ASSET PURCHASE AGREEMENT
dated as of
October 22, 1994
between
FREEPORT-McMoRan RESOURCE PARTNERS,
LIMITED PARTNERSHIP
and
PENNZOIL COMPANY
TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2
PURCHASE AND SALE
2.1 Purchase and Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.2 Excluded Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.3 Assumed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.4 Excluded Liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.5 Assignment of Contracts and Rights. . . . . . . . . . . . . . . . . . . 17
2.6 Other Sulphur Properties. . . . . . . . . . . . . . . . . . . . . . . . 17
2.7 Purchase Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.8 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.9 Allocation of Purchase Price for Tax Purposes . . . . . . . . . . . . . 20
2.10 Liquid Sulphur Inventory Adjustment. . . . . . . . . . . . . . . . . . 21
2.11 Tampa Average Sulphur Price . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PENNZOIL
3.1 Corporate Existence and Power . . . . . . . . . . . . . . . . . . . . . 24
3.2 Corporate Authorization . . . . . . . . . . . . . . . . . . . . . . . . 25
3.3 Governmental Authorization. . . . . . . . . . . . . . . . . . . . . . . 25
3.4 Non-Contravention . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.5 Required Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.6 Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.7 Absence of Certain Changes. . . . . . . . . . . . . . . . . . . . . . . 26
3.8 Properties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.9 Sufficiency of the Purchased Assets . . . . . . . . . . . . . . . . . . 30
3.10 No Undisclosed Liabilities. . . . . . . . . . . . . . . . . . . . . . . 30
3.11 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.12 Material Contracts. . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.13 Licenses and Permits. . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.14 Insurance Coverage. . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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3.15 Compliance with Laws and Court Orders . . . . . . . . . . . . . . . . . 33
3.16 Inventories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.17 Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.18 Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.19 Finders' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.20 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.21 Customers and Suppliers.. . . . . . . . . . . . . . . . . . . . . . . . 35
3.22 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.23 Representations Cumulative. . . . . . . . . . . . . . . . . . . . . . . 36
3.24 Scope of Representations of Pennzoil. . . . . . . . . . . . . . . . . . 36
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF FRP
4.1 Organization and Existence. . . . . . . . . . . . . . . . . . . . . . . 36
4.2 Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
4.3 Governmental Authorization. . . . . . . . . . . . . . . . . . . . . . . 37
4.4 Non-Contravention . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
4.5 Required Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
4.6 Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . . 37
4.7 Absence of Certain Changes. . . . . . . . . . . . . . . . . . . . . . . 37
4.8 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
4.9 Compliance with Laws and Court Orders . . . . . . . . . . . . . . . . . 38
4.10 Main Pass Production Cost . . . . . . . . . . . . . . . . . . . . . . . 38
4.11 Representations Cumulative. . . . . . . . . . . . . . . . . . . . . . . 38
4.12 Scope of Representations of FRP. . . . . . . . . . . . . . . . . . . . 38
ARTICLE 5
COVENANTS OF PENNZOIL
5.1 Conduct of the Business . . . . . . . . . . . . . . . . . . . . . . . . 39
5.2 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
5.3 Access to Information . . . . . . . . . . . . . . . . . . . . . . . . . 41
5.4 Notices of Certain Events . . . . . . . . . . . . . . . . . . . . . . . 42
5.5 Noncompetition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
5.6 Trademarks; Trade Names . . . . . . . . . . . . . . . . . . . . . . . . 44
5.7 Environmental Obligations . . . . . . . . . . . . . . . . . . . . . . . 44
5.8 Damage, Destruction or Condemnation . . . . . . . . . . . . . . . . . . 48
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5.9 Gas Supply. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
5.10 Transition Services Agreement . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE 6
COVENANTS OF FRP
6.1 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
6.2 Marketing Solid Sulphur . . . . . . . . . . . . . . . . . . . . . . . . 50
6.3 Prepaid Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE 7
COVENANTS OF BOTH PARTIES
7.1 Best Efforts; Further Assurances. . . . . . . . . . . . . . . . . . . . 52
7.2 Certain Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
7.3 Public Announcements. . . . . . . . . . . . . . . . . . . . . . . . . . 53
7.4 Proration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE 8
TAX MATTERS
8.1 Tax Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
8.2 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
8.3 Tax Cooperation: Allocation of Taxes. . . . . . . . . . . . . . . . . . 55
ARTICLE 9
EMPLOYEE BENEFITS
9.1 Employee Benefits Definitions . . . . . . . . . . . . . . . . . . . . . 55
9.2 ERISA Representations . . . . . . . . . . . . . . . . . . . . . . . . . 56
9.3 Employees and Offers of Employment. . . . . . . . . . . . . . . . . . . 57
9.4 Pennzoil's Employee Benefit Plans . . . . . . . . . . . . . . . . . . . 58
9.5 Continuation of Certain Administrative Services and Insurance Coverage. 60
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9.6 WARN Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
9.7 No Third Party Beneficiaries. . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE 10
CONDITIONS TO CLOSING
10.1 Conditions to the Obligations of Each Party. . . . . . . . . . . . . . 61
10.2 Conditions to Obligation of FRP. . . . . . . . . . . . . . . . . . . . 61
10.3 Conditions to Obligation of Pennzoil . . . . . . . . . . . . . . . . . 62
ARTICLE 11
SURVIVAL; INDEMNIFICATION
11.1 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
11.2 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
11.3 Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE 12
TERMINATION
12.1 Grounds for Termination. . . . . . . . . . . . . . . . . . . . . . . . 65
12.2 Effect of Termination. . . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE 13
MISCELLANEOUS
13.1 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
13.2 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . 67
13.3 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
13.4 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . 68
13.5 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
13.6 Counterparts; Effectiveness. . . . . . . . . . . . . . . . . . . . . . 68
13.7 Entire Agreement; Third Party Beneficiaries. . . . . . . . . . . . . . 68
13.8 Bulk Sales Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
13.9 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
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ASSET PURCHASE AGREEMENT
AGREEMENT dated as of October 22, 1994 between Freeport-McMoRan
Resource Partners, Limited Partnership, a Delaware limited partnership ("FRP"),
and Pennzoil Company, a Delaware corporation ("PENNZOIL"),
W I T N E S S E T H :
WHEREAS, Pennzoil conducts a sulphur mining and marketing business
through Pennzoil Sulphur Company, a division of Pennzoil (the "BUSINESS");
WHEREAS, FRP desires to purchase substantially all of the assets of
the Business (other than the Excluded Assets) from Pennzoil, and Pennzoil
desires to sell substantially all of such assets of the Business to FRP, upon
the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements herein contained, the
parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS
a. DEFINITIONS. The following terms, as used herein, have
the following meanings:
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such other Person, with the concept of control in such context meaning the
possession of the power to direct or cause the direction of the management and
policies of another, whether through the ownership of voting securities, by
contract or otherwise.
"BALANCE SHEET" means the unaudited balance sheet of the Business as
of June 30, 1994 that is referred to in Section 3.6.
"BALANCE SHEET DATE" means June 30, 1994.
"BASE COST" means $13,233,000 which is the product of (i) $44.11 (the
current per ton cash cost of Main Pass sulphur production FOB Tampa Terminal
through August 31, 1994) and (ii) 300,000.
"BASE PAD SULPHUR" means (i) all solid sulphur in the sulphur vats at
the Galveston Facility that is below the surface defined by a grid of elevations
which originate at the outer edge of the stored blocks and proceed along the
line separating the bottom of the stored blocks and the top of the sulphur
foundation and (ii) all formed berms and aprons located outside the perimeter of
the sulphur blocks in the sulphur vats at the Galveston Facility.
"BASE SULPHUR INVENTORY" means 90,000 long tons of sulphur, net of any
sulphur owned by parties other than Pennzoil and any sulphur that is sold on
Pennzoil's books as of the Closing Date, consisting of 30,000 long tons at the
Tampa Facility, 39,000 long tons at the Galveston Facility, 16,000 long tons at
the Culberson Facility and 5,000 long tons of Pennzoil at Savannah, in each case
net of any sulphur owned by parties other than Pennzoil and any sulphur that is
sold on Pennzoil's books as of the Closing Date (the "TAMPA BASE SULPHUR
INVENTORY", the "GALVESTON BASE SULPHUR INVENTORY", the "CULBERSON BASE SULPHUR
INVENTORY" and the "SAVANNAH BASE SULPHUR INVENTORY", respectively).
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in New York City are authorized by law to close.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended from time to time and any rules or
regulations promulgated thereunder.
"CLOSING DATE" means the date of the Closing.
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"CONVEYANCE, ASSIGNMENT, BILL OF SALE AND ASSUMPTION AGREEMENT" means
the Conveyance, Assignment, Bill of Sale and Assumption Agreement between FRP
and Pennzoil to be dated the Closing Date in substantially the form attached
hereto as Exhibit A. Pennzoil and FRP agree that this Conveyance is a master
form of conveyance and that for purposes of recordation, counterpart forms of
the Conveyance may be prepared that refer to properties outside the county,
parish or state where that Conveyance is to be recorded and contain such other
variations from the master Conveyance as the parties agree upon.
"CULBERSON UNIT" means the pooled unit created by the Culberson Unit
Agreement.
"CULBERSON UNIT AGREEMENT" means the Sulphur Unitization Agreement
dated as of January 7, 1969, by and among Duval Corporation and certain royalty
owners, filed for recordation on May 12, 1970, with the Clerk, County Court,
Culberson County, Texas, in volume 7 at page 389 of the Mineral Records of
Culberson County, Texas.
"CULBERSON FACILITY" means (i) Pennzoil's facilities on the Culberson
Unit for producing, processing, storing and loading sulphur and (ii) all related
wells, buildings, fixtures and equipment.
"CUMULATIVE INFLATION ADJUSTMENT" means, for any Option Date, the sum
of the Inflation Adjustments for each Quarterly Period ending on or before such
Option Date.
"DEBT" means, with respect to any Person, (i) indebtedness of such
Person for borrowed money, (ii) indebtedness for the deferred purchase price of
services or property, (iii) obligations of such Person under leases which have
been, or, in accordance with generally accepted accounting principles, should
be, recorded as capitalized leases, (iv) indebtedness of such Person consisting
of unpaid reimbursement obligations in respect of all outstanding drawings under
letters of credit issued for its account and (v) Debt of others guaranteed by
such Person.
"DEED OF TRUST" means the Deed of Trust, Mortgage, Security Agreement,
Financing Statement, and Assignment of Production between FRP and Pennzoil to be
dated the Closing Date in substantially the form attached hereto as Exhibit B.
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"ENVIRONMENTAL INVESTIGATION OR AUDIT" means, without limitation, any
final audits, studies, reports and monitoring data relating to any Regulated
Environmental Activity, conducted internally (for purposes other than day-to-day
routine monitoring and data analysis) or by outside consultants or engineers,
but shall not include publicly available studies or reports submitted to
regulatory agencies.
"ENVIRONMENTAL LAWS" means any and all Laws relating to the
environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, hazardous substances or
wastes into the environment including without limitation ambient air, surface
water, ground water or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, hazardous substances or wastes or the
clean-up or other remediation thereof.
"ENVIRONMENTAL LIABILITIES" means any and all liabilities arising
in connection with the Business, the Purchased Assets or activities or
operations occurring or conducted at the Real Property (including without
limitation offsite disposal and failure to have any required Environmental
Permits), whether accrued, contingent, absolute, determined, determinable or
otherwise, actual or potential, known or unknown, which (iii) arise under or
relate to Environmental Laws (including without limitation any matter
disclosed or required to be disclosed in SCHEDULE 3.20(a)) and (iv) relate
to actions occurring or conditions existing on or prior to the Closing Date.
"ENVIRONMENTAL PERMITS" means all permits, licenses, authorizations,
certificates and approvals of Governmental Authorities relating to or required
by Environmental Laws and necessary or proper for the Business as currently
conducted.
"GALVESTON FACILITY" means (i) Pennzoil's facility in Galveston
County, Texas, located on the Galveston County Real Property described in
SCHEDULE 3.8(a), for receiving, storing, and loading sulphur and (ii) all
related buildings, fixtures and equipment.
"GOOD TITLE" means (i) with respect to all Purchased Assets other than
Mineral Interests, good and marketable title to the Purchased Assets, free and
clear of all Liens, except
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Permitted Liens, or in the case of leased Real Property, valid leasehold
interests in the Purchased Assets, and (ii) with respect to the Mineral
Interests in the Culberson Unit, such title that (A) entitles Pennzoil to
receive all of the Net Revenue Interest set forth on SCHEDULE 3.8(b) with
respect to the Minerals produced from or allocated to the Mineral Interests in
the Culberson Unit, or of the full proceeds from the sale or other disposition
of such Minerals; (B) obligates Pennzoil to bear a proportion of the costs and
expenses relating to operations on, and the maintenance and development of, the
Mineral Interests in the Culberson Unit, not greater than the Working Interest
set forth on SCHEDULE 3.8(b); and (C) is free and clear of Mineral Title Defects
and Liens, except the Permitted Liens.
"GOVERNMENTAL AUTHORITY" means the United States of America, any state
thereof, and any political subdivision of the foregoing, including but not
limited to any court, federal, state or local governmental or regulatory body,
agency, official or authority.
"HAZARDOUS SUBSTANCES" means any toxic, radioactive, corrosive or
otherwise hazardous substance, including petroleum, its derivatives, by-products
and other hydrocarbons, or any substance having any constituent elements
displaying any of the foregoing characteristics, regulated as such under
Environmental Laws.
"HSR ACT" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
"INFLATION ADJUSTMENT" means, for any Quarterly Period, the product of
(i) the Base Cost, (ii) an amount obtained by subtracting one from the PPI
Factor for such Quarterly Period and (iii) the Inflation Sharing Ratio for such
Quarterly Period.
"INFLATION SHARING RATIO" means, for any Quarterly Period, the ratio
shown under the column "Inflation Sharing Ratio" on SCHEDULE 1.1 next to the
applicable Tampa Average Sulphur Price for that Quarterly Period; PROVIDED that
if the Tampa Average Sulphur Price for a Quarterly Period falls between any two
prices shown on SCHEDULE 1.1, the Inflation Sharing Ratio for that Quarterly
Period will be determined by interpolation
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between the "Inflation Sharing Ratio" amounts shown on SCHEDULE 1.1 for those
two prices.
"KNOWLEDGE" of any party means actual knowledge of its officers and
senior managers, including, in the case of Pennzoil, the officers and senior
managers of the Business (grade 5 or higher) responsible for the principal
operating and administrative functions of the Business.
"LAW" means any law, statute, judicial decision, ordinance, decree,
requirement, order, judgment, injunction, rule or regulation of, including the
terms of any license or permit issued by, any Governmental Authority.
"LIEN" means, with respect to any property or asset, any mortgage,
lien, pledge, charge, security interest, encumbrance, limitation, preferential
right to purchase, consent to assignment, irregularity, burden, defect or other
adverse claim of any kind in respect of such property or asset. For the
purposes of this Agreement, a Person shall be deemed to own subject to a Lien,
not only a property or asset owned directly by that Person but also any property
or asset which it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement relating to such property or asset.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the
business, assets, condition (financial or otherwise), result of operations of
the Business (other than the Excluded Assets) taken as a whole.
"MINERAL TITLE DEFECT" means a Lien, fact, circumstance or occurrence
that renders incorrect or untrue any of the representations or warranties of
Pennzoil in Section 3.8(i) of this Agreement.
"NET REVENUE INTEREST" means the interest of Pennzoil, expressed as a
percentage, in the Minerals produced from or allocated to a Mineral Interest, or
in and to the full proceeds from the sale or other disposition of such Minerals,
after deducting applicable Production Burdens.
"1934 ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
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"OPTION DATE" means the fourth anniversary of the Closing Date (the
"First Option Date") and each subsequent third anniversary of the First Option
Date.
"OPTION PRICE" means, for any Option Date, an amount equal to (i)
$65,000,000 less (ii) the Cumulative Inflation Adjustment on that Option Date;
PROVIDED that in no event will the Option Price be less than $10,000,000.
"PERMITTED LIENS" means
(i) lessors' royalties and the terms and conditions of the Mineral
Interests;
(ii) Liens for taxes not yet due and payable;
(iii) operators' liens or mechanics' or materialmen's liens for
amounts not yet due and payable, arising in the ordinary course of business
and incidental to the incurrence of reasonable expenses with respect to the
Mineral Interests;
(iv) easements, rights of way, servitudes, permits or surface leases
on, over or in respect of the Mineral Interests, including those described
in Schedule 3.8(a), Exhibit C, or elsewhere in this Agreement or its
schedules that singly or in the aggregate do not affect the operation or
value of the Mineral Interests in any material respect;
(v) such sales contracts, operating agreements, unitization and
pooling agreements and other similar agreements as are customarily found in
connection with properties comparable to the Mineral Interests, none of
which, singly or in the aggregate, affects the operation or value of the
Mineral Interests in any material respect;
(vi) all consents by, notices to, filings with or other actions by
Governmental Authorities in connection with the transfer of state or
federal leases or interests therein if the same are customarily obtained
subsequent to such transfer; and
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(vii) minor irregularities of title affecting any Mineral Interest that
a reasonable, prudent operator would consider immaterial or waive as a
title defect.
"PERSON" means an individual, corporation, partnership, association,
trust or other entity or organization, including a Governmental Authority.
