITIONS
1.1 Definitions. The following terms used in this Agreement, shall
have the following meanings:
"Accounts" has the meaning set forth in Section 2.1(h).
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"Acquiror" means Formosa Plastics Corporation, Delaware.
"Acquisition Proposal" means a proposal relating to any merger,
consolidation, business combination, sale or other disposition of one hundred
percent (100%) of the Assets of the Seller pursuant to one or more transactions,
or similar transaction involving one or more third parties and the Seller.
"Affiliate" means, with respect to any Person, any other Person who is
directly or indirectly controlling, controlled by or under common control with
such Person. For the purposes of this definition, the term "control," when used
with respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agreement" means this Asset Purchase Agreement, together with the
Schedules and Exhibits hereto, by and between Seller and Acquiror.
"Alternative Transaction" has the meaning set forth in Section 7.4.
"Assets" has the meaning set forth in Section 2.1.
"Assumed Contracts" has the meaning set forth in Section 2.1(d)
"BCP" has the meaning set forth in Recital "B"
"Bankruptcy Cases" has the meaning set forth in Recital "B"
"Bankruptcy Code" has the meaning set forth in Recital "B"
"Bankruptcy Court" has the meaning set forth in Recital "B"
"Bankruptcy Laws" means the United States Bankruptcy Code, as amended,
the Federal Rules of Bankruptcy Procedure, as amended, and the local rules of
the Bankruptcy Court.
"Beneficiary" has the meaning set forth in Section 2.5(d).
"Bid Procedures Order" has the meaning set forth in Section 7.2.
"Breakup Fee" has the meaning set forth in Section 7.4.
"Business" has the meaning set forth in Recital "A."
"Business Day" means any day that is not a Saturday, a Sunday or a
day on which financial institutions in the City of New York, New York are
permitted or required to close.
"Closing" has the meaning set forth in Section 2.6.
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"Closing Date" has the meaning set forth in Section 2.6.
"Confidential Contracts" has the meaning set forth in Section 6.
"Consent" means any consent, waiver, approval, order or authorization
of, or registration, declaration or filing with or notice to, any Governmental
Entity or other Person.
"Customer Rebates" has the meaning set forth in Section 2.5(b)(_).
"Debt" means any obligations for borrowed money.
"Debtors" has the meaning set forth in Recital "B".
"Earnest Money Deposit" has the meaning set forth in Section 2_(d).
"Employees" means all individuals employed exclusively in the
Operation of the Business immediately prior to the Closing. The Employees as of
the date hereof are listed on Schedule 1.1.
"Environmental Assessment" has the meaning set forth in Section 6.6.
"Environmental Laws" means any Federal, Illinois, county or local
statute, regulation or ordinance which relates to Hazardous Materials,
pollution, pollutants, contaminant or the protection of the environment,
including without limitation any governmental law, regulation, rule or ordinance
relating to the generation, use, treatment, storage, transport, release,
discharge, emission or disposal of Hazardous Materials, pollution, pollutants or
contaminants, and shall specifically include the Clean Water Act, also known as
the Federal Water Pollution Control Act, U.S.C.(S)1251 et. seq., as amended by
the Water Quality Act of 198_, Publ. L. No. 100-4 (Feb.4, 1987), the Toxic
Substances Control Act, 15 U.S.C.(S)2601 et. seq , the Clean Air Act, 42
U.S.C.(S)7401 et. seq., as amended, the Safe Drinking Water Act, 42 U.S.C.
(S)300f et. seq, the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C.(S)9601 et. seq., the Superfund Amendment and
Reauthorization Act of 1986 ("SARA"), Public Law 99-499, 100 Stat. 1613, the
Solid Waste Disposal Act as amended by the Resource Conservation and Recovery
Act ("RCRA") as amended by the Solid and Hazardous Waste Amendments of 1984, 42
U.S.C.(S) 6901 et. seq., the Occupational Safety and Health Act ("OSHA"), 29
U.S.C.(S) 651 et. seq., the Rivers and Harbors Act, 33 U.S.C.(S) 401 et. seq,
and Illinois Environmental Protection Act, 415 ILCS 5/1 et. seq., and the rules
and regulations promulgated thereunder pursuant to the foregoing statutes.
"Equipment Charges" has the meaning set forth in Section 2.5(b)(iii).
"Expense Reimbursement" means no more than Two Hundred Fifty Thousand
Dollars ($250,000.00) of any and all actual expenses, costs, and other charges,
including without limitation all legal, accounting and environmental consulting
fees, due diligence costs, and other similar expenses, incurred by Acquiror in
connection with and relating to the negotiation, execution and consummation of
this Agreement, the sale transaction contemplated herein and all related
actions; provided, however, this definition shall not include legal expenses
incurred with respect to any adversarial proceedings against the Seller by
Acquiror.
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"General Partner" means BCP Management, Inc., a Delaware corporation,
in its capacity as general partner of Seller.
"Governmental Entity" means any Foreign or United States federal,
state, local or municipal government, court, administrative agency or commission
or other governmental or other regulatory authority or agency.
"Hazardous Materials" means any waste or other substance including any
mixture or solution that is listed, defined, designated, or classified as, or
otherwise determined to be, hazardous, radioactive, or toxic or a pollutant or a
contaminant under or pursuant to any Environmental Law, and specifically
including petroleum and all derivatives thereof or synthetic substitutes
therefor and asbestos or asbestos-containing materials.
"Illiopolis Plant" means Seller's PVC Resins production facilities
located on the Real Property.
"Inventory" has the meaning set forth in Section 2.1(c).
"Laws" means all applicable laws, regulations, rules, judgments,
orders and decrees of Governmental Entities.
"Lien" means, with respect to any property or asset, any mortgage,
lien, claim, deed of trust, pledge, security interest, security agreement,
guarantee, option, easement, servitude, right-of-way, encroachment,
hypothecation, charge, obligation, restriction, interest, or any other
encumbrance.
"Material Adverse Effect" means such state of facts, event, change or
effect as has had, or would reasonably be expected to have, a material adverse
effect (i) on the businesses, results of operations, or financial condition of
the Business taken as a whole, other than events, changes or developments
relating to the economy in general or resulting from industry-wide developments
affecting Persons in businesses similar to the Business, or (ii) on the ability
of Seller to consummate the transactions contemplated by this Agreement.
"Nonassignable Assets" has the meaning set forth in Section 3.1.
"Non-Transferred Employees" has the meaning set forth in Section
6.4(c).
"Order Authorizing Severance Plan" means the Order Authorizing Debtors
and Debtors in Possession to Implement Key Employee Retention Bonus Plan and
Severance Plan issued by the Judge in the Bankruptcy Cases on August 1, 2001.
"PVC Resins" means polyvinyl chloride resins produced by Seller at the
Illiopolis Plant.
"Payee" has the meaning set forth in Section 2.5(d).
"Payor" has the meaning set forth in Section 2.5(d).
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"Permit" means any license, franchise, permit, application for permit,
concession, approval or registration from, of or with a Governmental Entity
required to own and/or operate the Illiopolis Plant as currently constituted.
"Permitted Liens" means (i) Liens listed or described on Schedule
4.4. (ii) Liens related to Real Property Taxes not yet due or payable, and (iii)
Liens that are created, suffered or assumed by Acquiror.
"Person" means an individual, corporation, partnership, 1imited
liability company, association, trust or other entity or organization, including
without limitation, a Governmental Entity.
"Production Schedule" has the meaning set forth in Section 6.10.
"Proration Items" has the meaning set forth in Section 2.5(a).
"Purchase Price" has the meaning set forth in Section 2.4(a).
"Qualified Bid" means (i) this Agreement, or (ii) an Acquisition
Proposal:
(a) the value of which is equal to or greater than the Upset Price;
(b) that has substantially the same terms and conditions as this
Agreement (as determined in Seller's reasonable discretion);
(c) that is accompanied by satisfactory evidence to Seller of
committed financing or other ability to perform and a good faith
cash deposit in the amount of One Million Dollars
($1,000,000.00), which is refundable, but only on the terms set
forth in the Bid Procedures Order;
(d) that does not contain due diligence, financing or other
contingencies that would allow the Acquisition Proposal to be
terminated prior to its closing except for such contingencies
that are substantially similar to the contingencies set forth in
this Agreement; and
(e) such other conditions and requirements as set forth in the Bid
Procedures Order.
"Qualified Bidder" means (i) Acquiror; or (ii) any third party
submitting a Qualified Bid.
"Real Property" has the meaning set forth in Section 2.1(a).
"Real Property Taxes" has the meaning set forth in Section 2.5(b)(iv).
"Recipient" has the meaning set forth in Section 2.5(d).
"Sale Order" has the meaning set forth in Section 7.3.
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"Seller" means Borden Chemicals and Plastics Operating Limited
Partnership, a Delaware limited partnership.
"Severance Benefits" has the meaning set forth in Section 6.4(d)
"Similar Employment" has the meaning set forth in Section 6.4(_).
"Tangible Property" has the meaning set forth in Section 2.1(b).
"Tangible Property Taxes" has the meaning set forth in Section
2.5(b)(v).
"Tax Return" means any return, report, statement, information
statement or similar document required to be filed with respect to taxes.
"Transfer" has the meaning set forth in Recital "E."
"Upset Price" has the meaning set forth in Section 7.2(c).
"Utility Charges" has the meaning set forth in Section 2.5(b)(i).
"Vendor Charges" has the meaning set forth in Section 2.5(b)(vi_).
"Vendor Rebates" has the meaning set forth in Section 2.5(b)(vi)
2. PURCHASE AND SALE OF THE ASSETS AND LIABILITIES
2.1 Sale and Transfer of the Assets. Subject to the conditions to
Closing set forth in Section 8 of this Agreement, at the Closing Seller will
transfer to Acquiror all of the manufacturing facilities and assets owned by
Seller and located at or attributable solely to the Illiopolis Plant or the
Business and all of the research equipment owned by Seller and related to the
Business located at Geismar, Louisiana or necessary for the continued operation
of the Illiopolis Plant as more specifically described below (such assets being
referred to as the "Assets"):
(a) Real Property. The real property listed or described in
Schedule 2.1(a) (the "Real Property").
(b) Tangible Property. All tangible property, plant and
equipment, including without limitation, buildings, structures, fixtures,
machinery, motor vehicles, furniture, computers, printers, tools, equipment,
supplies, furnishings owned by Seller and related to the Business as currently
conducted at the Illiopolis Plant including the research equipment related to
the products manufactured at the Illiopolis Plant, all to the extent and only as
set forth on Schedule 2.1(b) (collectively, the "Tangible Property").
(c) Inventory. All inventory of raw materials, work-in-progress,
finished product and spare parts (the "Inventory") owned by Seller as of the
Closing Date located at the Illiopolis Plant and/or at any offsite warehouses,
consignment sites or other locations listed on Schedule 2.1(c) for use in
connection with the Business.
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(d) Contract Rights. To the extent transferable to Acquiror at
Closing, all right, title and interest of Seller relating to the Business at the
Closing in and to certain contracts, as set forth on Schedule 2.1(d), as amended
pursuant to Section 6.9, (the "Assumed Contracts"). Acquiror will not assume or
accept any of Seller's contract rights or contract obligations and liabilities
other than those listed on Schedule 2.1 (d) and with respect to the Confidential
Contracts, those contracts accepted by Acquiror pursuant to Section 6.9.
(e) Permits. All Permits of Seller used in the operation of the
Illiopolis Plant or otherwise necessary for the operation of the Business which
are set forth on Schedule 2.1(e).
(f) Intangible Assets. All intellectual property used in the
conduct of or related to the Business including, without limitation, trademarks,
trade names, know-how, patents, plant specific, or plant supported software
subject to the terms of any license granted to Seller, goodwill associated
therewith, licenses and sublicenses granted and obtained with respect thereto,
and rights thereunder, remedies against infringements thereof, and rights to
protection of interests therein under the laws of all jurisdictions, including
items listed on Schedule 2.1(f).
(g) Books and Records. All customer lists, customer files,
technical service and product development records, environmental records,
accounting records, engineering and maintenance files, vendor files, employee
files, aging reports and associated records of the Accounts, production and
shipping records and all other books and records of the Business except to the
extent set forth in Section 2.2(b).
(h) Accounts Receivable. All accounts receivable owned to Seller
as of the Closing arising from the sale of PVC Resins produced by Seller at the
Illiopolis Plant and that are not past due (i.e., not outstanding by more than
fifteen (15) days beyond the payment terms of the Assumed Contracts) as of the
Closing Date (the "Accounts").
(i) Research Equipment. All of the assets related to the research
facility of the Business located at Geismar, Louisiana, all to the extent and
only as set forth on Schedule 2.1(i).
2.2 The Excluded Assets. Seller shall not sell and Acquiror shall not
purchase or acquire and the Assets shall not include:
(a) Any cash or cash equivalents owned or held by Seller's
bankruptcy estate;
(b) Books and records of the General Partner, including but not
limited to, minutes of meetings of directors and stockholders of the General
Partner, tax returns and records, books of account and ledgers (except to the
extent specifically relating to the Business and such other records having to do
with Seller's organization (although access and the ability to copy these
documents shall be made available to Acquiror; provided, that, Acquiror will
pay all reasonable costs in connection therewith);
(c) All accounts, notes and other receivables of the Seller
(other than the Accounts);
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(d) All prepaid expenses, advance payments, deposits and other
similar assets including, without limitation, prepaid deposits with suppliers
and utilities.
(e) All of the (i) issued and outstanding stock of Mor_ochem,
Inc, and (ii) equity interests of BEV Management, LLC owned by Seller;
(f) All intracompany and intercompany accounts of Seller;
(g) All claims of Seller against third parties (including,
without limitation, (i) all claims of Seller arising from incidents occurring
prior to the Closing Date, (ii) those claims not yet ascertained and/or
liquidated and (iii) any avoidance or preference actions) relating to operations
of the Business for the period prior to the Closing Date, except for such claims
arising from Proration Items paid by Aquiror;
(h) All right, title and interest in and use of any "Bord_n"
name, Seller name and any derivative thereof including, without limitation, all
trademarks service marks, trade dress, logos, domain names, trade names and
corporate names in the United States and all other nations throughout the world
except with respect to Acquiror's use of the existing inventory of packaging
supplies at the Illiopolis Plant acquired by Acquiror; and
(i) All intellectual property of Seller currently utilized in
Seller's production facilities other than the Illiopolis Plant but only if not
necessary for operation of the Business as currently operated (including,
without limitation, all J.D. Edwards Labworks and Railtrac software and any
shrink wrap licenses).
2.3 Liabilities. Subject to Section 3 and Section 2.5, at Closing,
Seller will retain, and Acquiror will not assume, any liabilities of the
Business, except for liabilities under Assumed Contracts which arise after the
Closing Date.
2.4 Purchase Price.
(a) In consideration of the sale, transfer, conveyance,
assignment and delivery of the Assets, and in reliance upon the representations
and warranties made herein by Seller, Acquiror shall pay to Seller a Purchase
Price (together, the "Purchase Price") comprised of the sum of the following
amounts: (i) Fifteen Million Dollars for all Assets other than Inventory and
Accounts; (ii) an amount not to exceed $11,300,000 (which amount is comprised of
$6,900,000 for finished product inventory, $2,000,000 for raw material inventory
and $2,400,000 for spare parts inventory) for any Inventory actually accepted by
Acquiror pursuant to Section 2.4(b); (iii) an amount not to exceed $8,700,000
for the Accounts actually accepted by Acquiror under Section 2.4(c), and (iv)
the costs of severance payments to be made to the Non-Transferred Employees
calculated pursuant to Section 6.4(d); provided that such total amount shall be
reduced by any adjustments pursuant to Section 8.3(f). The total Purchase Price
based on the above, if Acquiror elects to purchase Inventory of $11,3000,000 and
Accounts of $8,700,000 shall be Thirty Five Million Dollars ($35,000,000) plus
the severance costs identified above. The Purchase Price shall be paid to the
Seller at Closing by wire transfer. Except as set forth in this Agreement, the
Purchase Price shall not be subject to offset, counterclaim or deduction of any
type or kind.
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(b) On the day immediately prior to the Closing Date, seller
shall cause a physical inventory of the Inventory as of the Closing Date to be
taken using the individuals employed in the Business and shall prepare a report
which shall be delivered to Acquiror. Such physical inventory will be observed
by representatives of Acquiror. The report to be rendered on the physical
inventory shall be based upon procedures reasonably acceptable to Seller and
Acquiror. Acquiror may, in its sole discretion, reject and the Seller shall
retain any Inventory and the value of such Inventory shall be removed from the
Inventory valuation report. Such rejected Inventory will remain Seller's
property and shall be removed at Seller's expense from the Illiopolis Plant
within thirty (30) days following Closing. The value of the Inventory,
determined in accordance with this Section 2.4(b), as mutually, agreed to
between the parties, will be definitive for purposes of valuing the Inventory in
connection with determining the Purchase Price. In the event Seller and Acquiror
are unable to agree on the valuation of the Inventory before Closing then Buyer
may reject and Seller shall retain such disputed inventory. The fees, costs and
expenses of conducting such physical inventory and preparing the report, shall
be borne equally by Seller and Acquiror. To facilitate continuous operation of
the Illiopolis Plant after Closing, if Closing is scheduled to occur on or
before April 15, 2002, Seller shall have a minimum of 14 days of inventory of
VCM and VAM either at the Illiopolis Plant or on route to the Illiopolis Plant
based on current finished product production volumes (of which 7 days of
inventory shall be located at the Illiopolis Plant). Notwithstanding anything in
this Section to the contrary, Buyer agrees to irrevocably purchase at Closing
all such VCM and VAM inventory at the contracted third party price.
(c) On the day immediately prior to the Closing Date, Seller and
Acquiror shall mutually determine the book value of the Accounts as of the
Closing Date and Acquiror shall determine, in its sole discretion, which
Accounts it will accept. Any Accounts that Acquiror decides not to accept shall
remain the property of the Seller. Such agreeement shall be definitive for
purposes of valuing the Accounts in connection with determinig the Purchase
Price.
(d) Within three (3) Business Days from the date of ____
signature of this Agreement, Acquiror will place into escrow earnest money in
the amount of One Million Dollars ($1,000,000.00) (the "Earnest Money Deposit")
pursuant to the requirements of the Bid Procedures Order. Such Earnest Money
Deposit, together with all interest earned thereon, shall not constitute an
asset of the Debtors or their estates and shall be held in trust and escrow in a
separate interest bearing account containing no other funds of Debtors pursuant
to a Trust and Escrow Agreement substantially in the form set forth in Schedule
2.4(d) pending the Closing. The amount of the Earnest Money Deposit, together
with all interest earned thereon, shall be credited against the Purchase Price
at Closing.
2.5 Prorations.
(a) At Closing, Utility Charges (to the extent that meter
readings cannot be obtained on the Closing Date), Equipment Charges, Real
Property Taxes, Tangible Property Taxes, Customer Rebates, Vendor Charges, and
Vendor Rebates, including, without limitation, accruals or prepayments thereof
(all as individually defined below and collectively called the "Proration
Items"), shall be prorated directly between the Seller and the Acquiror as
provided in this Section 2.5.
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(b) For purposes of this Agreement, the capitalized terms set
forth below shall have the following meanings:
(i) "Utility Charges" shall mean water, sewer, electricity,
gas and other utility charges, if any, applicable to the Illiopolis Plant;
(ii) "Customer Rebates" shall mean volume rebates, end-of-
year discounts and similar matters offered by Seller to purchasers of PVC Resins
under the Assumed Contracts which have not been paid as of Closing and which are
properly allocated in part to a time period prior to Closing and in part to a
time period after Closing based on the ratio of the volume and actual cost of
such Customer Rebates before and after Closing
(iii) "Equipment Charges" shall mean rental charges payable
or receivable and other payments or receipts applicable to the equipment of the
Business;
(iv) "Real Property Taxes" shall mean ad velorem taxes
imposed upon Seller with respect to the Real Property, general assessments
imposed with respect to the Real Property and special assessments upon the Real
Property;
(v) "Tangible Property Taxes" shall mean ad velorem taxes
imposed upon the Assets other than the Real Property;
(vi) "Vendor Rebates" shall mean vendor rebates relating to
the Business which are properly allocable in part to a time period prior to
Closing and in part to a time period after Closing based on the ratio of the
volume and actual cost of the applicable inventory purchases to Seller and
Acquiror, net of all discounts and other purchase price adjustments of any type
other than the actual vendor rebate itself; and
(vii) "Vendor Charges" shall mean all obligations of Seller
under the Assumed Contracts that are for goods, materials or services delivered
to Seller or performed by the applicable vendor prior to the Closing Date, but
have not been paid for by Seller as of the Closing Date.
(c) All Utility Charges, Equipment Charges, Real Property Taxes,
Tangible Property Taxes, Customer Rebates, Vendor Charges, and Vendor Rebates
shall be apportioned through the Closing Date, with Seller being responsible
for, and receiving the benefit of, all Proration Items attributable to the
period prior to 11:59 P.M., Illinois time on the Closing Date, and Acquiror
being responsible for, and receiving the benefit of all Proration Items
attributable to the period after 11:59 P.M., Illinois time, on the Closing Date.
As soon as practicable, but within ten (10) Business Days after the Closing
Date, representatives of Seller and Acquiror will examine all relevant books and
records of the Business, as of the Closing Date in order to make the
determination of the apportionments. Payments in respect thereof shall be made
to the appropriate party by check within seven (7) Business Days after such
determination. To the extent certain Proration Items, such as Real Property
Taxes and Tangible Property Taxes, are not known as of the Closing Date,
apportionment shall be made on the basis of the best available evidence, such as
the prior years' tax bills, and such estimated apportionment will be deemed
final and conclusive.
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(d) If either party (the "Payor") pays a Proration Item for which
the other party (the "Payee") is obligated in whole or in part under this
Section 2.5 the Payor shall present to the Payee evidence of payment and a
statement setting forth the Payee's proportionate share of such Proration Item,
and the Payee shall promptly pay such share to the Payor. If either party (the
"Recipient") receives payments of a Proration Item to which the other party (the
"Beneficiary") is entitled in whole or in part under this Agreement, the
Recipient shall promptly pay such share to the Beneficiary.
(e) If there exists as of the Closing Date any pending appeals of
ad valorem tax assessments with regard to any Assets, the continued prosecution
and/or settlement of such appeals shall be subject to the direction and control
of Acquiror with respect to assessments for the year within which the Closing
occurs.
