Exhibit 2.2
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"),
is made and entered into as of the 22nd day of December, 1997, by
and between IMC Global Operations Inc., a Delaware corporation
(together with its successors and assigns, "Assignor") and
Freeport-McMoRan Resource Partners, Limited Partnership, a
Delaware limited partnership (together with its successors and
assigns,"Assignee").
W I T N E S S E T H:
WHEREAS, Assignor holds an interest in certain sulphur and
oil and gas producing properties and certain facilities and other
interests relating thereto; and
WHEREAS, in connection with the proposed merger between
Assignor's parent company, IMC Global Inc., and an Affiliate of
Assignor, Freeport-McMoRan Inc., (the "Merger"), Assignor hereby
agrees to transfer to Assignee the interest in the sulphur and
oil and gas producing properties and the facilities and other
interests relating thereto which are identified herein.
NOW, THEREFORE, in consideration of good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged by Assignor and Assignee, Assignor and Assignee
hereby agree as follows:
1. Definitions. As used herein, the following terms, when
capitalized, shall have the following meanings, unless the
context dictates otherwise:
"Action" means any claim, suit, chose in action,
arbitration, mediation, inquiry, proceeding or investigation by
or before any court, governmental or other regulatory or
administrative agency or commission or any other tribunal.
"Affiliate" means with respect to any Person, any Person
that directly or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with such
Person. As used in this definition, the term "control" means the
possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of the Person,
whether through ownership of voting securities, by contract or
credit agreement, as trustee or executor or otherwise.
"Applicable Law" means all applicable provisions of all (i)
constitutions, treaties, statutes, laws (including the common
law), rules, regulations, ordinances, codes or orders of any
Governmental Authority, (ii) Consents by Governmental Authorities
and (iii) orders, decisions, injunctions, judgments, awards and
decrees of or agreements with any Governmental Authority.
"Code" means the Internal Revenue Code of 1986, as amended.
"Consent" means any consent, approval, authorization,
waiver, permit, grant, franchise, concession, agreement, license,
exemption or order of, registration, certificate, declaration, or
filing with, or report or notice to, any Person, including but
not limited to any Governmental Authority that is required as a
precondition to the transfer of one or more of the Assets.
"Containment" means any waste, pollutant, hazardous or toxic
substance or waste, petroleum, petroleum-based substance or
waste, special waste, or any constituent of any such substance or
waste.
"Environmental Law" means all Applicable Law relating to or
addressing the environment, health or safety, including but not
limited to OSHA and RCRA and any state equivalent thereof or any
successor statute.
"Fertilizer Business" means the business conducted by IMC-
Agrico Company.
"Governmental Authority" means any federal, state, county,
municipal or other government, department, commission, board,
court, agency, authority, or any other instrumentality of any of
them, or any other organization exercising legislative, executive
or judicial authority over any of the foregoing.
"Hydrocarbons" means crude oil and/or condensate, natural
gas, distillate, natural gas liquids and all products recovered
in the processing of natural gas liquids, including, without
limitation natural gasoline, iso-butane, normal butane, propane
and ethane (including such methane allowable in commercial
ethane).
"Intellectual Property" means any and all United States and
foreign (a) patents (including design patents, industrial designs
and utility models) and patent applications (including docketed
patent disclosures awaiting filing, reissues, divisions,
continuations-in-part and extensions), patent disclosures
awaiting filing determination, inventions, and improvements
thereto, (b) trademarks, service marks, trade names, trade dress,
logos, business and product names, slogans, and registrations and
applications for registration thereof, together with the goodwill
of the businesses attributable thereto, (c) copyrights (including
software) and registrations thereof, (d) inventions, processes,
designs, formulae, trade secrets, know-how, industrial models,
confidential and technical information, manufacturing,
engineering and technical drawings, product specifications and
confidential business information, (e) intellectual property
rights similar to the foregoing, and (f) copies and tangible
embodiments thereof (in whatever form or medium, including
electronic media).