"PPI FACTOR" means, for any Quarterly Period, the amount obtained by
dividing (i) the producer price index for finished goods (the "PPI"), as
reported in PRODUCER PRICE INDEXES (or any successor publication) published by
the U.S. Bureau of Labor Statistics, for the last month in such Quarterly Period
by (ii) the PPI for October 1994; PROVIDED that if the PPI Factor as so
calculated for any Quarterly Period would be less than one, the PPI Factor for
that Quarterly Period shall be deemed to be one.
"PRODUCTION BURDEN" means a royalty interest, overriding royalty
interest, production payment interest, net profit interest or other similar
interest that constitutes a burden on, or is measured by or is payable out of
the production of, Minerals or the proceeds realized from the sale or other
disposition of Minerals.
"QUARTERLY INSTALLMENT PAYMENT" means, for any Quarterly Period, the
amount shown on SCHEDULE 1.1 under the column "Quarterly Installment Payment"
next to the Tampa Average Sulphur Price for that Quarterly Period; PROVIDED
that:
(i) if the Tampa Average Sulphur Price for a Quarterly Period falls
between any two prices shown on SCHEDULE 1.1, the Quarterly Installment
Payment for that Quarterly Period will be determined by interpolation
between the "Quarterly Installment Payment" amounts shown on SCHEDULE 1.1
next to those two prices;
(ii) if the first and/or last Quarterly Period covers only a portion
of a full calendar quarter, the Quarterly Installment Payment for that
Quarterly Period will be determined by multiplying the Quarterly
Installment Payment that would be payable if that Quarterly Period covered
a full calendar quarter by a fraction of which (A) the numerator is the
number of days in that Quarterly Period and
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(B) the denominator is the number of days in the full calendar quarter of
which that Quarterly Period is a part; and
(iii) if at the end of any Quarterly Period ending on or prior to
the twentieth anniversary of the Closing Date,
(A) FRP calculates the Quarterly Installment Payment that would
be due for such Quarterly Period but for the adjustment required by
this Section (iii) (such amount being referred to as the "PRE-
ADJUSTMENT AMOUNT") and
(B) the number of tons of sulphur with respect to which the
calculation of the Pre-Adjustment Amount would be deemed to be made
(the "PRO FORMA TONNAGE"), when added to the aggregate number of tons
of sulphur with respect to which calculations of Quarterly Installment
Payments are deemed to have been made in all previous Quarterly
Periods, would exceed 18.6 million tons (such excess being referred to
as the "EXCESS TONNAGE"), then the Quarterly Installment Payment for
that Quarterly Period will be calculated by multiplying the Pre-
Adjustment Amount by a fraction of which (I) the numerator is obtained
by subtracting the Excess Tonnage from the Pro Forma Tonnage and (II)
the denominator is the Pro Forma Tonnage.
For purposes of this calculation, the number of tons of sulphur with
respect to which a calculation of the Quarterly Installment Payment due in any
Quarterly Period will be deemed to have been made is the amount shown on
SCHEDULE 1.1 under the column "Deemed Quarterly Volumes" next to the Tampa
Average Sulphur Price for that Quarterly Period, PROVIDED that (i) if the Tampa
Average Sulphur Price for that Quarterly Period is between any two prices shown
on SCHEDULE 1.1, the number of such tons shall be determined by interpolating
between the Deemed Quarterly Volumes shown on SCHEDULE 1.1 next to those two
prices, (ii) if the first Quarterly Period covers only a portion of a full
calendar quarter, the number of tons of sulphur with respect to which a
calculation of the Quarterly Installment Payment due in that Quarterly Period
will be deemed to have been made will be determined by multiplying the number of
such tons as to which a
9
calculation would have been made if that Quarterly Period had covered a full
calendar quarter by a fraction of which (A) the numerator is the number of days
in that Quarterly Period and (B) the denominator is the number of days in the
full calendar quarter of which that Quarterly Period is a part.
"QUARTERLY PERIOD" means a calendar quarter during the period
commencing on the day after the Closing Date and ending on the earlier of (iv)
the twentieth anniversary of the Closing Date and (v) the last day of the
calendar quarter in which calculations of Quarterly Installment Payments are
deemed to have been made with respect to an aggregate of at least 18.6 million
tons of sulphur, as contemplated by Section (iii) of the definition of
"Quarterly Installment Payment"; PROVIDED that if the Closing Date does not
occur on the last day of a calendar quarter:
(A) the first Quarterly Period will commence on the day after the
Closing Date and end on the last day of the calendar quarter during which
the Closing Date occurs; and
(B) unless the last Quarterly Period is the period contemplated by
Section (v) of this definition, the last Quarterly Period will commence on
the first day of the calendar quarter in which the twentieth anniversary of
the Closing Date falls and end on such twentieth anniversary.
"REGULATED ENVIRONMENTAL ACTIVITY" means any generation, treatment,
storage, recycling, transportation or Release of any Hazardous Substance, as
such activities are regulated under Environmental Laws.
"RELEASE" means any "release" as such term as defined in CERCLA at 42
U.S.C. Section 9601(22). The term "RELEASED" has a corresponding meaning.
"TAMPA AVERAGE SULPHUR PRICE" means for any Quarterly Period the
average market price per ton for sulphur FOB Tampa Terminal during that
Quarterly Period calculated by (i) FIRST, taking the arithmetic average of the
high and low Tampa Contract prices, as published in "Green Markets", for each
week that is partially or wholly within that Quarterly Period (each such average
being referred to as a "WEEKLY AVERAGE") and (ii) SECOND, calculating the
arithmetic average of the Weekly Averages for all
10
weeks that are partially or wholly within that Quarterly Period; PROVIDED that
if any Weekly Average relates to a week of which only part is within that
Quarterly Period, the weight given to that Weekly Average in calculating this
arithmetic average will be proportionately reduced to reflect the portion of
such week that is within the Quarterly Period. If "Green Markets" ceases
publication or the required prices are no longer published or if the prices
published in "Green Markets" are no longer representative of prevailing contract
sulphur prices in Tampa, FRP and Pennzoil shall agree on an alternative basis
for determining the Tampa Average Sulphur Price in accordance with the
procedures set forth in Section 2.11 of this Agreement.
"TAMPA FACILITY" means (i) Pennzoil's facility in Hillsborough County,
Florida, located on the Hillsborough County Real Property described in SCHEDULE
3.8(a), for receiving, storing and loading sulphur and (ii) all related
buildings, fixtures and equipment.
"TRANSITION SERVICES AGREEMENT" means the Transition Services
Agreement between FRP and Pennzoil to be dated the Closing Date in substantially
the form attached hereto as Exhibit C.
"WARN ACT" means the Worker Adjustment and Retraining Notification
Act.
"WORKING INTEREST" means (i) the interest of Pennzoil, expressed as a
percentage, in a Mineral Interest before giving effect to applicable Production
Burdens and (ii) the percentage of all costs and expenses associated with the
ownership, exploration, development and operation of the Mineral Interest
required to be borne by Pennzoil.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
---- -------
Accounting Referee 2.9
active employee 9.3
Allocation Statement 2.9
Applicable Price 6.2
11
Term Section
---- -------
Assumed Liabilities 2.3
Benefit Arrangements 9.2
Books and Records 2.1
Business Recitals
Call Option 2.7
Call Option Notice 2.7
Closing 2.8
Closing Sulphur Inventory 2.10
Code 8.1
Conveyance Documents 2.8
Contracts 2.1
Culberson Adjustment 2.10
DTPA 3.8
employee benefit plan 9.2
Employee Plans 9.2
ERISA 9.1
ERISA Affiliate 9.1
Excluded Assets 2.2
Excluded Liabilities 2.4
Financial Statements 3.6
FRP Preamble
FRP Balance Sheet 4.6
FRP Retention 11.2
Galveston Adjustment 2.10
Galveston Environmental Operations 5.7
Generated Materials 5.7
Indemnified Party 11.3
Indemnifying Party 11.3
Intellectual Property Rights 2.1
Known Remedial Conditions 5.7
Loss 11.2
Mineral Interests 2.1
Minerals 2.1
Other Sulphur Properties 2.6
Panel 2.11
Pennzoil Preamble
Pennzoil Trade Names 5.6
Permit 3.13
Personal Property 2.1
Personnel Costs 9.4
Petty Cash 2.1
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Term Section
---- -------
Post-Closing Tax Period 8.1
Pre-Closing Tax Period 8.1
Purchase Amount 6.2
Purchased Assets 2.1
Purchase Price 2.7
Put Option 2.7
Put Option Notice 2.7
RCRA 5.7
Real Property 3.8
Remedial Activities 5.7
Required Consent 3.5
Savannah Adjustment 2.10
Solid Sulphur Amount 6.2
Solid Sulphur Option Date 6.2
Storage Area 5.7
Tampa Adjustment 2.10
Tax 8.1
Transferred Employee 9.3
Transfer Date 9.3
Written Notice 2.11
ARTICLE 2
2
PURCHASE AND SALE
2.1 PURCHASE AND SALE. Except as otherwise provided below, upon the
terms and subject to the conditions of this Agreement, FRP agrees to purchase
from Pennzoil and Pennzoil agrees to sell, convey, transfer, assign and deliver,
or cause to be sold, conveyed, transferred, assigned and delivered, to FRP at
Closing all of the assets, properties and business, of every kind and
description, wherever located, real, personal or mixed, tangible or intangible,
owned, held or used in the conduct of the Business, as the same shall exist on
the Closing Date (collectively, the "PURCHASED ASSETS"), and including without
limitation:
(a) all real property and leases of, and other rights, options and
other interests in, real property used or
13
previously used or held for use in the conduct of the Business, other than
the Mineral Interests (as defined below), in each case together with all
buildings, fixtures and improvements erected thereon, and all easements,
rights of way and other rights of whatever nature relating thereto,
including without limitation the items listed on SCHEDULE 3.8(a)
(collectively referred to as the "REAL PROPERTY");
(b) insofar as they relate to the Business, all of Pennzoil's right,
title and interest in and to sulphur and other minerals ("MINERALS") in, on
and under, and that may be produced from, lands subject to or included in:
(i) sulphur leases, mineral leases, sulphur patents, mineral
patents, patented and unpatented mining claims and awards, deeds and
other instruments and agreements, including without limitation fee
mineral interests, leasehold mineral interests, royalty interests,
overriding royalty interests, interests in production payments, net
profits interests and other rights to own, explore for, produce and
market Minerals (or to receive a share of the Minerals produced or the
proceeds from the sale or other disposition of the Minerals),
including without limitation contract rights and reversionary
interests in, to and under such instruments and agreements;
(ii) unitization, unit operating, pooling, communitization and
other similar agreements and orders covering the Real Property or the
other Mineral Interests, and the units, pools and communitized areas
formed thereunder (including without limitation units formed under
orders, regulations, rules, approvals, decisions or other official
acts of any Governmental Authority having jurisdiction), including
without limitation the Culberson Unit; and
(iii) the Real Property;
including without limitation the properties listed on SCHEDULE 3.8(b),
together with all other rights, titles and interests of Pennzoil in and to
the lands they cover, and all easements, rights-of-way, surface rights and
other rights of whatever nature relating thereto but excluding the
14
Other Sulphur Properties listed on SCHEDULE 2.6 (collectively, the "MINERAL
INTERESTS," which term also refers, as the context requires, to the
instruments and agreements that create and govern the Mineral Interests);
(c) all of Pennzoil's right, title and interest in and to all
personal property, equipment, fixtures and improvements on the Real
Property or the Mineral Interests, or used or held for use in the Business
(excluding the Excluded Assets), including goods, equipment, fixtures,
inventory, facilities, supplies, motor vehicles and other property of every
kind and nature that are used or held for use for the production,
gathering, treatment, processing, storage or transportation of sulphur,
other minerals, water or other substances produced therewith, together with
all accessions, additions and attachments thereto, including wells,
wellhead equipment, casing, tubing, tubular goods, motors, engines, pumping
units, flowlines, tanks, injection facilities, chemicals, solutions,
machinery, pipelines, pipes, tools, surface and subsurface equipment,
storage yards and the goods stored in them, water systems (for injection,
treating and disposal), power plants, power lines, buildings, furniture,
office and communications equipment, computing and all computer related
hardware except as provided in Section 2.2(g), transportation equipment,
including all assets associated with the loading, receiving and
transportation of sulphur (including rail cars, barges, tankers and marine
vessels and including loading and receiving docks, equipment and
facilities), storage tanks, spare and replacement parts, fuel and all trade
fixtures, fixed assets and tangible property relating to or used or held
for use in the Business, including without limitation the items listed on
SCHEDULE 3.8(c) (collectively, the "PERSONAL PROPERTY");
(d) all raw materials, work-in-process, finished goods, supplies,
Closing Sulphur Inventory and the Base Pad Sulphur relating to or used in
the Business;
(e) all rights under all contracts, agreements (including marketing
agreements), personal property leases, licenses, commitments, sales and
purchase orders and other instruments, relating to or used in the Business,
including
15
without limitation the items listed on SCHEDULE 3.12(a) (collectively, the
"CONTRACTS");
(f) all prepaid expenses attributable to the Business, including but
not limited to ad valorem taxes, leases, rentals and industry association
dues and fees;
(g) all petty cash located at operating facilities of the Business
("PETTY CASH");
(h) all of Pennzoil's rights, claims, credits, causes of action or
rights of set-off against third parties relating to the Purchased Assets
with respect to any period on or after the Closing Date, including without
limitation unliquidated rights under manufacturers' and vendors'
warranties;
(i) all patents, copyrights, trademarks, trade names, service marks,
service names, inventions, trade secrets, know-how, processes,
technologies, formulae, research, proprietary data, market and development
data and libraries and computer software (including any registrations or
applications for registration of any of the foregoing) and other similar
types of proprietary intellectual property rights, in each case which is
owned or licensed by Pennzoil or any Affiliate of Pennzoil and used or held
for use in the Business (excluding the "Pennzoil" and "Duval" names and any
derivative thereof, but including the right to use the "alchemist" symbol
in the Pennzoil Sulphur Company logo (so long as it is not used together
with the Pennzoil yellow oval or the word "Pennzoil")), including without
limitation the items listed on SCHEDULE 3.17(a) (collectively, the
"INTELLECTUAL PROPERTY RIGHTS");
(j) all transferable licenses, permits or other governmental
authorizations affecting or relating to the Business, including without
limitation the items listed on SCHEDULE 3.13;
(k) all books, records, files and papers, whether in hard copy or
computer format, relating to or used in connection with the Purchased
Assets or the Assumed Liabilities, including without limitation engineering
information, seismic records and surveys, maps and logs,
16
geological or geophysical data, sales and promotional literature, manuals
and data, sales and purchase correspondence, lists of present and former
suppliers, lists of present and former customers, copies of current and
former contracts and other arrangements with all such customers, personnel
and employment records, and any information relating to Tax imposed on the
Purchased Assets ("BOOKS AND RECORDS"); and
(l) all goodwill associated with the Business or the Purchased
Assets.
2.2 EXCLUDED ASSETS. FRP expressly understands and agrees that the
following assets and properties of Pennzoil (the "EXCLUDED ASSETS") shall be
excluded from the Purchased Assets:
(a) Pennzoil's facilities at Antwerp, the stock of Duval Sales
International and all assets and contracts that relate primarily to
Pennzoil's Antwerp operations;
(b) the Solid Sulphur Amount;
(c) all of Pennzoil's cash and cash equivalents on hand and in banks
except for Petty Cash and all accounts, notes and other receivables
attributable to the operation of the Business prior to the Closing Date;
(d) insurance policies and any reserves or funds related to any
employee benefit plans, programs or practices;
(e) the water rights owned by Pennzoil in Jefferson Davis County;
(f) the Other Sulphur Properties and those properties and contracts
listed on SCHEDULE 2.2(f);
(g) all personal property of Pennzoil that is located in Houston
other than those items included in the Intellectual Property Rights and the
Books and Records; and
(h) Pennzoil's gas supply contract with Texaco Inc.
17
2.3 ASSUMED LIABILITIES. Upon the terms and subject to the
conditions of this Agreement, FRP agrees, effective at the time of Closing, to
assume the following liabilities (the "ASSUMED LIABILITIES"):
(a) all obligations of Pennzoil to perform the Contracts after the
Closing Date;
(b) all liabilities arising from the ownership or operation of the
Purchased Assets after the Closing Date other than the Excluded
Liabilities;
(c) the obligation to reimburse Pennzoil for its payments of
royalties (based on Pennzoil's calculation) for all Closing Sulphur
Inventory that has been produced by Pennzoil and that is conveyed to FRP on
the Closing Date; PROVIDED, that Pennzoil will retain all responsibility
for actually paying such royalty obligations, which responsibility shall be
an Excluded Liability;
(d) the obligation to reimburse Pennzoil for 50 percent of any
royalties that may be payable as a result of the transfer of the Base Pad
Sulphur to FRP at the Closing; provided that (i) the parties will cooperate
and will use all reasonable efforts to seek to confirm that no such
royalties are payable (or to minimize the amount of any such royalties) as
a result of such transfer to FRP and (ii) FRP will be responsible for any
royalties payable on the subsequent sale of the Base Pad Sulphur;
(e) any liabilities assumed by FRP pursuant to Section 5.7; and
(f) all liabilities for (i) the plugging and abandonment of sulphur
wells, (ii) the shutdown or abandonment of any Purchased Assets including
without limitation the removal and disposal of the sulphur vats (including
the Base Pad Sulphur) at the Galveston Facility and (iii) the abatement of
asbestos-insulated pipe (up to 14,000 linear feet of asbestos-insulated
pipe) located in the plant area at the Culberson Facility as well as any
asbestos containing material located elsewhere at the Culberson Facility.