2.6 Closing. Unless this Agreement has been terminated and the
transactions contemplated under this Agreement have been abandoned pursuant to
Section 9.__, and subject to the fulfillment or, if permitted, waiver of the
conditions set forth in Section 8, the closing of the Transfer of the Assets
(the "Closing") will take place on the tenth (10th) Business Day following the
fulfillment or, if permissible, waiver of the conditions set forth in Section 8
unless another date or time is agreed to in writing by the parties to this
Agreement (the "Closing Date"). The Closing will occur at the offices of the
Acquiror in Wilmington, Delaware, at 10.00 A.M. on the Closing Date, with
Closing to be effective as of 11:59 p.m., Delaware time, on the Closing Date.
(a) At the Closing, Seller will deliver to Acquiror the following
documents, duly executed as required: (i) a bill of sale conveying to Acquiror
the Tangible Property, Inventory, Intangible Assets and Books and Records,
subject only to the Permitted Liens; (ii) an assignment to Acquiror of the
Assumed Contracts and the Accounts; (iii) a special warranty deed conveying to
Acquiror title to the Real Property, subject only to the Permitted Liens; (iv)
certificate of good standing of Seller, as of a date within thirty (30) days
prior to the Closing Date, from the Secretary of State of Delaware; (v)
incumbency and "bring-down" certificates from the secretary of the General
Partner in a form reasonably satisfactory to Acquiror; and (vi) a copy of the
Sale Order approving the Transfer free and clear of all Liens other than the
Permitted Liens.
(b) At the Closing, Acquiror will deliver to Seller the following
documents, duly executed as required: (i) an agreement assuming the Assumed
Contracts, (ii) certificate of good standing of Acquiror or its assignee, as of
a date within thirty (30) days prior to the Closing Date, from the secretary of
state of the state of incorporation or organization of Acquiror or its assignee,
and (iii) incumbency and "bring down" certificates from the secretary of
Acquiror or its assignee in a form reasonably satisfactory to Seller.
(c) At the Closing, Acquiror will pay the Purchase Price, after
receiving credit in the amount of the Earnest Money Deposit and all interest
earned thereon and Seller's share of the Escrows Agent's fees, via wire transfer
of immediately available funds to an account designated by Seller.
2.7 Limitation of Liability. ACQUIROR ACKNOWLEDGES AND AGREES THAT
ACQUIROR AND ITS REPRESENTATIVES HAVE THE EXPERIENCE
11
AND KNOWLEDGE TO EVALUATE THE BUSINESS, FINANCIAL CONDITION AND LIABILITIES OF
THE ASSETS; AND THAT, IN DETERMINING TO ACQUIRE THE ASSETS, ACQUIROR HAS MADE
ITS OWN INVESTIGATION INTO, AND BASED THEREON, ACQUIROR HAS MADE ITS OWN
INDEPENDENT JUDGMENT CONCERNING THE ASSETS. IT IS THEREFORE EXPRESSLY UNDERSTOOD
AND AGREED THAT ACQUIROR ACCEPTS THE CONDITION OF THE ASSETS "AS IS, WHERE IS"
WITHOUT ANY IMPLIED REPRESENTATION, WARRANTY OR GUARANTEE AS TO MERCHANTABILTY,
FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE AS TO THE CONDITION, SIZE, EXTENT,
QUANTITY, TYPE OR VALUE OF SUCH PROPERTY, EXCEPT ONLY AS MAY BE OTHERWISE
EXPRESSLY PROVIDED IN THIS AGREEMENT AND SELLER AND ITS AFFILIATES INCLUDING,
WITHOUT LIMITATION, THE GENERAL PARTNER, HEREBY EXPRESSLY DISCLAIM ANY AND ALL
SUCH IMPLIED REPRESENTATIONS, WARRANTIES OR GUARANTEES. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, NONE OF SELLER OR ANY OF ITS AFFILIATES, INCLUDING,
WITHOUT LIMITATION, THE GENERAL PARTNER MAKES ANY REPRESENTATIONS OR WARRANTIES
WITH RESPECT TO (i) ANY INFORMATION OR DOCUMENTS MADE AVAILABLE TO ACQUIROR OR
ITS COUNSEL, ACCOUNTANTS OR ADVISORS WITH RESPECT TO THE BUSINESS, THE ASSETS,
THE ASSUMED LIABILITIES OR THE ASSUMED CONTRACTS OR (ii) EXCEPT AS EXPRESSLY SET
FORTH IN THIS AGREEMENT, THE CONDITION OF THE ASSETS, INCLUDING, WITHOUT
LIMITATION, THE ENVIRONMENTAL CONDITION AND COMPLIANCE WITH ANY ENVIRONMENTAL
LAWS OR OTHER LAWS.
3. NONASSIGNABLE INTERESTS AND CURE PAYMENTS
3.1 To the extent that any Assumed Contract included in the Assets is
not susceptible, under the Bankruptcy Code, of being validly assigned and
transferred to Acquiror ("Nonassignable Assets") without Consent or that any
such transfer or attempted transfer without such Consent would constitute a
breach thereof, this Agreement shall not constitute a transfer thereof. With
respect to such Nonassignable Assets, from and after the date of this Agreement,
Seller will reasonably cooperate with Acquiror, to (i) obtain all Consents that
are necessary for the valid transfer to Acquiror of all such Nonassignable
Assets and (ii) establish at Acquiror's reasonable direction, a reasonable and
lawful arrangement to provide to Acquiror the benefits of any such Nonassignable
Assets.
3.2 Notwithstanding the foregoing, to the extent any such Assumed
Contracts require payments of monies to cure any default or breach related to
such Assumed Contracts, Acquiror shall be solely responsible for such payments,
and any such payments in connection with this Section 3 shall not be deemed to
constitute a portion of the Purchase Price. The amounts required to cure any
default or breach related to such Assumed Contract are as listed in Schedule 3.2
hereof,
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4. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby represents and
warrants to Acquiror as follows:
4.1 Organization. Seller is a limited partnership duly formed, validly
existing and in good standing as a limited partnership under the laws of its
jurisdiction of organization.
4.2 Financial Statement. The unaudited, pro forma income statement of
operations of the Business for the calendar year 2001 and for the period
beginning on January 1, 2002 and ending on January 31, 2002, a copy of which has
been delivered to Acquiror on February 22, 2002, fairly presents the results of
the Business for such respective periods except where the failure to do so
does not have a Material Adverse Effect.
4.3 Authority. Subject to the approval of the Bankruptcy Court, (i)
the execution and delivery of this Agreement by Seller have been or will prior
to closing be duly authorized by the Board of Directors of the General Partner
and (ii) this Agreement is a valid and binding obligation of Seller,
enforceable against it in accordance with its terms.
4.4 Real Property. Subject to Bankruptcy Court approval at the
Closing Seller will convey to Acquiror by special warranty deed, fee simple
title to the Real Property free and clear of all Liens except for Permitted
Liens, as set forth in Schedule 4.4. The Real Property is currently in
compliance with all land use laws including zoning laws and local ordinances.
4.5 Title to Other Assets. Subject to Bankruptcy Court approval, at
the Closing Seller will convey to Acquiror title to the Assets other than the
Real Property, free and clear of all Liens except for Permitted Liens.
4.6 Assumed Contracts. The Assumed Contracts furnished by Seller to
Acquiror are true, correct and complete copies of the Assumed Contracts, as of
the date hereof, together with all amendments or modifications thereto existing.
There are no other agreements, oral or written, between Seller and the parties
to the Assumed Contracts regarding the subject matter thereof, as of the date
hereof.
4.7 No Violation of Laws or Permits. As of the date hereof, Seller is
unaware of, and has received no notice from any Governmental Entity or Person
asserting or alleging any actual violation of, any Laws or Permit with respect
to the ownership or operation of the Assets, including, but not limited to, the
Illiopolis Plant, except to the extent disclosed on Schedule 4.7 hereof.
4.8 Pending or Threatened Litigation. As of the date hereof, Seller
is unaware of, and has not received any notice from any Person asserting any
claim, lawsuit or action against Seller involving in any way the Assets,
including but not limited to, the Illiopolis Plant, or the Assumed Contracts,
except to the extent disclosed on Schedule 4.8 Hereof
4.9 Employees. Schedule 1.1 is true and complete as of the date
hereof. As of the date hereof, there are no other Employees other than those
listed on Schedule 1.1.
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4.10 Employee Benefits. Schedule 4.10 is a true and complete list of
all employee benefits and agreements covering the Employees.
4.11 Environmental Matters. Except as set forth on Schedule 4.11, or
as would not reasonably be expected to have a Material Adverse Effect:
(a) with respect to the operation of the Business and the
ownership or operation of the Real Estate and Assets, the Seller is in
compliance with all Environmental Laws;
(b) the Seller maintains and is in compliance with all permits,
licenses and other authorizations that are required pursuant to Environmental
Laws for the operation of the Business or the ownership or operation of the
Real Property and Assets;
(c) the Seller has not received any written notice regarding any
violation of Environmental Laws, or any liabilities arising under Environmental
Laws, with respect to the operation of the Business or ownership or the
ownership or operation of the Real Property and Assets except to the extent that
any such alleged violation or liability has been resolved or satisfied more than
three (3) years prior to the date hereof;
(d) to the Seller's knowledge, with respect to operation of the
Business or the ownership or operation of the Property and Assets, the Seller
has not treated, stored, disposed of, arranged for or permitted the disposal of
transported, handled, or released any Hazardous Materials, in a manner that has
given rise to or would reasonably be expected to give rise to liabilities,
including any liability for response costs, corrective action costs, personal
injury, property damage, natural resource damages, pursuant to Environmental
Laws; and
(e) the Seller does not use, and has not used, any underground
storage tanks (as defined under RCRA), and to Seller's knowledge and there are
not now nor have there ever been any underground storage tanks on the Real
Property.
4.12 Supply Contracts. Seller is not a party to any material supply
contracts, service, warehousing, tolling, leasing or other contracts except for
(i) those described on Schedules 2.1(d) and 6.9 and (ii) purchase orders in
the ordinary course of business upon terms consistent with past practice.
4.13 Customer Contracts. Schedule 4.13 is a true and complete list of
all customer contracts for the purchase of products manufactured primarily at
the Illiopolis Plant and a list of customer purchasing on a spot basis within
the past twelve (12) months, except for purchase orders from customers received
by Seller in the ordinary course of business and which, in the aggregate are
not material.
4.14 Sufficiency of Assets. The Assets, together with the contracts
not assumed by Acquiror, the Employees not accepted by Acquiror and the Excluded
Assets, represent all of the material Assets used in the operation of the
Business as currently conducted.
All of Seller's representations and warranties in this Section 4 will
be deemed given as of the date hereof and at Closing (except to the extent
modified or supplemented pursuant to Section 6.1 hereof).
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5. REPRESENTATIONS AND WARRANTIES OF ACQUIROR. Acquiror hereby represents
and warrants to Seller as follows:
5.1 Organization and Qualification. Acquiror is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Delaware, qualified to do business in Illinois.
5.2 Authority. Acquiror has the requisite power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by Acquiror
and the consummation by it of the transactions contemplated to be performed
hereunder have been duly authorized by all necessary actions. This Agreement is
a valid and binding obligation of Acquiror, enforceable against it in accordance
with the terms hereof except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally.
5.3 Conflicts and Defaults. Neither the execution and delivery of this
Agreement by Acquiror nor the performance by Acquiror of the transactions
contemplated hereby will, to Acquiror's knowledge, violate or constitute an
occurrence of default under any provision of, or conflict with, or result in
acceleration of any obligation under, or give rise to a right by any party to
terminate its obligations under, any material contract, sales commitment,
purchase order, security agreement, mortgage, conveyance to secure debt, note,
deed, loan, Lien, lease, agreement, instrument, order, judgment, decree, or
other arrangement to which Acquiror is a party or is bound. Acquiror is not in
violation of any of its organizational documents.
5.4 Consents and Approvals. No consent, approval, order or
authorization of, or registration, declaration or filing with, any Governmental
Entity or any Person is required with respect to Acquiror in connection with the
execution, delivery or performance by Acquiror of its obligations under this
Agreement.
5.5 Disclosure of Information. Acquiror acknowledges that it or its
representatives have been furnished with certain information regarding Seller
and its businesses (including the Business and the Assumed Contracts) and assets
(including the Assets). Acquiror acknowledges that, except as expressly set
forth in this Agreement, none of Seller or any of its Affiliates, including
without limitation, the General Partner has made any representation or warranty
as to Seller's businesses, assets, results of operations or financial condition
or the Business, Assets, Assumed Contracts or Assumed Liabilities. All
representations and warranties, express or implied, of or on behalf of Seller
and its Affiliates that are not expressly set forth in this Agreement are hereby
waived and released.
5.6 Brokers and Finders. Neither Acquiror nor any of its directors,
officers or employees has employed any broker or finder or incurred any
liability for any brokerage fees, commissions or finders fees in connection with
the transactions contemplated hereby.
5.7. Funds for the Acquisition. Acquiror has sufficient unencumbered
funds to pay in cash the Purchase Price and all of its fees and expenses
relating to this Agreement and the transactions contemplated hereby.
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6. CERTAIN ADDITIONAL COVENANTS OF SELLER AND ACQUIROR
6.1 Disclosure Supplements. From time to time prior to the Closing
(and subject to the rights of Acquiror to terminate this Agreement under Section
9.1(d)), Seller, by written notice to Acquiror, shall supplement or amend the
representations and warranties made by Seller pursuant to Section 4 hereof and
the Schedules to this Agreement with respect to any matter that may arise
hereafter that (i) if existing or occurring at or prior to the date hereof,
would have been required to be set forth or described in the Schedules to this
Agreement, or (ii) is necessary to correct any information in the Schedules to
this Agreement or in any representation and warranty of Seller which has been
rendered materially inaccurate thereby. The written notice pursuant to this
Section 6.1 will be deemed to have amended the appropriate Schedules and to have
qualified the representations and warranties contained in Section 4.
6.2 Satisfaction of Conditions.
(a) Each party to this Agreement shall use best reasonable
efforts to satisfy promptly all conditions precedent to the obligations of such
party to consummate the transactions contemplated by this Agreement.
(b) Without limiting the generality of Section 6.2(a), each party
shall use its best reasonable efforts (i) to obtain any licenses, permits,
consents, approvals, authorizations, qualifications and orders of Governmental
Entities (except the Bankruptcy Court) as are required in connection with the
consummation of the transactions contemplated hereby and (ii) to effect all
necessary registrations and filings. Subject to the terms and conditions hereof,
Acquiror agrees to use its best efforts to take, or cause to be taken, all
action and to do, or cause to be done, all other things necessary, proper or
advisable to consummate and make effective the transactions contemplated by this
Agreement no later than the Closing Date.
(c) In connection with satisfying the conditions described in
Section 6.2(b) hereof, each party shall be responsible for bearing the
respective costs and expenses required to discharge their respective obligations
hereunder.
6.3 Further Assurances. From and after the Closing, each of Seller and
Acquiror shall execute and deliver, in the name and on behalf of Seller or
Acquiror, as appropriate, any assignments or assurances and take and do, in the
name and on behalf of Seller or Acquiror, as appropriate, any other actions and
things reasonably necessary to carry out the intention of this Agreement.
6.4 Employee Matters.
(a) Seller and Acquiror mutually agree that Acquiror has no
obligation under this Agreement to offer employment to any of the Employees in
connection with the acquisition of the Business. Seller acknowledges that the
General Partner bears the full responsibility to comply with the provisions of
the Worker's Adjustment Retraining and Notification Act, and to provide the
Employees with all notices and other benefits required thereunder.
16
(b) Acquiror may decide to offer employment to a certain number
of the Employees. In order to assist Acquiror in making such determination,
immediately following the date hereof, Seller shall provide Acquiror with full
access to the personnel files and records concerning the Employees, will make
Seller's human resources professionals available to Acquiror for consultation
concerning the Employees, and after the issuance of the Sale Order, will allow
Acquiror to communicate directly with the Employees regarding possible
employment following Closing.
(c) No later than five (5) days prior to the Closing Acquiror
will advise Seller in writing which Employees have been extended an offer of
Similar Employment (as defined below) by Acquiror and which Employees have
accepted an offer of employment, irrespective of whether such offer constitutes
Similar Employment, with Acquiror. All Employees who qualify for severance
benefits under Paragraph 6(d) through (i) of the Order Authorizing Severance
Plans solely because either (i) they did not receive an offer of Similar
Employment from Acquiror, or (ii) they did not accept an offer of employment
with Acquiror irrespective of whether that offer constituted an offer of Similar
Employment are herein referred to as "Non-Transferred Employees." For purposes
hereof, "Similar Employment" means employment: (i) in the Illiopolis Plant; (ii)
for substantially similar annual salary or hourly wage; (iii) requiring
substantially similar weekly hours, if applicable; (iv) requiring substantially
similar tasks and responsibilities; and (v) providing substantially similar
health benefits retirement benefits that are substantially similar except with
respect to seniority and vesting requirements.
(d) The amount of the severance benefits for each Employee under
the Order Authorizing Severance Plan is set forth on Schedule 6.4 ("Severance
Benefits"). Seller and Acquiror agree that the calculation of the Severance
Benefits set forth on Schedule 6.4 is final as between Seller and Acquiror for
purpose of this Agreement. Concurrently with providing Seller the list of
Employees to whom it has offered employment described in clause (c) above,
Acquiror will calculate the Severance Benefits for the Non-Transferred Employees
in accordance with Schedule 6.4 and provide Seller such calculation in writing.
The amount of such Severance Benefits owed to the Non-Transferred Employees will
be included and added to the price to be paid for the Assets to determine the
Purchase Price pursuant to Section 2.4(a). However, Seller will be responsible
for all Severance Benefits owed to the Non-Transferred Employees pursuant to the
Order Authorizing Severance Plan and Acquiror will have no responsibility or
obligation with respect to any of the Non-Transferred Employees. Except for the
payment of such Severance Benefits, Acquiror shall assume no obligation or
liability under any employee benefit plans of the Seller or Borden Inc.,
including, without limitation, the pension plan of Borden Inc., any 401(k)
plan, and any medical, dental, disability or life insurance plans.
(e) Seller covenants and agrees that it will neither hire any
additional Person who would become an Employee hereunder, nor transfer any other
existing employees of Seller to the Illiopolis Plant, without in either instance
the prior written consent of the Acquiror.
6.5 Notice of Breaches. Seller will promptly, and in any event prior
to the Closing, notify Acquiror in writing if Seller becomes aware prior to the
Closing that any
17
representation or warranty made by Seller in this Agreement is inaccurate or
untrue in any material respect.
6.6 Access to the Business, Books, Records and Personnel.
(a) Following the date hereof, Seller shall provide Acquiror with
access to the Illiopolis Plant and allow Acquiror to conduct an environmental
compliance audit and an environmental assessment of the Illiopolis Plant in
accordance with the procedures set forth by the American Society for Testing and
Materials ("ASTM") in ASTM Designated Documents E1527-00 and E1903-97, regarding
Phase I and Phase II site assessments, respectively, to permit Acquiror to
evaluate both the nature and extent of environmental compliance and
contamination, if any (collectively, the "Environmental Assessment") and a
safety and health compliance audit of the Illiopolis Plant, at Acquiror's cost
and expense and Acquiror covenants to (i) limit the scope of its Phase II site
assessment to issues raised by the Phase I, (ii) provide Seller with the
proposed scope of any Phase II site assessment, (iii) obey all applicable health
and safety requirements with respect to the Phase I and Phase II assessments and
(iv) provide Seller with a copy of all reports and analyses derived from the
Environmental Assessment in accordance with Section 8.3(f).
(b) Following the entry of the Sale Order, Seller shall, upon
Acquiror's reasonable request, afford Acquiror and its authorized
representatives access during normal business hours to the books, records and
data of the Illiopolis Plant and the Business, as it is currently conducted at
the Illiopolis Plant or other locations of Seller. Following the execution of
this Agreement, Acquiror shall, upon reasonable request, fully cooperate with
Seller or its successors and assigns and afford to Seller, its Affiliates, or
its successors and assigns and their respective counsel, accountants and other
authorized representatives, reasonable access with reasonable prior notice
during normal business hours to the books, records and data of the Illiopolis
Plant and the books, records and data located at Geismar, Louisian concerning
the products manufactured at the Illiopolis Plant covering the period before
Closing and grant Seller the right at its own expense to make copies thereof, to
the extent reasonably necessary), and to the Illiopolis Plant, to the extent
that such access may be reasonably requested by Seller and its Affiliates due to
a claim by or against Seller that relates to the operation of the Illiopolis
Plant by Seller prior to Closing (i) to facilitate the investigation, litigation
or final disposition of any claim which may have been or may be made against any
Seller or its successors and assigns or any of their Affiliates in connection
with this Agreement, the Assets, the Assumed Contracts or the Business and (ii)
to facilitate the preparation by Seller of materials necessary for any tax
filing or audit.
6.7 Continued Operation and Maintenance. Between the date hereof and
the Closing Date, Seller shall operate and maintain the Illiopolis Plant and
other Assets in the same manner and fashion as the Illiopolis Plant and other
Assets are currently being operated and maintained by Seller, reasonable wear
and tear excepted. Seller will maintain all insurance in the same amounts with
the same deductibles as are currently being maintained by Seller. Seller will
make all repairs, replacements and modifications to the Illiopolis Plant between
the date hereof and the Closing Date necessary to maintain the condition of the
Illiopolis Plant in its current condition and will pay for the cost thereof, in
full, prior to the Closing. Seller will promptly
18
notify Acquiror of any damage, casualty, breakdown of any of the facilities
constituting the Illiopolis Plant.
6.8 Casualty and Condemnation.
(a) Minor Damage. In the event of loss or damage, to the
Illiopolis Plant as a result of any casualty or condemnation under the
provisions of eminent domain law after the date hereof but prior to the Closing
Date, which loss or damage is not "major" (as hereinafter defined), this
Agreement shall remain in full force and effect, provided (i) the Seller
performs any repairs necessary to restore the Illiopolis Plant to its condition
immediately prior to such casualty or taking, or (ii) at the Acquiror's option,
in the event of a casualty, Seller assigns Acquiror its casualty insurance
policy claim for such loss or damage and pays Acquiror the amount of any
deductible under such policy and, in the event of a condemnation, the Seller
shall assign to the Acquiror its rights to any condemnation awards resulting
from such condemnation. In the event that the Acquiror elects to cause Seller to
perform repairs upon any of the Illiopolis Plant, the Seller shall complete such
repairs promptly prior to the Closing Date, and, if necessary, the Closing Date
shall be extended a reasonable time in order to allow for the completion of such
repairs.