"Leased Real Property" means all interests (including
offshore acreage) leased pursuant to the Leases, together with
all structures, facilities, improvements, fixtures, systems,
equipment, and items of real property which are owned or leased
by Assignor and presently located on the real property or other
acreage subject to the Leases, and all of Assignor's right, title
and interest in and to all easements, servitudes, licenses,
rights, rights-of-way, operating rights, franchises and
appurtenances relating to the foregoing.
"Leases" means the leases set forth on Schedule 1 hereto.
"Liabilities" means any and all claims, debts, costs,
indebtedness, liabilities and obligations, absolute or
contingent, matured or not matured, liquidated or unliquidated,
accrued or unaccrued, known or unknown, whenever arising,
including all costs and expenses related thereto and including,
without limitation, those claims, debts, costs, indebtedness,
liabilities and obligations arising under any law, rule,
regulation, Action, threatened Action, order or consent decree of
any governmental entity or any award of any arbitrator of any
kind, and those arising under any contract, commitments or
undertaking.
"Lien" means any interest in property held by someone other
than the owner of the property, including a mortgage, pledge,
hypothecation, claim, security interest, pledge, encumbrance,
lease, sublease, license, occupancy agreement, adverse claim or
interest, conditional sale, easement, servitude, covenant,
encroachment, burden, title defect, title retention agreement,
voting trust agreement, option, lien, right of first refusal,
right of rescission, charge or other restriction or limitation of
any nature whatsoever.
"Permit" means any foreign, federal, state, municipal and
local permit, license, registration, consent, order,
administrative consent order, certificate, approval or other
authorization with respect to Assignor necessary for the
ownership or use of any Asset or the conduct of the Transferred
Business as it is currently conducted or has been previously
conducted.
"Person" means any natural person, firm, partnership,
limited liability company, association, corporation, company,
trust, business trust, Governmental Authority or other entity.
"Release" means any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal,
leaching or migration of a Contaminant into the indoor or outdoor
environment or into or out of any Leased Real Property, including
the movement of Contaminants through or in the air, soil, surface
water, groundwater or Leased Real Property.
"Remedial Action " means actions required to (i) clean up,
remove, treat or in any other way address Contaminants in the
indoor or outdoor environment; (ii) prevent the Release or
threatened Release or minimize the further Release of
Contaminants or (iii) investigate and determine if a remedial
response is needed and to design such a response and post-
remedial investigation, monitoring, operation and maintenance and
care.
"Tax" means any federal, state, provincial, local, foreign
or other income, alternative minimum, accumulated earnings,
personal holding company, franchise, capital stock, net worth,
capital, profits, windfall profits, gross receipts, value added,
sales, use, goods and services, excise, customs duties, transfer,
conveyance, mortgage, registration, stamp, documentary,
recording, premium, severance, environmental (including taxes
under Section 59(A) of the Code), real property, personal
property, ad valorem, intangible, rent, occupancy, license,
occupational, employment, unemployment insurance, social
security, disability, workers' compensation, payroll, healthcare,
withholding, estimated or similar tax, duty or other governmental
charge or assessment or deficiencies thereof, including all
interest and penalties thereon and additions thereto whether
disputed or not.
"Transferred Businesses" means, collectively: (i) the
businesses and operations of Assignor to the extent relating to
the exploration, production, development, processing,
transportation, storage, terminalling, sale, purchase or
marketing of sulphur, in whatever form, and of sulphuric acid, or
the provision of other services in connection therewith,
including, without limitation, the operations conducted from the
Leased Real Property, but expressly excluding the purchase and
processing of sulphur by IMC-Agrico Company; (ii) the businesses
and operations of Assignor to the extent relating to the
exploration, production, development, processing, transportation,
sale, purchase or marketing of Hydrocarbons produced or
allocable to the Leased Real Property, or the provision of other
services in connection therewith; (iii) to the extent not already
included in the description set forth in (i) or (ii) of this
definition, all businesses and operations located on the Leased
Real Property or using or consuming any of the Assets.