Pennzoil shall retain responsibility for such abatement for asbestos-
insulated pipe in excess of
18
14,000 linear feet located in the plant area at the Culberson Facility.
2.4 EXCLUDED LIABILITIES. Notwithstanding any provision in this
Agreement or any other writing to the contrary, FRP is assuming only the Assumed
Liabilities and is not assuming any other liability or obligation of Pennzoil
(or any predecessor owner of all or part of the Business and the Purchased
Assets) of whatever nature, whether presently in existence or arising hereafter
and whether accrued, contingent, absolute, determined, determinable or
otherwise, actual or potential, known or unknown. All such other liabilities
and obligations shall be retained by and remain obligations and liabilities of
Pennzoil (all such liabilities and obligations not being assumed being herein
referred to as the "EXCLUDED LIABILITIES"), and, without in any way limiting
this Section 2.4, none of the following shall be Assumed Liabilities for
purposes of this Agreement: (a) all accounts payable attributable to the
operation of the Business prior to the Closing Date and all obligations with
respect to any Debt; (b) any obligation or liability for Tax arising from or
with respect to the Purchased Assets or the operations of the Business which is
incurred in or attributable to the Pre-Closing Tax Period; (c) any liabilities
or obligations relating to employee benefits or compensation arrangements with
respect to any Pennzoil employee who is not a Transferred Employee or with
respect to any Transferred Employee for any period on or prior to the Transfer
Date for such Transferred Employee; (d) except as provided in Sections 2.3(e)
and 2.3(f), any Environmental Liability; (e) any liability or obligation
relating to an Excluded Asset; and (f) subject to Section 11.2, any other
obligation or liability associated with the Business or the operation of the
Purchased Assets on or prior to the Closing Date.
2.5 ASSIGNMENT OF CONTRACTS AND RIGHTS. Anything in this Agreement
to the contrary notwithstanding, this Agreement shall not constitute an
agreement to assign any Purchased Asset or any claim or right or any benefit
arising thereunder or resulting therefrom if an attempted assignment thereof,
without the consent of a third party thereto, would constitute a breach or other
contravention thereof or in any way adversely affect the rights of FRP or
Pennzoil thereunder. Pennzoil and FRP will use all commercially reasonable
efforts (but without any obligation on the part of Pennzoil or FRP to pay money)
to obtain the
19
consent of the other parties to any such Purchased Asset or any claim or right
or any benefit arising thereunder for the assignment thereof to FRP. If such
consent is not obtained, or if an attempted assignment thereof would be
ineffective or would adversely affect the rights of Pennzoil thereunder so that
FRP would not in fact receive all such rights, Pennzoil and FRP will cooperate
in a mutually agreeable arrangement under which FRP will obtain the benefits and
assume the obligations thereunder in accordance with this Agreement, including
sub-contracting, sub-licensing or sub-leasing to FRP, or under which Pennzoil
will enforce for the benefit of FRP, with FRP assuming Pennzoil's obligations,
any and all rights of Pennzoil against a third party thereto; PROVIDED, HOWEVER,
that Pennzoil does not guarantee performance by any other party to a Purchased
Asset. Pennzoil will promptly pay to FRP when received all monies received by
Pennzoil under any Purchased Asset or any claim or right or any benefit arising
thereunder, except to the extent the same represents an Excluded Asset.
2.6 OTHER SULPHUR PROPERTIES. (a) Pennzoil hereby grants FRP an
exclusive option, effective from and after the date of this Agreement and
through the date six months after the Closing Date, to acquire some or all of
the properties listed on SCHEDULE 2.6, including the lands they cover, all
interests in the surface and minerals and all appurtenant rights, interests and
properties (collectively, the "OTHER SULPHUR PROPERTIES"), on the terms provided
in this Section 2.6. Pennzoil represents that the Other Sulphur Properties
constitute all of the properties owned by Pennzoil, other than the Real Property
and the Mineral Interests described in SCHEDULES 3.8(a) OR 3.8(b), that are now
predominantly sulphur prospects or properties.
(b) To exercise the option, FRP must give written notice, identifying
the Other Sulphur Property or Properties FRP wishes to acquire, to Pennzoil at
any time from the date of this Agreement to the date six months after the
Closing Date. On the date six months after the Closing Date the option shall
expire, except for Pennzoil's obligation to convey the Other Sulphur Properties
selected by FRP during the six-month option period.
(c) Within ten days after FRP gives each such written notice to
Pennzoil, Pennzoil shall convey to FRP the Other Sulphur Property or Properties
selected by FRP by form of conveyance substantially in the form of the
Conveyance,
20
Assignment, Bill of Sale and Assumption Agreement, but without warranty of
title. FRP shall be responsible for all Environmental Liabilities that relate
to the Other Sulphur Property or Properties selected by and conveyed to FRP.
(d) Each such conveyance shall be made without additional
consideration.
2.7 PURCHASE PRICE. (a) In consideration for Pennzoil's sale of the
Purchased Assets to FRP, FRP agrees to pay to Pennzoil the Quarterly Installment
Payment for each Quarterly Period, subject, however, to Section 5.6 of the Deed
of Trust. The Quarterly Installment Payment payable for each Quarterly Period
will be due on the date 45 days after the last day of that Quarterly Period (or,
if such date is not a Business Day, the next succeeding Business Day) and will
be accompanied by a schedule prepared by FRP showing, in reasonable detail, its
calculation of such Quarterly Installment Payment. The obligation of FRP to
make Quarterly Installment Payments as provided above is referred to herein as
the "PURCHASE PRICE" for the Purchased Assets.
(b) On each Option Date, FRP will have the right, by notice given to
Pennzoil (a "CALL OPTION NOTICE") on or before the thirtieth day (or, if such
date is not a Business Day, the next succeeding Business Day) after such Option
Date, to acquire all rights to all Quarterly Installment Payments occurring
after that Option Date for an amount equal to the Option Price for that Option
Date (such right being referred to as the "CALL OPTION"). A Call Option Notice
shall be accompanied by a schedule prepared by FRP showing, in reasonable
detail, its calculation of the Option Price. If FRP delivers a Call Option
Notice in respect of any Option Date, the Option Price shall be due on the date
45 days after that Option Date. Payment of the Option Price shall satisfy in
full all of FRP's obligations to pay any Quarterly Installment Payments
occurring after the applicable Option Date, and all rights of Pennzoil to
receive any such Quarterly Installment Payments shall be extinguished.
(c) If FRP does not exercise the Call Option with respect to any
Option Date by delivering a Call Option Notice on or before the thirtieth day
(or, if such date is not a Business Day, the next succeeding Business Day) after
such Option Date, Pennzoil will have the right, by notice given to FRP (a "PUT
21
OPTION NOTICE") on or before the sixtieth day (or, if such date is not a
Business Day, the next succeeding Business Day) after such Option Date, to
require FRP to purchase all rights to all future Quarterly Installment Payments
for an amount equal to $10,000,000 (such right being referred to as the "PUT
OPTION"); PROVIDED that Pennzoil will not have any Put Option with respect to
any Option Date occurring after the earliest to occur of (i) the sixteenth
anniversary of the Closing Date and (ii) the date on which FRP has completed all
Quarterly Installment Payments. If Pennzoil delivers a Put Option Notice in
respect of any Option Date, such amount shall be due on the date 75 days after
that Option Date (or, if such date is not a Business Day, on the next succeeding
Business Day). Payment of the Option Price shall satisfy in full all of FRP's
obligations to pay any Quarterly Installment Payments occurring after the
applicable Option Date, and all rights of Pennzoil to receive any such Quarterly
Installment Payments shall be extinguished.
(d) Each payment under this Section 2.7 shall be made by delivery by
FRP of a certified or official bank check payable in immediately available funds
to Pennzoil or by causing such payment to be credited to such account of
Pennzoil as Pennzoil may designate in writing from time to time. Any payment
under this Section 2.7 that is not paid on the date when due shall bear interest
from and including the due date to but excluding the date of payment at a rate
per annum equal to the rate publicly announced from time to time by Chase
Manhattan Bank, N.A. in New York City (i) as its prime rate in the case of
payments as to which there exists a genuine dispute between the parties
regarding the amount of the payment or (ii) as its prime rate plus 2% in the
case of payments as to which no such genuine dispute exists, in each case during
the period from the due date to the date of payment. Such interest shall be
payable at the same time as the payment to which it relates and shall be
calculated daily on the basis of a year of 365 days and the actual number of
days elapsed.
(e) Upon the payment of the last installment of the Purchase Price or
upon payment pursuant to the exercise of the Call Option or the Put Option, all
Liens under the Deed of Trust and all other Liens held by Pennzoil or its
assignee in the Purchased Assets shall be released and discharged automatically.
At any time and from time to time prior to such termination, the parties may
agree to a total or partial release of any such Lien
22
in the Purchased Assets. Upon such total or partial release of any such Lien,
Pennzoil will execute and deliver to FRP such releases and other documents as
FRP shall reasonably request to evidence or effect such release.
2.8 CLOSING. The closing (the "CLOSING") of the purchase and sale of
the Purchased Assets and the assumption of the Assumed Liabilities hereunder
shall take place at the offices of Pennzoil in Houston as soon as possible, but
in no event later than 10 Business Days, after satisfaction of the conditions
set forth in Article 10, or at such other time or place as FRP and Pennzoil may
agree. At the Closing (or from time to time thereafter), Pennzoil and FRP shall
enter into the Conveyance, Assignment, Bill of Sale and Assumption Agreement,
and Pennzoil shall execute, acknowledge and deliver to FRP such deeds, bills of
sale, endorsements, consents, assignments and other good and sufficient
instruments of conveyance and assignment (the "CONVEYANCE DOCUMENTS") as the
parties and their respective counsel shall deem reasonably necessary or
appropriate to vest in FRP Good Title in and to the Purchased Assets. The
parties will also execute and deliver (i) the Deed of Trust, (ii) a Transition
Services Agreement and (iii) each other deed, certificate, agreement or other
document contemplated by this Agreement. Any payment required under this
Section 2.8 and not made at the Closing shall bear interest at the rate per
annum equal to the rate publicly announced from time to time by Chase Manhattan
Bank, N.A. in New York City (i) as its prime rate in the case of payments as to
which there exists a genuine dispute between the parties regarding the amount of
the payment and (ii) as its prime rate plus 2% in the case of payments as to
which no such genuine dispute exists.
2.9 ALLOCATION OF PURCHASE PRICE FOR TAX PURPOSES. (a) The parties
agree that for tax purposes, the Purchase Price will be deemed to be
$22,500,000. As soon as practicable after the Closing Date, FRP shall deliver
to Pennzoil a statement (the "ALLOCATION STATEMENT"), setting forth the value of
the Purchased Assets for tax purposes which shall be used for the allocation of
the Purchase Price (together with the Assumed Liabilities) among the Purchased
Assets.
(b) Pennzoil shall have a period of 30 days after the delivery of the
Allocation Statement to present in writing to FRP notice of any objections
Pennzoil may have to the allocation set
23
forth in the Allocation Statement. Unless Pennzoil timely objects, the
Allocation Statement shall be binding on the parties without further adjustment.
(c) If Pennzoil shall raise any objections within the 30 day period,
FRP and Pennzoil shall negotiate in good faith and use their best efforts to
resolve such dispute. If the parties fail to agree within 5 days after the
delivery of the notice, then the disputed items shall be resolved by Arthur
Andersen, or if such firm declines to act in such capacity, by such other firm
of independent nationally recognized accountants chosen and mutually accepted by
both parties (the "ACCOUNTING REFEREE"). The Accounting Referee shall resolve
the dispute within 30 days of having the item referred to it. The costs, fees
and expenses of the Accounting Referee shall be borne equally by Pennzoil and
FRP.
(d) Pennzoil and FRP agree to report an allocation of the Purchase
Price among the Purchased Assets in a manner entirely consistent with the
Allocation Statement and agree to act in accordance with such Allocation
Statement in the preparation and filing of all tax returns (including without
limitation filing Form 8594 with its Federal income tax return for the taxable
year that includes the date of the Closing) and in the course of any tax audit,
tax review or tax litigation relating thereto.
(e) Not later than 10 days prior to the filing of their respective
Form 8594 relating to this transaction, each party shall deliver to the other
party a copy of its Form 8594.
2.10 LIQUID SULPHUR INVENTORY ADJUSTMENT. (a) On the Closing Date (or
on such other date or dates as close as possible to the Closing Date as may be
mutually agreed by the parties, one or more representatives designated by each
of Pennzoil and FRP (who may be employees or officers of Pennzoil or FRP, as the
case may be) shall jointly conduct on behalf of each party respectively a
measurement by tank strapping of the level of Pennzoil's liquid sulphur
inventory (net of any sulphur owned by parties other than Pennzoil and any
sulphur that is sold on Pennzoil's books as of the Closing Date) included in the
Purchased Assets at Closing (the "CLOSING SULPHUR INVENTORY"). Inventory in
transit, including in tank cars and barges, will be measured by tank strapping
at destination and will be deemed to
24
be at its destination as of the Closing Date. If the parties' respective
measurements of Pennzoil's liquid sulphur inventory at the Tampa Facility, the
Galveston Facility, the Culberson Facility and/or Pennzoil's Savannah facility
differ, the level of inventory at that facility shall be the average of the
parties' respective measurements for that facility.
(b)(i) Subject to Section 2.10(b)(v) below, if the Closing Sulphur
Inventory at the Tampa Facility is greater than the Tampa Base Sulphur
Inventory, then FRP shall pay to Pennzoil a cash amount equal to the difference
multiplied by the Tampa Average Sulphur Price as of the Closing Date minus
$3.75; if the Closing Sulphur Inventory at the Tampa Facility is less than the
Tampa Base Sulphur Inventory then Pennzoil shall pay to FRP a cash amount equal
to the difference multiplied times the Tampa Average Sulphur Price as of the
Closing Date minus $3.75 (the payment under this Section 2.10(b)(i) being the
"TAMPA ADJUSTMENT").
(ii) Subject to Section 2.10(b)(v) below, if the Closing Sulphur
Inventory at the Galveston Facility is greater than the Galveston Base Sulphur
Inventory, then FRP shall pay to Pennzoil a cash amount equal to the difference
multiplied by the Tampa Average Sulphur Price as of the Closing Date minus
$17.75; if the Closing Sulphur Inventory at the Galveston Facility is less than
the Galveston Base Sulphur Inventory, then Pennzoil shall pay to FRP a cash
amount equal to the difference multiplied times the Tampa Average Sulphur Price
as of the Closing Date minus $17.75 (the payment under this Section 2.10(b)(ii)
being the "GALVESTON ADJUSTMENT").
(iii) Subject to Section 2.10(b)(v) below, if the Closing Sulphur
Inventory at the Culberson Facility is greater than the Culberson Base Sulphur
Inventory, then FRP shall pay to Pennzoil a cash amount equal to the difference
multiplied by the Tampa Average Sulphur Price as of the Closing Date minus
$39.50; if the Closing Sulphur Inventory at the Culberson Facility is less than
the Culberson Base Sulphur Inventory, then Pennzoil shall pay to FRP a cash
amount equal to the difference multiplied times the Tampa Average Sulphur Price
as of the Closing Date minus $39.50 (the payment under this Section 2.10(b)(iii)
being the "CULBERSON ADJUSTMENT").
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(iv) Subject to Section 2.10(b)(v) below, if the Closing Sulphur
Inventory at Savannah is greater than the Savannah Base Sulphur Inventory, then
FRP shall pay to Pennzoil a cash amount equal to the difference multiplied by
the Tampa Average Sulphur Price as of the Closing Date plus $2.75; if the
Closing Sulphur Inventory at Pennzoil's Savannah facility is less than the
Savannah Base Sulphur Inventory, then Pennzoil shall pay to FRP a cash amount
equal to the difference multiplied times the Tampa Average Sulphur Price as of
the Closing Date plus $2.75 (the payment under this Section 2.10(b)(iv) being
the "SAVANNAH ADJUSTMENT").
(v) The dollar amount of the Tampa Adjustment, the Galveston
Adjustment, the Culberson Adjustment and the Savannah Adjustment shall be
netted, and, if the Closing Sulphur Inventory is greater than the Base Sulphur
Inventory, the net amount shall be adjusted in FRP's favor by 50 percent of the
royalties payable on such excess inventory. Pennzoil shall pay to FRP, or FRP
shall pay to Pennzoil, as the case may be, the net adjusted amount in the manner
and with interest as provided in Section 2.10(c). Any such payment of the net
adjusted amount pursuant to this Section 2.10(b) shall be made at a mutually
convenient time and place within 20 days after the Closing Date.