(b) Major Damage. In the event of a "major" loss or damage or
condemnation, the Acquiror may terminate this Agreement by written notice to the
Seller, in which event the Earnest Money Deposit, with interest, shall be
promptly returned to the Acquiror, and the parties shall have no further
liability or obligation hereunder. If the Acquiror fails to elect to terminate
this Agreement within twenty (20) days after the Seller sends the Acquiror
written notice of the occurrence of major loss or damage or condemnation with a
reasonably detailed description thereof, then the Acquiror shall be deemed to
have elected to proceed with Closing, in which event the Seller shall have no
obligation to repair or replace any damage or destruction caused by the
foregoing, but the following shall apply at the Closing: (1) in the event of a
casualty, Seller shall assign to Acquiror its casualty insurance policy claim
for such loss or damage and pay Acquiror the amount of any deductible under such
policy and; and (2) in the event of a taking, the Seller shall assign to the
Acquiror its rights to any condemnation proceeds resulting from such taking.
(c) Definition of "Major" Loss or Damage. For purposes of this
Section 6.8, "major" loss or damage or condemnation refers to the following: (1)
loss or damage to the Illiopolis Plant or any portion thereof such that the cost
of repairing or restoring same to a condition substantially identical to that
existing prior to the event of damage would be, in the opinion of a general
contractor mutually acceptable to the Seller and the Acquiror, equal to or
greater than an amount equal to $1,000,000, and (2) any loss due to a
condemnation which materially impairs the current use, access to or value of the
Illiopolis Plant.
6.9 Selection of Confidential Contracts. Within five (5) Business Days
after the Bankruptcy Court has authorized the disclosure to Acquiror of certain
contracts designated as confidential on Schedule 6.9 (the "Confidential
Contracts"), Seller covenants to provide Acquiror with true, complete and
correct copies of each Confidential Contract together with all amendments or
modifications thereto existing in accordance with the Bankruptcy Court's order
or instruction concerning such disclosure. Acquiror will have five (5) Business
Days thereafter
19
to select, in its sole discretion, whether Acquiror wishes to assume and accept
the applicable Confidential Contract as an Assumed Contract hereunder. On or
before the expiration of such five (5) day period, Acquiror will notify Seller,
in writing, of whether it has chosen to assume and accept the applicable
Confidential Contract as an Assumed Contract and Schedule 2.1(d) shall be
amended to include each accepted Confidential Contract which shall then
constitute an Assumed Contract for all purposes hereunder.
6.10 Illiopolis Plant Volume. Within three (3) Business Days after the
Sale Order is signed, Seller will supply Acquiror with a schedule showing by
customer (identified by name) the billing and payment history and volume of PVC
Resins produced at and sold from the Illiopolis Plant each month during the
period from January 2001, to the month preceding the date of the Sale Order (the
"Production Schedule"). Five (5) Business Days before Closing, Seller will
update the Production Schedule for the period from the entry of the Sale Order
through the date of the updated Production Schedule.
6.11 Cooperation. Following the date the Sale Order is issued and up
to and including the Closing Date, Seller will assist Acquiror in facilitating a
smooth transition of ownership and operation of the Illiopolis Plant, including
providing Acquiror's engineers with the information listed on Schedule 6.11, to
the extent available.
6.12 No Transfer of Assets. Between the date hereof and the Closing
Date, Seller will not transfer or remove any of the Assets physically located at
the Illiopolis Plant (except for sales of Inventory in the ordinary course of
business), unless Seller shall (i) replace such Asset with a similar Asset in
substantially the same condition or (ii) use any insurance proceeds from such
Asset to acquire another Asset or series of Assets with an aggregate fair market
value no less than the value of the original Asset.
6.13 Geismar, Louisiana. For a period of sixty (60) days following
Closing, Seller shall provide access to the research equipment related to the
Business located at Geismar, Louisiana and cooperate with Acquiror in the
packaging, removal and shipment of such equipment at Acquiror's expense.
6.14 Computer Access. For a period of sixty (60) days following the
Closing Date, Seller shall provide access to Acquiror to the information systems
equipment and software located at Geismar, Louisiana and cooperate with
Acquiror, at Acquiror's consent, in transitioning computer support services for
the Illiopolis Plant to Acquiror's computer system.
6.15 Borden Environmental Indemnity. Seller shall cooperate with
Acquiror to extend to Acquiror the full benefit of the Environmental Indemnity
Agreement between Seller and Borden, Inc. dated November 30, 1987 and
Environmental Indemnity Agreement - Illiopolis between Seller and Borden, Inc.
dated July 28, 1999 and shall take any action and sign any documents reasonably
requested by Acquiror to achieve the same.
6.16 Alternative Transaction Provisions.
(a) Seller shall be entitled to consider Acquisition Proposals
from third parties consistent with its fiduciary obligations as a debtor in
possession in the Bankruptcy
20
Cases; provided that, Seller shall require that any such Acquisition Proposal be
made by a Qualified Bidder.
(b) Acquiror acknowledges and agrees that:
(i) Seller must, in connection with obtaining the Sale
Order, solicit bids for the Assets pursuant to a Bid Procedures Order;
(ii) such solicitation is not a breach of this Agreement;
and
(iii) if the Sale Order authorizes a sale of the Assets to a
purchaser or purchasers other than Acquiror, Acquiror shall keep open its offer
under this Agreement for twenty (20) calendar days after the conclusion of the
auction contemplated by the Bid Procedures so long as a Closing with Acquiror
occurs within such twenty (20) calendar day period.
6.17 Broker and Finders. Seller agrees to promptly pay all broker or
finders fees for any persons or entities employed, retained or used by Seller or
its Affiliates relating to this Agreement and the transactions contemplated
hereby.
7. BANKRUPTCY COURT APPROVAL
7.1 Approval. Seller and Acquiror acknowledge that, under the
Bankruptcy Laws, this Agreement and the sale of the Assets are subject to
Bankruptcy Court approval. Seller and Acquiror acknowledge that to obtain such
approval, Seller must demonstrate that it has taken reasonable steps to obtain
the highest and best price possible for the Assets, including, but not limited
to, giving notice of the transactions contemplated by this Agreement to
creditors and other interested parties as ordered by the Bankruptcy Court,
providing information about the Business to responsible bidders, entertaining
higher and better offers from Qualified Bidders and, if necessary, conducting an
auction.
7.2 Bid Procedures Motion and Order. Promptly after the date this
Agreement has been executed by Acquiror, but in any event no later than three
(3) Business Days after the date this Agreement has been executed by Acquiror,
Seller shall file with the Bankruptcy Court a motion, together with appropriate
supporting papers and notices, all in a form and substance reasonably
satisfactory to Acquiror, seeking the entry of an order, pursuant to Chapter 11
of the United States Bankruptcy Code Sections 105, 363 and 365, authorizing and
approving, inter alia, the following (the "Bid Procedures Order"):
(a) the Breakup Fee as set forth herein in Section 7.4;
(b) a bid deadline for Qualified Bids of at least five (5)
Business Days prior to the hearing on the sale motion as set forth in Section
7.3;
(c) a requirement that only Qualified Bids whose fair market
value is at least One Million Seven Hundred and Fifty Thousand Dollars
($1,750,000.00) greater than the Purchase Price (the "Upset Price") shall be
considered at the auction;
21
(d) a requirement that at the auction each incremental Qualified
Bid after the initial Qualified Bid (which shall be equal to or greater than the
Upset Price) shall be at least Five Hundred Thousand Dollars ($500,000.00) more
than each prior Qualified Bid; provided, however, that each incremental bid by
Acquiror shall be deemed a higher and better offer if the amount of Acquiror's
incremental bid plus the amount of the BreakUp Fee exceeds the prior competing
Qualified Bid by at least Five Hundred Thousand Dollars ($500,000.00);
(e) copies of any Qualified Bids shall be promptly provided to
the Acquiror;
(f) the auction, if necessary, shall be held within two (2)
business days prior to the hearing on the sale motion as set forth in Section
7.3;
(g) auction procedures for the Auction which shall require,
inter alia, incremental bid requirements as set forth in Section 7.2(c); and
(h) such other terms all in a form and substance reasonably
satisfactory to the Acquiror.
The Seller shall obtain Bankruptcy Court approval at a hearing and the entry of
the Bid Procedures Order on or before March 13, 2002. Because time is of the
essence, any delay or failure to have the Bid Procedures Order entered shall
constitute a material breach of this Agreement only if (i) the Bid Procedures
Order is not entered by April 25, 2002, (ii) the Bankruptcy Court enters any
other order regarding the sale of the Assets, or (iii) the Bankruptcy Court
denies entry of the Bid Procedures Order.
7.3 Sale Motion. Contemporaneously with the filing of the motion
seeking entry of the Bid Procedures Order, Seller shall file with the Bankruptcy
Court a motion, together with appropriate supporting papers and notices, all in
a form and substance reasonably satisfactory to Acquiror, seeking the entry of
an order, pursuant to Chapter 11 of the United States Bankruptcy Code Sections
105, 363 and 365, containing, providing, authorizing and approving, inter alia,
the following (the "Sale Order"):
(a) this Agreement;
(b) the conveyance of the Assets to Acquiror free and clear of
all Liens (except the Permitted Liens) pursuant to Section 363(f) of the
Bankruptcy Code on the terms and conditions set forth herein;
(c) that the stay contained at Rule 6004(g) of the Federal Rules
of Bankruptcy Procedure shall not apply and that the Sale Order shall be
effective and enforceable immediately upon entry;
(d) a finding that Acquiror has acted in "good faith" within the
meaning of Section 363(m) of the Bankruptcy Code;
22
(e) that this Agreement and the conveyance of the Assets on the
terms and conditions set forth herein shall be exempt from all sales, use,
transfer (including without limitation, documentary transfer, stamp and like
taxes) and similar taxes pursuant to Section 1146 of the Bankruptcy Code; and
(f) such other terms all in a form and substance reasonably
satisfactory to the Acquiror.
The Seller shall obtain Bankruptcy Court approval at a hearing and the entry of
the Sale Order on or before March 31, 2002. Because time is of the essence, any
delay or failure to have the Sale Order entered shall constitute a material
breach of this Agreement only if (i) the Sale Order is not entered by April 30,
2002, (ii) the Bankruptcy Court enters any other order regarding the sale of the
Assets, or (iii) the Bankruptcy Court denies entry of the Sale Order.
7.4 Breakup Fee; Expense Reimbursement. Pursuant to the Bid Procedures
Order, in the event that some or all of the Assets are sold, conveyed or
otherwise transferred to any other entity or Person, other than the Acquiror
(the "Alternative Transaction"), in addition to the return of the Earnest Money
Deposit and all interest earned thereon to Acquiror pursuant to Section 9.2, the
Seller shall pay Acquiror the sum of One Million Two Hundred Fifty Thousand
Dollars ($1,250,000.00) (the "Breakup Fee"). The Breakup Fee shall be paid to
Acquiror by wire transfer of immediately available funds to an account
designated by Acquiror or its designee within two (2) Business Days after the
closing of the Alternative Transaction. Acquiror's right to payment of the
Breakup Fee described in this Section shall have a super-priority administrative
claim status in the Bankruptcy Cases pursuant to Sections _05 and 507(b) of
the Bankruptcy Code, senior to all other priority and super-priority
administrative expense claims (except for the claims of the Seller's
debtor-in-possession lenders and any claim under the carve-out from such
lenders' collateral as provided for in any order authorizing such debtor-in-
possession financing entered in the Bankruptcy Cases), and Acquiror shall be
entitled to apply to the Bankruptcy Court for specific performance of this
Section in the event that Seller fails to pay Acquiror.
8. CONDITIONS TO THE TRANSFER
8.1 Conditions to the Obligations of Each Party. The obligations of
Seller and Acquiror to consummate the Transfer of the Assets are subject to the
satisfaction of the following conditions:
(a) no judgment, injunction, order or decree shall prohibit the
consummation of the Transfer of the Assets or the transactions contemplated
under this Agreement; and
(b) the Sale Order approving this Agreement and the sale of the
Assets to Acquiror hereunder shall have been obtained.
8.2 Conditions to the Obligations of Seller. The obligation of Seller
to consummate the Transfer of the Assets is subject to the satisfaction (or
written waiver by Seller) of each of the following further conditions:
23
(a) Acquiror shall have performed and complied within all
material respects all obligations and covenants required to be performed or
complied with by it under this Agreement at or prior to the Closing Date and
Seller shall have received a certificate signed by an executive officer of
Acquiror on behalf of Acquiror to the foregoing effect;
(b) the representations and warranties of Acquiror contained in
Section 5 of this Agreement and in any certificate or other writing delivered by
Acquiror pursuant to this Agreement shall be true in all material respects at
and as of the Closing Date as if made at and as of such time (other than
representations and warranties made as of a specific time or date which shall
have been true at and as of such time or date) and Seller shall have received a
certificate signed by an executive officer of Acquiror on behalf of Acquiror to
the foregoing effect; and
(c) the Bid Procedures Order and the Sale Order shall have been
timely entered by the Bankruptcy Court as provided in Section 7 and such orders
shall contain the provisions set forth under the respective definition of each
such order pursuant to this Agreement and shall otherwise be in form and
substance reasonably satisfactory to Acquiror. Any motion for rehearing or
reconsideration of the Bid Procedures Order or the Sale Order shall have been
denied or withdrawn, and the time allowed for appeals of the Bid Procedures
Order or the Sale Order shall have expired without any appeal having been taken
or, if the Bid Procedures Order or the Sale Order shall have been appealed, no
stay shall be in effect.
8.3 Conditions to the Obligations of Acquiror. The obligation of
Acquiror to consummate the Transfer of the Assets and the assumption of the
Assumed Contracts is subject to the satisfaction (or written waiver by Acquiror)
of each of the following further conditions:
(a) Seller shall have performed and complied within all material
respects all obligations and covenants required to be performed or complied with
by it under this Agreement at or prior to the Closing Date and Acquiror shall
have received a certificate signed by an executive officer of the General
Partner on behalf of Seller to the foregoing effect;
(b) The representations and warranties of Seller contained in
this Agreement and in any certificate or other writing delivered by Seller
pursuant to this Agreement shall be true in all material respects at and as of
the Closing Date as if made at and as of such time (other than inaccuracies that
in the aggregate would not have a Material Adverse Effect and other than
representations and warranties made as of a specific time or date which shall
have been true at and as of such time or date) and Acquiror shall have received
a certificate signed by an executive officer of Seller on behalf of Seller to
the foregoing effect; and
(c) All relevant Government Entities shall have approved the
transfer of all the Permits from Seller to Acquiror or, in lieu thereof, issued
new Permits upon substantially the same terms and conditions to Acquiror;
(d) The Illiopolis Plant shall be in substantially the same
condition that it is in as of the date hereof, reasonable wear and tear
excepted;
24
(e) Acquiror shall have obtained a title commitment reasonably
acceptable to Acquiror covering the Real Estate with no Liens other than
Permitted Liens and subject to Acquiror's reasonable satisfaction that the Liens
listed on Schedule 4.4 do not materially adversely affect the operation of the
Illiopolis Plant;
(f) The Motion of Congoleum requesting authority to cancel with
Seller filed in the Bankruptcy Cases on January 28, 2002 is either: (i) denied
with prejudice and such contract has not otherwise terminated; or (ii) granted
in which case the Purchase Price shall be reduced by Three Million Dollars
($3,000,000.00), and all material contracts listed on Schedule 6.9 are
assignable to Acquiror or BCP has obtained the third party consent to such
assignment or the Bankruptcy Court has ordered such assignment;
(g) Acquiror shall be satisfied in its discretion, which shall
not be arbitrary and capricious, with the results of the Environmental
Assessment and the safety and health compliance audit of the Illiopolis Plant
conducted by Acquiror pursuant to Section 6.6 hereof. This condition shall be
deemed satisfied unless Acquiror notifies Seller, in writing, that it is not
satisfied with the results of such Environmental Assessment or safety and health
compliance audit and provides Seller with a copy of the Environmental Assessment
and safety and health compliance audit no later than March 31, 2002; provided,
that if Acquiror decides, and Seller agrees, that initial or additional Phase II
assessment is required to identify environmental issues at the site then the
above date shall be postponed until April 30, 2002. If Acquiror notifies Seller
by the date set forth herein, then, unless both Seller and Acquiror have agreed
in writing to a mutually acceptable solution, this Agreement shall terminate,
the Earnest Money Deposit and accrued interest thereon will be returned to
Acquiror, and neither party will have any further rights or obligations
hereunder in accordance with Section 9.3;
(h) Acquiror shall have obtained commitments from third parties
to supply, on commercially reasonable terms, all raw materials necessary to
continue operation of the Illiopolis Plant after Closing at the same production
volumes as currently operated; and
(i) the Bid Procedures Order and the Sale Order shall have been
timely entered by the Bankruptcy Court as provided in Section 7 and such orders
shall contain the provisions set forth under the respective definition of each
such order pursuant to this Agreement and shall otherwise be in form and
substance reasonably satisfactory to Acquiror. Any motion for rehearing or
reconsideration of the Bid Procedures Order or the Sale Order shall have been
denied or withdrawn, and the time allowed for appeals of the Bid Procedures
Order or the Sale Order shall have expired without any appeal having been taken
or, if the Bid Procedures Order or the Sale Order shall have been appealed, no
stay shall be in effect.
9. TERMINATION; REMEDIES:
9.1 Termination. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the Closing:
(a) by mutual written consent of Seller and Acquiror;
(b) by Seller, so long as Seller is not then in material breach
of this Agreement, after May 15, 2002, if the Closing shall not have occurred on
or before such date;
25
(c) by Seller for any reason for which terminations by Seller is
authorized pursuant to the Bid Procedures Order;
(d) by Acquiror, provided it is not in material breach of any of
its obligations under this Agreement, if Seller corrects any representation or
warranty pursuant to Section 6.1 and the corrected warranty or representation
has a Material Adverse Effect on the Business, if the circumstances described in
Section 6.8 occur, or if any of the conditions set forth in Sections 8.1 and
8.3, except as provided for in Section 9.1(e), have not been fulfilled or waived
before May 15, 2002, unless such fulfillment has been frustrated or made
impossible by any act or failure to act of Acquiror;
(e) by Acquiror, provided it is not in material breach of any of
its obligations under this Agreement, if the Bid Procedures Order or the Sale
Order is not entered by the Bankruptcy Court in a timely basis as set forth in
Section 7; and
(f) by Acquiror, provided it is not in material breach of any of
its obligations under this Agreement, if in any of the Bankruptcy Cases an order
is entered converting such case to a Chapter 7 proceeding, dismissing such case,
appointing a Chapter 11 trustee in such case, or if the Seller files a plan of
reorganization or liquidation of the Business which does not permit the sale of
the Assets pursuant to this Agreement.
9.2 Effect of Termination. In the event of the termination of this
Agreement pursuant to:
(a) Section 9.1(a), The Escrow Agent shall return to Acquiror the
Earnest Money Deposit, together with all interest earned thereon, within two (2)
Business Days after this Agreement is terminated;
(b) Sections 9.1(d),(e) and (f), Escrow Agent shall return to
Acquiror the Earnest Money Deposit, together with all interest earned thereon,
and the Seller shall pay to Acquiror the Expense Reimbursement within two (2)
Business Days after this Agreement is terminated; or
(c) Section 9.1(c), Escrow Agent shall return to Acquiror the
Earnest Money Deposit, together with all interest earned thereon, and the Seller
shall pay to Acquiror the Breakup Fee within two (2) Business Days after this
Agreement is terminated.
9.3 Acquiror's right to the Earnest Money Deposit together with
interest thereon shall not be considered an asset of Seller's estate and
Acquiror's payment of the Expenses Reimbursement or Breakup Fee under Section
9.2 shall have a super-priority administrative claim status in the Bankruptcy
Cases pursuant to Sections 105 and 507(b)of the Bankruptcy Code, senior to all
other priority and super-priority administrative expense claims (except for the
claims of the Seller's debtor-in-possession lenders and any claim under the
carveout from such lenders' collateral as provided for in any order authorizing
such debtor-in-possession financing entered in the Bankruptcy Cases), and
Acquiror shall be entitled to apply to the Bankruptcy Court for specific
performance of this Section in the event that Seller is in breach. Following
such termination, this Agreement, except for the provisions of Sections 12.4,
12.7 and 12.9, shall forthwith become null and void and have no effect, without
any liability on
26
the part of either party or their respective directors, officers or
stockholders. The aforesaid provisions shall survive such termination for the
longest period legally permissible. Nothing in this Section 9 shall, however,
relieve either party to this Agreement of liability for breach of any provision
of this Agreement which specifically survives termination hereunder.
9.4 Remedies.
(a) In the event all of the conditions set forth in Sections 8.1
and 8.2 have been satisfied, and this Agreement has not been terminated pursuant
to Section 9.1, if Seller refuses or fails for any reason to close the Transfer
of the Assets in accordance with the terms of this Agreement, Acquiror shall
have the right at its option to either (i) obtain specific performance of
Seller's obligations hereunder, or (ii) receive its Earnest Money Deposit and
all interest earned thereon and have Seller pay the Expense Reimbursement.
Acquiror's right to such payment described in this Section shall have a
super-priority administrative claim status in the Bankruptcy Cases pursuant to
Sections 105 and 507(b) of the Bankruptcy Code, senior to all other priority and
super-priority administrative expense claims (except for the claims of the
Seller's debtor-in-possession lenders and any claim under the carve-out from
such lenders' collateral as provided for in any order authorizing such
debtor-in-possession financing entered in the Bankruptcy Cases), and Acquiror
shall be entitled to apply to the Bankruptcy Court for specific performance of
this Section in the event that Seller is in breach.
(b) In the event all of the conditions set forth in Sections 8.1
and 8.3 have been satisfied, and this Agreement has not been terminated pursuant
to Section 9.1, if Acquiror refuses or fails for any reason to close the
Transfer of the Assets in accordance with the terms of this Agreement, Seller
shall have the right, as its sole remedy, to retain the Earnest Money Deposit,
with all interest earned thereon, as liquidated damages.
(c) Neither party shall be liable to the other party for any
incidental, consequential, special, exemplary or punitive damages with respect
to any matter related to or arising out of the breach or delay in the
performance of this Agreement.
10. TAX MATTERS
10.1 Transfer Taxes. Except to the extent set forth in the Sal__
Order, Seller shall be responsible for the payment of all state, local,
provincial and municipal transfer taxes (and all recording or filing fees)
resulting from the transactions contemplated by this Agreement (including taxes
based on the income of Seller).
11. NO SURVIVAL
11.1 Survival of Representations and Warranties. Except as herein
specifically provided, the several representations and warranties of the parties
contained in this Agreement (or in any document delivered in connection
herewith) will terminate upon the Closing. The several covenants of the parties
contained in this Agreement (or in any document delivered in connection
herewith) will remain operative and in full force and effect without any time
limitation, except as any such covenant will be limited in duration by the
express terms hereof.