2. Assignment. Assignor hereby conveys, sells, assigns,
transfers and delivers to Assignee any and all right, title and
interest of Assignor in or to (collectively, the "Assets"):
(i) The assets listed on Schedule 1 attached hereto
and made a part hereof;
(ii) All of the assets physically located on any of
the Leased Real Property;
(iii) All books, records and information of
Assignor recorded on any form of media whether owned, leased or
licensed by Assignor, including magnetic disk, computer drives or
microfiche, to the extent the same primarily relate to and
primarily used by or primarily in connection with the Transferred
Business or any Asset; all advertising materials, catalogs, price
lists, correspondence, mailing lists, lists of customers,
distribution lists, photographs, production data, sales and
promotional materials and records, purchasing materials and
records, personnel records, manufacturing and quality control
records and procedures, blueprints, specifications, drawings,
schematics, research and development files, records, data and
laboratory books, Intellectual Property filings or registrations,
media materials and plates, accounting records, sales order
files, litigation files, logs, seismic and geophysical
information, geological and chemical data and information,
reserve studies and evaluations, fluid samples, well cores, title
abstracts and opinions, production data and reports, well testing
data and reports, and maps, to the extent that same primarily
relate to and are used primarily by or primarily in connection
with the Transferred Business or any Asset;
(iv) All cash, credits, prepaid expenses, amounts on
deposit, deferred charges, advance payments, security deposits
and prepaid items owned by, accrued in favor of or held by
Assignor thereof to the extent relating primarily to the
Transferred Businesses or any Asset;
(v) All notes, accounts receivable, rights to payment
or other evidence of indebtedness generated by Assignor primarily
in connection with the Transferred Businesses or any Asset; all
cash and cash equivalents paid in respect of any such notes,
accounts receivable, rights to payment or other indebtedness; and
all Liens, letters of credit, guarantees or bonds to secure the
payment of all such amounts;
(vi) All of the right, title and interest of Assignor
in and to all contracts and agreements between Assignor, on the
one hand and any third party to the extent made by or for the
primary benefit of the Transferred Businesses or any Asset;
provided that the Assignor assigns the rights under the Agreement
for Sulphur Supply dated as of July 1, 1993 (the "IMCAC Sulphur
Agreement") among Assignor, Assignee and IMC-Agrico Company
("IMCAC") other than its rights to act as a buyer on behalf of
IMCAC;
(vii) All asserted and unasserted Actions now
owned by Assignor and that are related primarily arise primarily
out of the Transferred Businesses or any of the Assets, including
any claim for royalty refunds or rebates from any land owner,
including the United States, and any claim for balancing of
Hydrocarbons;
(viii) All Consents and Permits held by Assignor
for the primary benefit of the Transferred Businesses or any
Asset;
(ix) All machinery, equipment, furniture, furnishings,
automobiles, trucks, vehicles, vessels, boats, aircraft, tools,
dies, molds, wells, casing, tubing, pumping units, engines,
platforms, derricks, separators, compressors, flow lines, tanks,
pipelines, chemicals, power generation and transmission
equipment, communication systems, meters, motors, parts and
similar property (including, but not limited to, any of the
foregoing purchased subject to any conditional sales or title
retention agreement in favor of any other Person or subject to
any financed lease in favor of any other Person) to the extent
used primarily in connection with the Transferred Businesses or
any Asset;
(x) All servitudes, easements, rights of way,
operating rights, exploration rights, sharing agreements,
balancing agreements, pooling or unitization agreements, farmout
or farming agreements, unit designation and pooling orders or
other rights or agreements which bear primarily upon or are for
the primary benefit of the Transferred Businesses or any Asset;
(xi) All sulphur, Hydrocarbons or other minerals to
the extent produced from or are allocable to the interest of
Assignor in and to any of the Leased Real Property.