(c) Any payments pursuant to this Section 2.10 shall be made by
delivery by FRP, or Pennzoil, as the case may be, of a certified or official
bank check payable in immediately available funds to the other party or by
causing such payments to be credited to such account of such other party as may
be designated by such other party. The amount of any payment to be made
pursuant to this Section 2.10 shall bear interest from and including the due
date to but excluding the date of payment at a rate per annum equal to the rate
publicly announced from time to time by Chase Manhattan Bank, N.A. in New York
City (i) as its prime rate in the case of payments as to which there exists a
genuine dispute between the parties regarding the amount of the payment and (ii)
as its prime rate plus 2% in the case of payments as to which no such genuine
dispute exists, in each case during the period from the Closing Date to the date
of payment. Such interest shall be payable at the same time as the payment to
which it relates and shall be calculated daily on the basis of a year of 365
days and the actual number of days elapsed.
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(d) If Pennzoil advises FRP that the relative amounts of inventory at
Tampa, Galveston and Culberson have been materially changed due to FRP's use of
the "Marine Duval", Pennzoil will propose an appropriate adjustment to reflect
the amounts that would have been paid under this Section 2.10 if FRP had not
used the "Marine Duval". The amount of such adjustment will be negotiated in
good faith by the parties. If the parties are unable to agree upon the amount
of such adjustment within 60 days of Pennzoil's initial proposal, then the
arbitration procedure outlined in Section 2.11(b) shall be used by the parties
to establish the amount of the adjustment. Each party will be entitled to make
one proposal, the Panel will be required to choose one of those two proposals
and its decision will be binding on the parties. Costs of arbitration will also
be allocated in accordance with Section 2.11(b).
2.11 TAMPA AVERAGE SULPHUR PRICE. (a) If, for purposes of
calculating the Tampa Average Sulphur Price, "Green Markets" ceases publication
or no longer publishes the required prices or if the prices published in "Green
Markets" are no longer representative of prevailing contract sulphur prices in
Tampa, FRP and Pennzoil shall agree upon an alternative basis for determining
the Tampa Average Sulphur Price that will be representative of prevailing
contract (rather than spot) sulphur prices in Tampa from time to time. Such
agreement shall be made following good faith negotiations which shall commence
promptly upon the provision of written notice by either party to the other party
("WRITTEN NOTICE") that an alternative basis is necessary.
(b) If the parties are unable to agree on such an alternative basis
within 60 days of the provision of Written Notice, the new basis shall be
finally and conclusively determined by a panel of arbitrators (the "PANEL")
consisting of three members unaffiliated with either party and selected as
hereinafter provided. Each of Pennzoil and FRP shall select one member of the
Panel within five Business Days after the 60 day period referred to above and
the third member shall be selected by mutual agreement of the two members so
selected within an additional ten Business Days. If either party does not
appoint its member of the Panel as provided above, then the alternative basis
proposed by the other party Section shall prevail. Panel members shall be
chosen on the basis of their knowledge of the agricultural minerals industry in
general and the sulphur industry in particular. The Panel shall meet in New
York, New
27
York or such other place as a majority of the members of the Panel determines
more appropriate. Each party shall provide the Panel within 30 Business Days of
its formation with one or more proposals as to the appropriate alternative basis
for determining the prevailing contract market price for sulphur FOB Tampa
Terminal. The parties shall be given the opportunity to submit in writing
supporting information or data for their proposals and to each make an oral
presentation to the Panel. The Panel shall then decide (by a majority) within
45 Business Days of its formation which one of the proposed bases will most
accurately reflect the prevailing contract sulphur price in Tampa. It is
understood and agreed that the Panel will not have discretion to select any
basis for the Tampa Average Sulphur Price other than one of the bases proposed
by the parties, and will not have authority to modify or amend such proposal.
The basis adopted by the Panel shall be binding on the parties for future
determinations of the Tampa Average Sulphur Price. The costs associated with
the arbitration procedure described in this Section 2.11(b), including the fees
and expenses of the arbitrators and the costs reasonably incurred by the parties
themselves in preparing their proposals, shall be borne by the party whose
proposals are not selected by the Panel.
(c) Until such time as such an alternative basis has been mutually
agreed as described in Section 2.11(a), or determined by the Panel as described
in Section 2.11(b), the Tampa Average Sulphur Price shall be determined
utilizing prices published in "Green Markets" as described in the definition of
"Tampa Average Sulphur Price"; PROVIDED that once an alternative basis has been
agreed upon that new basis shall be applied retroactively to any payments made
with respect to periods after receipt by a party of Written Notice.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PENNZOIL
Pennzoil represents and warrants to FRP as of the date hereof and as
of the Closing Date that:
3.1 CORPORATE EXISTENCE AND POWER. Pennzoil is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and
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has all corporate powers and all material governmental licenses, authorizations,
permits, consents and approvals required to carry on its business as now
conducted. Pennzoil is duly qualified to do business as a foreign corporation
and is in good standing in each jurisdiction where such qualification is
necessary in connection with the conduct of the Business, except for those
jurisdictions where failure to be so qualified would not, individually or in the
aggregate, have a Material Adverse Effect. Pennzoil has heretofore delivered to
FRP true and complete copies of its certificate of incorporation and bylaws as
currently in effect.
3.2 CORPORATE AUTHORIZATION. The execution, delivery and performance
by Pennzoil of this Agreement are within Pennzoil's corporate powers and have
been duly authorized by all necessary corporate action on the part of Pennzoil.
This Agreement constitutes a valid and binding agreement of Pennzoil,
enforceable against Pennzoil in accordance with its terms, except as enforcement
hereof may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting enforcement of creditors' rights generally and except as
enforcement hereof is subject to general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
3.3 GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by Pennzoil of this Agreement require no action by or in respect of,
or filing with, any Governmental Authority other than (i) compliance with any
applicable requirements of the HSR Act; and (ii) compliance with any applicable
requirements of the 1934 Act.
3.4 NON-CONTRAVENTION. The execution, delivery and performance by
Pennzoil of this Agreement do not and will not (i) violate the certificate of
incorporation or bylaws of Pennzoil, (ii) assuming compliance with the matters
referred to in Section 3.3, violate any applicable Law, (iii) assuming the
obtaining of all Required Consents, constitute a default under or give rise to
any right of termination, cancellation or acceleration of any right or
obligation relating to the Business or to a loss of any benefit relating to the
Business to which Pennzoil is entitled under (a) any provision of any agreement,
contract or other instrument binding upon Pennzoil or by which any of the
Purchased Assets is or may be bound or (b) any Permit or (iv) result in the
29
creation or imposition of any Lien on any Purchased Asset, other than Permitted
Liens. From August 22, 1994 through the date of this Agreement, Pennzoil has
not taken any action that would have resulted in a breach of any covenant or
agreement contained in this Agreement if this Agreement had been executed on
August 22, 1994.
3.5 REQUIRED CONSENTS. SCHEDULE 3.5 sets forth each agreement,
contract or other instrument binding upon Pennzoil or any Permit requiring a
consent or other form of approval as a result of or a waiver of rights to permit
the execution, delivery and performance of this Agreement (each such consent, a
"REQUIRED CONSENT" and together the "REQUIRED CONSENTS").
3.6 FINANCIAL STATEMENTS. The unaudited balance sheet for the
Business as of December 31, 1993 and the related unaudited statements of
operations and cash flows for the Business for the year ended December 31, 1993
and the Balance Sheet and the related unaudited interim statement of operations
and cash flows for the six months ended June 30, 1994 (collectively, the
"FINANCIAL STATEMENTS") fairly present, in conformity with generally accepted
accounting principles applied on a consistent basis (except as may be indicated
in the notes thereto), the financial position as of the dates thereof and its
results of operations and cash flows for the periods then ended (subject to
normal year-end adjustments in the case of any unaudited interim financial
statements).
3.7 ABSENCE OF CERTAIN CHANGES. Except as reported in monthly
financial and operating reports that are delivered to FRP before the date of
this Agreement, since the Balance Sheet Date, the Business has been conducted in
the ordinary course consistent with past practices, and there has not been:
(a) any event, occurrence, development or state of circumstances or
facts which has had or could reasonably be expected to have a Material
Adverse Effect other than those that may be deemed to have occurred by
virtue of general changes in economic conditions or conditions generally
affecting the sulphur mining and marketing business;
(b) any creation or other incurrence of any Lien (other than
Permitted Liens) on any Purchased Asset;
30
(c) any damage, destruction or other casualty loss (whether or not
covered by insurance) affecting the Business or any Purchased Asset which,
individually or in the aggregate, has had or could reasonably be expected
to have a Material Adverse Effect;
(d) any transaction or commitment made, or any contract or agreement
entered into, by Pennzoil relating to the Business or any Purchased Asset
(including the acquisition or disposition of any assets) or any
relinquishment by Pennzoil of any contract or other right, in either case,
material to the Business taken as a whole, other than transactions and
commitments in the ordinary course of business consistent with past
practices and those contemplated by this Agreement;
(e) any change in any method of accounting or accounting practice by
Pennzoil with respect to the Business except for any such change after the
date hereof required by reason of a concurrent change in generally accepted
accounting principles;
(f) any (i) employment, deferred compensation, severance, retirement
or other similar agreement entered into with any employee of the Business
(or any amendment to any such existing agreement), (ii) grant of any
severance or termination pay to any such employee or (iii) change in
compensation or other benefits payable to any such employee pursuant to any
severance or retirement plans or policies;
(g) any labor dispute, other than routine individual grievances, or
any activity or proceeding by a labor union or representative thereof to
organize any employees of the Business, which employees were not subject to
a collective bargaining agreement at the Balance Sheet Date, or any
lockouts, strikes, slowdowns, work stoppages or threats thereof by or with
respect to such employees; or
(h) any capital expenditure, or commitment for a capital expenditure,
for additions or improvements to property, plant and equipment.
3.8 PROPERTIES. (a) SCHEDULE 3.8(a) contains a correct summary
description of all Real Property.
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(b) SCHEDULE 3.8(b) correctly describes the Mineral Interests.
(c) To the knowledge of Pennzoil, SCHEDULE 3.8(c) correctly describes
all Personal Property with a book value in excess of $100,000 and any Liens
thereon, specifying in the case of leases or subleases, the name of the lessor
or sublessor, the lease term and basic annual rent.
(d) Pennzoil has, and at Closing will have and will convey to FRP,
and upon consummation of the transactions contemplated hereby, FRP will acquire,
Good Title to each of the Purchased Assets.
(e)(i) The real property summarized on SCHEDULE 3.8(a) includes all
Real Property (other than Excluded Assets), and only such real property, as is
used or held for use in connection with the conduct and operations of the
Business as heretofore conducted. Except for the Other Sulphur Properties and
other Excluded Assets, the mineral interests described on SCHEDULE 3.8(b)
include all Mineral Interests, and only such mineral interests, as are used or
held for use in connection with the conduct and operations of the Business as
heretofore conducted.
(ii) All leases of and other instruments and agreements relating to
Real Property, Mineral Interests described on SCHEDULE 3.8(b) or Personal
Property are in good standing and are valid, binding and enforceable in
accordance with their respective terms, and there does not exist under any such
lease, instrument or agreement any material default or any event which with
notice or lapse of time or both would constitute a material default.
(iii) Except as provided in SCHEDULE 3.8(e), the plants, buildings,
structures and equipment included in the Purchased Assets and currently used in
the Business are in satisfactory operating condition and repair and have been
reasonably maintained consistent with standards generally followed in the
industry (giving due account to the age and length of use of same, ordinary wear
and tear excepted), are suitable for their present uses and, in the case of
plants, buildings and other structures currently used in the Business (including
without limitation the roofs thereof), are, to the knowledge of Pennzoil,
structurally sound. Except as expressly
32
provided in this Section 3.8(e)(iii), the Personal Property is sold "AS, IS,
WHERE IS," and Pennzoil MAKES NO, AND DISCLAIMS ANY, REPRESENTATION OR WARRANTY,
WHETHER EXPRESS OR IMPLIED, AND WHETHER BY COMMON LAW, STATUTE, OR OTHERWISE, AS
TO (i) MERCHANTABILITY, (ii) FITNESS FOR ANY PARTICULAR PURPOSE, (iii)
CONFORMITY TO MODELS OR SAMPLES OF MATERIALS AND (iv) CONDITION. FRP EXPRESSLY
WAIVES THE PROVISIONS OF CHAPTER XVII, SUBCHAPTER E, SECTIONS 17.41 THROUGH
17.63, INCLUSIVE (OTHER THAN SECTION 17.555, WHICH IS NOT WAIVED), VERNON'S
TEXAS CODE ANN., BUSINESS AND COMMERCE CODE (THE "DTPA"). Pennzoil and FRP
agree that the preceding disclaimers of warranty are "conspicuous" disclaimers
for purposes of any applicable law, rule or order. FRP expressly recognizes
that the consideration for which Pennzoil has agreed to sell the Purchased
Assets and perform its obligations under this Agreement has been predicated upon
the inapplicability of the DTPA and this waiver of the DTPA. FRP further
recognizes that Pennzoil, in determining to proceed with the entering in to of
this Agreement, has expressly relied on this waiver and the inapplicability of
the DTPA.
(iv) The plants, buildings and structures included in the Purchased
Assets currently have access to (A) public roads or valid easements over private
streets or private property for such ingress to and egress from all such plants,
buildings and structures and (B) water supply, telephone, gas and electrical
connections, drainage and other utilities, as are necessary for the conduct of
the Business as it is presently conducted.
(v) None of the material structures on the Real Property encroaches
upon real property of another person, and no structure of any other person
substantially encroaches upon any Real Property.
(f) No Purchased Asset is subject to any Lien, except Permitted
Liens.
(g) There are no developments affecting any of the Purchased Assets
pending or, to the knowledge of Pennzoil threatened, which might materially
detract from the value of such Purchased Assets, materially interfere with any
present use of any such Purchased Assets or materially adversely affect the
marketability of such Purchased Assets (other than those developments as may be
deemed to have occurred by virtue of
33
business and economic conditions in general and those relating generally to the
sulphur mining and marketing business).
(h) Pennzoil has delivered or made available to FRP, true and
complete copies of all records, title policies and reports, leases, contracts
and other materials relating to the Real Property and Mineral Interests.
(i) (i) In this Subsection 3.8(i), "Mineral Interest" refers only to
the Culberson Unit Agreement and each Mineral Interest described in items 1-18
(Culberson County, Texas) of SCHEDULE 3.8(b).
(ii) Each Mineral Interest has been maintained in full force and
effect according to its terms. Pennzoil has made or caused to be made all
payments, including royalties, delay rentals and shut-in royalties, due under
each Mineral Interest.
(iii) To the knowledge of Pennzoil, no other party to a Mineral
Interest is in breach or default of any obligation under the Mineral Interest.
(iv) Except for matters asserted by the General Land Office in
audits of royalty payments to the State of Texas, there has not occurred an
event, fact or circumstance that with the lapse of time or the giving of notice,
or both, would constitute a breach or default of any obligation under a Mineral
Interest by Pennzoil or, to the knowledge of Pennzoil, by any other party to the
Mineral Interest.
(v) Neither Pennzoil nor any other party to a Mineral Interest
described on has given or threatened to give notice of any action to terminate,
cancel, rescind or procure a judicial reformation of the Mineral Interest or any
provision of the Mineral Interest.
(vi) There are no obligations under a Mineral Interest to engage
in continuous development operations to maintain the Mineral Interest in full
force and effect.
(vii) There are no provisions in a Mineral Interest or other
applicable instrument or agreement that increases the royalty share of the
lessor under that Mineral Interest.
34
(viii) Except for matters asserted by the General Land Office in
audits of royalty payments to the State of Texas, no provision in any Mineral
Interest (other than a provision allowing a lessor to take Minerals in kind)
requires the payment of a royalty or other Production Burden on any basis other
than the basis of the proceeds actually received by Pennzoil from the sale or
other disposition of the Minerals.
(ix) Pennzoil is not obligated by (A) any prepayment arrangement,
(B) a "take-or-pay" provision or other similar provision, (C) a production
payment, (D) a minerals "balancing" agreement, or (E) any other arrangements to
deliver Minerals produced from the Mineral Interests described on at some future
time without then or thereafter receiving full payment for the Minerals.
(x) Payments for Minerals sold under each Material Contract are
current (subject to adjustment in accordance with the Material Contracts) and in
accordance with the prices set forth in the Material Contracts.
(xi) All wells drilled and completed on the Culberson Unit have
been drilled and completed within the boundaries of the applicable Mineral
Interests or within the limits otherwise permitted by contract, by pooling or
unit agreement or by law.
3.9 SUFFICIENCY OF THE PURCHASED ASSETS. The Purchased Assets
constitute, and on the Closing Date will constitute, all of the assets or
property (other than Excluded Assets) used or held for use in the Business.
3.10 NO UNDISCLOSED LIABILITIES. Other than liabilities disclosed on
SCHEDULE 3.10, there are no liabilities of the Business (other than Excluded
Liabilities) of any kind whatsoever, whether accrued, contingent, absolute,
determined, determinable or otherwise, actual or potential, known or unknown,
and there is no existing condition, situation or set of circumstances which
could reasonably be expected to result in such a liability, and which, in any
such case, could be asserted against FRP or the Purchased Assets other than
liabilities provided for in the Balance Sheet or disclosed in the notes thereto.