27
12. MISCELLANEOUS
12.1 Entire Agreement. This Agreement, including the Schedules to this
Agreement, constitute the entire agreement of the parties to this Agreement with
respect to the subject matter hereof and thereof and supersede all prior
agreements and undertakings, both written and oral, with respect to the subject
matter hereof and thereof.
12.2 Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including facsimile) and shall be given
if to Seller to:
Borden Chemicals and Plastics Operating Limited Partnership
Hwy. 73
Geismar, Louisiana 70734
Facsimile: (225) 673-0626
Attention: Mark J. Schneider
with a copy to:
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30308
Facsimile: (404) 581-8330
Attention: Neil P. Olack, Esq.
and:
Goldberg, Kohn, Bell, Black, Rosenbloom & Moritz
55 E. Monroe Street
Suite 3700
Chicago, Illinois 60603
Facsimile: (312) 332-2196
Attention: Alan P. Solow, Esq. and Dimitri G. Karcazes, Esq.
if to Acquiror to:
Formosa Plastics Corporation, Delaware
9 Peach Tree Hill Road
Livingston, NJ 07039
Attention: Robert Chou, Vice President & General Manager
Facsimile: (973)-716-7483
with a copy to:
Klett Rooney Lieber & Schorling
The Brandywine Building
28
1000 West St. - Suite 1410
Wilmington, DE 19801
Attention: Mark 1. Gundersen, Esq.
Facsimile: (302)-552-4295
or such other address or facsimile number as such party may hereafter specify
for such purpose by notice to the other party to this Agreement. Each such
notice, request or other communication shall be effective (i) if given by
facsimile transmission, when such facsimile is transmitted to the facsimile
number specified in this Section 12.2 and the appropriate confirmation is
received, or (ii) if given by any other means, when delivered at the address
specified in this Section 12.2.
12.3 Amendments: No Waivers.
(a) Any provision of this Agreement may be amended or waived
prior to the Closing Date if, and only if, such amendment or waiver is in
writing and signed, in the case of an amendment, by Seller and Acquiror or in
the case of a waiver, by the party against whom the waiver is to be effective;
provided, that, any amendment or waiver of any provisions of this Agreement by
Seller shall require prior approval of Fleet Capital Corporation, as agent for
certain financial lenders.
(b) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
12.4 Expenses. Except as otherwise provided in this Agreement, all
costs and expenses incurred in connection with this Agreement shall be paid by
the party incurring such cost or expense.
12.5 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties to this Agreement and their
respective successors and assigns, provided that, Acquiror may not assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of Seller, except to an Affiliate of Acquiror;
provided that, such Affiliate agrees in writing to be bound by the terms of this
Agreement on a joint and several basis with Acquiror. Notwithstanding anything
contained in this Agreement to the contrary, nothing in this Agreement,
expressed or implied is intended to confer on any person other than the parties
to this Agreement or their respective; successors and permitted assigns, any
rights, remedies obligations or liabilities under or by reason of this
Agreement.
12.6 Certain Interpretive Matters.
(a) Unless the context otherwise requires, (i) all references in
this Agreement to Sections, Articles or Schedules are to Sections, Articles or
Schedules of or to this Agreement, (ii) each term defined in this Agreement has
the meaning ascribed to it and (iii) words in the singular include the plural
and vice versa. All references to "$" or dollar amounts will be to lawful
currency of the United States of America.
29
(b) Titles and headings to Sections in this Agreement are
inserted for convenience of reference only, and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement. No provision of
this Agreement will be interpreted in favor of, or against, any of the parties
to this Agreement by reason of the extent to which any such party or its counsel
participated in the drafting thereof or by reason of the extent to which any
such provision is inconsistent with any prior draft hereof or thereof.
12.7 Governing Law and Jurisdiction. This Agreement shall be construed
in accordance with and governed by the internal substantive law of the State of
Delaware regardless of the laws that might otherwise govern under principles of
conflict of laws applicable thereto. This Agreement is also subject to any
applicable order or act of the Bankruptcy Court. In the event either party shall
institute a legal action as a result of the default in the other party's
performance under this Agreement, any such action shall be brought exclusively
in the Bankruptcy Court which shall retain exclusive jurisdiction with respect
to the interpretation, performance, and enforcement of this Agreement.
12.8 Counterparts; Effectiveness. This Agreement may be executed in
two or more counterparts (including by means of facsimile signature pages), all
of which shall be considered one and the same agreement, and shall become
effective when on or more such counterparts have been signed by each of the
parties hereto and delivered to he other party (solely for purposes of
effectiveness of this Agreement, such delivery may be in the form of facsimile
signature pages).
12.9 Severability. If any term, provision, covenant or restriction of
this Agreement is determined by a Governmental Entity to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement will remain in full force and effect and will in
no way be affected, impaired or invalidated.
[Remainder of page intentionally left blank)
30
IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
SELLER:
BORDEN CHEMICALS AND PLASTICS
OPERATING LIMITED PARTNERSHIP
By: BCP Management Inc., its General Partner
By: Illegible
-----------------------------------------
Name/Title: Illegible
------------------------------
President, Chief Executive Officer
ACQUIROR:
FORMOSA PLASTICS CORPORATION,
DELAWARE
By:
-----------------------------------------
Name/Title:
------------------------------
IN WITNESS WHEREOF, the parties to this Agreement have __________ this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
SELLER:
BORDEN CHEMICALS AND PLASTICS
OPERATING LIMITED PARTNERSHIP
By: BCP Management Inc., its General Partner
By:
-----------------------------------------
Name/Title:
------------------------------
ACQUIROR:
FORMOSA PLASTICS CORPORATION,
DELAWARE
By: /s/ Illegible
-----------------------------------------
Name/Title:
------------------------------
LIST OF SCHEDULES
SCHEDULES
1.1 Employees
2.1(a) Description of Real Property
2.1(b) Description of Plant and Tangible Property
2.1(c) List of Offsite Warehouses
2.1(d) List of Assumed Contracts
2.1(e) List of Permits
2.1(f) List of Intangible Assets
2.1(i) List of Research Equipment
2.4(d) Form of Trust and Escrow Agreement
3.2 List of Cure Payments
4.4 Permitted Liens on Real Property
4.7 List of Violations of Laws or Permits
4.8 List of Pending or Threatened Litigation
4.10 Employee Benefits
4.11 Environmental Matters
4.13 Customer Contracts
6.4 Employee Severance Benefits
6.9 Confidential Contracts
6.11 Engineering and Mechanical Information
SCHEDULE 1.1 - EMPLOYEES
Exempt Employees
Position Date of Employment
1. Allen, Penny Administration 1980
2. Davis, Gregory, L. Production 1972
3. Davis, Solange S. L. Administration 1989
4. Deluhery, Craig E. Administration 1991
5. Doddek, Robert L. Production 1996
6. Drabing, David E. Administration 1960
7. Dykes, John M. Administration 2000
8. Greisheirn, Myron R. Administration 1959
9. Havener, Randy W. Production 1976
10. Hernandez, Jeffrey A. Administration 2000
11. Hofferkamp, Steven F. Production 1967
12. Hughes, Brian L. Production 1994
13. Hurt, Thomas M. Production 1980
14. Jantrania, Sailesh B. Administration 1989
15. Johnston, Kathleen L. Administration 1998
16. LaCroix, Larry T. Production 1999
17. Laskowski, Rick A. Administration 1984
18. Lloyd, Kevin Production 1992
19. Lyons, Daniel Production 2000
20. Mandemach, Craig G. Administration 1993
21. Mathis, Michael B. Administration 1978
22. Moffett, David L. Production 1961
23. Peterson, Thomas B. Production 1988
24. Rogers, Donald D. Production 1977
25. Simmons, Daniel H. Production 1982
26. Simmons, Donald H. Production 1978
27. Singh, Anuranjan Administration 1998
28. Spencer, Martin T. Administration 1998
29. Sutton, Thomas W. Production 1969
30. Tague, Kenneth E. Administration 1987
31. Wardall, Dale E. Production 1998
32. Waymire, Joseph L. Administration 1991
Non Exempt Employees
Position Date of Employment
1. Brawner, Brenda C. Administration 1994
2. Dudas, Delores A. Administration 1978
3. Floyd, Anna M. Administration 1978
4. Lourant, Marion M. Administration 1998
5. Mc Iver, Patricia A. Administration 1988
6. Mohn, Marcia Administration 2000
7. Rhodemann, Becky J. Administration 1994
8. Simmons, Vicky J. Administration 1978
Illiopolis Union Employees
1. Abbott, Alvin W. Operator 05/26/81
2. Adams, Donald L. Technician 09/27/67
3. Allen, Lyle E. Craft Worker 01/17/68
4. Anders, William L. General Helper 07/19/76
5. Anderson, Robert Operator 10/25/00
6. Ashton, Lewis R. Lead Worker 10/09/65
7. Ball, Lyle D. Lead Worker 08/03/70
8. Ball, Raymond L. Custodian Worker 03/01/69
9. Ballinger, Robert L. Semi-Skilled 11/17/87
10. Bambrough, Walter E. Semi-Skilled 09/30/75
11. Barrett, Kenneth L. Operator 09/18/90
12. Bartolazzi, Larry L. Semi-Skilled 08/25/69
13. Batchelder, Steven R. Operator 01/16/84
14. Bauman II, William H. Lead Worker 06/28/78
15. Bilbrey, Allen L. Operator 09/03/88
16. Birdwell, Cecil E. Operator 01/04/79
17. Blakeman, Terry L. Operator 02/09/68
18. Boehler, David L. Craft Worker 07/14/77
19. Bradshaw, Bradford A. Operator 07/29/81
20. Brown, Douglas J. Lead Worker 02/01/88
21. Brown, Rickey L. Operator 09/28/77
22. Bruce, Richard David Lead Worker 03/24/76
23. Carlson, Timothy J. Lead Worker 03/24/76
24. Chapman, Chester D. Operator 02/08/71
25. Clark, James R. Technician 12/06/78
26. Coe, Mark R. Operator 12/30/74
27. Collett, Katrina M. Operator 05/05/84
28. Courtney, John E. Semi-Skilled 09/30/65
29. Crouse, William L. Operator 09/05/78
30. Curtis, Kenton G. Operator 09/21/81
31. Daubs, Harold A. Technician 07/21/75
32. Davis, Richard M. Operator 05/23/83
33. Dennison, Gregory A. Operator 05/06/81
34. Donaldson, Troy A. Lead Worker 06/07/90
35. Drabing, Gregory L. Operator 09/01/87
36. Dyer, James R. Technician 05/16/77
37. Ealey, Louis E. Semi-Skilled 09/30/94
38. Epperson, Michael L. Lead Worker 08/11/75
39. Fitzgerald, Milo G. Operator 07/17/90
40. Fleck, William J. Technician 04/25/72
41. Floyd, Jimmy E. Semi-Skilled 11/04/67
42. Foster, Robert R. Operator 09/25/79
2
43. Gilbert, Harry D. Operator 09/02/83
44. Gill, Roger D. Operator 02/13/78
45. Goodrich, Kenneth E. Operator 05/03/94
46. Goodrich, Michael D. Operator 10/01/80
47. Graves, Larry L. Operator 05/04/84
48. Graves, William Operator 11/03/69
49. Green, Gary L. Semi-Skilled 05/25/78
50. Grohler, Everett G. Technician 05/21/71
51. Gutman, Scott W. Operator 01/31/00
52. Hagood, Steven C. Lead Worker 02/27/79
53. Hamilton, Wayne E. Operator 10/01/80
54. Hancock, Linda S. Technician 06/27/79
55. Hancock, Randy A. Operator 09/17/74
56. Hartwig, Douglas H. Semi-Skilled 07/23/74
57. Havener, Christopher Lead Worker 06/01/71
58. Hendrickson, Joseph A. Semi-Skilled 01/18/00
59. Hildebrandt, Michael Craft Worker 11/27/74
60. Hill, Brett Operator 2/11/02
61. Hill, Robert A. Semi-Skilled 11/26/74
62. Holloway, Leaster R. Lead Worker 11/01/97
63. Hughes, William T. Operator 01/12/95
64. Hunter, Mark D. Operator 02/16/76
65. Johnson, William L. Operator 06/18/77
66. Jordan, Alva E. Craft Worker 06/25/77
67. Jordan, Ron M. Operator 06/11/81
68. Judge, Robert G. Craft Worker 03/28/79
69. Jump, Jeffrey L. Operator 09/15/75
70. Kapper, Terry L. Operator 05/23/83
71. Karaianis, John T Operator 06/28/78
72. Karrick, David L. Semi-Skilled 01/07/70
73. Knobloch, Jason L. Operator 08/28/00
74. Lake, Kenneth L. Lead Worker 03/24/75
75. Lamb, Gary L. Semi-Skilled 11/15/65
76. LeBeane, Randy A. Operator 03/13/76
77. Lewison, Dean C. Lead Worker 02/16/76
78. Lyman, Glen D. Operator 09/11/79
79. Machalek, Joseph E. Operator 02/08/82
80. Mallory, Roger W. Operator 01/07/02
81. Maple, John A. Operator 10/10/01
82. Marler, Robert L. Operator 01/10/78
83. Marler, Verna L. Operator 05/04/84
84. Mast, William R. Operator 06/03/82
85. Matthews, Chad W. Operator 09/16/88
86. Maynard, David E. Operator 05/27/92
87. McConnell, Jr., Herman Semi-Skilled 03/30/90
88. McLaughlin, Robert L. Operator 10/20/79
3
89. Meister, Michael E. Operator 03/31/82
90. Merritt, Harold G. Operator 05/17/78
91. Merritt, Randy D. Operator 09/30/75
92. Mills, Ricky L. Operator 09/07/87
93. Minix, Vernon W. Semi-Skilled 08/26/98
94. Moffett Jr., John H. Lead Worker 09/03/59
95. Moffett, Jeff T. Semi-Skilled 07/02/87
96. Moore, John S. Operator 10/06/87
97. Morgan, Sherry L. Operator 12/27/94
98. Neilson, David Operator 03/12/98
99. Pickel, Donald W. Operator 06/18/83
100. Porter, Larry W. Operator 02/12/03
101. Pulliam, Ben Operator 09/01/87
102. Rachford, R. Timohy Operator 07/22/97
103. Radzimanowsky, John V. Operator 10/11/84
104. Reynolds, George M. Operator 03/23/94
105. Ridgeway, Gary L. Lead Worker 10/08/74
106. Ridgeway, Russell E. Technician 11/16/65
107. Rogers, David W. Lead Worker 10/29/79
108. Rohdeman, William E. Semi-Skilled 10/13/77
109. Scammahorn, Rickie L. Operator 11/20/74
110. Saulsberry, Harold C. Semi-Skilled 06/25/77
111. Saulsberry, Jerry D. Semi-Skilled 05/02/78
112. Sanders, Dennis, A. Operator 10/05/01
113. Schnepp, Harry W. Operator 10/19/78
114. Shanle, Chester B. Operator 07/24/74
115. Shartzer, Raymond F. Operator 06/07/77
116. Shears, Steven Lead Worker 09/16/87
117. Simpson, David S. Semi-Skilled 05/17/78
118. Sneed, Dennis H. Operator 02/18/84
119. Snyder, John R. Semi-Skilled 08/03/63
120. Stamm, Chad R. Operator 01/05/77
121. Steele, John L. Semi-Skilled 12/10/74
122. Stewart, Gary W. Lead Worker 05/17/78
123. Stewart, Gerald L. Semi-Skilled 07/29/81
124. Stewart, Mark E. Operator 09/18/79
125. Stiles, James F. Operator 01/24/83
126. Striplin, Charles L. Lead Worker 12/01/75
127. Sunderland, Ronnie E. Operator 10/13/88
128. Timmons, Robert L. Operator 06/06/75
129. Tripp, Thomas Dewey Semi-Skilled 01/31/00
130. Turner, Stephen L. Technician 05/21/76
131. Tyler, David E. Technician 11/10/65
132. Tyree, Frank C. Operator 10/19/00
133. Uhrin, John D. Operator 06/09/78
134. Usher, David L. Operator 06/25/70
4
135. Verzbiski, Gregory A. Operator 01/07/02
136. Vince, Kirk Operator 09/04/01
137. Walker, Glenn E. Technician 05/25/78
138. Wang, Stuart L. Operator 07/31/81
139. Ward, Virgi1 O. Custodial Worker 09/29/65
140. Waschevski, Paul A. Operator 12/01/67
141. Wessbecher, K. Judson Operator 11/06/74
142. Wiesner, Larry E. Operator 01/11/83
143. Williams, Larry M. Semi-Skilled 02/28/76
144. Williams, Ted L. Operator 02/01/83
145. Willis, Dennis K. Operator 09/25/91
146. Wingo, Terry L. Craft Worker 12/16/74
147. Woods, Roger Lead Worker 07/20/83
148. Yeager, Robert A. Custodial Worker 09/29/75
149. Yonker, Joseph E. Operator 05/20/69
5
SCHEDULE 2.1(a)- REAL PROPERTY
The land, buildings, and all improvements thereto located on the property
described below and totaling to approximately 133 acres:
PARCEL 1
Part of the east half of section 11, township 16 north, range 2 west of the
third principal meridian, Sangamon County, Illinois, described as follows;
Beginning at the northeast corner of the southeast quarter of aforesaid section
1_, thence south 00 degrees 00 minutes 00 seconds east on the east line of said
southeast quarter, 1637.35 feet; thence north 89 degrees 28 minutes 03 seconds
west, 2026.89 feet; thence north 00 degrees 06 minutes 45 seconds east, 746.18
feet; thence south 89 degrees 40 minutes 0_ seconds east, 200.00 feet; thence
north 00 degrees 05 minutes 41 seconds east, 90.00 feet; thence south 89 degrees
38 minutes 59 seconds east 474.72 feet; thence south 00 degrees 26 minutes 38
seconds west, 127.00 feet; thence south 01 degrees 27 minutes 07 seconds east,
169.19 feet; thence south 88 degrees 46 minutes 12 seconds east, 47.82 feet;
thence south 00 degrees _5 minutes 34 seconds west, 353.07 feet; thence north 87
degrees 27 minutes 36 seconds east, 356.30 feet; thence north 01 degrees 54
minutes 34 seconds east, 186.57 feet; thence north 55 degrees 17 minutes 13
seconds east, 110.63 feet; thence north 28 degrees 01 minutes 22 seconds east,
82.41 feet; thence north 00 degrees 37 minutes 35 seconds east, 363.30 feet;
thence north 88 seconds 54 minutes 28 seconds west, 294.60 feet; thence north 09
degrees 59 minutes 4_ seconds west, 111.14 feet; thence north 00 degrees 37
minutes 57 seconds east, 147.21 feet; thence south 89 degrees 22 minutes 03
seconds east 20.00 feet; thence north 00 degrees 37 minutes 57 seconds east,
446.50 feet; thence north 89 degrees 22 minutes 03 seconds west, 246.96 feet,
thence north 00 degrees 03 minutes 05 seconds west, 227.61 feet to a point on
the south right of way line of the Illinois Terminal Railroad; thence north 89
degrees 56 minutes 14 seconds east on said south right of way line, 20.00 feet;
thence north 89 degrees 55 minutes 23 seconds east on said south right of way
line, 1118.77 feet; thence north 00 degrees 03 minutes 46 seconds west, 20.00
feet; thence north 89 degrees 56 minutes 14 seconds east, 200.00 feet to a point
on the east line of the northeast quarter of aforesaid section 11; thence south
00 degrees 00 minutes 00 seconds east on said east line 225.03 feet to the point
of beginning.
Except therefrom a tract of land described as follows:
Beginning at the quarter corner of sections 11 and 12, being the northeast
corner of the southeast quarter of said section 11, thence westerly on and along
the north line of said south east quarter of said section 11 a distance of 120
feet; thence north 100 feet; thence east 120 feet, more or less, to the east
line of said section 11; thence south on and along the east line of said section
11 a distance of 100 feet, more or less, to the point of beginning.
Also excepting therefrom the fo11owing described tract of land:
Commencing at the southeast corner of the northeast quarter of section 11,
township 16 north, range 2 west of the third principal meridian; thence west a
distance of 120 feet to the point of
6
beginning; thence north a distance of 100.00 feet; thence west a distance of
4500 feet; thence south a distance of 100.00 feet; thence east a distance of
45.00 feet to the point of beginning.
PARCEL 2A
Part of the Southeast Quarter of Section 11 Township 16 North, Range 2 West of
the Third Principal Meridian, Sangamon County, Illinois, described as follows:
From the Northeast corner of the Southeast Quarter of said Section 11, South 00
degrees 00 minutes 00 seconds East on the Section line for a distance of 675.88
feet; thence South 89 degrees 35 minutes 35 seconds West 803.30 feet; thence
South 01 degree 05 minutes 35 seconds West, 54.00 feet; thence North 88 degrees
54 minutes 28 seconds West 294.60 feet to the point of beginning; thence South
00 degrees 15 minutes 43 seconds West 215.69 feet; thence South 44 degrees 24
minutes 04 seconds West 121.33 feet; thence South 87 degrees _0 minutes 19
seconds West 111.79 feet; thence North 40 degrees 34 minutes 36 seconds West
38.69 feet; thence North 01 degree 14 minutes 43 seconds West 94.06 feet; thence
North 00 degrees 26 minutes 38 seconds East 862.93 feet; thence South 89 degrees
33 minutes 32 seconds West 22.30 feet; thence North 00 degrees 03 minutes 05
seconds West 26.43 feet, thence South 89 degrees 22 minutes 03 seconds East
246.96 feet; thence South 00 degrees 37 minutes 5_ seconds West 446.50 feet;
thence North 89 degrees 22 minutes 03 seconds West 20.00 feet; thence South 00
degrees 37 minutes 57 seconds West 147.21 feet; thence South 09 degrees 9
minutes 41 seconds East 111.14 feet to the point of beginning.