(xii) All Intellectual Property owned or licensed
by Assignor and all rights thereunder or in respect thereof to
the extent relating primarily to or used primarily or held
primarily for use in connection with the Transferred Businesses
or any Asset, including, but not limited to, rights to sue for
and remedies against past, present and future infringements
thereof, and rights of protection of interests therein under the
laws of any jurisdiction worldwide;
(xiii) The Leases; and
(xiv) any payments made to or on behalf of
Assignor or any Actions in favor of Assignor under any insurance
policies retained by Assignor to the extent that the same relate
to any Assumed Liabilities; provided that, notwithstanding
Section 2(iv), Assignor shall retain all claim reserves, prepaid
expenses, accruals and all other rights to the insurance
policies.
Assignor shall amend its "occurrence" insurance policies, if any,
to include Assignees as an additional insured with respect to any
Assumed Liabilities covered by any and all policies held by
Assignor.
3. Assumption of Assumed Liabilities. Subject to the
terms and conditions set forth in this Agreement, Assignee shall
assume and agree to pay, honor and discharge when due, and take
all action necessary or appropriate under Applicable Law to
assume, effective on or prior to the date hereof, all Liabilities
arising from or in connection with the ownership, acquisition,
conduct or operation (past, present or future) of the Transferred
Businesses (or any predecessor to the Transferred Businesses) or
any Assets or relating to the ownership or use of the Assets,
whether arising before, on or after the date hereof and whether
related to the current, past or future operations of the
Transferred Businesses (collectively, the "Assumed Liabilities").
Without limitation of the foregoing, Assumed Liabilities include:
(a) Any and all Liabilities related to the contracts
and agreements described in Section 2 above;
(b) (i) All Liabilities related to, associated with
or arising out of (A) the occupancy, operation, use or control of
any of the Leased Real Property, (B) the operations of the
Transferred Businesses (or any predecessor thereto), in each case
incurred under or imposed by any Environmental Law (including
without limitation any Release or threatened Release of any
Contaminant on, in, at, to, beneath or from the Leased Real
Property, including, without limitation, all facilities,
improvements, structures and equipment thereon, surface water
thereon or adjacent thereto and soil or groundwater thereunder or
any conditions whatsoever on, in, at, under or in the vicinity of
such real property), (C) the generation, handling transportation,
storage, discharge or disposal of any Contaminant in connection
with the Transferred Businesses, (D) any Remedial Action required
under any Environmental Law in connection with the Transferred
Businesses; or (E) any violation of any Environmental Law in
connection with the operations of the Transferred Businesses;
(c) Any sales, use, transfer, stamp, recording,
documentary or similar Taxes or any fees and disbursements of
counsel, accountants, real estate agents, appraisers, financial
advisors, actuaries, consultants or title companies or other
similar charges, in each case arising out of the assignment,
transfer or delivery to the Company of the Transferred Businesses
or Assets pursuant to Section 2 in each case; and
(d) Any Liabilities arising out of or related to
litigation related to the current, past or future operations of
the Transferred Businesses.
4. Consents. In the event that Assignor shall be unable
to transfer any of the Assets to Assignee prior to the date
hereof due to the failure of Assignor to obtain any necessary
Consents, Assignor: (i) shall continue to seek the necessary
Consents, in accordance with this Agreement; (ii) shall hold such
Assets for the benefit of Assignee and cooperate with Assignee in
any lawful and economically feasible arrangement to insure that
Assignee shall receive the benefits thereof, (iii) shall hold or
cause to be held for the account of Assignee all accounts
receivable or accounts payable related to Assignee's interest in
any such Assets accrued as, and accruing after, the date hereof,
(iv) shall make available to Assignee all information relating to
such Assets to the extent making such information available is
permitted by Applicable Law and the contractual arrangements
relating to such Assets, (v) shall not assign, transfer,
otherwise dispose of or grant a Lien upon any such Assets to any
Person other than Assignee, and (vi) shall upon obtaining the
necessary Consents relating to such Assets, promptly take such
action as may be necessary to complete the transfer to Assignee
of such Assets, including without limitation, all accrued
accounts payable and accrued accounts receivable related to such
Assets. Any transfer of an Asset after the date hereof shall be
effective as of the date hereof.