35
3.11 LITIGATION. Except as set forth on SCHEDULE 3.11 there is no
action, suit, investigation or proceeding pending against, or to the knowledge
of Pennzoil, threatened against or affecting, the Business or any Purchased
Asset before any arbitrator or Governmental Authority which, if determined or
resolved adversely in accordance with the plaintiff's demands, would reasonably
be expected to have a Material Adverse Effect or which in any manner challenges
or seeks to prevent, enjoin, alter or materially delay the transactions
contemplated hereby.
3.12 MATERIAL CONTRACTS. (a) Except for the Contracts disclosed in
SCHEDULE 3.12(a) with respect to the Business (other than the Excluded Assets),
Pennzoil is not a party to or bound by:
(i) any lease of personal property providing for annual rentals of
$100,000 or more;
(ii) any agreement for the purchase of materials, supplies, goods,
services, equipment or other assets providing for either (A) annual
payments by Pennzoil of $100,000 or more or (B) aggregate payments by
Pennzoil of $500,000 or more;
(iii) any agreement with reference to all or a substantial portion of
the output of a plant, a mine or other production facility or all or a
substantial portion of all requirements of a customer of Pennzoil or of
Pennzoil or to any other Person providing for annual payments that exceed
$1,000,000 or more or extending beyond two years;
(iv) any sales, distribution or other similar agreement providing for
the sale by Pennzoil of materials, supplies, goods, services, equipment or
other assets that provides for either (A) annual payments to Pennzoil of
$100,000 or more or (B) aggregate payments to Pennzoil of $500,000 or more;
(v) any partnership, tax partnership, joint venture or other similar
agreement or arrangement;
(vi) any option agreement, license agreement, franchise, or agreement
in respect of similar rights granted or held by Pennzoil;
36
(vii) any agency, dealer, sales representative, marketing or other
similar agreement providing for annual payments of $100,000 or more;
(viii) any agreement that limits the freedom of Pennzoil to compete in
any aspect of the sulphur business or with any Person or in any area or to
own, operate, sell, transfer, pledge or otherwise dispose of or encumber
any Purchased Asset or which would so limit the freedom of FRP after the
Closing Date;
(ix) any agreement (other than an Excluded Asset) with or for the
benefit of any Affiliate of Pennzoil;
(x) any labor union contract;
(xi) any agreement (other than an Excluded Asset) with respect to
property, casualty or other forms of insurance; or
(xii) any other agreement, commitment, arrangement or plan not made in
the ordinary course of business which is material to the Business (other
than the Excluded Assets) taken as a whole.
(b) Each Contract disclosed in any schedule to this Agreement or
required to be disclosed pursuant to this Section 3.12 is a valid and binding
agreement of Pennzoil and is in full force and effect, and neither Pennzoil nor,
to the knowledge of Pennzoil, any other party thereto is in default or breach in
any material respect under the terms of any such Contract, nor, to the knowledge
of Pennzoil, has any event or circumstance occurred that, with notice or lapse
of time or both, would constitute any event of default thereunder. True and
complete copies of each such contract have been delivered to FRP.
(c) Pennzoil's net per ton cost of transportation for sulphur
(excluding rail car costs) from the Culberson Facility under its agreement with
the Santa Fe Railway Company currently does not exceed $20.00 per ton. This
freight cost is subject to annual escalation and is subject to adjustment when
the Tampa price exceeds $92.00 per ton.
37
3 LICENSES AND PERMITS. SCHEDULE 3.13 correctly describes each
license, franchise, permit or other similar authorization affecting, or relating
in any way to, the Business insofar as it relates to the Purchased Assets
(including Environmental Permits), together with the name of the Governmental
Authority issuing such license or permit (the "PERMITS"). Except as set forth
on SCHEDULE 3.13, such Permits are valid and in full force and effect.
3.14 INSURANCE COVERAGE. There is no claim by Pennzoil relating to
the Business pending under any of its insurance policies or fidelity bonds as to
which coverage has been questioned, denied or disputed by the underwriters of
such policies or bonds or in respect of which such underwriters have reserved
their rights. All premiums payable under all such policies and bonds have been
timely paid and Pennzoil has otherwise complied fully with the terms and
conditions of all such policies and bonds. Such policies of insurance and bonds
(or other policies and bonds providing substantially similar insurance coverage)
have been in effect since October 1989 and remain in full force and effect.
Such policies and bonds are of the type and in amounts customarily carried by
Persons conducting businesses similar to the Business. Except as disclosed in
SCHEDULE 3.14, after the Closing Pennzoil shall continue to have coverage under
such policies and bonds with respect to events occurring prior to Closing.
3.15 COMPLIANCE WITH LAWS AND COURT ORDERS. Pennzoil is not in
violation of, has not since January 1, 1991 violated, and to Pennzoil's
knowledge is not under investigation with respect to or has not been threatened
to be charged with or given notice of any violation of, any Law (including
without limitation any Law relating to zoning, city planning or similar matters)
applicable to the Purchased Assets or the conduct of the Business, except for
violations that have not had and could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect and except for
environmental matters, which are addressed in Section 3.20.
3.16 INVENTORIES. The inventories set forth in the Balance Sheet were
properly stated therein in accordance with accounting principles consistently
maintained and applied by Pennzoil. Since the Balance Sheet Date, the
inventories of the Business have been maintained in the ordinary course of
business.
38
All such inventories are owned free and clear of all Liens. All of the
inventory recorded on the Balance Sheet consists of, and all inventory related
to the Business on the Closing Date will consist of, items of a quality usable
or saleable in the normal course of the Business consistent with past practices
and are and will be in quantities sufficient for the normal operation of the
Business in accordance with past practice.
3.17 INTELLECTUAL PROPERTY. (a) SCHEDULE 3.17(a) sets forth a list of
all patents, patent applications, and registered marks specifying as to each, as
applicable: (i) the nature of such Intellectual Property Right; (ii) the owner
of such Intellectual Property Right; (iii) the jurisdictions by or in which such
Intellectual Property Right is recognized without regard to registration or has
been issued or registered or in which an application for such issuance or
registration has been filed, including the respective registration or
application numbers; and (iv) material licenses, sublicenses and other
agreements as to which Pennzoil or any of its Affiliates is a party and pursuant
to which any Person is authorized to use such Intellectual Property Right,
including the identity of all parties thereto, a description of the nature and
subject matter thereof, the applicable royalty and the term thereof. SCHEDULE
3.17(a) is an accurate and complete list of all patents, patent applications,
and registered marks used by Pennzoil in the operation or conduct of the
Business as currently or heretofore conducted.
(b)(i) Except as set forth in Section 3.17, Pennzoil has not, during
the three years preceding the date of this Agreement, been sued or charged in
writing with or been a defendant in any claim, suit, action or proceeding
relating to the Business that has not been finally terminated prior to the date
hereof and that involves a claim of infringement of any patents, trademarks,
service marks or copyrights, and (ii) Pennzoil has no knowledge of any other and
no knowledge of any continuing infringement by any other Person of any
Intellectual Property Rights. No Intellectual Property Right is subject to any
outstanding order, judgment, decree, stipulation or agreement restricting the
use thereof by Pennzoil with respect to the Business or restricting the
licensing thereof by Pennzoil to any Person. Pennzoil has not entered into any
agreement to indemnify any other Person against any charge of infringement of
any patent, trademark, service mark or copyright.
39
3.18 EMPLOYEES. Pennzoil has previously provided to FRP a true and
complete list of the names, titles, annual salaries or wage rates of all
employees of the Business.
3.19 FINDERS' FEES. There is no investment banker, broker, finder or
other intermediary which has been retained by or is authorized to act on behalf
of Pennzoil who might be entitled to any fee or commission in connection with
the transactions contemplated by this Agreement.
3.20 ENVIRONMENTAL MATTERS. (a) Except as disclosed on SCHEDULE
3.20(a):
(i) in connection with or relating to the Purchased Assets or the
Business within the preceding five years, no written notice, notification,
demand, request for information, citation, summons, complaint or order has
been issued, no written complaint has been filed, no penalty has been
assessed and no investigation or review is pending or, to the best
knowledge of Pennzoil, threatened by any Governmental Authority or other
Person with respect to any (A) alleged violation of any Environmental Law
or liability thereunder, (B) alleged failure to have any Environmental
Permit, (C) Regulated Environmental Activity or (D) Release of Hazardous
Substances;
(ii) the Purchased Assets are in compliance with all Environmental
Laws and all Environmental Permits required for operations have been
obtained;
(iii) other than in compliance with Environmental Laws or Environmental
Permits, no polychlorinated biphenyls, radioactive materials (including
naturally occurring radioactive materials and sealed radioactive sources),
urea formaldehyde, lead, asbestos, asbestos-containing material or
underground storage tank (active or abandoned) is or has been present
within the past five years on, at or under any Purchased Asset;
(iv) there has been no material Release of any Hazardous Substance
within the past five years (and no notification of such Release has been
filed or made within the past five years) at, on or under any Purchased
Asset;
40
(v) none of the Purchased Assets is listed or proposed for listing,
on the National Priorities List promulgated pursuant to CERCLA, on CERCLIS
(as defined in CERCLA) or on any similar federal or state list of sites
requiring investigation or clean-up;
(vi) Neither Pennzoil nor its former subsidiary Pennzoil Sulphur
Company has placed any Hazardous Substance, other than Hazardous Substances
ordinarily associated with water treatment processes, in (A) the sludge
lagoon, (B) the sanitary lagoons or (C) the salt mixing pit, in each case
at the Culberson Facility; and
(vii) there are no liens under Environmental Laws on any of the
Purchased Assets, no government actions have been taken or, to the
knowledge of Pennzoil, are in process, which could subject any of such
Purchased Assets to such liens, and Pennzoil would not be required to place
any notice or restriction relating to Hazardous Substances at any Real
Property owned by it in any deed to such property.
(b) With respect to the Business, there has been no Environmental
Investigation or Audit which Pennzoil has in its possession in relation to any
Purchased Asset which has not been delivered to FRP at least two days prior to
the date hereof other than an environmental audit of the Tampa Facility which is
in the process of being finalized.
3.21 CUSTOMERS AND SUPPLIERS. Except as set forth on SCHEDULE 3.21,
Pennzoil is not engaged in any material disputes with any customers or suppliers
of the Business, and to the best of its knowledge, no customer or supplier
representing revenues or expenses in excess of $250,000 per year has indicated
that it intends to terminate, not renew or adversely modify its arrangements
with Pennzoil in relation to the Business.
3.22 BOOKS AND RECORDS. The Books and Records (true and complete
copies of which have been made available to FRP) are accurate and complete in
all material respects.
3.23 REPRESENTATIONS CUMULATIVE. The representations and warranties
of Pennzoil in this Agreement are cumulative and independent of, and not limited
by, any covenants, representations and warranties in any agreement or document
41
(including any conveyance document) contemplated hereby and the covenants,
representations and warranties contained herein shall not be deemed to be merged
into any such agreement or document.
3.24 SCOPE OF REPRESENTATIONS OF PENNZOIL. Except as and to the
extent set forth in this Article 3, Pennzoil makes no representations or
warranties whatsoever, and disclaims all liability and responsibility for any
representation, warranty, statement or information made or communicated (orally
or in writing) to FRP (including, but not limited to, any opinion, information
or advice that may have been provided to FRP by any officer, stockholder,
director, employee, agent, consultant or representative of Pennzoil, Pennzoil's
counsel or any other agent, consultant or representative). Without limiting the
generality of the foregoing, except as and to the extent expressly set forth in
this Article 3, Pennzoil makes no representations or warranties as to (a) the
title to any of the properties of the Business, (b) the amounts of sulphur
reserves attributable to such properties or (c) any geological or other
interpretations or economic evaluations.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF FRP
FRP represents and warrants to Pennzoil as of the date hereof and as
of the Closing Date that:
4.1 ORGANIZATION AND EXISTENCE. FRP is a limited partnership duly
organized, validly existing and in good standing under the laws of Delaware,
which has all powers and all material governmental licenses, authorizations,
permits, consents and approvals required to carry on its business as now
conducted.
4.2 AUTHORIZATION. The execution, delivery and performance by FRP of
this Agreement are within FRP's powers and have been duly authorized by all
necessary action on the part of FRP. This Agreement constitutes a valid and
binding agreement of FRP, enforceable against FRP in accordance with its terms,
except as enforcement hereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting enforcement of creditors' rights
generally and except as enforcement hereof is subject to general principles of
equity (regardless of whether
42
such enforcement is considered in a proceeding in equity or at law).
4.3 GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by FRP of this Agreement require no action by or in respect of, or
filing with, any Governmental Authority other than (i) compliance with any
applicable requirements of the HSR Act; and (ii) compliance with any applicable
requirements of the 1934 Act.
4.4 NON-CONTRAVENTION. The execution, delivery and performance by
FRP of this Agreement, do not and will not (i) contravene or conflict with the
partnership agreement of FRP, (ii) assuming compliance with the matters referred
to in Section 4.3, violate any applicable Law or (iii) assuming the obtaining of
all Required Consents, constitute a default under or give rise to any right of
termination, cancellation or acceleration of a Debt of FRP.
4.5 REQUIRED CONSENTS. SCHEDULE 4.5 sets forth each agreement,
contract or other instrument binding upon FRP or any Permit requiring a consent
as a result of the execution, delivery and performance of this Agreement.
4.6 FINANCIAL STATEMENTS. The balance sheet (the "FRP BALANCE
SHEET") and the related audited statements of operations for FRP for the years
ended December 31, 1993, 1992 and 1991, the unaudited interim balance sheet June
30, 1994 and the related unaudited interim statement of operations and cash flow
for the six months ended June 30, 1994, fairly present, in conformity with
generally accepted accounting principles applied on a consistent basis (except
as may be indicated in the notes thereto), the financial position of FRP taken
as a whole as of the dates thereof and its results of operations and cash flows
for the periods then ended (subject to normal year-end adjustments in the case
of any unaudited interim financial statements).
4.7 ABSENCE OF CERTAIN CHANGES. Since the date of the FRP Balance
Sheet, FRP's business has been conducted in the ordinary course consistent with
past practices, and there has not been any event, occurrence, development or
state of circumstances or facts which has had or could reasonably be expected to
have a
43
material adverse effect on the ability of FRP to fulfill its obligations under
this Agreement.
4.8 LITIGATION. There is no action, suit, investigation or
proceeding pending against, or, to the knowledge of FRP, threatened against or
affecting FRP before any court or arbitrator or any Governmental Authority
which, if determined or resolved adversely in accordance with the plaintiff's
demands, would reasonably be expected to have a material adverse effect on the
ability of FRP to fulfill its obligations under this Agreement or which in any
manner challenges or seeks to prevent, enjoin, alter or materially delay the
transactions contemplated hereby.
4.9 COMPLIANCE WITH LAWS AND COURT ORDERS. FRP is not in violation
of, has not since January 1, 1991 violated, and to FRP's knowledge is not under
investigation with respect to or has not been threatened to be charged with or
given notice of any violation of, any Law, except for violations that have not
had and could not reasonably be expected to have, individually or in the
aggregate, a material adverse effect on the ability of FRP to fulfill its
obligations under this Agreement.
4.10 MAIN PASS PRODUCTION COST. The average per ton cash cost of Main
Pass Sulphur Production FOB Tampa Terminal from January 1, 1994 through August
31, 1994, determined in accordance with FRP's normal accounting practices and
policies which are consistent with generally accepted accounting principles, is
not less than $44.11.
4.11 REPRESENTATIONS CUMULATIVE. The representations and warranties
of FRP in this Agreement are cumulative and independent of, and not limited by,
any covenants, representations and warranties in any agreement or document
(including any conveyance document) contemplated hereby and the covenants,
representations and warranties contained herein shall not be deemed to be merged
into any such agreement or document.
4.12 SCOPE OF REPRESENTATIONS OF FRP. Except as and to the extent
set forth in this Article 4, FRP makes no representations or warranties
whatsoever, and disclaims all liability and responsibility for any
representation, warranty, statement or information made or communicated (orally
or in writing) to Pennzoil (including, but not limited to, any opinion,
44
information or advice that may have been provided to Pennzoil by any officer,
stockholder, director, employee, agent, consultant or representative of FRP or
its managing general partner, Freeport-McMoRan Inc., FRP's counsel or any other
agent, consultant or representative).
ARTICLE 5
COVENANTS OF PENNZOIL
Pennzoil agrees that:
5.1 CONDUCT OF THE BUSINESS. (a) From the date hereof until the
Closing Date or the earlier termination of this Agreement, Pennzoil shall
(except as otherwise provided in this Agreement or as FRP may consent in
writing) conduct the Business in the ordinary course of business consistent with
past practice and shall use its commercially reasonable efforts to, in
connection with the Business:
(i) preserve intact its business organization and relationships with
third parties, PROVIDED that FRP shall be consulted in the closing of
contracts for fourth quarter business;
(ii) keep available the services of the present employees of the
Business;
(iii) continue making marketing, advertising, promotional, and other
similar expenditures in the ordinary course of business consistent with
past practice;
(iv) duly comply in all material respects with all Laws, including
without limitation all Environmental Laws, applicable to the Business;
(v) maintain all of the Books and Records in the ordinary course of
business consistent with past practice;
(vi) continue the maintenance and repair of the Purchased Assets and
the Business (including the making of scheduled capital expenditures and
the plugging and abandonment of sulphur wells but excluding any budgeted
tank
45
repairs) in the ordinary course of business consistent with past practice;
(vii) maintain in effect insurance with respect to the Purchased Assets
related to the Business in the ordinary course of business and against
risks, with carriers and in amounts (including deductibles) consistent with
past practice;
(viii) maintain material and supply inventory and equipment primarily
related to the Business at levels consistent with recent past practice;
(ix) comply in all material respects with all material Contracts to
which it is a party; and
(x) maintain the Culberson Unit Agreement and the Mineral Interests
described in items 1-18 (Culberson County, Texas) on SCHEDULE 3.8(b) in
full force and effect and pay all Production Burdens and perform all
obligations on and under the Culberson Unit Agreement and such Mineral
Interests.