PARCEL 2B
Part of the Southeast Quarter of Section 11 Township 16 North Range 2 West of
the Third Principal Meridian, Sangamon County, Illinois, described as follows:
From the Northeast corner of the Southeast Quarter of said Section 11, South 00
degrees 00 minutes 00 seconds East on the Section line for a distance of 675.88
feet; thence South 89 degrees 35 minutes 35 seconds West 803.30 feet, thence
South 01 degree 05 minutes 35 seconds West 54.00 feet to the point of beginning;
thence South 00 degrees 37 minutes 3_ seconds West 363.30 feet; thence South 28
degrees 01 minute 22 seconds West 82.41 feet; thence South 55 degrees 17 minutes
14 seconds West 110.63 feet; thence South 01 degree 54 minutes 34 seconds West
186.57 feet; thence South 87 degrees 27 minutes 36 seconds West 356._0 feet;
thence North 00 degrees 05 minutes 34 seconds East 353.07 feet; thence North 88
degrees 46 minutes 12 seconds West 47.82 feet; thence North 01 degree 27 minutes
07 seconds West 169.19 feet; thence North 00 degrees 26 minutes 38 seconds East
835.47 feet; thence South 39 degrees 05 minutes 12 seconds East 5.96 feet;
thence North 00 degrees 03 minutes 05 seconds West 27.67 feet; thence North 89
degrees 33 minutes 32 seconds East 22.30 feet; thence South 00 degrees 26
minutes 38 seconds West 862.93 feet; thence South 01 degree 14 minutes 43
seconds East 94.06 feet; thence South 40 degrees 34 minutes 36 seconds East
38.69 feet; thence North 87 degrees 80 minutes 19 seconds East 111.79 feet;
thence North 44 degrees 24 minutes 0_ seconds East 121.33 feet; thence North 00
degrees 15 minutes 43 seconds East 215.69 feet; thence South 88 degrees 54
minutes 28 seconds East 294.60 feet to the point of beginning.
PARCEL 2C
7
Part of the Southeast Quarter of Section 11 Township 16 North, Range 2 West of
the Third Principal Meridian, Sangamon County, Illinois, described as follows:
From the Northeast corner of said Southeast Quarter of Section 11, West on the
North line of said Southeast Quarter 1824.08 feet; thence South 00 degrees 05
minutes 4_ seconds West 100.00 feet to the point of beginning; thence continuing
South 00 degrees 05 minutes 41 seconds West 712.81 feet; thence South 89 degrees
38 minutes 59 seconds East 474.72 feet, thence North 00 degrees 26 minutes 38
seconds East 708.47 feet, thence North 89 degrees 05 minutes 12 seconds West
477.58 feet to the point of beginning.
PARCEL 2D
Part of the South half of Section 11 Township 16 North, Range 2 West of the
Third Principal Meridian, Sangamon County, Illinois, described as follows:
From the Northeast corner of the Southeast Quarter of said Section 11; thence
South 00 degrees 00 minutes 00 seconds East on the East line of said Southeast
Quarter 2388.83 feet to the point of beginning; thence North 89 degrees 36
minutes 10 seconds West 980.00 feet; thence North 00 degrees 23 minutes 50
seconds East 130.00 feet; thence North 89 degrees 36 minutes 10 seconds West
340.00 feet; thence South 00 degrees 23 minutes 50 seconds West 130._0 feet;
thence North 89 degrees 36 minutes 10 seconds West 1309.22 feet; thence North 00
degrees 06 minutes 52 seconds East 659.36 feet; thence North 20 degrees 03
minutes 16 seconds West 758.27 feet; thence North 89 degrees 55 minutes 28
seconds East 359.93 feet; thence North 00 degrees 47 minutes 45 seconds East
129.05 feet; thence South 89 degrees 40 minutes 0_ seconds East 500.81 feet;
thence South 00 degrees 06 minutes 45 seconds West 746.18 feet; thence South 89
degrees 28 minutes 03 seconds East 2026.89 feet to a point on the East line of
aforesaid Southeast Quarter, thence South 00 degrees 00 minutes 00 seconds East
on said East line 751.48 feet to the point of beginning.
8
SCHEDULE 2.1(b)-TANGIBLE PROPERTY
All Tangible Property set forth herein and any and all Tangible Property
currently owned by Seller and located at or attributable solely to the
Illiopolis Plant or necessary for the continued operation of the Business as
currently conducted at the Illiopolis Plant.
All Tangible Property as set forth in the 21-page document entitled "Equipment
List, PVC Illiopolis" attached hereto.
9
Equipment List
PVC Illi
Asset Equip
Number Number Asset Description
- ------ ------ -----------------
50836 FORK LIFT TRUCK CF-40 367-5
50837 BOILER & BOILER HOUSE EQUIP
50839 ROTARY DRYER CENTRIFUGAL FILTE
50840 CONVEYING SYS 7776-1&2 ACTIVAT
50843 2 BULK STORAGE BINS & PIPIN
50844 REACTOR D308 R162-1173 LAYDOWN
50845 BLEND TANK F404 S/N R- 162-1
50846 REACTOR D307 R162-1172 LAYDOWN
50847 CYLINDER ASSEMBLY FOR #4 AIR
50850 REACTOR CLEANING SYSTEM PUMP
50856 FIVE 5400 CU.FT. BULK BIN
50857 PFAUDLER CO. VESSELS
50862 SEVEN 5400 CU.FT. BULK BIN
50863 STENCIL CUTTING MACHINE
50864 HOIST & TROLLEY
50866 RMVC COMPRESSOR C-339 S/N73U10
50887 INSTRUMENT AIR COMPRESSOR
50888 INSTRUMENT AIR COMPRESSOR
50889 INSTRUMENT AIR RECEIVER
50890 INSTRUMENT AIR RECEIVER
50891 INSTRUMENT AIR RECEIVER
50892 AIR OIL SEPARATOR
50893 INSTRUMENT AIR PREFILTER
50894 INSTRUMENT AIR FINAL FILTE
50895 INSTRUMENT AIR PREFILTER
50896 AIR OIL SEPARATOR
50897 INSTRUMENT AIR PREFILTER
50898 INSTRUMENT AIR FINAL FILTE
50899 INSTRUMENT AIR PREFILTER
50900 INSTRUMENT AIR REFRIGERATION D
50901 INSTRUMENT AIR DESSICANT DRYER
50902 INSTRUMENT AIR REFRIGERATION D
50903 INSTRUMENT AIR DESSICANT DRYER
50904 CLARIFIED WATER DEMINERALIZER
50905 CLARIFIED WATER DEMINERALIZER
50906 FILTERED WATER SOFTENER
50907 FILTERED WATER SOFTENER
50908 ACID GAUGING TANK
50909 CAUSTIC GAUGING TANK
50910 ALUM SYSTEM
50911 LIME SYSTEM
50912 RAW WATER CLARIFIER
50913 CAUSTIC BULK STORAGE TANKHEATE
50914 CLEAR WATER SURGE TANK
50915 DEMINERALIZER WASH WATER TANK
50916 SALT SOLUTION PREPARATION TANK
1 of 21
Equipment List
PVC Illi
50917 CAUSTIC BULK STORAGE TANK
50918 CLEAN WATER TRANSFER PUMP
50919 CLEAN WATER TRANSFER PUMP
50920 BRINE TRANSFER PUMP
50921 BACK WASH PUMP
50922 CAUSTIC TRANSFER PUMP
50923 BACK WASH PUMP
50924 CLARIFIED WATER PRESSURE FILTE
50925 CLARIFIED WATER PRESSURE FILTE
50926 DEMINERALIZED WATER FILTE
50927 WASTE TREATMENT PUMPING STATIO
50928 WASTE TREATMENT CLARIFIER
50930 STEAM BOILER
50932 STEAM BOILER
50933 BOILER FEED WATER DEAER
50934 BOILER BLOWDOWN FLASH TANK
50936 BOILER FEED PUMP
50937 BOILER FEED PUMP
50938 SULFITE TRANSFER PUMP
50939 PHOSPHATE TRANSFER PUMP
50944 COOLING TOWER CIRCULATING WATE
50945 COOLING TOWER CIRCULATING WATE
50949 CHILLED WATER SUPPLY PUMP TO E
50953 SPENT CHILLED WATER RETURN PUM
50954 SPENT CHILLED WATER RETURN PUM
50955 CHILLED WATER STORAGE TK EXIST
50963 VINYL CHLORIDE UNLOADING COMPR
50964 VINYL CHLORIDE UNLOADING COMPR
50965 VINYL CHLORIDE UNLOADING COMPR
50968 UNLOADING COMPRESSOR KNOCK
50969 UNLOADING COMPRESSOR KNOCK
50970 UNLOADING COMPRESSOR KNOCK
50971 EDC BULK UNLOADING STORA
50974 EDC TRANSFER PUMP
51078 TAILING SCREEN
51148 CLEARWATER SURGE TANK
51150 AIR RECEIVER VE 8001 AA
51151 AIR RECEIVER VE 8002 AA
51152 DRYER DR 80
51153 DRYER DR 80
51157 FILTER FL 8001 CC
51158 FILTER FL 8001 DD
51159 FILTER FL 8002 CC
51160 FILTER FL 8002 DD
51161 FILTER FL 8001 AA
51162 FILTER FL 8001 BB
51163 FILTER FL 8002-AA
51164 FILTER 8002 BB
51165 COMPRESSER CO.8001-AA
2 of 21
Equipment List
PVC Illi
51166 COMPRESSER CO-8002-AA
51167 AFTER COOLER HE.8001.AH
51168 AFTER COOLER HE.8002.AA
51177 D I WATER FILTER FI-53
51178 CLEARWATER TRANSFER PUMP PU-50
51179 SOFT WATER PUMP
51180 SOFT WATER PUMP PU-53
51181 D I WATER PUMP PU-53
51182 D I WATER PUMP PU-53
51183 D I WATER PUMP PU-53
51184 BACKWASH WATER TANK VE-53
51185 VCM STORAGE SPHERE VE-10
51194 1 METHOCEL STORAGE TANK
51195 MODEL G-4 FAN SILENCER 48X48
51196 MODEL G-4 FAN SILENCER 48X48
51198 BENDIX-20 STREAM SAMPLE SYSTE
51199 BENDIX-20 STREAM SAMPLE SYSTE
51200 BENDIX ELECTROMETER AMPLI
51201 BENDIX PUMP FOR HYDRO
51202 -30 SCOTT AIR MASKS 4622 35
51204 ISOTHERMAL FID WITH ACCES
51209 WEIGH SCALE
51213 FIRE WATER TANK VE 9001 50000
51215 FIRE WATER TANK VE 9002 50000
51217 FIRE WATER PUMP PU 9001C
51224 FUEL OIL STORAGE TANK VE-6011
51225 FUEL OIL PUMP & HEATER SET
51226 OIL STORAGE TANK HEATER HE-60
51227 FUEL OIL STORAGE TANK HEATE
51228 FUEL OIL UNLOADING PUMP PU-
51234 FUEL OIL UNLOADING PUMP MDL L
51240 FILM CASTING KNIFE S/N 764
51242 DRILL PRESS S/N 21371
51243 GEAR REDUCER & BEARING FOR EXIST
51244 #65 FINENESS OF GRIND GAGE&
51250 CORNER UNIT 1 MODEL 2P553
51251 TABLE FRAME 1 MODEL 50P22
51252 TABLE FRAME 1 MODEL 50P12
51253 END LEG ASSY 1 MODEL 53P23
51254 END LEG ASSY 2 MODEL 52P23
51255 END PANEL 8 MODEL 4P2
51256 17 LIN FT MODEL 24L41 REAGE
51257 SANDBLAST TO REMOVE EXIST
51258 DATA SYSTEM HP2108A SN 1542A
51261 AUTO-RANGING DIGEMETRY SN20701
51262 AUTO RANGING DIGEMETRY SN20707
51274 BULK STORAGE BINS 2-CLO
51324 NAPTHA STORAGE TANK 1STC
51334 REFLUX PUMP 206
3 of 21
Equipment List
PVC Illi
51335 REFLUX PUMP 20 6P
51338 SLURRY PUMP 330 6
51339 SLURRY PUMP 330 6
51340 SLURRY PUMP 150 6
51344 SLURRY RECIRC. PUMP 2000
51347 DEMIN WATER PUMP 265 6PM
51349 STRIPPER CONDENSER
51350 SLURRY COOLER
51352 STRIPPING COLUMN 6000
51353 STRIPPING COLUMN 6000
51355 C-2 TANK 500 GAL
51357 C-3 TANK 40 GAL
51370 STRAINERS
51372 STRIPPER SKID
51379 RE-3201 EXISTING PASTE
51380 RE-3202 EXISTING PASTE
51381 RE-3203 EXISTING PASTE
51382 RE-3204 EXISTING PASTE
51383 VE-3341 EXISTING BLOWD
51384 VE-3342 EXISTING BLOWD
51385 PU-3381 EXISTING SEED
51386 ST-3380A EXISTING SEED
51387 ST-3380B EXIST
51388 VE-3382 EXISTING SEED
51389 VE-3383 EXISTING SEED
51390 VE-3384 EXISTING SEED
51391 VE-3351 EXISTING RVCM
51392 VE-3352 EXISTING RVCM
51393 VE-3361 SEAL WATER K O T
51394 VE-3362 SEAL WATER K O T
51395 F-365M EXISTING REC M
51396 INCINERATOR K O TANK
51397 G-367M EXISTING COMPR
51398 FI-3361 EXISTING SEAL
51399 FI-3362 EXISTING SEAL
51400 M-367 EXISTING SEAL
51401 PU-3361 EXISTING COMPR
51402 PU-3362 EXISTING COMPR
51403 FI-3321 EXISTING VCM F
51404 FI-3322 EXISTING VCM F
51405 FI-3323 EXISTING VCM F
51406 FI-3324 EXISTING VCM F
51407 ST-3320 EXISTING STRAINER
51408 VE-3321 EXISTING VCM W
51409 VE-3322 EXISTING VCM W
51410 VE-3323 EXISTING VCM W
51411 VE-3324 EXISTING VCM W
51412 D-313 EXISTING HOMOP
51413 D-314 EXISTING HOMOP
4 of 21
Equipment List
PVC Illi
51414 D-315 EXISTING HOMOP
51415 D-316 EXISTING HOMO
51416 D-317 EXISTING HOMOP
51417 D-318 EXISTING HOMOP
51418 D-319 EXISTING HOMOP
51419 D-320 EXISTING HOMOP
51420 F-345 EXISTING RVCM
51421 F-355M EXISTING RVCM
51422 C-2 EXISTING STRIP
51423 F-405 EXISTING SLURR
51424 F-406 EXISTING SLURR
51425 G-2A EXISTING POLYM
51426 G-2B EXISTING POLYM
51427 F-355 EXISTING BULK
51428 F-375 EXISTING BULK
51429 F-390 EXISTING MVC B
51430 M-319 EXISTING MVC S
51431 M-320 EXISTING RVCM
51432 M-352 EXISTING RVCM
51433 M-359 EXISTING MVC B
51434 M-374 EXISTING MVC B
51435 HE-5201 EXISTING SOLUT
51436 D-301 EXISTING COPOL
51437 D-302 EXISTING COPOL
51438 D-303 EXISTING COPOL
51439 D-304 EXISTING COPOL
51440 D-305 EXISTING COPOL
51441 D-306 EXISTING COPOL
51442 F-315 EXISTING RCVM
51443 D-307 EXISTING COPOL
51444 D-308 EXISTING COPOL
51445 F-325 EXISTING RCVM
51446 F-401 EXISTING SLURR
51447 F-402 EXISTING SLURR
51448 F-403 EXISTING SLURR
51449 CO-1005 EXISTING UNLOA
51450 CO-1006 EXISTING UNLOA
51451 CO-1007 EXISTING UNLOA
51452 CO-1008 EXISTING UNLOA
51453 CO-1009 EXISTING UNLOA
51454 F-104 EXISTING VCM S
51455 VE-1001 EXISTING VCM S
51456 VE-1005 EXISTING UNLOA
51457 VE-1006 EXISTING UNLOA
51458 VE-1007 EXISTING UNLOA
51459 VE-1008 EXISTING UNLOA
51460 VE-1009 EXISTING UNLOA
51463 CP-PASTE 31.01 CONTR
51465 CP-3 31.01 CONTROL PANEL
5 of 21
Equipment List
PVC Illi
51469 FI-03520A 11.03 SLURR
51471 FI-03552A 11.03 SLURR
51473 FI-03552B 11.03 SLURR
51475 WATER TANK VE-06302 11.2 HOT G
51476 WATER TANK VE-06302 11.2 HO G
51477 TANK PASTE & HOMO WASTE WATER V
51479 TANK PASTE & HOMO WASTE WATER V
51480 HE-03502 21.51 DEION
51481 HE-03551A 21.51 DEION
51482 HE-03551-B 21.51 DEION
51483 HE-06302 21.52 HOT G
51484 G-00101A 22.08 SEAL
51485 G-00101B 22.08 SEAL
51486 G-00101C 22.08 SEAL
51487 G-00355A 22.08 SEAL
51488 G-003557 22.08 SEAL
51489 G-00377A 22.08 SEAL
51490 G-00399 22.08 SEAL
51492 P-01200 22.08 SEAL
51493 P F-0190 DIAPHRAM PUMP
51495 PU-03201B 22.05 SEED
51496 PU-03321 22.08 SEAL
51497 PU-03322 22.08 SEAL
51498 PU-03323 22.08 SEAL
51499 PU-03324 22.08 SEAL
51500 PU-03520 22.09 SLURR
51501 PU-03521 22.09 SLURR
51502 PU-03552A 22.09 SLURR
51503 PU-03552B 22.09 CLURR
51504 PU-05500 22.10 HOT C
51505 PU-06302 22.06 HOT G
51506 PUMP WASTEWATER TRANSFER PU-15
51507 PUMP WASTEWATER TRANSFER PU-15
51508 C-00367M 22.08
51509 CO-03551 22.08 SEAL
51510 CO-03552 22.08 SEAL
51511 G-00401 22.11 SEAL
51512 G-00402 22.11 SEAL
51513 G-00403 22.11 SEAL
51514 G-00405 22.11 SEAL
51515 G-00406 22.11 SEAL
51516 AG-03382 22.11 SEAL
51548 RUCM HOLDING TANK VE-31
51580 VE-03553 F-0267/12.01 GASHO
51582 VE-03556A 11.02 VACUU
51583 VE-03556D 11.02 VACUU
51584 TANK PURGE KO SITE 1 VE-03556C
51585 TANK PURGE KO SITE 1 VE-03556C
51586 TANK PURGE KO SITE 1 VE-03556F
6 of 21
Equipment List
PVC Illi
51587 TANK PURGE KO SITE 1 VE-03556F
51588 VE-15004 11.02 BRINE
51589 VE-15504 11.03 VENT
51592 VE-15509 11.02 GASHO
51593 HE-03370 21.50 RECOV
51595 HE-03509 21.50 RECOV
51597 HE-03555 21.50 SEAL
51598 HE-03556A 21.50 SEAL
51599 HE-03556B 21.50 SEAL
51600 HE-03557 21.50 SEAL
51601 HE-03559A 21.50 PURGE
51602 HE-03559B 21.50 PURGE
51603 RF-15004 21.01 BRINE
51605 PU-03556A 22.06 SEAL
51607 PU-15004A 22.06 BRINE
51608 PU-15004B 22.06 BRINE
51609 PU-15004C 22.06 BRINE
51611 PU-15506A 22.06 WASTE
51612 PU-15509 22.07 GASHO
51613 PU-15551A 22.06 K O T
51615 PU-15551B 22.06 K O T
51616 PU-15552 22.06 GASHO
51617 PU-15553A 22.06 WASTE
51618 PU-15553B 22.06 WASTE
51619 CO-03557 23.02 COMPR
51621 VP-03556A 23.02 VACUU
51623 VP-03556B 23.02 VACUU
51625 CP-REC 31.01 CONTR
51627 P-357 EXISTING RVCM
51628 HE-3371 EXISTING PASTE
51629 HE-3372 EXISITNG PASTE
51630 VE-3370 EXISTING RVCM
51631 SP-15006 11.01/11.07 WASTE
51633 VE-15510 11.02 INCIN
51634 NC-15011 21.02/21.03 TRANE WAS
51636 HE-15006 26.02 WASTE
51637 VE-1003 EXISTING WASTE
51638 VE-5019 42807 CAUST
51640 VE-5020A 42803 NEUTR
51641 VE-5020B 42803 NEUTR
51642 VE-5021 42805 CAUST
51644 PU-5021A 42809 CAUST
51645 PU-5021B 42809 CAUST
51646 AG-5020A 42814 AGITA
51647 AG-5020B 42814 AGITA
51648 TYPEWRITER
51649 TYPEWRITER
51672 PURGE K O TANK VE-33
51673 VACUUM PUMP SEPARATOR VE-33
7 of 21
Equipment List
PVC ILLi
51674 STRIPPER K O TANK VE-33
51676 PURGE K O TANK VE-33
51677 VACUUM PUMP SEPARATOR VE-33
51678 STRIPPER K O TANK VE-33
51680 K O TANK DISCHARGE PUMP PU-33
51681 K O TANK DISCHARGE PUMP PU-33
51682 SEAL WATER PUMP PU-33
51683 SEAL WATER PUMP PU-33
51684 PURGE STEAM CONDENSER HE-33
51686 PURGE STEAM CONDENSER HE-33
51688 SEAL WATER COOLER HE-33
51689 SEAL WATER COOLER HE-33
51690 SEAL WATER FILTER FIL-3
51691 SEAL WATER FILTER FIL-3
51692 SEED TRANSFER TANK AGITATOR AG
51694 CONCENTRATOR TANK AGITATOR AG-
51695 SEED TRANSFER TANK VE-33
51697 K O TANK AGITATOR AG-33
51698 K O TANK AGITATOR AG-33
51699 VACUUM PUMP & SEALS VP-33
51701 VACUUM PUMP & SEALS UP-33
51703 SEED TRANSFER PUMP PU-32
51704 SEED STRAINER ST-33
51705 SEED STRAINER ST-33
51706 BLOWDOWN TANK VE-33
51707 BLOWDOWN TANK VE-33
51708 VE-3384
51709 VE-3383
51710 VE-3382
51714 FORK LIFT TRUCK 169
51715 FORK LIFT TRUCK 122
51725 SALT BRINE TANK
51726 NASH VACUUM PUMP
51727 CENTRIFUGAL PUMP PV-404
51728 VAPOR LINE FILTER FIL3563
51729 VAPOR LINE FILTER FIL3561
51730 VAPOR LINE FILTER FIL3562
51731 SEAL WATER FILTER FIL-3
51732 SEAL WATER COOLER HE 3560
51733 VACUUM PUMP SEPARATOR TANK
51735 WASTE WATER PUMP PU-3561
51736 SEAL WATER PUMP PU-3560
51737 NASH VACUUM PUMP UP-3560
51739 SEAL WATER COOLER E-326
51740 INHIBITOR PUMP/W AGITATOR AND T
51741 SLURRY TRANSFER PUMP PU-40
51742 SEAL WATER COOLER E-316
51743 WASTE WATER PUMP PU 318
51744 SLURRY TRANSFER PUMP PU 40
8 of 21
Equipment List
PVC ILLi
51745 SEAL WATER PUMP G-316
51746 SLURRY COOLER HE 400
51748 RVCM CONDENSER HE-3561B
51750 RVCM CONDENSER HE-3561A
51752 STRIPPER KNOCKOUT TANK VE-35
51754 SEAL WATER PUMP G-326
51755 RVCM CONDENSER E-328
51756 RVCM CONDENSER E-318