5. Further Assurances.
(a) The transfer of the Assets and the assumption of
the liabilities and obligations contemplated herein shall be
further evidenced by the execution and delivery by the parties
hereto of such acts of transfer, conveyance and assumption as may
be reasonably requested by any party. Each of the parties hereto
will execute and deliver, and cause all other relevant Persons to
execute and deliver, such further instruments of conveyance,
assumption and assignment and will take such other actions
(including, without limitation, (i) any changes or amendments to
or redelivery of such instruments of conveyance, assumption and
assignment that may be necessary to vest in the Assignee title to
or other applicable rights in the Assets and (ii) the delivery of
originals of stock certificates and other similar documents of
title) as any other party may reasonably request in order to
effectuate the purposes of this Agreement.
(b) Assignor shall execute and deliver such further
instruments of conveyance, assumption and assignment and shall
take such other actions, including, without limitation, any
changes or amendments to or redelivery of such instruments of
conveyance, assumption and assignment, that may be necessary to
vest in the Assignee title to or other applicable rights in the
Assets, including without limitation any assets that may arise
in the future. Without limiting the foregoing in any manner,
Assignor shall immediately notify the appropriate Assignee in the
event Assignor obtains knowledge of or reason to believe that
certain assets have not been properly transferred to Assignee and
shall take all action necessary to have such assets properly
transferred to Assignee as set forth herein.
(c) Notwithstanding anything herein to the contrary,
Assignor agrees to cause IMCAC prior to the date of the Merger
(i) to consent to the assignment to Assignee of Assignor's
interest in the IMCAC Sulphur Agreement; and (ii) to execute an
amendment to the IMCAC Sulphur Agreement reasonably necessary to
reflect the fact that Assignee is the successor in interest to
Assignor and that the rights and obligations of the parties have
been divided as set forth in Section 2(a)(vi) above. In addition
to the foregoing, Assignee and IMC Global Inc. (which will become
the indirect parent of IMCAC following the Merger) have
previously executed a letter agreement clarifying the provisions
of Section III of the IMCAC Sulphur Agreement.
6. "As-is, Where-is." Each of the parties hereto
understands and agrees that no party hereto is, in this Agreement
or in any other agreement or document contemplated by this
Agreement or otherwise, representing or warranting in any way (a)
as to the value or freedom from encumbrance of, or any other
matter concerning, any of the Assets or (b) as to the legal
sufficiency to convey title to any Asset, it being understood
that except as otherwise set forth in this Agreement or in any
ancillary transfer document, the Assets are being conveyed "As-
is, Where-is," except for rights or actions in warranty against
predecessors in title (other than Assignor or any prior or
current Affiliates thereof). It is understood and agreed that
Assignee shall bear the economic and legal risk that any
conveyance of the Assets shall prove to be insufficient or that
Assignor's title to any such assets shall be other than good and
marketable and free from encumbrances. Similarly, each party
hereto understands and agrees that no party hereto is
representing or warranting in any way that the obtaining of any
Consents or approvals or the making of any filings or
applications contemplated by this Agreement will satisfy the
provisions of any or all applicable agreements or the
requirements of any or all applicable laws or judgments, it being
agreed and understood that Assignee shall bear the economic and
legal risk that any necessary Consents are not obtained or that
any requirements of law or judgments are not complied with.