(b) Without limiting the generality of the foregoing, without the
prior written consent of FRP, from the date hereof until the Closing Date or the
earlier termination of this Agreement, Pennzoil will not:
(i) merge or consolidate with any other Person;
(ii) acquire from any other Person, other than in the ordinary course
of business, assets relating to the Business having a fair market value in
excess of an aggregate of $500,000;
(iii) sell, lease, license, pledge or otherwise dispose of any
Purchased Assets except (A) pursuant to existing contracts or commitments
and (B) in the ordinary course of business consistent with past practice;
(iv) create or suffer to exist any new Lien or encumbrance on any of
the Purchased Assets, other than Permitted Liens;
46
(v) enter into any material contract or agreement that would be an
Assumed Liability except in the ordinary course of business consistent with
past practice;
(vi) except in the ordinary course of business consistent with past
practice, accept, receive or allow any customer to make any prepayment
related to the Business or the Purchased Assets;
(vii) except in the ordinary course of business consistent with past
practice, waive or release any right of value relating to the Purchased
Assets or the Business;
(viii) permit the Culberson Unit Agreement or any Mineral Interest
described in items 1-18 (Culberson County, Texas) on SCHEDULE 3.8(b) to
expire or terminate;
(ix) settle any court proceedings or other dispute with the State of
Texas for royalties owed where the terms of such settlement would increase
the future royalty obligations of Pennzoil unless Pennzoil has received the
prior approval of FRP;
(x) take any action that would make any representation and warranty
of Pennzoil hereunder inaccurate in any respect at, or as of any time prior
to, Closing Date or omit to take any action necessary to prevent any such
representation or warranty from being inaccurate in any respect at any such
time; or
(xi) agree or commit to do any of the foregoing.
5.2 CONFIDENTIALITY. Pennzoil and its Affiliates will hold, and will
use their best efforts to cause their respective officers, directors, employees,
accountants, counsel, consultants, advisors and agents to hold, in confidence,
unless compelled to disclose by judicial or administrative process or by other
requirements of law, all confidential documents and information concerning the
Business or FRP furnished to Pennzoil or its Affiliates in connection with the
transactions contemplated by this Agreement, except to the extent that such
information can be shown to have been (i) previously known on a nonconfidential
basis by Pennzoil, (ii) in the public domain through no fault of Pennzoil or
(iii) later lawfully acquired by
47
Pennzoil from sources other than FRP; PROVIDED that Pennzoil may disclose such
information to its officers, directors, employees, accountants, counsel,
consultants, advisors and agents in connection with the transactions
contemplated by this Agreement so long as such Persons are informed by Pennzoil
of the confidential nature of such information and are directed by Pennzoil to
treat such information confidentially. Without limiting the foregoing, Pennzoil
will enter into confidentiality agreements with its officers, directors and
employees pursuant to which such officers, directors and employees will agree to
comply with the foregoing confidentiality obligations. The obligations in this
Section 5.2 shall continue upon any termination of this Agreement. If this
Agreement is terminated, Pennzoil and its Affiliates will, and will use their
best efforts to cause their respective officers, directors, employees,
accountants, counsel, consultants, advisors and agents to, destroy or deliver to
FRP, upon request, all documents and other materials, and all copies thereof,
obtained by Pennzoil or its Affiliates or on their behalf from FRP in connection
with this Agreement that are subject to such confidence.
5.3 ACCESS TO INFORMATION. (a) From the date hereof until the
Closing Date (or, in the case of information relating to Other Sulphur
Properties, until the date six months after the Closing Date), Pennzoil (i) will
give FRP, its counsel, financial advisors, auditors and other authorized
representatives full access during normal business hours to the offices,
properties, books and records of Pennzoil relating to the Business, (ii) will
furnish to FRP, its counsel, financial advisors, auditors and other authorized
representatives such financial, exploration and operating data and other
information relating to the Business as such Persons may reasonably request and
(iii) will instruct the employees, counsel and financial advisors of Pennzoil to
cooperate with FRP in its investigation of the Business; PROVIDED that no
investigation by FRP or other information received by FRP shall operate as a
waiver or otherwise affect any representation, warranty or agreement given or
made by Pennzoil hereunder. Any investigation pursuant to this Section shall be
conducted in such manner as not to interfere unreasonably with the conduct of
the business of Pennzoil.
(b) From the date hereof until the Closing Date, Pennzoil will
furnish to FRP, (i) within 30 days after the end of each fiscal quarter, the
unaudited interim balance sheet for the
48
Business and the related unaudited interim statements of income and cash flows
for the Business for that quarter and (ii) within 45 days after the end of a
fiscal year, the audited balance sheet for the Business and the related audited
statements of income and cash flow for that fiscal year.
(c) No later than 45 days after the date of this Agreement, Pennzoil
will cause the balance sheet for the Purchased Assets and Assumed Liabilities as
of December 31, 1993 and the related statement of operations and cash flows for
the twelve months then ended to be audited by its independent public accountants
and will cause such audited statements to be delivered to FRP. FRP will bear
the reasonable expense of the independent public accountants.
5.4 NOTICES OF CERTAIN EVENTS. Pennzoil shall promptly notify FRP
of:
(i) any notice or other communication from any Person alleging that
the consent of such Person is or may be required in connection with the
transactions contemplated by this Agreement;
(ii) any notice or other communication from any Governmental Authority
in connection with the transactions contemplated by this Agreement;
(iii) any actions, suits, claims, investigations or proceedings
commenced or, to its knowledge threatened against, relating to or involving
or otherwise affecting Pennzoil or the Business that, if pending on the
date of this Agreement, would have been required to have been disclosed
pursuant to Section 3.11 or that relate to the consummation of the
transactions contemplated by this Agreement; and
(iv) the damage or destruction by fire or other casualty of any
Purchased Asset or part thereof or in the event that any Purchased Asset or
part thereof becomes the subject of any proceeding or, to the knowledge of
Pennzoil, threatened proceeding for the taking thereof or any part thereof
or any right relating thereto by condemnation, eminent domain or other
similar governmental action.
49
5.5 NONCOMPETITION. (a) Pennzoil agrees that for a period of five
full years from the Closing Date, neither it nor any of its Affiliates shall
engage, either directly or indirectly, as a principal or for its own account or
solely or jointly with others, or as stockholders in any corporation or joint
stock association, in any business that competes with the Business anywhere in
the Western Hemisphere; PROVIDED that nothing herein shall prohibit (i) the
acquisition by Pennzoil or any of its Affiliates of a business (including any
interest in an oil or natural gas field) which is predominantly engaged in a
business other than the production or marketing of sulphur, (ii) Pennzoil's
conduct of operations at its facilities in Antwerp so long as sales from such
operations are not made in the North American market, (iii) the sale of sulphur
recovered by Pennzoil from the refining of oil and natural gas at facilities
owned by it or any Affiliate and (iv) the conduct of the Business at any time on
or after the date that Pennzoil takes title to the Purchased Assets pursuant to
the exercise of remedies under the Deed of Trust; PROVIDED that, in the case of
Section 5.5(a)(i) or Section 5.5(a)(iii) if more than 20% of the sales of any
business which Pennzoil or its Affiliates owns or proposes to acquire are
attributable to sulphur sales, Pennzoil provides FRP with the opportunity to
negotiate on a good faith basis and on reasonable commercial terms for FRP to
act as Pennzoil's exclusive marketing agent for the sale of any sulphur produced
by the operations of such business.
(b) If any provision contained in this Section shall for any reason
be held invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Section, but this Section shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. It is the intention of
the parties that if any of the restrictions or covenants contained herein is
held to cover a geographic area or to be for a length of time which is not
permitted by applicable law, or in any way construed to be too broad or to any
extent invalid, such provision shall not be construed to be null, void and of no
effect, but to the extent such provision would be valid or enforceable under
applicable law, a court of competent jurisdiction shall construe and interpret
or reform this Section to provide for a covenant having the maximum enforceable
geographic area, time period and other provisions (not greater than those
contained herein) as shall be valid and enforceable
50
under such applicable law. Pennzoil acknowledges that FRP would be irreparably
harmed by any breach of this Section and that there would be no adequate remedy
at law or in damages to compensate FRP for any such breach. Pennzoil agrees
that FRP shall be entitled to injunctive relief requiring specific performance
by Pennzoil of this Section, and Pennzoil consents to the entry thereof.
5.6 TRADEMARKS; TRADE NAMES. (a) Except as set forth in the other
subsections of this Section 5.6, after the Closing, FRP and its affiliates shall
not use the name "Pennzoil" or "Duval" or any tradename incorporating the name
"Pennzoil" or "Duval"; PROVIDED that FRP will have full and unrestricted rights
with respect to the "alchemist" symbol used in connection with the Pennzoil
Sulphur Company logo. The name "Pennzoil" and "Duval" and any tradename
incorporating the name "Pennzoil" or "Duval" shall be referred to, collectively
or individually as the context requires, as the "PENNZOIL TRADE NAMES".
(b) After the Closing, FRP shall have the right to sell existing
inventory and to use existing packaging, labelling, containers, supplies,
advertising materials, brochures, technical data sheets and any similar
materials bearing any Pennzoil Trade Name until the earlier of (i) six months
after the Closing Date and (ii) the date existing stocks are exhausted.
(c) FRP agrees to discontinue the use of the Pennzoil Trade Name on
buildings, cars, trucks and other fixed assets as soon as practicable after the
Closing and in no event later than six months after the Closing.
5.7 ENVIRONMENTAL OBLIGATIONS. In addition to Pennzoil's obligations
under this Agreement as to Environmental Liabilities generally, with respect to
those environmental conditions specifically set forth in this Section 5.7, it is
understood and agreed that:
(a) Pennzoil shall be responsible for any and all costs and expenses
incurred in connection with any investigation, assessment, testing, clean-
up, remediation, removal, containment, disposal, treatment or monitoring,
including any costs for capital expenditures associated therewith (the
"REMEDIAL ACTIVITIES"), in connection with the following:
51
(i) the scrap sulphur located at the Michigan Vent area at the
Culberson Facility, PROVIDED HOWEVER that Pennzoil shall have no
environmental obligations if FRP disposes of sulphur materials at such
area after the Closing Date;
(ii) the solid waste landfill located on property owned by the
State of Texas adjacent to the Culberson Facility;
(iii) compliance with any future National Pollutant Discharge
Elimination System permit limitations on copper in stormwater at the
Galveston Facility resulting from elevated concentrations of copper in
existence as of the Closing Date; and
(iv) any barium, radium or gross alpha contamination at the Tampa
Facility.
(Sections 5.7(a)(i) to 5.7(a)(iv), the "KNOWN REMEDIAL CONDITIONS").
(b) Pennzoil shall be responsible for any and all liabilities
associated with:
(x) any stormwater runoff and wastewater within or adjacent to the
vat sulphur storage area at the Galveston Facility and any sludge that is
generated through the treatment of such waters (the "GENERATED MATERIALS");
and
(y) the operation of the vat sulphur storage area and the adjacent
vat drainage collection and treatment system (the "STORAGE AREA";
collectively with the Generated Materials, the "GALVESTON ENVIRONMENTAL
OPERATIONS");
arising under the Resource Conservation and Recovery Act as in effect on the
Closing Date (including any rules and regulations promulgated thereunder as of
such date) ("RCRA"), PROVIDED that the parties agree as follows:
(i) If the Generated Materials and the Galveston Environmental
Operations are in compliance with RCRA, as of the Closing Date, and a
change in the operation of the Storage Area by FRP after the Closing Date
as compared with
52
the operation of such area by Pennzoil prior to the Closing Date results in
noncompliance with RCRA, FRP will be responsible for any liabilities
associated with such noncompliance.
(ii) FRP shall be responsible for payment of operating costs after the
Closing Date in connection with the Galveston Environmental Operations as
part of the Assumed Liabilities, PROVIDED that to the extent such costs are
greater than the historical operating costs of Pennzoil in connection with
the Galveston Environmental Operations for the two years prior to the date
hereof, Pennzoil shall be responsible for any such increased amounts.
(iii) If, as of the Closing Date, the Galveston Environmental
Operations are not in compliance with RCRA and Pennzoil's obligations
pursuant to this Section 5.7(b) are increased as a result of the operation
of the Storage Area by FRP after the Closing Date in a manner that is not
substantially similar to the operation of the Storage Area by Pennzoil
prior to the Closing Date, FRP shall be responsible for the amount by which
such obligations have been increased.
(iv) FRP shall, within a reasonable time period after the Closing
Date, conduct a compliance review of the Galveston Environmental
Operations. If, after conducting such review, FRP determines that the
Generated Materials or the Galveston Environmental Operations are not in
compliance with RCRA, then FRP will consult and cooperate with Pennzoil (in
coordination with governmental agencies and personnel) in good faith to
resolve the problem in a mutually satisfactory and cost effective manner
consistent with prudent business practices. If, after such consultations,
FRP reasonably determines that expenditures are necessary in order for the
Galveston Environmental Operations to be in compliance with RCRA, FRP
shall, after consultation with Pennzoil and taking into account the cost
effectiveness of any proposed solution, perform any appropriate measures
(including without limitation any Remedial Activities and any necessary
construction or installation of control equipment) to put the Generated
Materials and the Galveston Environmental Operations into compliance with
RCRA, and Pennzoil shall reimburse FRP for such expenditures up to a
53
maximum of $2,000,000 promptly upon submission of invoices and any other
supporting documentation that Pennzoil may reasonably request. If the
measures performed by FRP require expenditures in excess of $2,000,000, the
parties shall split such costs equally and Pennzoil shall reimburse FRP for
Pennzoil's share promptly upon the submission of the documentation
identified in the preceding sentence.
(v) If the Generated Materials and the Galveston Environmental
Operations remain in compliance with RCRA three years after completion of
all appropriate measures, if any are required, in accordance with the
provisions of Section 5.7(b)(iv), Pennzoil shall have no further liability
in connection with noncompliance with RCRA at the Galveston Environmental
Operations.
(vi) To the extent any fines or penalties are imposed on FRP or its
Affiliates after the Closing Date in connection with any noncompliance with
RCRA of the Galveston Environmental Operations at the time of Closing,
notwithstanding anything herein to the contrary, Pennzoil shall be
responsible for all such fines or penalties and no such fines or penalties
shall be included in the cost allocation described in Section 5.7(b)(iv).
(vii) As used herein, the term "in compliance with RCRA" means that
(A) the Generated Materials are not a "hazardous waste" pursuant to RCRA,
(B) the Galveston Environmental Operations are exempt from RCRA permitting
requirements, regardless of whether the Generated Materials are a
"hazardous waste" pursuant to RCRA or (C) the Galveston Environmental
Operations and the Generated Materials are otherwise in compliance with
RCRA (including RCRA permitting requirements).
(c) With respect to Known Remedial Conditions and any other
environmental condition forming the basis for a claim for indemnification
pursuant to Section 11.2(a)(iv), FRP shall notify Pennzoil of the assertion of
any such claim. Other than in connection with conditions identified in Section
5.7(b), Pennzoil shall have the right to conduct Remedial Activities itself or
reimburse FRP for performing such Remedial Activities and Pennzoil shall provide
FRP with prompt notification of any such decision.
54
(d) If Pennzoil elects to perform any such Remedial Activities,
Pennzoil shall implement such Remedial Activities in a timely fashion and in
accordance with applicable Environmental Laws. FRP agrees to provide Pennzoil
with access to the facility at which such Remedial Activities are to be
conducted, and shall cooperate with Pennzoil and Pennzoil's agents in the
performance of any such Remedial Activities, PROVIDED that Pennzoil shall not
unreasonably interfere with the operation of FRP's business at such facility and
shall use its best efforts to minimize impairment to the value of FRP's
property. Pennzoil agrees to (i) prepare any necessary or appropriate remedial
plans and afford FRP a reasonable opportunity to review such plans prior to
their completion and, prior to the finalization of any such plan, consider FRP's
comments and suggestions in good faith, (ii) furnish FRP with copies of any test
results, environmental reports and investigations and correspondence between
Pennzoil and the applicable Governmental Authorities and (iii) indemnify FRP and
its Affiliates against (A) any and all fines or penalties; (B) any damage to
property; and (C) any claims, actions, suits and other proceedings, damages,
liabilities, costs and expenses sought by any third party (whether or not an
agent or employee of Pennzoil), in each case as a result of the activities of
Pennzoil, its agents or its contractors in managing, controlling or implementing
any Remedial Activities.