51757 VACUUM PUMP SEPARATOR TANK
51758 VACUUM PUMP SEPARATOR TANK
51759 STRIPPER KNOCKOUT TANK F-328
51760 NASH VACUUM PUMP C-326
51761 STRIPPER KNOCKOUT TANK F-318
51762 NASH VACUUM PUMP C-316
51763 COPOLYMER STRIPPING TANK F-403
51765 COPDYMER STRIPPING TANK F-402
51766 COPOLYMER STRIPPING TANK F-401
51792 PUMP
51793 PUMP (INSTALLATION)
51794 PUMP (ELECTRICAL POWER)
51795 WASTE WATER CLARIFIER #2
51796 MECHANICAL (CLARIFIER #2)
51802 OIL FILTRATION UNITS (4)
51820 VACUUM PUMP
51822 VACUUM PUMP
51824 CENTRIFUGAL PUMP MATER
51826 CENTRIFUGAL PUMP MATER
51833 TANK MASTER UNIT FOR C
51835 ATMOSPHERIC MIXING TANK 304 ST
51837 WITH AGITATOR 3/4 HP MOTOR
51839 CENTRIFUGAL PUMP SIZE 1X 1_
51843 SIGMA-10 UNIT
51845 AIR OPERATED PUMP DOUBLE DIAPH
51851 DIA-VAC PUMP FOR METHOD 106 TE
51865 AIR OPERATED DOUBLE DIAPHRAGM
51867 IN LINE WATER HEATER WITH STAI
51869 MOTOR 30HP 1725 RPM 230/460
51871 VACUUM JET EXHAUSTER SIZE 4 TY
51873 MOTOR 30 HP 1725 RPM 230/4
51875 STEAM JET EXHAUSTER
51877 OPEN IMPELLER CENTRI- FUGAL
51879 DUPLEX PUMP DIAPHRAGM TYPE
51881 STRAINER SIZE 3 WITH 5/16 PERF
51883 COMBUSTION OXYGEN ANALYZER FOR
51909 FUNDA FOAM UNITS
51910 PROVIDE AGITATORS FOR WASTE WA
51915 ECONOMIZER E-308B ENEREX 25
51917 HEATER ENEREX E308A 2572
51919 HEATER ENEREX E-308B PLANT
9 of 21
Equipment List
PVC Illi
51921 SOOT BLOWER COPES-VULCAN PLA
51923 SOOTBLOWER COPES-VULCAN PLANT
51925 JACKET FABRICATE AND INSTAL
51927 JACKET BOILER #4 STEEL WIT
51933 INSULATION 30000 BARREL FUEL
51939 AERATOR SA-300-3 QUANTUM SE
51943 AGITATOR LIGHTNIN 821394
51945 AGITATOR LIGHTNIN 71S3 3 HP
51947 AGITATOR LIGHTNIN 71S3 3HP
51949 WATER TANK DI HOT 15'-0 OD
51965 EXTRUDER TEMP CONSOLE S/N 1224
51966 FLOTRAYS 8-5' & 10' FOR BULK
51967 CYCLOBLOWER WITH 75HP MOTOR
51968 BLOWER BARE
51984 PUMP VERTICAL TURBINE DEEP WEL
51986 PUMP VERTICAL TURBINE DEEP WEL
51988 PUMP SPARE FOR WELLS-WELL FI
51990 LIME FEEDERS TIMER CONTROLLER
51992 METER FOR DEKALB WATER SUPPLY
52006 ELECTRICAL WORK FOR WELLS 14
52022 FLOCCULATOR WITH 1/2 HP MOTOR
52043 SLURRY STRIPPER HEAT RECOVERY
52046 QUENCH INK INCINERATOR SPARE
52048 INCINERATOR SPARE COMPLETE WIT
52050 FOUNDATION FOR INCINERATOR
52052 BLOWER WITH 2HP MOTOR FOR SPAR
52054 HEAT EXCHANGER WITH ELECTROPOL
52066 ENGINE GAS POWERED FOR EMERGEN
52068 CHILLED WATER TO COILING COILS
52070 HOSES HIGH PRESSURE AND JETS T
52074 PUMP SPARE FOR WASTE WATER STR
52078 MAINTENANCE SHOP CRANE WELDER
52080 TRACTOR 1972 FORD 60H PT
52081 WATER BLASTER SERIES 8000 WET
52082 CHLORINATOR WALLACE TIERNAN GA
52083 TRACTOR BULK TRUCK WHITE
52085 TRANSMITTER TYPE KA12111 BAILE
52087 CYCLONE TO REMOVE SOLIDS FROM
52088 BLOWER ROOTS AIR LIFT FOR OXYG
52091 CAR WASH SYSTEM HOPPER
52109 GENERATOR EMERGENCY
52110 ROLL MILL-TWO Q-C LAB
52111 SPARE ROLL SET-LAB MILL PD7-50
52113 OVERHAUL 9 DRYER CENTRIFUGE 3
52117 FOUNDATION AND PIPE SUPPORTS F
52119 FREEZER FOR PLANT 1 & 2 IN LP
52120 FREEZER FOR PLANT 1 & 2 IN LP
52129 OVERHAUL 10 DRYER CENTRIFUGE
52130 UPGRADE TANK F-101 FOR WASTE W
10 of 21
Equipment List
PVC Illi
52131 PUMP TURBINE WITH MOTOR AND O-
52132 PUMP TURBINE WITH MOTOR AND O-
52133 PUMP TURBINE WITH MOTOR AND O-
52134 PUMP TURBINE WITH MOTOR AND O-
52135 PUMP TURBINE WITH MOTOR AND O-
52136 BLOWER CENTRIFUGAL
52137 LAPPING SEAL MACHINE 32 SPEED
52138 LAPPING SEAL MACHINE 24 SPITF
52139 DATA STATION SIGMA 15 N3340020
52141 FT1001 #1 CLARK FORK TRUCK FOR SITE
52144 CATHE ROCKFORD ECONOMY LATHE F
52149 FREEZER CHESTINITIATOR 7CUBIC
52157 PUMP UPGRADE VINYL ACETATE CHA
52159 PALLET PRESS IN PASTE PKG. (US
52163 SHAKER RO-TAP SIEVE WITH BUILT
52165 -AERATIRS AQUA-JET 5H.P.460
52167 ENCLOSURES RO-TAP SOUND FOR Q
52168 (5) LEVELER DOCK FOR PVC WAREH
52169 GLASSES SIGHT MONOMER UPGRADE
52173 LOADER WITH 72 BUCKET FOR TRAC
52174 MILLING MACHINE ADHOCK & SHIPL
52182 #1 PASTE RESIN BAGGER UPGRADE
52183 PASTE DRYER FEED TANK PD269001
52185 INCINERATOR QUENCH WATER HEAT
52186 BULK ACID SYSTEM-FIBERGLASS P
52188 STEAM COILS PD750151
52189 EQUIP TO IMPROVE LINE SLURRY P
52195 AIR PADS FOR SB-31 PD750221
52199 NEW KNOCK OUT TANK PD750261 MO
52200 NEW AGITATION SYSTEM PD 7-5028
52201 SPARE GANAJET PURCHASED PD7502
52202 PLASMA MACHINE PURCHASED PD750
52205 FILTER UNITS PURCHASED PD75033
52206 RADIO COMMUNICATION SYSTEM
52210 DUMPSTER CONCRETE WORK PD75038
52212 MOTORIZED OPERATORS PD750441
52214 BACKFLOW PREVENTOR PD750461
52216 SELF PRIMING PUMP PURCHASED PD
52218 PUMP FOR POTABLE PURCHASED PD7
52219 PORTABLE WELDER PD750521
52222 ABULK SOAP SYSTEM PD 2-6780 F
52223 GROUT TANK BOTTOMS-BULK SOAP 5
52224 TANK FOUNDATIONS BULK SOAP SYT
52225 REVISE NOZZLES ON NEW DRYER FE
52226 SPRAY NOZZELS-BULK SOAP SYSTEM
52247 PALLBITZER-AUTOMATIC PD 60910
52248 LAYER PUSHER-AUTOMATIC PALLETI
52253 ROTARY COMPRESSOR PD75005 HOUS
52254 SCREEN COMPRESSOR PD 7-5013
11 of 21
Equipment List
PVC Illi
52255 SURGE TANK-CLARIFIED WATER PD
52260 CONVEYOR-ACCUMULATION SEMI
52261 PALLETIZER-SEMI BULK LOADING E
52262 SUPPORT SYSTEM-SEMI BULK LOADI
52263 COLLECTOR-SEMI BULK LOADING EQ
52266 KNOCK OUT TANK 304 S/S PD 7-50
52267 PALLET UNLOADER-SEMI BULK PD 8
52269 GRAVITY SECTION-SEMI BULK PALL
52270 CONVEYOR-ACCUMULATION-SEMI
52272 HOIST-COFFING-SEMI BULK PALLE
52276 STRETCH WRAP MACHINE-AUTOMATIC
52277 FORKLIFT TRUCK-RESINITE PVC RA
52291 METERING PUMP BFI PD60950 INCR
52292 METERING PUMP BFI-INCREMENTAL
52293 HEAT EXCHANGER-INCREMENTAL PAS
52295 DUCTWORK-GRINDER SYSTEM INSTA
52296 PRODUCT HOPPER-INCREMEN-TAL
52297 VCM WEIGH TANK SURGE VES-SEL
52298 REACTOR-5200 GALLON-INCREMENTA
52299 MIXER ASSEMBLY-INCREMEN-TAL P
52300 PUMP-POWER DYNAMICS-INCREMENTAL
52302 TANK-SKID GLASS LINED-IN-CREME
52303 TANK-EXPANSION-HORIZONTAL CYLI
52304 PUMP-CENTRIFUGAL-INCREMENTAL P
52305 PUMP-CENTRIFUGAL-INCREMENTAL P
52307 DISCHARGER-GYRATED BIN INCRE
52309 1988 CHEVY 1500 P/U SITE S/N 2
52310 CATHODIC PROTECTION SYS IN ELE
52312 GRINDER-SPARE PASTSE PD 7-5117
52322 EJECTOR MIXER-BULK LIME SLURR
52332 PUMP-LATEX TRANSFER-MOYNO-PAST
52334 -GRINDER LUBRICATION SYS-PD 8
52335 HOPPER-SEMI BULK LOADING EQUI
52337 FT1009 #9 Clark Fork Truck
52338 HOPPER-SEMI BULK PALLET UNLO
52340 WELDER-8 POSITION MILLER PD8-5
52343 AGITATOR SPEED VARI-DRIVE REAC
52345 STRAINER BOX-OXIGEST WINTER HA
52348 PROVOX SYSTEM ON REACTOR UNITS
52350 FLUSH SYS-REFLUX CONDENSER PD
52352 CENTRIFUGAL PUMP-GRUNDFOS-STEA
52353 CENTRIFUGAL PUMP-GRUNDFOS-STEA
52362 60HP VAR SPEED DRIVE-D 309 REA
52363 60HP VAR SPEED DRIVE-D 311 REA
52373 CATALYST ADDITION PUMP PD8-5
52374 CATALYST ADDITION PUMP PD
52375 CATALYST ADDITION PUMP PD 8
52376 CATALYST ADDITION PUMP PD
52377 CATALYST ADDITION PUMP PD 8
12 of 21
Equipment List
PVC Illi
52378 CATALYST ADDITION PUMP PD 8
52385 WATER SOFTERNER-ILLI WATER TREA
52406 INJECTION TUBE ASSEMBLY REAC
52412 2500KVA TRANSFORMER BANK-REACT
52443 SCREEN BOWL CENTRIGURE-9FT DR
52444 CENTRIFUGE SYSTEM-9FT DRIER LI
52464 1989 FORD PICK-UP WATER PLT S/
52465 S/S REACTORS-PRELIMINARY CAP P
52466 REACTOR REPL PHASE II-ADD CAP
52468 PUMP-SUBMERISIBLE WELL # 12A PD
52475 WATER SOFTENER-SIMPLEX AUTOMAT
52477 BAGGER SCALE-VCM CHARGE TANK O
52478 CHECK WEIGHTER-VCM CHARGE TANK
52490 TANK-RECOVERY COMPR SEAL WATER
52491 TANK-RECOVERY COMPR SEAL WATER
52499 PUMP-GRUNDFOS-CONDENSER FLUSH
52504 FUNDAFOM DEFOAMING UNIT PD 9-0
52510 DUST COLLECTOR-BOTTOM PORTION
52523 BULK CYCLONE PD 9-0018
52526 DENSIFIER PD9-0018
52527 12 SCREW CONVEYOR W/SUPPORTS
52528 HYSTER LIFT TRUCK PD 9-0018
52540 2 PIPE-LOWER KO TANKS TO 3
52542 CONCRETE WASTE WATER TAHNK-1M G
52549 80000 GAL CONCRETE TANK @ NORT
52550 80000 GAS CONCRETE TANK @ PVC
52564 SUBMERISIBLE PUMP-GRUNDFOS-WATE
52571 HYSTER FORK LIFT TRUCK-WHSE &
52572 IMM GAL CONCRETE TANK-WASTE T
52573 IMM GAL CONCRETE TANK-WST TREA
52575 SWITCHMASTER TRACKMOBILE-MODE
52577 BLOWER PACKAGE RECEIVER BLOW T
52579 ELECTRICAL-MOC-STARTERS BREAKE
52584 SPOUTING SYSTEM--BUILK DUST ABA
52593 HYSTER LIFT TRUCK 2-0002
52595 INTERCEPTER PIT-RESIN SETTLEM
52609 STEAM JET VACUUM PUMP-REACTOR
52610 STEAM JET VACUUM PUMP-REACTOR
52616 YARD TRACTOR 2-0004
52633 -10' X 10' SEED STORAGE TANK 1
52636 AGITATOR-SEED STORAGE TANK 1-0
52652 S/S DRYER FILTERS & FRAMEWORK
52669 MVA CONCRETE PAD W/CURB PILAST
52670 CONCRETE BETWEEN MOTOR CONTROL
52672 GASOLINE STORAGE TANK PAD AT T
52673 CONCRETE PAD-WATER BLASTER & T
52698 BAG FLIPPER ASSEMBLY 2-0011
52704 COPOLYMER ANTIFOULANT EDUCTOR
52705 HYSTER LIFT TRUCK-SHIPPING ARE
13 of 21
Equipment List
PVC Illi
52708 SHIPPING BAG LABELER CONSISTIN
52709 5000 GAL TANK-AQUATEC 8170
52710 6000 GAL CAUSTIC TANK (FIBERGL
52715 CENTRIFUGE SYSTEM-POWER & CONT
52732 RECOVERY SYSTEM COMPRESSOR REP
52737 PASTE AIR SLIDE BLOWER REPLACE
52739 RECOVERY CONDENSER REPLACEMENT
52740 UTILITY CHILLER CONTROLS-MOORE
52741 UTILITY CHILLER CONTROLS-MOORE
52746 MAINTENANCE MANLIFT
52754 SPARE SHARPLES GEARBOX
52765 COPOLYMER MAGNET
52772 SECONDARY CONDENSER IP 4-0031
52774 TRACKSCALE MODEL WLS-TD-115RE
52776 COPOLYNER VAPOR LINES
52777 RECOVERY GAS HOLDER BELL REPL
52778 BOILER FEED VARI DRIVE 5-0007
52781 COLOR INKJET PLOTTER 5-0280
52794 BRULE INCINERATOR CAPITAL REPA
52796 P FT. SECONDARY SIFTER IP5-001
52802 AIR COMPRESSOR IP5-0003
52803 AUTOMATIC SHORT STOP SYSTEM IP
52804 AGITATOR BAFFLE IP6-0009
52807 BULK BIN DUST COLLECTORS IP6-0
52810 GRINDER ROOM CHILLER IP6-0021
52812 9 FT. DUST COLLECTOR IP5-0004
52813 CHILLER HOTWELL IP5-0005
52815 W. PRIMARY CONDENSER REPL. IP6
52818 TANK FARM FILTER IP6-0003
52819 170 SEMI-BULK BAGS & STRIKE PL
52821 SLUDGE TRANSFER PUMP IP6-0014
52823 VACUUM STRIPPING SYSTEM IP7-00
52826 3000 GAL STAINLESS STEEL TANK
52827 3000 GAL STAINLESS STEEL TANK
52828 3000 GAL STAINLESS STEEL TANK
52829 3000 GAL STAINLESS STEEL TANK
52830 3000 GAL STAINLESS STEEL TANK
52848 SPRAY DRYER DUST COLLECTOR AIR
52849 SPRAY DRYER DUST COLLECTOR AIR
52850 SPRAY DRYER DUST COLLECTOR AIR
52851 SPRAY DRYER DUST COLLECTOR AIR
52853 CONVEYING DUST COLLECTOR AIRLO
52859 CONVEYING DUST COLLECTOR BIN K
52860 CONVEYING DUST COLLECTOR BIN K
52861 CONVEYING EXHAUSTER ATTENUA
52862 PRODUCT DUST COLLECTOR EXHAUST
52863 PRODUCT DUST COLLECTOR EXHAUST
52864 PRODUCT DUST COLLECTOR EXHAUST
52865 PASTE RESIN BAG ATTENUATOR
14 of 21
Equipment List
PVC Illi
52866 DRYER LUMP SCREEN UNIT
52867 VISCOSITY MODIFIER MIX TANK SC
52868 PASTE RESIN BAG PUT & TAKE SC
52869 SOLUTION WATER HEATER
52870 HOT CHARGE WATER HEATER
52871 HOT SOLUTION WATER PUMP
52872 SEAL WATER PUMP
52873 AMBIENT SERVICE WATER PUMP
52874 HOT CHARGE WATER PUMP
52875 SEED HOLDING TANK AGITATOR
52876 SETTLING AGENT MIX TANK AGITAT
52877 PRECON BLEND TANK AGITATOR
52878 PRECON BLEND TANK AGITATOR
52879 POSTCON BLEND TANK AGITATOR
52880 POSTCON BLEND TANK AGITATOR
52881 POSTCON BLEND TANK AGITATOR
52882 JACKET RECIRCULATING WATER PUM
52883 JACKET RECIRCULATING WATER PUM
52884 JACKET RECIRCULATING WATER PUM
52885 JACKET RECIRCULATING WATER PUM
52886 VCM WEIGH TANK SCALE
52887 VCM WEIGH TANK SCALE
52888 SEED WEIGH TANK SCALE
52889 SALT SOLUTION MIX TANK
52890 VCM WEIGH TANK
52891 EMUL SIFIER MIX TANK
52892 EMUL SIFIER MIX TANK
52893 EMUL SIFIER MIX TANK
52894 EMUL SIFIER MIX TANK
52895 INITATOR MIX TANK
52896 INITATOR MIX TANK
52897 INITATOR MIX TANK
52898 INITATOR MIX TANK
52899 VCM WEIGH TANK
52900 VCM WEIGH TANK
52901 BLOWDOWN TANK
52902 BLOWDOWN TANK
52903 RVCM KNOCKOUT TANK
52904 RVCM KNOCKOUT TANK
52905 RVCM COMPRESSOR SEAL WATER
52906 RVCM COMPRESSOR SEAL WATER
52907 RVCM RECEIVER
52908 SEED TRANSFER TANK
52909 HOT WATER SURGE TANK
52910 EMULSIFIER CON ADD PUMP
52911 EMULSIFIER CHARGE PUMP
52912 EMULSIFIER CON ADD PUMP
52913 EMULSIFIER CHARGE PUMP
52914 EMULSIFIER CON ADD PUMP
15 of 21
Equipment List
PVC Illi
52915 EMULSIFIER CHARGE PUMP
52916 EMULSIFIER CON ADD PUMP
52917 EMULSIFIER CHARGE PUMP
52918 VCM CON ADD PUMP
52919 VCM CON ADD PUMP
52920 VCM CON ADD PUMP
52921 VCM CON ADD PUMP
52922 BLOWDOWN TANK TRANSFER PUMP
52923 BLOWDOWN TANK TRANSFER PUMP
52924 ANTI FOAM METERING PUMP
52925 ANTI FOAM METERING PUMP
52926 COMPRESSOR SEAL WATER PUMP
52927 COMPRESSOR SEAL WATER PUMP
52928 SEED TRANSFER TANK PUMP
52929 SEED HOLDING TANK PUMP
52930 PRODUCT HOPPER AIR SLIDE BLOWE
52931 PRODUCT HOPPER AIR SLIDE BLOWE
52932 PRECON BLEND TANK EXHAU
52933 PRECON BLEND TANK EXHAU
52934 LATEX CONCENTRATOR EXHAU
52935 LATEX CONCENTRATOR EXHAU
52936 LATEX CONCENTRATOR EXHAU
52937 POSTCON BLEND TANK EXHAU
52938 POSTCON BLEND TANK EXHAU
52939 POSTCON BLEND TANK EXHAU
52940 PASTE RESIN BAGGER EXHAU
52941 SPRAY DRYER EXHAUSTER
52942 CONVEYING DUST COLLECTOR EXHAU
52943 PRODUCT DUST COLLECTOR EXHAU
52944 PRODUCT DUST COLLECTOR EXHAU
52945 PRODUCT DUST COLLECTOR EXHAU
52946 REVERSE AIR SUPPLY FAN
52947 SPRAY DRYER SUPPLY FAN
52948 SPRAY DRYER
52949 SPRAY DRYER HEATER BANK
52950 SPRAY DRYER HEATER BANK OUTER
52951 SPRAY DRYER HEATER BANK
52952 SPRAY DRYER HEATER BANK
52953 VISCOSITY MODIFIER MIX TANK
52954 LATEX CONCENTRATOR TANK
52955 LATEX CONCENTRATOR TANK
52956 LATEX CONCENTRATOR TANK
52957 BAG REWORK HOPPER
52958 UNGROUND PRODUCT SURGE BIN
52959 PRODUCT HOPPER
52960 PRODUCT HOPPER
52961 PRODUCT HOPPER
52962 CONDENSATE FLASH TANK
52963 CONVEYING DUST COLLECTOR HOPPE
16 of 21
Equipment List
PVC Illi
52964 CONDENSATE SURGE TANK
52965 CONDENSATE RETURN PUMP
52966 CONDENSATE RETURN PUMP
52967 SETTLING AGENT TRANSFER PUMP
52968 VISCOSITY MODIFIER TRANS
52969 LATEX CONCENTRATOR TRANS
52970 POSTCON LATEX TRANSFER PUMP
52971 VISCOSITY MODIFIER MIX TANK
52972 SPRAY DRYER FEED PUMP
52973 SPRAY DRYER FEED PUMP
52974 VACCUM CLEANING SYSTEM
52975 PASTE RESIN BAGGER DUST COLLE
52976 SPRAY DRYER HEATER PREFI
52977 SPRAY DRYER DUST COLLE
52978 CONVEYING DUST COLLECTOR
52979 PRODUCT DUST COLLECTOR
52980 PRODUCT DUST COLLECTOR
52981 PRODUCT DUST COLLECTOR
52982 PASTE RESIN BAGGER
52983 PASTE RESIN BAGGER
52984 DUAL DUMP SYSTEM
52985 PASTE RESIN BAG CHECK WEIGH SC
52986 PASTE RESIN BAG CHECK WEIGH SC
52987 PASTE RESIN BAGGER TAKE OFF C
52988 PASTE RESIN BAGGER TAKE OFF C
52989 PASTE RESIN BAG ACCUM
52990 PASTE RESIN BAG REJECT STRGE
52991 PASTE RESIN BAG PALLET TRF C
52992 PASTE RESIN BAG FLATTENER
52993 PASTE RESIN BAG SWIVEL STACK
52994 PASTE RESIN PALLET PLACER
52995 PASTE RESIN BAGGER FLUID
52996 PASTE RESIN BAGGER FLUID
52997 PRODUCT HOPPER AIR SLIDE
52998 PRODUCT HOPPER AIR SLIDE
52999 PRODUCT HOPPER AIR SLIDE
53000 UNGROUND PRODUCT SURGE BIN D
53001 UNGROUND PRODUCT SURGE BIN D
53002 UNGROUND PRODUCT SURGE BIN D
53003 POSTCON LATEX LUMPBREAKER
53004 GRINDER BEARING LUBRICATOR
53005 GRINDER BEARING LUBRICATOR
53006 GRINDER BEARING LUBRICATOR
53007 RESIN GRINDER
53008 RESIN GRINDER
53009 RESIN GRINDER
53010 GRINDER RESIN MICKRO-ATOMIZER
53011 AQUEOUS AMONIA BULK STORAGE TA
53012 AQUEOUS AMONIA BULK STORAGE TA
17 of 21
Equipment List
PVC Illi
53013 VCM TRANSFER PUMP
53014 AQUEOUS AMONIA BULK STORAGE PU
53015 AQUEOUS AMONIA TRANSFER FILTE
53016 RCVM COMPRESSOR
53017 RCVM COMPRESSOR
53018 EMULSIFIER MIX TANK FUME EXHAU
53019 EMULSIFIER MIX TANK FUME EXHAU
53020 EMULSIFIER MIX TANK FUME EXHAU
53021 EMULSIFIER MIX TANK FUME EXHAU
53022 SALT SOLUTION MIX TANK EXHAU
53023 SEED TRANSFER TANK EXHAU
53024 SEED HOLDING TANK EXHAU
53025 POLYMERIZATION REACTOR
53026 INSTRUMENTATION UPGRADE-POLYME
53027 POLYMERIZATION REACTOR
53028 INSTRUMENTATION UPGRADE-POLYME
53029 POLYMERIZATION REACTOR
53030 INSTRUMENTATION UPGRADE-POLYME
53031 POLYMERIZATION REACTOR
53032 FLOWMETER 3 VORTEX FOR PASTE
53033 INSTR UPGRD-POLYMERIZATION REA
53034 REACTOR REFLUX CONDENSER
53035 RACTOR STEAM WATER MIXER
53036 REACTOR REFLUX CONDENSER
53037 REACTOR STEAM WATER MIXER
53038 REACTOR REFLUX CONDENSER
53039 REACTOR STEAM WATER MIXER
53040 REACTOR REFLUX CONDENSER
53041 REACTOR STEAM WATER MIXER
53042 VCM RECYCLE COOLER
53043 VCM RECYCLE COOLER
53044 VCM RECYCLE COOLER
53045 VCM RECYCLE COOLER
53046 COMPRESSOR SEAL WATER COOLE
53047 COMPRESSOR SEAL WATER COOLE
53048 RVCM CONDENSER
53049 RVCM CONDENSER
53050 CIRCULATING HOT WATER SURGE
53051 CIRCULATING HOT WATER PUMP
53052 EMULSIFIER MIX TANK AGITA
53053 EMULSIFIER MIX TANK AGITA
53054 EMULSIFIER MIX TANK AGITA
53055 EMULSIFIER MIX TANK AGITA
53056 INITIATOR MIX TANK AGITA