Notwithstanding the foregoing, the parties shall use reasonable
efforts to obtain all Consents, and to make all filings and
applications which may be required for the consummation of the
transactions contemplated by this Agreement, including, without
limitation, all applicable regulatory filings or consents under
federal or state environmental laws.
7. Consents. Assignor and Assignee hereby acknowledge
that, under certain conditions, under certain of the contracts
and agreements described on Schedule 1 hereto, Homestake Mining
Company (formerly Felmont Oil Corporation) may have a right of
first refusal and a right to consent to certain transfers of
Assignor's rights and interests under such documents (the
"Homestake Refusal Right"). Without acknowledging that any of
the transfers made pursuant to this Agreement are subject to the
Homestake Refusal Right, Assignor and Assignee hereby agree as
follows:
(a) Assignor agrees that it will comply with the
instructions of Assignee with respect to whether and in what
manner Assignor treats any of the assignments described in this
Agreement as being subject to the Homestake Refusal Right:;
(b) Assignor agrees that it will structure the
assignments pursuant to this Agreement in any manner that
Assignee reasonably requests, including, without limitation, as a
contribution of the Transferred Businesses and the Assets into a
newly-formed subsidiary followed by a transfer of the stock of
said subsidiary; and
(c) Assignee hereby covenants and agrees to defend,
indemnify and hold harmless Assignor and its officers, directors,
employees, agents, advisors, representatives, contractors and
subcontractors and each of their respective heirs, executors,
successors and assigns from and against all claims, liabilities,
obligations, losses, fines, costs, royalties, penalties,
proceedings, deficiencies, or damages (whether absolute or
accrued, conditional or otherwise and whether or not resulting
from third party claims), including out-of-pocket expenses and
reasonable attorneys' and accountants' fees incurred in the
investigation or defense of any of the same or asserting any of
their respective rights hereunder, to the extent resulting from
or arising out of the compliance by Assignor with any of the
directions or requests made by Assignee in respect of subsections
(a) and (b) of this section.
8. Notices. All notices, requests and other
communications under this Agreement to any party hereto shall be
in writing (including facsimile or similar writing) and shall be
given
If to Assignor, to:
IMC Global Operations Inc.
2100 Sanders Road
Northbrook, Illinois 60662
Attention: General Counsel
Telecopier: (847) 205-4894
If to Assignee, to:
Freeport-McMoRan Resource Partners, Limited Partnership
1615 Poydras Street
New Orleans, Louisiana 70112
Attention: General Counsel
Telecopier: (504) 582-4227
or to such other address or telecopier number as such party may
hereafter specify for the purpose by notice to the other parties.
Each such notice, request or other communication shall be
effective (i) if given by facsimile, when such facsimile is
transmitted to the telecopier number specified in this Section
and transmission of the appropriate number of pages is confirmed
or (ii) if given by any other means, when delivered at the
address specified in this Section 6.
9. Amendment and Waiver. This Agreement may not be
altered or amended, nor may rights hereunder be waived, except by
an instrument in writing executed by each party, or in the case
of a waiver by an instrument in writing executed by the party
against whom such waiver is to be effective. No waiver of any
term, provision or condition of or failure to exercise or delay
in exercising any rights or remedies under this Agreement, in any
one or more instances, shall be deemed to be, or construed as, a
further or continuing waiver of any such term, provision,
condition, right or remedy or as a waiver of any other term,
provision or condition of this Agreement.
10. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original
instrument but all of which together shall constitute but one and
the same Agreement.
11. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF
DELAWARE.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first set forth above.
ASSIGNOR
IMC Global Operations Inc.
By: /s/ Marshall I. Smith
Name: Marshall I. Smith
Title: Senior Vice President
ASSIGNEE
Freeport-McMoRan Resource Partners,
Limited Partnership
By: Freeport-McMoRan Inc., its
Administrative
Managing General Partner
By: /s/ Michael J. Arnold
Name: Michael J. Arnold
Title: Senior Vice President