(e) If Pennzoil elects not to perform any such Remedial Activities,
FRP shall perform or cause to be performed such Remedial Activities in a timely
fashion and in accordance with applicable Environmental Laws. FRP agrees to (i)
prepare any necessary or appropriate remedial plans (taking into account the
cost effectiveness of any proposed remedy or remedial activity) and afford
Pennzoil a reasonable opportunity to review such plans prior to their
completion, and, prior to the finalization of any such plan, consider FRP's
comments and suggestions in good faith and (ii) furnish Pennzoil with copies of
any test results, environmental reports and investigations and correspondence
between FRP and the applicable Governmental Authorities. Pennzoil shall
reimburse FRP for all reasonable costs and expenses actually incurred by FRP or
its Affiliates in connection with the performance of such Remedial Activities
promptly upon the submission of invoices and any other supporting documentation
that Pennzoil may reasonably request.
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(f) Notwithstanding anything in this Agreement to the contrary,
Pennzoil shall not be responsible for performing any Remedial Activities or
reimbursing or indemnifying FRP or its Affiliates for any Remedial Activities
unless Pennzoil or FRP or its Affiliates is required to perform such Remedial
Activities (i) pursuant to any Environmental Law or (ii) by any Governmental
Authority (other than Remedial Activities in connection with Section 5.7(b), as
to which this Section 5.7(f) shall not apply).
5.8 DAMAGE, DESTRUCTION OR CONDEMNATION. If prior to the Closing
there occurs any damage to or destruction of any Purchased Asset or part thereof
by fire or other casualty or any taking of any Purchased Asset or part thereof
or right relating thereto by condemnation, eminent domain or other similar
governmental action, Pennzoil and FRP agree, in addition to any other rights
that either party may have under this Agreement, that:
(a) all condemnation awards or similar payments relating to any such
taking and any and all rights thereto shall constitute part of the
Purchased Assets and shall be transferred to FRP pursuant to this
Agreement; and
(b) subject to the provisions in Section 12.1(d), in the event of any
such fire or other casualty, Pennzoil shall be obligated at its sole cost
and expense, (i) and as promptly as reasonably practicable, to repair or
replace the damaged or destroyed Purchased Assets to restore them to the
condition they were in prior to the damage or destruction or (ii) if the
parties agree, which agreement shall not be unreasonably withheld, to
provide at Closing in immediately available funds an amount sufficient to
enable FRP to carry out the repair or replacement, in either case whether
or not any insurance proceeds relating to such damage or destruction are
received by Pennzoil, and whether or not any such insurance proceeds
received by Pennzoil are sufficient for such purpose. Pennzoil shall be
entitled to retain any insurance proceeds relating to any such damage or
destruction to pay for the cost of such restoration. Pennzoil shall cause
such restoration to be completed promptly, but in no event later than 90
days after the applicable casualty event, shall pay the entire cost of such
restoration, and shall cause any and all mechanics', materialmen's and
other liens relating thereto to be paid and discharged the record promptly,
but in no event less
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than 20 days after the completion of such restoration. Pennzoil agrees
that its obligation under this Section 5.8 to repair or replace any
Purchased Asset shall continue after the Closing (and Pennzoil shall be
responsible for obtaining and maintaining insurance in amounts and covering
risks that Pennzoil customarily obtains) for all Purchased Assets
(including inventory and transportation equipment such as rail cars,
barges, tankers, marine vessels, trucks and other vehicles) that are in
transit or in the process of being transported on the Closing Date, in each
case until such Purchased Assets reach their appointed destinations.
5.9 GAS SUPPLY. Pennzoil agrees to supply to FRP upon FRP's request
for use at the Culberson Facility all or any portion of the natural gas that is
the subject of a gas purchase contract with Texaco Inc., dated July 11, 1984
(relating to the D.C. Ponder Gas Unit and the Williams Gas Unit located in Ward
County, Texas). Pennzoil agrees to charge FRP the same rate for the provision
of natural gas as is charged by Texaco Inc. under the above mentioned contract.
5.10 TRANSITION SERVICES AGREEMENT. Pennzoil agrees to continue to
operate the Purchased Assets in accordance with and pursuant to the Transition
Services Agreement.
ARTICLE 6
COVENANTS OF FRP
FRP agrees that:
6.1 CONFIDENTIALITY. Prior to the Closing Date and after any
termination of this Agreement, FRP and its Affiliates will hold, and will use
their best efforts to cause their respective officers, directors, employees,
accountants, counsel, consultants, advisors and agents to hold, in confidence,
unless compelled to disclose by judicial or administrative process or by other
requirements of law, all confidential documents and information concerning the
Business or Pennzoil furnished to FRP or its Affiliates in connection with the
transactions contemplated by this Agreement, except to the extent that such
information can be shown to have been (i) previously known on a nonconfidential
basis by FRP, (ii) in the public domain through
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no fault of FRP or (iii) later lawfully acquired by FRP from sources other than
Pennzoil; PROVIDED that FRP may disclose such information to its officers,
directors, employees, accountants, counsel, consultants, advisors and agents in
connection with the transactions contemplated by this Agreement so long as such
Persons are informed by FRP of the confidential nature of such information and
are directed by FRP to treat such information confidentially. If this Agreement
is terminated, FRP and its Affiliates will, and will use their best efforts to
cause their respective officers, directors, employees, accountants, counsel,
consultants, advisors and agents to, destroy or deliver to Pennzoil, upon
request, all documents and other materials, and all copies thereof, obtained by
FRP or its Affiliates or on their behalf from Pennzoil in connection with this
Agreement that are subject to such confidence.
6.2 MARKETING SOLID SULPHUR. (a) Prior to the Closing, the parties
will retain Saybolt (or, if Saybolt is not available, another independent
surveyor selected by the parties) to conduct a survey of the amount of solid
sulphur inventory above the Base Pad Sulphur at the Galveston Facility using
procedures approved by the parties. The surveyed volume components will be
multiplied by the densities of solid sulphur for each volume component, as are
proposed by the independent surveyor and approved by the parties, to derive the
weight of the solid sulphur. The sum of the weights of all the component
volumes shall be referred to as the "SOLID SULPHUR AMOUNT".
(b) The parties agree that an amount of solid sulphur equal to the
Solid Sulphur Amount will be marketed on the following terms:
(i) On or before the date 90 days after the Closing (the "SOLID
SULPHUR OPTION DATE"), Pennzoil will have the right to sell any amount of
solid sulphur up to the Solid Sulphur Amount outside the United States. On
or before the Solid Sulphur Option Date, Pennzoil will notify FRP in
writing as to the proportion of the Solid Sulphur Amount with respect to
which it has exercised such right, together with the loading schedule for
such solid sulphur. Pennzoil will pay FRP $3.50 per ton for loading the
solid sulphur sold by Pennzoil pursuant to this Section 6.2(b)(i).
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(ii) During each of the ten Quarterly Periods beginning with the
first Quarterly Period to commence 90 days after the Solid Sulphur Option
Date, FRP shall purchase solid sulphur equal to one-tenth of the Solid
Sulphur Amount that has not been nominated for sale by Pennzoil as provided
in Section 6.2(a) (the "PURCHASE AMOUNT"), PROVIDED that FRP will have the
right to increase the amount purchased in any Quarterly Period (A) up to an
amount equal to two-tenths of the Solid Sulphur Amount under the payment
conditions set out in Section 6.2(b)(iii) or (B) above an amount equal to
two-tenths of the Solid Sulphur Amount so long as the parties have agreed
upon a price for the amount of sulphur which is greater than two-tenths of
the Solid Sulphur Amount, in either case with the amount of the increase
above the Purchase Amount for such Quarterly Period being applied to reduce
equally the Purchase Amount in each of the remaining Quarterly Periods.
(iii) On the date 45 days after the end of each of the ten Quarterly
Periods, FRP will pay to Pennzoil an amount equal to the product of:
(A) the greater of (x) the Purchase Amount for such Quarterly
Period and (y) the amount of solid sulphur that FRP has elected to
purchase pursuant to Section 6.2(b)(ii) and
(B) the Tampa Average Sulphur Price for such Quarterly Period
less $25.00 (or, in the case of sulphur sold as contemplated by
Section 6.2(b)(iii)(B), such other price as the parties have agreed).
Each payment pursuant to this Section 6.2 shall be made in accordance
with the requirements of Section 2.7, and subject to payment of
interest on any late payment calculated as provided therein.
6.3 PREPAID EXPENSES. No later than 10 days prior to the Closing
Date, Pennzoil will deliver to FRP a schedule of all prepaid expenses
attributable to the Business. Prior to the Closing Date, Pennzoil will provide
FRP with such information as it may reasonably request with respect to the items
listed on that schedule, FRP and Pennzoil will consult in good faith to resolve
any issues raised by FRP as to whether the items listed on that schedule will be
available to FRP after the Closing Date
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and as to the amount of such items. On the Closing Date, FRP will pay to
Pennzoil, in accordance with Section 2.7, the amount of all such prepaid
expenses that the parties have agreed will be available to FRP after the
Closing.
ARTICLE 7
COVENANTS OF BOTH PARTIES
FRP and Pennzoil agree that:
7.1 BEST EFFORTS; FURTHER ASSURANCES. (a) Subject to the terms and
conditions of this Agreement, FRP and Pennzoil will each use its best efforts to
take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary or desirable under applicable Laws to consummate the
transactions contemplated by this Agreement. FRP and Pennzoil each agree to
execute and deliver such other documents, certificates, agreements and other
writings and to take such other actions as may be necessary or desirable
(including without limitation communicating and negotiating with any appropriate
Governmental Authority) in order to consummate or implement expeditiously the
transactions contemplated by this Agreement and to vest in FRP Good Title to the
Purchased Assets. In addition, the parties will fully cooperate with each other
and will use all reasonable efforts to investigate the transferability of all
Permits and to ensure the transfer to FRP of all transferable Permits. For non-
transferable Permits, FRP will use all reasonable efforts to seek to obtain new
Permits.
(b) Pennzoil agrees that, effective as of the Closing Date, FRP and
its successors and assigns shall have the right (i) to collect for the account
of FRP any items of Purchased Assets and (ii) to institute and prosecute all
proceedings which FRP may in its sole discretion deem proper in order to assert
or enforce any right, title or interest in, to or under the Purchased Assets,
and to defend or compromise any and all actions, suits or proceedings in respect
of the Purchased Assets. Pennzoil agrees to cooperate fully in such efforts.
FRP shall be entitled to retain for its own account any amounts collected
pursuant to the foregoing powers, including any amounts payable as interest in
respect thereof.
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(c) Pennzoil and FRP undertake to make such filings as are required
pursuant to the HSR Act as soon as practicable after the date of this Agreement.
7.2 CERTAIN FILINGS. Pennzoil and FRP shall cooperate with one
another (a) in determining whether any action by or in respect of, or filing
with, any Governmental Authority is required, or any actions, consents,
approvals or waivers are required to be obtained from parties to any material
contracts, in connection with the consummation of the transactions contemplated
by this Agreement and (b) in taking such actions or making any such filings,
furnishing information required in connection therewith and seeking timely to
obtain any such actions, consents, approvals or waivers.
7.3 PUBLIC ANNOUNCEMENTS. The parties agree to consult with each
other before issuing any press release or making any public statement with
respect to this Agreement or the transactions contemplated hereby and, except as
may be required by applicable Law or any listing agreement with any national
securities exchange, will not issue any such press release or make any such
public statement prior to such consultation.
7.4 PRORATION. (a) All sewer, water, electricity and other utility
charges, rentals (including those under equipment leases), other contractual
payments and like items (including without limitation security deposits and
prepayments, but excluding Taxes, which are addressed in Section 8.3(b) and
excluding the royalty obligations which are addressed in Section 7.4(b)) with
respect to the Purchased Assets shall be apportioned between Pennzoil and FRP
based on the number of days of the applicable billing period on or prior to the
Closing Date and the number of days of such period after the Closing Date.
Pennzoil shall be liable for the proportionate amount of such payments and
charges that is attributable to the period on or prior to the Closing Date, and
FRP shall be liable for the proportionate amount of such payments and charges
that is attributable to the period after the Closing Date. Notwithstanding the
previous sentence, Pennzoil shall be liable for all costs associated with
inventory in transit at the time of the Closing.
(b) Except as otherwise provided in this Agreement, royalty
obligations with respect to the Purchased Assets shall be apportioned between
Pennzoil and FRP as of the Closing Date.
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Subject to the provisions of Section 2.3(c), royalty obligations in respect of
sulphur production that occurs prior to the time of Closing shall be Pennzoil's
responsibility; any royalty obligations in respect of sulphur production that
occurs after the time of Closing shall be FRP's responsibility.
(c) With respect to the amounts to be prorated as provided in Section
7.4(a), Pennzoil shall pay all such amounts as they become due and shall provide
FRP with a statement in reasonable detail showing the amounts paid and its
proration calculation, together with such supporting evidence as is reasonably
necessary to calculate such amounts. FRP shall reimburse Pennzoil for such
amounts in accordance with the terms of the Transition Services Agreement.
ARTICLE 8
TAX MATTERS
8.1 TAX DEFINITIONS. The following terms, as used herein, have the
following meanings:
"CODE" means the Internal Revenue Code of 1986, as amended.
"POST-CLOSING TAX PERIOD" means any Tax period (or portion thereof)
ending after the Closing Date.
"PRE-CLOSING TAX PERIOD" means any Tax period (or portion thereof)
ending on or before the close of business on the Closing Date.
"TAX" means any net income, alternative or add-on minimum tax, gross
income, gross receipts, sales, use, ad valorem, franchise, capital, paid-up
capital, profits, greenmail, license, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, property, environmental or windfall
profit tax, custom, duty or other tax, governmental fee or other like assessment
or charge or any kind whatsoever, together with any interest or any penalty,
addition to tax or additional amount imposed by any governmental authority
(domestic or foreign) responsible for the imposition of any such tax.
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8.2 TAX MATTERS. Pennzoil hereby represents and warrants to FRP
that:
(a) Pennzoil has timely paid all Taxes, and all interest and
penalties due thereon and payable by it for the Pre-Closing Tax Period
which will have been required to be paid on or prior to the Closing Date,
the non-payment of which would result in a Lien on any Purchased Asset,
would otherwise adversely affect the Business or would result in FRP
becoming liable or responsible therefor.
(b) Pennzoil has established, in accordance with generally accepted
accounting principles applied on a basis consistent with that of preceding
periods, adequate reserves for the payment of, and will timely pay all Tax
liabilities, assessments, interest and penalties which arise from or with
respect to the Purchased Assets or the operation of the Business and are
incurred in or attributable to the Pre-Closing Tax Period, the non-payment
of which would result in a Lien on any Purchased Asset, would otherwise
adversely affect the Business or would result in FRP becoming liable
therefor.
8.3 TAX COOPERATION: ALLOCATION OF TAXES. (a) FRP and Pennzoil agree
to furnish or cause to be furnished to each other, upon request, as promptly as
practicable, such information and assistance relating to the Purchased Assets
and the Business as is reasonably necessary for the filing of all Tax returns,
the making of any election related to Taxes, the preparation for any audit by
any taxing authority, and the prosecution or defense of any claim, suit or
proceeding relating to any Tax return. Pennzoil and FRP shall cooperate with
each other in the conduct of any audit or other proceeding related to Taxes
involving the Business and each shall execute and deliver such powers of
attorney and other documents as are necessary to carry out the intent of this
Section 8.3(a).
(b) All real property taxes, personal property taxes and similar AD
VALOREM obligations levied with respect to the Purchased Assets for a taxable
period which includes (but does not end on) the Closing Date shall be
apportioned between Pennzoil and FRP based on the number of days of such taxable
period included in the Pre-Closing Tax Period and the number of days of such
taxable period included in the Post-Closing Period.
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Pennzoil shall be liable for the proportionate amount of such taxes that is
attributable to the Pre-Closing Tax Period, and FRP shall be liable for the
proportionate amount of such taxes that is attributable to the Post-Closing Tax
Period.
(c) With respect to the amounts of taxes to be prorated as provided
in Section 8.3(b), Pennzoil shall pay all such amounts as they become due and
shall provide FRP with a statement in reasonable detail showing the amounts paid
and its proration calculation, together with such supporting evidence as is
reasonably necessary to calculate such amounts. FRP shall reimburse Pennzoil
for such amounts in accordance with the terms of the Transition Services
Agreement.
(d) Any transfer, documentary, sales, use or other Taxes assessed
upon or with respect to the transfer of the Purchased Assets to FRP and any
recording or filing fees with respect thereto shall be the responsibility of
Pennzoil.
ARTICLE 9
EMPLOYEE BENEFITS
9.1 EMPLOYEE BENEFITS DEFINITIONS. The following terms, as used
herein, having the following meanings:
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA AFFILIATE" of any entity means any other entity which, together
with such entity, would be treated as a single employer under Section 414 of the
Code.
9.2 ERISA REPRESENTATIONS. Pennzoil hereby represents and warrants
to FRP that:
(a) SCHEDULE 9.2(a) lists each "EMPLOYEE BENEFIT PLAN", as such term
is defined in Section 3(3) of ERISA, which (i) is subject to any provision
of ERISA, (ii) is maintained, administered, contributed or has been
contributed to by Pennzoil or any of its Affiliates (as defined below) and
(iii) covers any employee of the Business (hereinafter referred to
collectively as the "EMPLOYEE
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PLANS"). With respect to each Employee Plan, Pennzoil has provided a true
and complete copy of such plan document, the most recently filed Form 5500
and an accurate summary description of such plan. Pennzoil has provided
FRP with, or has caused to be provided to FRP, complete actuarial data
(including age, salary, service and related data) as of the most recent
practicable date for employees of the Business.