53057 INITIATOR MIX TANK AGITA
53058 INITIATOR MIX TANK AGITA
53059 INITIATOR MIX TANK AGITA
53060 SALT SOLUTION MIX TANK AGITA
53061 BLOWDOWN TANK AGITATOR
18 of 21
Equipment List
PVC Illi
53062 BLOWDOWN TANK AGITATOR
53063 HOT WATER SURGE TANK AGITA
53064 EMULSIFIER FILTER
53065 EMULSIFIER FILTER
53066 EMULSIFIER FILTER
53067 EMULSIFIER FILTER
53068 INITIATOR FILTER
53069 INITIATOR FILTER
53070 INITIATOR FILTER
53071 INITIATOR FILTER
53072 VCM FINAL FILTER
53073 VCM FINAL FILTER
53074 VCM FINAL FILTER
53075 VCM FINAL FILTER
53076 VCM PREFILTER
53077 VCM FILTER
53078 VCM FILTER
53079 COMPRESSOR SEAL WATER FILTE
53080 COMPRESSOR SEAL WATER FILTE
53081 CONDENSER VENT FILTER
53082 CONDENSER VENT FILTER
53083 CONDENSER VENT FILTER
53084 CONDENSER VENT FILTER
53085 CONDENSER VENT FILTER
53086 CONDENSER VENT FILTER
53087 CONDENSER VENT FILTER
53088 CONDENSER VENT FILTER
53089 BLOWNDOWN TANK LUMP BREAK
53090 VCM WEIGH TANK SCALE
53091 VCM WEIGH TANK SCALE
53092 SEED STRAINER
53093 SEED STRAINER
53094 BLOWDOWN TANK LUMP BREAK
53095 VCM WEIGH TANK
53096 SEED HOLDING TANK
53097 SEED WEIGH TANK
53098 SETTLING AGENT MIX TANK
53099 PRECON BLEND TANK
53100 PRECON BLEND TANK
53101 POSTCON BLEND TANK
53102 POSTCON BLEND TANK
53103 POSTCON BLEND TANK
53104 AMBIENT SERVICE WATER STORA
53105 AIR RECEIVER
53106 PVC EXPANSION FINAL CLOSI
53107 BALANCE SEPARATOR
53108 BALANCE SEPARATOR PART OF 402
53109 INDIVIDUAL PAGING SYSTEM
53110 MONSANTO TECHNOLOGY
19 of 21
Equipment List
PVC Illi
53112 BAG IMPRINTER MODEL A MARSH
53113 S/B TANK 24000 GAL F-419
53114 S/B TANK AGITATOR G-420 S/N 7
53139 AGITATOR SLURRY PIT S/N 120-1
53142 TRACKMOBILE
53150 RAIL CAR UNLOADER-PORTABLE
53299 SCANSTAR COMPUTER-IN COLUMBUS
53301 EXPANSION-INCREMENTAL PASTE
63441 10 FT.DRYER DUST COLLECTOR
63442 GEARBOX:#2 COLD LIME SOFTNER
63443 SOLID STATE DRUM LEVEL CONTROL
63449 PURCHASE NEW FORK TRUCK
63451 MANWAY LID IMPROVEMENTS
63452 10 DRYER SPARE FEED PUMP
63453 REACTOR BAFFLE AND SHAFT
63456 REPLACEMENT DEMINERALIZER
63469 PERMANENT AIR HANDLER
63471 INCINERATOR DETONATION ARRESTE
63472 B/R CHARGE WATER COOLING
63476 PASTE STEAM COILS
63478 PASTE REACTOR CLEANWALL INJECT
63556 VCM EMERGENCY SWITCH SYSTEM
63727 F420 10 Centrifuge Feed Tank
63791 EG500 #17 W/P Emergency Generator
63792 A811 Tank Farm Pump House
64067 VE3558B TERTIARY VCM CONDENSATE TANK
65205 ILLTP001 Diliopolis Telephone System
65246 HE3558A Seal Water Cooler
65247 CO3558 Tertiary VCM Compressor
65248 HE3558B Tertiary VCM Condenser
65249 VE3558A Seal Water Tank
65278 DC4020 13' Dust Collector
65279 DC4021 Dust Transfer System Filter
65280 EX4021 Dust Transfer System Exhauster
65309 ST9000 Stripper Column
65679 BA4293 North Bulk Bagging Station
65680 BA4294 South Bulk Bagging Station
81456 95TM 95TM TRACKMOBILE
81563 CO3555 WEST RECOVERY COMPRESSOR NASH
81573 D301 REACTOR
81574 D302 REACTOR
81575 D303 REACTOR
81576 D304 REACTOR
81577 D305 REACTOR
81578 D306 REACTOR
81579 D307 Reactor
81580 D308 REACTOR
81581 D309 REACTOR
81582 D310 REACTOR
20 of 21
Equipment List
PVC Illi
81583 D311 REACTOR
81584 D312 REACTOR
81586 D314 REACTOR
81589 D317 REACTOR
81590 D318 REACTOR
81658 F402 SLURRY BLEND TANK
81659 F403 SLURRY BLEND TANK
81660 F404 SLURRY BLEND TANK
81880 PU3500 CLARIFIED WATER PUMP
81948 VE3552 YARD KO TANK
81957 VE3557A EAST COMP SEAL WATER TANK
81976 BL4009A EAST CONVEYING BLOWER
82006 FI3 111 SLURRY TRANSFER SCALPING FILTE
82097 PU3109 PVA TRANS. PUMP-GP 3196ST 1X1
82140 RD4003 PVC ll 13' DRYER
82142 RE3001 REACTOR
82145 RE3002 REACTOR
82147 RE3003 REACTOR
82149 RE3004 REACTOR
82163 SC4008A PRATER SIFTER(SE) (#1)
82186 VE15105 WASTE WATER TRANSFER TANK
82206 VE3114B MIDDLE RVCM TANK
82312 DC4290 PASTE RESIN BAGGER DUST COLLEC
82593 VE3385 SEED TANK
82749 NC15011 Trane Incinerator
82809 SB6001 #3 BOILER
82811 SB6002 #4 BOILER
82837 VE15011 INCINERATOR QUENCH TANK
21 of 21
SCHEDULE 2.1(c) - LIST OF OFFSITE WAREHOUSES
All offsite warehouses, consignment sites or other locations storing
products manufactured at the Illiopolis Plant:
1. Young's Warehouse, Illiopolis, Illinois (considered to be an extension of
__-site warehouse)
2. PDI Terminal Montreal, Quebec, Canada
3. Delaware Express Termina1, Edgemoor, Delaware
4. Bulkmatic Terminal, Doraville, Georgia
5. Miller Truckline Terminal, Stroud, Oklahoma
6. Specialized Transportation Services Terminal, Greenville, Tennessee
7. Titan Logistics Terminal, Stillwater, Oklahoma
8. EAR, Indianapolis, Indiana (consignment)
9. Bemis, Shirley, Massachusetts (consignment)
10
SCHEDULE 2.1(d) - ASSUMED CONTRACTS
1. Water Supply Agreement with Village of Illiopolis dated February 1, _____
2. Letter from DOMCO Tarkett, Inc. regarding contract for copolymer __________
October 24, 2001.
3. Contract Extension Agreement with Minnesota Mining and Manufacturing
Company (3M) dated January 14, 2000 extending November 14, 1996 Purchase
Agreement.
4. Confirmation of Sales Agreement with Wexford International Inc. dated April
30, 2001 re: sale of Borden Chemical and Plastics Operation Limited
Partnership _____ material to Radiator Specialty.
5. Sales Agreement with Sunnex Corporation dated September 10, 2001.
6. Sales Agreement with EFTC dated June 25, 2001.
7. Sales Agreement with Interface Flooring Systems Inc. dated October 19,
2000.
8. Environmental Indemnity Agreement between Borden Chemicals and Plastics
Limited Partnership, Seller, and Borden, Inc., dated July 28, 1999.
9. Environmental Indemnity Agreement between Borden Chemicals and Plastics
Limited Partnership, Seller, and Borden, Inc., dated November 30, 1987.
10. Sales Agreement dated March 20, 1996 between Aventis Rhone Poulenc and
Borden Chemicals And Plastics Operating Limited Partnership.
11
SCHEDULE 2.1(e) - PERMITS
1. Illinois Environmental Protection Agency, National Pollution Discharge
Elimination System Permit No. IL0001350, issued September 24, 1991, with
October _4, 1996 expiration date. New application submitted on April 26,
1996 still pending.
2. Illinois Environmental Protection Agency, Water Pollution Control Permit
No. 1997-SC-4302, issued July 17, 1997, with July 1, 2002 expiration date.
3. Illinois Environmental Protection Agency, PVC Manufacturing Facilities
Operating Permit, Application No. 82060050, I.D. No. 167812AAG, issued
April 14, 1999, with January 11, 2001 expiration date. Clean Air Act Title
V permit submitted on March 7, 1996 still pending.
4. Illinois Environmental Protection Agency Division of Water Pollution
Control, National Pollutant Discharge Elimination System Reissued Permit
no. IL0042366, issued July 27, 1999;
5. Illinois Environmental Protection Agency, Water Pollution Control Permit
no. 2000-SC-1733, issued November 15, 2000;
6. Illinois Environmental Protection Agency, Joint Construction and Operating
Permit Application no. 99070006, issued October 4, 1999;
7. Illinois Environmental Protection Agency Joint Construction and Operation
Permit. Application no. 94040045, issued May 17, 1994.
12
SCHEDULE 2.1(f) INTANGIBLE ASSETS
Any and all (a) business information (including pricing and cost
information, business and marketing plans and customer and supplier lists); (b)
know-how (including manufacturing and production processes and techniques and
research and development information); (c) industrial designs, drawings and
blueprints and product specifications; (d) operating manuals; (e) databases and
data collections; (f) computer software, subject to the terms of any license
granted to Seller; and (g) copies and tangible embodiments of any of the
foregoing which are used in the operations of the Business as of the Closing
Date and those same types of materials, including proprietary suspension agents
technology which have historically been used as or which are solely related to
the Business as of the Closing Date.
13
SCHEDULE 2.1 (i) RESEARCH EQUIPMENT
All research equipment related to the products manufactured at the
Illiopolis Plant and located at Geismar, Louisiana:
1. One-Gallon S.S. Mini Reactor - Used for Dispersion resin development work.
Equipped with computer controls to monitor continuous addition of VCM,
Initiator and Soaps based on BTU (Conversion). Cooling supplied by a
separate chiller.
2. Fifteen Gallon S.S. Reactor - Used for Copolymer, Blending resin and other
specialty resin suitable for Illiopolis development 50% of the time.
Equipped with automatic reactor and condenser temperature control. Cooling
supplied by a rental chiller.
3. Centrifuge - Used in conjunction with the fifteen-gallon reactor.
4. Misc. VCM and VAM addition bombs and scales.
5. Niro pilot scale spray dryer for Dispersion resins.
6. Mikro pulverizer grinder for dispersion resin.
7. CPSM - Particle size analyzer for dispersion resin.
8. CPS - Particle size analyzer for dispersion latex development work.
9. Latex Sonifier used in conjunction with CPSM for PSD measurements.
10. Brinkman Brookfield Viscometer
11. Bench Scale fluid bed dryer for Copolymer & Blending resin.
12. Quincy Convection Oven
13. Misc. Hot plates stirrers, glassware, etc.
14. Coulter Counter - Particle size distribution for paste, blending and
suspension resins.
15. Microscopy - Optical and Scanning Electron Microscope (SEM) with
photographic capabilities. Major use is for morphology and size analysis.
16. Premier model 2000 lab dispersator - plastisol mixing
17. Rheostat - plastisol mixing
18. 2 Gra-Lab model 171 Universal Timers - plastisol mixing, air release
timing, film casting, chart heat stability, etc.
19. 2 1000 ml Pyrex beakers - height of rise
20. 2 Vacuum Pumps - Air release, height of rise, film casting
21. 2 Pyrex desiccating bells with wire cages - Air release, height of rise
22. 2 Hobart low shear mixers - plastisol mixing
23. Electronic balance model FX3000 - plastisol mixing, bulk density, etc.
24. Electronic balance model FX6000 - plastisol mixing, bulk density, etc.
25. Brookfield Viscometer with spindles - Brookfield viscosity
26. 2 Hegman fineness of grind gages and knife - Hegman fineness of grind
27. Gel point Apparatus - gelation point
28. Hotplate - gelation point
29. Pocket probe pyrometer - gelation point
30. Precision Quincy Corp Oven - film casting, heat stability
31. Gardner knife #239 (14cm) - film casting
32. Gardner knife #910 (21.5cm) - film casting
33. Bird vacuum plate - film casting
34. CSI calibrated micrometer - blow ratio on foams
35. Triple beam balance - severs viscosity
36. Severs Extrusion rheometer - severs viscosity
14
37. Digital stopwatch - severs viscosity, huff ring test, etc.
38. Huff ring apparatus - huff ring test
39. Fisher Isotemp Circulator - water bath
40. Water chiller - water bath
41. Water bath (green tub) - water bath
42. Ferro plates - film casting
43. Glass plates - film casting
44. Leneta paper - film casting, haze, gloss
45. Release paper - film casting, color
46. BYK-Gardner gloss meter - film gloss
47. C.W. Brabender Aqua Tester - % moisture
15
SCHEDULE 2.4(d) - FORM OF ESCROW AND TRUST AGREEMENT
TRUST AND ESCROW AGREEMENT
This Trust and Escrow Agreement ("Agreement") is entered into this ___ day
of ____________, 2002, by and between Borden Chemicals and Plastics Operating
Limited Partnership ("BCP"), Formosa Plastics Corporation, Delaware ("Formosa"),
and Wilmington Trust Company (as escrow agent hereunder "Escrow Agent").
RECITALS
A. BCP and Formosa are parties to a certain Asset Purchase Agreement dated as
of March 7, 2002 (the "APA"), wherein BCP has agreed to sell, and Formosa
has agreed to purchase, certain assets associated with a polyvinyl chloride
resin manufacturing facility located in Illiopolis, Illinois.
B. Section 2.4(d) of the APA requires Formosa to deposit with BCP earnest
money in the amount of $1,000,000 (the "Earnest Money Deposit"). BCP,
together with its subsidiary, BCP Finance Corporation, filed voluntary
petitions for relief under Chapter 11 of the United States Bankruptcy Code
in the United States Bankruptcy Court for the District of Delaware (the
"Bankruptcy Court") under Bankruptcy Case Number 01-1268 (RN) (the
"Bankruptcy Case"). Accordingly, the APA provides that the Earnest Money
Deposit does not constitute an asset of BCP and is to be held in trust and
escrow in a separate interest-bearing account containing no other funds of
BCP pursuant to a trust and escrow agreement pending the closing of the
transaction set forth in the APA.
C. Pursuant to the provisions of the APA, Formosa and BCP have requested
Escrow Agent hold in escrow in accordance with the provisions of the APA
and this Agreement the Earnest Money Deposit and the earnings thereon, as
further provided herein and to act as Escrow Agent hereunder.
D. Escrow Agent is willing to hold the Earnest Money Deposit and the earnings
thereon in accordance with the provisions of the APA and this Agreement and
to act as Escrow Agent hereunder.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. Appointment of Escrow Agent. BCP and Formosa hereby appoint Wilmington
Trust Company as the Escrow Agent hereunder subject to and in accordance with
the provisions of this Agreement, and Escrow Agent accepts such appointment and
agrees to act a Escrow Agent hereunder, subject to and in accordance with the
provisions of this Agreement.
16
2. Establishment of Escrow Account. Escrow Agent agrees to receive the
Earnest Money Deposit from Formosa and agrees to hold, invest and disburse the
Earnest Money Deposit and the earnings thereon in escrow, subject to and in
accordance with the provisions of this Agreement.
3. Deposit: No-Commingling
(a) Concurrently with the execution of this Agreement, Formosa a has
deposited the Earnest Money Deposit directly with the Escrow Agent. The Earnest
Money Deposit will be held in trust and maintained in a separate
interest-bearing deposit account maintained at the Escrow Agent (the "Trust
Account"). The Trust Account will contain no funds other than the Earnest Money
Deposit and interest earned thereon. The funds in the Trust Account will not be
utilized, released, disbursed or relinquished except in strict accordance with
the terms of this Agreement.
(b) The Escrow Agent shall invest the Earnest Money Deposit Property
in Eligible Investments, pursuant to and as directed by the written instruction
Of BCP. "Eligible Investments" shall mean (i) obligations (including
certificates of deposits and banker's acceptances) of any domestic commercial
bank having capital and surplus in excess of $500,000,000 or (ii) investment in
the Escrow Agent's U.S. Treasury Securities Money Market Fund. If otherwise
qualified, other obligations of the Escrow Agent or any of its, affiliates
shall qualify as Eligible Investments. All earnings received from the investment
of the Earnest Money Deposit shall be credited to, and shall become a part of,
the Trust Account. The Escrow Agent shall have no liability for any investment
losses, including without limitation any market loss on any investment
liquidated prior to maturity in order to make a payment required hereunder.
4. Trust Funds: Waiver of Setoff Rights. Escrow Agent hereby acknowledges
receipt of the Earnest Money Deposit and agrees that the Earnest Money Deposit
and all interest earned thereon are trust funds to be held and delivered
pursuant to the terms of this Agreement. Escrow Agent hereby waives any and all
rights of setoff or counterclaim against the funds in the Trust Account. BCP
acknowledges that the funds in the Trust Account do not constitute an asset of
BCP and are not subject to the claims of any creditor of BCP in BCP's Bankruptcy
Case.
5. Disbursement of Earnest Money Deposit. The Earnest Money Deposit,
together will all interest earned thereon, will be disbursed from the Trust
Account as follows:
(a) To BCP (i) upon consummation of the transactions contemplated by
the APA pursuant to Section 2.6 of the APA or (ii) pursuant to Section 9,4(b) of
the APA.
(b) To Formosa, if the APA is terminated pursuant to Section __
thereof, or if Formosa exercises its remedy pursuant to Sections 9.2 or 9.4(a)
of the APA.
6. Disbursement Procedure. Upon the occurrence of any one of the events
described in paragraph 5 foregoing, the party entitled to receive the Earnest
Money Deposit will provide written notice to the Escrow Agent and the other
party requesting disbursement of the Earnest Money Deposit and all interest
earned thereon. Unless the Escrow Agent is notified by the other party within
five (5) days that such other party contests the claiming party's right to
receive the Earnest Money Deposit, the Escrow Agent shall disburse the Earnest
Money Deposit, together
17
with all interest earned thereon, to the claiming party on the fifth (5th) day
after receipt of the request. If either BCP or Formosa claim entitlement to the
Earnest Money Deposit, and the other party contests such claimant's right to the
same, the contesting party shall notify the Escrow Agent in writing of the
contested claim before the expiration of said five (5) day period, in which
event the Escrow Agent will not disburse the Earnest Money Deposit to the party
until the dispute is resolved by the Bankruptcy Court. If the disbursement is
contested as herein described, upon resolution of the dispute by the Bankruptcy
Court, the Escrow Agent will disburse the Earnest Money Deposit, together with
interest earned thereon, to the party identified as the proper recipient thereof
by the Bankruptcy Court.
7. Rights of Escrow Agent. In performing its duties hereunder, the Escrow
Agent shall not incur any liability to anyone for damages, losses, or expenses
except for willful misconduct or gross negligence, and accordingly:
(l) The Escrow Agent undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement. The Escrow Agent shall
not have any duties or responsibilities except those expressly set forth in this
Agreement or be a trustee for or have any fiduciary obligation to any party
hereto.
(2) The Escrow Agent shall not be liable for any error of judgment
made in good faith by an officer or officers of the Escrow Agent, unless it
shall be conclusively determined by a court of competent jurisdiction that the
Escrow Agent was grossly negligent in ascertaining the pertinent facts.
(3) The Escrow Agent shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance this Agreement.
(4) None of the provisions of this Agreement shall require the Escrow
Agent to expend or risk its own funds or otherwise to incur any liability,
financial or otherwise, in the performance of any of its duties hereunder.
(5) The Escrow Agent may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties.
(6) The Escrow Agent may consult with counsel and the advice or any
opinion of counsel shall be full and compete authorization and protection in
respect of any action taken or omitted by it hereunder in good faith and in
accordance with such advice or opinion of counsel.
(7) The Escrow Agent shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, entitlement order,
approval or other paper or document.
(8) The Escrow Agent may execute any of the powers hereunder or
perform any duties hereunder either directly or by or through agents, attorneys,
custodians econominees
18
appointed with due care, and shall not be responsible for any willful misconduct
or gross negligence on the part of any agent, attorney, custodian or nominee so
appointed
(9) Formosa and BCP agree to equally share the cost of and to pay the
Escrow Agent's compensation for its normal services hereunder in accordance with
the fee schedule attached hereto as Exhibit A and made a part hereof.
(10) The provisions of this Section shall survive the termination of
this Agreement or the earlier resignation or removal of the Escrow Agent.
In no event shall the Escrow Agent be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including, but not limited
to, lost profits).
8. Indemnity: BCP and Formosa hereby jointly and severally agree to
indemnify the Escrow Agent from and against any claims or expense that the
Escrow Agent may incur in performing its duties hereunder provided that the
Escrow Agent complies with its obligations under this Agreement.
9. Notices. All notices, requests and other communications to any party
hereunder shall be in writing (including facsimile) and shall be given:
if to BCP to:
Borden Chemicals and Plastics Operating Limited Partnership
Hwy. 73
Geismar, Louisiana 70734
Facsimile: (225) 673-0626
Attention: Mark J. Schneider
with a copy to:
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30308
Facsimile: (404) 581-8330
Attention: Neil P. Olack, Esq.
And to:
Goldberg, Kohn, Bell, Bleck, Rosenbloom & Moritz
55 E. Monroe Street
Suite 3700
Chicago, Illinois 60603
Facsimile: (312)-332-2196
Attention: Alan P. Solow, Esq. and Dimitri G. Karca__s, Esq.
if to Formosa to:
19
Formosa Plastics Corporation, Delaware
9 Peach Tree Hill Road
Livingston, N.J. 07039
Facsimile: (973)-716-7483
Attention: Robert Chou, Senior Vice President
with a copy to:
Klett, Rooney, Lieber and Schorling, P.C.
The Brandywine Building
1000 West Street, Suite 1410
Wilmington, DE 19801
Facsimile: (302) 552-4295
Attention: Mark J. Gundersen, Esq.
20
if to Escrow Agent to:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890
Attention: Corporate Custody
Facsimile: (302) 651-1908
or such other address or facsimile number as such party may hereafter specify
for such purpose by notice to the other party to this Agreement. Each such
notice, request or other communication shall be effective (i) if given by
facsimile transmission, when such facsimile is transmitted to the facsimile
number specified in this paragraph 9 and the appropriate confirmation is
received, or (ii) if given by any other means, when delivered at the address
specified in this paragraph 9.
10. Binding Obligations. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors, personal
representatives and assigns.
11. Counterparts. This Agreement may be executed in two or more
counterparts, each of which together shall constitute a single agreement.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the
principle of conflicts of laws thereof. This Agreement is also subject to any
applicable order or act of the Bankruptcy Court. In the event either party shall
institute a legal action as a result of the default in the other party's
performance under this Agreement, any such action shall be brought exclusively
in the Bankruptcy Court which shall retain exclusive jurisdiction with respect
to the interpretation, performance, and enforcement of this Agreement.
13. Termination. This Agreement shall automatically terminate upon the
distribution of all the Earnest Money Deposit and all interest thereon.
14. Execution in Counterparts. This Agreement may be simultaneously
executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
21
IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be duly executed by their respective authorized officers as of the
date and year first above written.
BORDEN CHEMICALS AND PLASTICS
OPERATING LIMITED PARTNERSHIP
By: BCP Management, Inc.,
Its General Partner
By:
---------------------------------
Name/Title:
-------------------------
FORMOSA PLASTICS CORPORATION,
DELAWARE
By:
---------------------------------
Name/Title:
-------------------------
------------------------------------
WILMINGTON TRUST COMPANY
By:
---------------------------------
Name/Title:
-------------------------
22
SCHEDULE OF FEES
Setting up Escrow Account $1,000
Annual Fee $2,500
23
SCHEDULE 3.2 - CURE PAYMENTS
NONE
24
SCHEDULE 4.4 -- PERMITTED LIENS ON REAL PROPERTY
1. Document #365846 -- Illinois Power Co. Easement for electric substation.
Book 678 Page 305.
2. Document #306540 -- Easements for Illinois Power Co. Location of easements
unknown. Location cannot be determined from recorded documents. Book 589
Page 837.
3. Document #285976 -- Illinois Power easement. (Note: title comm. refers to
doc. #285975 which appears to be a misprint.) Book 553 Page 88.
4. Document #306235 -- Illinois Power Co. easement for pipeline. Book 589 Page
380.
5. Document #365845 -- Three easements to Illinois Power Co. Book 687 Page
301.
6. Document #231750 -- Easement along north and south roadway for Illinois
Power Co. Book 390 Page 143.
7. Document #369757 -- Three easements to Illinois Power Co. Vol. 683 Page
890.
8. Document #309300 -- Easement for Commonwealth Edison Co. transmission
online. Book 593 Page 931.
9. Document numbers 306235 and 309300. Also refers to document #33706_ which
is easement for 20 foot easement centering on "existing" power lines. Exact
location not known and not established from field information. Also refers
to document #287983 which is a 10 foot easement for sewer drain.
10. Documents #228766, 235868, and 228820. Restrictions for U.S.A. filed for
property released from Sangamon Ordinance Plant. Restrictions include
maintenance of "Victory Road" and are not noted on plat.
11. Instrument dated March 9, 1896 and recorded March 10, 1896 in book 123 of
mortgages pg. 637 is document allowing 10" field tiles over southeast
quarter section _1.
12. Document #287983 -- 10 foot easement for sewer drain.
13. Document #60849 -- Easements for 10" field tile over part of southeast
quarter of section 11. Book 557 Page 272.
14. Document #239022 -- Easement for use of "Victory Road" and railroad siding
track.
15. Document #241131 -- Easement for use of "Victory Road." (Note: title co__.
refers to doc. #341131 which appears to be a misprint.)
16. Document #328270 -- reservation of use of switches, siding, etc. Also
restriction on production or sale of agricultural chemicals and
fertilizers. Book 622 Page _24
17. Document #335661 -- Restriction of sale of agricultural chemicals and
fertilizer.
18. Document #577732 -- Appears to be within the west half of section 11-16-__
third principal meridian, Sangamon County.
19. Documents #247356 and 232951 -- Deeds from U.S.A. to State of Illinois ___
various roads constructed in Townships 17 and 16 north and range 2 west of
the third principal meridian, Sangamon County, IL. Originally part of
Sangamon Ordinance Plant. Book 396 Page 167.
20. Document #86979 refers to the following:
1. Document #367822 -- 20 foot easement to Illinois Power Co.
2. Document #75159 and 75160 -- field tile agreements for installation of
12" and 15" field tiles in south half of section 11. (Ref. Book 144 of
Mortgages, Page 521.)
3. Document #317083 -- Easement for ingress and egress along "Victory
Road."
25
4. Document #366009 -- (Reference Book 678, Page 528) describes 100 foot
strip (known as Victory Road). Deeded by quit claim October 4, 1974
5. Document #467129 -- indicates a quit claim deed to Illinois Power Co.
45 by 100 feet lying directly west of the "not included" parcel in the
southeast corner of the northeast quarter of section 11.
21. Document #311009 easement made by Delcalb Agricultural Association, Inc.,
to Illinois Power Company, dated August 5, 1965 and recorded October 13,
1965 in Book 596 Page 512 for purpose of constructing/maintaining a 30 inch
pipe line.
22. Document #337067 -- 20-foot easement centering on existing power lines
Exact location not known and not established from field information.
23. Document #311100 conveys to Illinois Power Company a parcel 45' x 10_'
parcel.
SCHEDULE 4.7 -- VIOLATIONS OF LAWS OR PERMITS
1. There is a potential NESHAP enforcement action pending with the IEPA. Two
VCM releases in 1999 have been combined with two later releases to form
this potential action. BCP has met with IEPA on several occasions with no
final Agency action at this time.
2. There was a notice of violation resulting from a hazardous waste inspection
in September, 2001. A subsequent meeting with IEPA resulted in verbal
notice that no further action is expected.
3. Certificate of Publication dated January 27, 2000, for failure to submit
source water and optimal corrosion control treatment recommendation as
required by USE_A Lead Rule.
4. IEPA Notice of Violation UU -- 1999 -- 00224 dated September 27, 1999.
5. IEPA Notice of Violation A -- 2001 -- 00085 dated April 27, 2001
6. IEPA Notice of Violation A -- 1999 -- 00259 dated August 2, 1999
7. IEPA Notice of Violation A -- 2000 -- 00147
8. IEPA Notice of Violation L -- 2001 -- 01380 dated November 2, 2001
9. IEPA Notice of Violation EPA I.D. No.: ILD 005 158 548 dated August 22,
2000.
27
SCHEDULE 4.8 - PENDING OR THREATENED LITIGATION
1. Dyer, James v. BCP; Index No. 01-CV-3016 (1/17/01), U.S. Dist. C_.
Cert. Dist. Of Illinois. (Acquiror shall not assume any obligation or
liability for this action.)
2. In re Borden Chemicals and Plastics Operating Limited Partnerships, et
al; Case Nos. 01-1268; Motion of Congoleum Corporation for an Order
(i) Authorizing Congoleum to Cancel Its Supply Contract with the
Debtor, or Alternatively (ii) Vacating the Automatic Stay and
Compelling Immediate Rejection of the Supply Contract.
28
SCHEDULE 4.10 - EMPLOYEE BENEFITS
Union Employees
a. Life Insurance (wADB) Employee, Spouse, Child
b. Short Term Disability
c. Long Term Disability
d. Medical Benefits
e. Dental Benefits
f. Associate Savings Plan (401k)
g. Retirement Income plan (Pension)
h. Life Insurance - Cancer Only - $25,000 coverage on each employee
i. Vacation - per union contract
j. Holidays - per union contract - 12 days
k. Bereavement Pay
1. Employee Assistance Program (EAP)
m. Safety shoe Plan - $100 allowance
n. Tool allowance - $70.00
o. Safety Glasses Program
Salaried Employees
a. Life Insurance - Employee, Spouse, Child
b. Accidental Death & Dismemberment Insurance
c. Business Travel Insurance
d. Salary Continuance (STD)
e. Long Term Disability
f. Medical Benefits
g. Dental Benefits
h. Cash Account Plan (Pension)
i. Retirement Savings Plan (401k)
j. Vacation - 0-4 years - 10 days
January 1 of year 5 - 15 days
January 1 of year 10 - 20 days
January 1 of year 20 - 25 days
k. Holidays - 12 days
1. Employee Assistance Program (EAP)
m. Safety shoe Plan - $100 allowance
n. Safety Glasses Program
29
SCHEDULE 4.11- ENVIRONMENTAL MATTERS
a) None
b) None
c)
1. Water Issues
Certificate of Publication dated January 27, 2000 for failure to submit source
waiver and optimal corrosion control treatment recommendation as required by
USEPA Lead Rule;
Illinois EPA Notice of Violation W-1999-00224 dated September 27, 1999.
2. Air Issues
Illinois EPA Notice of Violation A-2001-00085 dated April 27, 2001;
Illinois EPA Notice of Violation A-1999-00259 dated August 2, 1999;
Illinois EPA Notice of Violation A-2000-00147.
3. IEPA RCRA Issues
Illinois EPA Notice of Violation L-2001-01380 dated November 2, 2001.
4. EPA RCRA Issues
USEPA Notice of Violation EPA I.D. No.: ILD 005 158 548 dated August 22, 2000.
d)
1. There is a potential NESHAP enforcement action pending with the IEPA. Two
VCM releases in 1999 have been combined with tow later releases to form
this potential action. BCP has met with IEPA on several occasions with no
final Agency action at this time.
2. There was a notice of violation resulting from a hazardous waste inspection
in September, 2001. A subsequent meeting with IEPA resulted in verbal
notice that no further action is expected.
3. Phase II Environmental Assessment - Geotechnology Report No. 062450 dated
January 15, 2002.
30
e) Naphtha tank removed in the 1960 - 1970 period. There are no records of
this tank at the Illiopolis Plant.
SCHEDULE 4.13 - CUSTOMERS
Contracts
Congoleum Corporation
Mannington Resilient Floors
Domco Inc Floor Products
Seaman Corporation
BASF Corporation
PolyOne Plastic Compound & Colors
Interface Flooring Systems Inc
Sherwin Williams Company
E-A-R Specialty Composites
Sunnex
Aventis Crop Science
Henkel Surface Technologies
Rutland Plastic Technologies
DIAB Inc.
Bemis Associates Inc
Minnesota Mining & Mfg Co Inc
Spot basis
Armstrong World Industries
Eftec North America LLC
Belt Concepts of America, Inc.
Marchem DuBlon, Inc.
Calhoun Plastics & Chemicals, Inc.
Nan Ya Plastics Corp. USA
Valspar Corporation
White Cap Inc
Reeves Brothers Inc.
Bradford Industries Inc
Uniroyal Engineered Products
Lakeside Plastics Corp
Pandel Chemical
The Oak Rubber Co
Champion Laboratory Inc
Textron Automotive Company
Brentwood Industries Inc
Textileather Corp
Apache Mills Inc
Scandura Inc
Loes Enterprises
Thermoclad Co Inc
Saint - Gobain Performance Plastics
Riverdale Mills Corp
W R Grace & Co
32
Penn Color Inc
Plasti Dip International
Bruin Plastic Co Inc
SCHEDULE 6.4 - EMPLOYEE SEVERANCE BENEFITS
Exempt Employees
- --------------------
Name Total
- ---- -------------
1 $ 16,447.54
2 $ 42,002.73
3 $ 20,598.30
4 $ 31,761.68
5 $ 20,000.93
6 $ 45,564.50
7 $ 22,500.00
8 $ 73,667.91
9 $ 31,810.52
10 $ 16,848.00
11 5 50,988.64
12 $ 27,709.15
13 $ 73,155.15
14 $ 9,922.50
15 $ 37,324.80
16 $ 23,989.50
17 $ 37,494.90
18 $ 28,820.53
19 $ 36,585.00
20 $ 37,622.62
21 $ 65,498.34
22 $ 62,131.05
23 $ 28,223.35
24 $ 23,399.98
25 $ 27,604.02
26 $ 33,654.72
27 $ 36,180.00
28 $ 65,715.30
29 $ 47,958.12
30 $ 91,513.80
31 $ 57,578.85
32 $ 76,783.95
-------------
$1,301,056.36
34
Non Exempt Employees
- --------------------
Name Total
- ---- ----------
1 $ 4,354.92
2 $12,938.80
3 $14,466.51
4 $ 2,456.81
5 $ 7,707.16
6 $ 1,578.85
7 $ 5,151.82
8 $13,468.82
----------
$62,123.70
Notwithstanding the above, Acquiror shall not be liable for payment of FICA, SUI
or FUI associated with payment of severance to the above employees.
SCHEDULE 6.9 - CONFIDENTIAL CONTRACTS
All material agreements concerning the operation of the Business not
otherwise set forth in Schedule 2.1(d):
1. Sales Agreement dated March 15, 2000 between Diab LP and Borden Chemicals
And Plastics Operating Limited Partnership;
2. Sales Agreement dated May 24, 2001 between Rutland Plastic Technologies,
Inc. and Borden Chemicals And Plastics Operating Limited Partnership;
3. Sales Agreement dated November 19, 1997 between Seaman Corporation and
Borden Chemicals And Plastics Operating Limited Partnership;
4. Agreement for Engineering Services dated July 26, 2001 between Unified
Theory, Inc. and Borden Chemicals And Plastics Operating Limited
Partnership;
5. Freight Rates Agreements between Union Pacific Railroad Company and Borden
Chemicals And Plastics Operating Limited Partnership for the following
shipping locations:
1. From Allemania, LA to Illiopolis, IL dated December 1, 2000
2. From Freeport, TX to Illiopolis, IL dated December l, 2001
3. From Gregory, TX to Illiopolis, IL, dated December 1, 2001
4. From Lake Charles, LA to Illiopolis, IL dated December 1, 2001
5. From Plaquemine, LA to Illiopolis, IL dated December 1, 2001
6. Sales Agreement dated April 11, 2001 between Henkel Surface Technologies
and Borden Chemicals And Plastics Operating Limited Partnership;
7. Sales Agreement dated January 3, 2001 between Mannington Mills, Inc. and
Borden Chemicals And Plastics Operating Limited Partnership;
8. Sales Agreement dated March 25, 1999 between BASF (f/k/a Morton
International, Inc.) and Borden Chemicals And Plastics Operating Limited
Partnership;
9. Sales Agreement dated November 29, 1999 between Congoleum Corporation and
Borden Chemicals And Plastics Operating Limited Partnership;
10. Sales Agreement dated February 15, 2000 between Geon Formulator Group (
______) and Borden Chemicals And Plastics Operating Limited Partnership;
11. Letter Agreement dated October 25, 2001 between Congoleum Corporation and
Borden Chemicals And Plastics Operating Limited Partnership;
12. Amendment 4 to Contract Reg-NS-C 14619 dated December 3, 2001 between
Borden Chemicals And Plastics Operating Limited Partnership and Canadian
Pacific Railway and Norfolk Southern Railway Company.
13. Transportation Contract NS 18051 dated September 14, 2001 between Borden
Chemicals And Plastics Operating Limited Partnership and Illinois Central
Railroad Company and Norfolk Southern Railway Company.
36
14. Transportation Contract NS 18052 dated September 14, 2001 between Borden
Chemicals And Plastics Operating Limited Partnership and CSX
Transportation, Inc. and Norfork Southern Railway Company,
15. Transportation Contract Reg-NS-C-18337 dated September 14, 2001 between
Borden Chemicals And Plastics Operating Limited Partnership and Norfolk
Southern Railway Company.
16. Amendment No.5 to Contract Reg-NS-C 15889 dated September 14, 2001 between
Borden Chemicals And Plastics Operating Limited Partnership and Norfolk
Southern Railway Company.
SCHEDULE 6.11 - ENGINEERING AND MECHANICAL INFORMATION
All the engineering and mechanical information set forth herein to the
extent solely related to the Illiopolis Plant.
A. General
6. P&I flow diagram showing all equipment in the plant which should also
include fire fighting system, VCM/VAM unloading system, RW/HW system,
cooling water system, utilities such as nitrogen, natural gas,
instrument air, well and raw water treatment.
7. Machine list showing specifications for all equipment corresponding to
P&I flow diagram.
8. Sequence chart of polymerization,
9. List of laboratory equipment.
10. Document and information of office LAN system to be transferred.
11. Underground pipeline construction drawings
12. Human Resources records
13. Construction bid packages and drawings
14. Standard Operating Procedures
B. Maintenance for mechanical instrument and electricity
1. Overall
(a) List of maintenance equipment
(b) Spare parts list
(c) Vendor document and drawings for each equipment
(d) Engineering standard including piping standard
(e) Maintenance record of major equipment
(f) Record of mechanical integrity required by OSHA
2. Mechanical
(a) Piping drawings
(b) Drawing for each building
(c) Boring data of the plant
(d) List of leased equipment such as fork lift, track mobile, track
shoe, etc.
3. Instrument and electrical
(a) Document for process computer (both hardware and software)
(b) Instrument list
(c) Motor list
(d) Instrument loop drawing
(e) Electrical one line diagram and wiring diagram
(f) Document for instrument and electrical UPS system
(g) Layout drawings for control room and switchgear room
(h) Information of substation equipment
C. Safety and environment
1. List of safety equipment
2. Hazardous area classification drawing
3. Document for monitoring system
4. Printout record of area monitoring and personal monitoring record
5. Record of analysis required by environmental regulations (air, water,
hazardous material, etc.)
6. PSM compliance data
7. All current and past environmental permits, documents, applications,
correspondence, agreements, etc,
8. All current and past safety documents, filings, records,
correspondence, agreements, etc.
9. Compliance record for TCLP test for solid waste disposal
10. Material Safety Data Sheets for all products
D. License
l. License agreements with other companies for special technique,
chemicals, etc.
E. Purchasing and receiving
1. Document for purchasing
2. Document for receiving of material and equipment
F. Quality Control and Laboratory
l. Product Specification
2. Customer Specification
3. Test methods
4. ISO certification, if applicable