(b) SCHEDULE 9.2(b) includes a list of each employment, severance or
other similar contract, arrangement, practice or policy (written or oral)
and each plan or arrangement (written or oral) providing for group health
or other insurance coverage (including any self-insured arrangements),
workers' compensation, disability benefits, supplemental unemployment
benefits, vacation benefits, retirement benefits or for deferred
compensation, profit-sharing, bonuses, stock options, stock appreciation or
other forms of incentive compensation or post-retirement insurance,
compensation or benefits which (i) is not an Employee Plan, (ii) is entered
into, maintained or contributed to, as the case may be, by Pennzoil or any
of its Affiliates and (iii) covers any employee of the Business. Such
contracts, plans and arrangements as are described above, copies or
descriptions of all of which have been made available or furnished
previously to FRP are hereinafter referred to collectively as the "BENEFIT
ARRANGEMENTS."
(c) Except as disclosed in writing to FRP prior to the date hereof,
there has been no amendment to, written interpretation of or announcement
(whether written or not written) by Pennzoil or any of its Affiliates
relating to, or change in employee participation, benefits or coverage
under, any Employee Plan or Benefit Arrangement which, on a monthly per
employee basis, would increase the expense of maintaining such Employee
Plan or Benefit Arrangement above the level of the expense incurred, on a
monthly per employee basis, in respect thereof for the most recent prior
fiscal year.
(d) The Purchased Assets are not now nor will they after the passage
of time be subject to any Lien imposed under Code Section 412(n) by reason
of the failure of
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Pennzoil or its Affiliates to make timely installments or other payments
required by Code Section 412.
(e) No Transferred Employee will become entitled to any retirement,
severance or similar benefit or enhanced benefit for which FRP could be
responsible pursuant to Section 9.4(a)(ii) solely as a result of the
transactions contemplated hereby.
9.3 EMPLOYEES AND OFFERS OF EMPLOYMENT. (a) At any time on or after
the Closing Date, FRP shall have the right at its sole discretion to offer
employment to any or all active employees of the Business; PROVIDED, that FRP
may terminate at any time after the Closing Date the employment of any employee
who accepts such offer. FRP agrees to notify Pennzoil as soon as is reasonably
practicable for FRP in light of its business objectives, and in any event within
six months of the Closing Date, of the names of active employees of the Business
to whom FRP intends to offer employment and FRP will offer employment to such
employees within the six-month period. For purposes of this Article 9, the term
"ACTIVE EMPLOYEE" shall mean any Person who, on the Closing Date, is actively
employed by Pennzoil or who is on short-term disability leave, authorized leave
of absence, military service or lay-off with recall rights as of the Closing
Date (FRP will have the right at its sole discretion to offer such inactive
employees employment at any time on or after the date they return to active
employment with Pennzoil), but shall exclude any other inactive or former
employee including any Person who has been on long-term disability leave or
unauthorized leave of absence or who has terminated his or her employment,
retired or died on or before the Closing Date. Any such offers shall be at such
salary or wage and benefit levels and on such other terms and conditions as FRP
shall in its sole discretion deem appropriate. Each active employee of the
Business who commences employment with FRP on or prior to the termination of the
Transition Services Agreement is hereinafter referred to as the "TRANSFERRED
EMPLOYEE" and the date on which a Transferred Employee commences employment with
FRP shall be referred to as the "TRANSFER DATE" with respect to such Transferred
Employee. Pennzoil will not take, and will cause each of its subsidiaries not
to take, any action which would impede, hinder, interfere or otherwise compete
with FRP's effort to hire any active employee of the Business; PROVIDED,
HOWEVER, that if during that six-month period Pennzoil desires to solicit any
active employee of the
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Business to continue as a Pennzoil employee, Pennzoil will notify FRP, and FRP
will not unreasonably withhold its consent to Pennzoil's request. FRP shall
not assume responsibility for any Transferred Employee until such employee
commences employment with FRP. FRP shall have no obligation to offer employment
to any Pennzoil employee. Subject to any contrary provision in the Transition
Services Agreement, until such time as a Transferred Employee is hired by FRP
and commences employment with FRP, he or she shall remain and shall be
considered as a Pennzoil employee, and FRP will have no obligation to such
employee for statutory or other purposes.
9.4 PENNZOIL'S EMPLOYEE BENEFIT PLANS. (a)(i) Subject to Section
9.4(a)(ii), Pennzoil shall retain all obligations and liabilities under the
Employee Plans and Benefit Arrangements in respect of each employee or former
employee (including any beneficiary thereof) who is not a Transferred Employee.
Except as expressly set forth herein, Pennzoil shall retain all liabilities and
obligations under the Employee Plans and Benefit Arrangements for each
Transferred Employee in respect of benefits accrued as of the Transfer Date for
the Transferred Employee, and neither FRP nor any of its Affiliates shall have
any liability with respect thereto. Accrued benefits or account balances of
each Transferred Employee under the Employee Plans and Benefit Arrangements
qualified under Section 401(a) of the Code shall be fully vested as of that
Transferred Employee's Transfer Date.
(ii) FRP shall be responsible to Pennzoil for up to a maximum aggregate
amount of $8 million in severance pay (as provided for under Pennzoil's existing
severance plans), pension and benefit liabilities incurred in connection with
existing severance plans and incentive pay under the 1994 IBITDA plan,
associated with Pennzoil's active employees of the Business and for which
liability is incurred by Pennzoil at any time from the Closing Date until the
later of the date nine months after the Closing Date or the expiration of the
Transition Services Agreement ("PERSONNEL COSTS"). The parties agree that if
FRP terminates any Transferred Employee on or prior to the date nine months
after the Closing, such Transferred Employee will be entitled to the same
severance payment that he would have received from Pennzoil (as provided for
under Pennzoil's existing severance plans) if he had not accepted employment
with FRP, and the amount of such payments shall constitute Personnel Costs for
all purposes of this Agreement. On the day nine months after the
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Closing Date, FRP shall calculate the cumulative amount of such Personnel Costs.
If the Personnel Costs amount to less than $8 million, FRP shall pay Pennzoil
the Personnel Costs, and in addition, 50 percent of the amount calculated by
subtracting the Personnel Costs from $8 million. Pennzoil shall be responsible
for any portion of the Personnel Costs that exceeds $8 million, PROVIDED that
Pennzoil will not be responsible for any portion of such excess that results
from stay bonuses (other than those paid at Pennzoil's direction) or other
increases in benefits implemented by FRP after the Closing Date. Likewise, FRP
shall not be responsible for any increase in benefits implemented by Pennzoil
after the Closing Date.
(b) With respect to each Transferred Employee (including any
beneficiary or dependent thereof), Pennzoil shall retain (i) all liabilities and
obligations arising under any group life, accident, medical, dental or
disability plan or similar arrangement (whether or not insured) to the extent
that such liability or obligation relates to contributions or premiums accrued
(whether or not payable), or to claims incurred (whether or not reported), on or
prior to that Transferred Employee's Transfer Date, (ii) all liabilities and
obligations arising under any worker's compensation arrangement to the extent
such liability or obligation relates to the period prior to that Transferred
Employee's Transfer Date, including liability for any retroactive workman's
compensation premiums attributable to such period and all other liabilities
and obligations arising under the Employee Plans and the Benefit
Arrangements to the extent any such liability or obligation relates to the
period prior to that Transferred Employee's Transfer Date, including
proportional accruals through that Transfer Date and including without
limitation liabilities and obligations in respect of accruals through that
Transfer Date under any bonus plan or arrangement, any vacation plans,
arrangements and policies.
(c) FRP will recognize Pennzoil service for Transferred Employees for
the purposes of (i) vesting in FRP's 401(k) and pension plans, (ii) vacation
eligibility, (iii) service award eligibility, (iv) wage and salary continuation
and (v) severance benefits. FRP will not recognize Pennzoil service for
Transferred Employees for purposes of pension accruals and for determining
eligibility for retiree medical, dental or other retiree coverage.
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(d) Subject to the provisions of Section 9.4(e), after the Transfer
Date, Transferred Employees and their dependents shall be covered under FRP's
medical insurance policies without any exclusions for pre-existing medical
conditions or other retiree coverage. Co-payments and deductibles of
Transferred Employees under Pennzoil's medical insurance policies shall be
credited against co-payment and deductible requirements under FRP's medical
insurance policies.
(e) With respect to any Transferred Employee (including any
beneficiary or dependent thereof) who enters a hospital or is on short-term
disability under any Benefit Arrangement on or prior to that Transferred
Employee's Transfer Date and continues in a hospital or on short-term disability
after that Transfer Date, Pennzoil shall be responsible for claims and expenses
incurred both before and after that Transfer Date in connection with such
Person, to the extent that such claims and expenses are covered by a Benefit
Arrangement, until such time, (if any) that, in the case of a Transferred
Employee, such Person resumes full-time employment with FRP or one of its
Affiliates and, in the case of any beneficiary or dependent of a Transferred
Employee, such Person's hospitalization has terminated. With respect to any
Benefit Arrangements covering medical expenses and other costs relating to
pregnancies and maternity leave, Pennzoil shall be responsible for all claims
(whether or not reported) and expenses incurred during the period prior to and
ending on that Transfer Date, and FRP or one of its Affiliates shall be
responsible for such benefit arrangements covering such pregnancies and
maternity leave for the period subsequent to that Transfer Date.
9.5 CONTINUATION OF CERTAIN ADMINISTRATIVE SERVICES AND INSURANCE
COVERAGE. The parties agree that Pennzoil will continue certain administrative
services and continue to provide insurance coverage after the Closing Date to
the extent provided in and in accordance with the provisions of the Transition
Services Agreement.
9.6 WARN ACT. The parties agree to cooperate in good faith to
determine whether any notification may be required under the WARN Act as a
result of the transactions contemplated by this Agreement. FRP will be
responsible for providing any notification that may be required under the WARN
Act with respect to any Transferred Employees. Pennzoil will be responsible for
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providing any notification that may be required under the WARN Act with respect
to any employees of the Business that are not Transferred Employees, PROVIDED
that FRP has given sufficient notice to enable Pennzoil to provide such timely
notification. If FRP fails to provide sufficient notice, FRP shall be liable
for any additional expenditure resulting from the failure to provide
notification required under the WARN Act with respect to any employees of the
Business.
9.7 NO THIRD PARTY BENEFICIARIES. No provision of this Article shall
create any third party beneficiary or other rights in any employee or former
employee (including any beneficiary or dependent thereof) of Pennzoil or of any
of its subsidiaries in respect of continued employment (or resumed employment)
with either FRP or the Businesses or any of their Affiliates and no provision of
this Article 9 shall create any such rights in any such Persons in respect of
any benefits that may be provided, directly or indirectly, under any Employee
Plan or Benefit Arrangement or any plan or arrangement which may be established
by FRP or any of its Affiliates. No provision of this Agreement shall
constitute a limitation on rights to amend, modify or terminate after the
Closing Date any such plans or arrangements of FRP or any of its Affiliates.
ARTICLE 10
CONDITIONS TO CLOSING
10.1 CONDITIONS TO THE OBLIGATIONS OF EACH PARTY. The obligations of
FRP and Pennzoil to consummate the Closing are subject to the satisfaction of
the following conditions:
(a) Any applicable waiting period under the HSR Act relating to the
transactions contemplated hereby shall have expired or been terminated.
(b) No provision of any applicable Law shall (i) prohibit the
consummation of the Closing or (ii) restrain, prohibit or otherwise
interfere with the effective operation or enjoyment by FRP of all or any
material portion of the Purchased Assets.
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(c) No proceeding challenging this Agreement or the transactions
contemplated hereby, seeking to prohibit, alter, prevent or materially
delay the Closing or otherwise relating to the Purchased Assets or to the
conduct of the Business after the Closing Date shall have been instituted
by any Person before any arbitrator or Governmental Authority and be
pending.
(d) Each of FRP and Pennzoil shall have executed and delivered to the
other party (i) the Deed of Trust, (ii) the Transition Services Agreement
and (iii) each other deed, certificate, agreement or other document
contemplated by this Agreement.
10.2 CONDITIONS TO OBLIGATION OF FRP. The obligation of FRP to
consummate the Closing is subject to the satisfaction of the following further
conditions:
(a)(i) Pennzoil shall have performed in all material respects all of
its obligations hereunder required to be performed by it on or prior to the
Closing Date, (ii) the representations and warranties of Pennzoil contained
in this Agreement and in any certificate or other writing delivered by
Pennzoil pursuant hereto shall be true in all material respects at and as
of the Closing Date, as if made at and as of such date and (iii) FRP shall
have received a certificate signed by the President, the Group Vice
President -- Sulphur or the Group Vice President -- Accounting and
Controller of Pennzoil to the foregoing effect.
(b) Pennzoil shall have received all Required Consents and all
consents, authorizations or approvals from the Governmental Authorities
referred to in Section 3.3, in each case in form and substance reasonably
satisfactory to FRP, and no such consent, authorization or approval shall
have been revoked.
(c) Any title reports that FRP shall have elected to receive with
respect to the Real Property and Mineral Interests shall disclose no Liens
or defects in title that would prevent FRP from acquiring Good Title to the
Real Property and Mineral Interests.
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(d) FRP shall have received all documents it may reasonably request
relating to the existence of Pennzoil and the authority of Pennzoil for
this Agreement, all in form and substance reasonably satisfactory to FRP.
(e) FRP shall have received the consent of its credit facility banks
to incur the obligations contemplated hereby and to establish the Liens
created in the Deed of Trust.
(f) All Permits reasonably necessary for the operation of the
Business (other than the Excluded Assets) shall have been transferred to
FRP prior to the Closing Date (with the only change being the identity of
the holder thereof) or FRP shall be satisfied, in its reasonable judgment,
that (i) such Permits can be transferred within six months subsequent to
the Closing Date (with the only change being the identity of the holder
thereof) or (ii) FRP shall be able to obtain new Permits reasonably
necessary for the operation of the Business (other than the Excluded
Assets) within such period with substantially similar terms (and requiring
FRP to expend similar amounts) to those of the Permits in effect prior to
the Closing Date, and PROVIDED that in the case of Permits to be
transferred or obtained in accordance with the provisions of clauses (i)
and (ii), FRP shall be satisfied, in its reasonable judgment, that no fines
or penalties shall be imposed on FRP as a result of operating without such
a Permit that will not be reimbursed by Pennzoil and FRP shall be able to
operate the Business (other than the Excluded Assets) during such six-month
period without any delay or interruption attributable to operating without
any such Permit.
10.3 CONDITIONS TO OBLIGATION OF PENNZOIL. The obligation of
Pennzoil to consummate the Closing is subject to the satisfaction of the
following further conditions:
(a)(i) FRP shall have performed in all material respects all of its
obligations hereunder required to be performed by it at or prior to the
Closing Date, (ii) the representations and warranties of FRP contained in
this Agreement and in any certificate or other writing delivered by FRP
pursuant hereto shall be true in all material respects at and as of the
Closing Date, as if made at and as of such date and (iii) Pennzoil shall
have received a
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certificate signed by the President or Chief Financial Officer of FRP to
the foregoing effect.
(b) FRP shall have received all consents, authorizations or approvals
from the Governmental Authorities referred to in Section 4.3, in each case
in form and substance reasonably satisfactory to Pennzoil, and no such
consent, authorization or approval shall have been revoked.
(c) Pennzoil shall have received all documents it may reasonably
request relating to the existence of FRP and the authority of FRP for this
Agreement, all in form and substance reasonably satisfactory to Pennzoil.
ARTICLE 11
SURVIVAL; INDEMNIFICATION
11.1 SURVIVAL. (a) The representations and warranties of the
parties hereto contained in this Agreement or in any certificate or other
writing delivered pursuant hereto or in connection herewith shall not be limited
or affected by any investigation undertaken by either party hereto, and shall
survive the Closing until the second anniversary of the Closing Date or (i) in
the case of Sections 3.1, 3.2, 4.1 and 4.2, indefinitely, (ii) in the case of
Section 3.20(a), until the fifth anniversary of the Closing and (iii) in the
case of the representations and warranties relating to Taxes or contained in
Article 9, until expiration of the applicable statutory period of limitations
(giving effect to any waiver, mitigation or extension thereof), if later, and
shall thereafter terminate, together with any associated right of
indemnification pursuant to Section 11.2(a)(i). Notwithstanding the preceding
sentence any representation or warranty in respect of which indemnity may be
sought under Section 11.2(a)(i) and the associated right of indemnification
under Section 11.2(a)(i), shall survive the time at which it would otherwise
terminate pursuant to the preceding sentence, with respect to any matter
identified in a notice (which notice shall identify the representation or
warranty claimed to have been breached or to have been inaccurate, and shall
state with reasonable particularity the nature of the
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asserted breach or inaccuracy) given prior to such time to the party against
whom such indemnity may be sought.
(b) Except as expressly provided in this Agreement, the covenants and
agreements of the parties hereto contained in this Agreement (including without
limitation the obligation to make Quarterly Installment Payments) or in any
certificate or other writing delivered pursuant hereto or in connection herewith
shall not be limited or affected by any investigation undertaken by either party
hereto, and shall survive indefinitely together with any associated right of
indemnification. Without limiting the generality of the preceding sentence, the
indemnification obligation of Pennzoil pursuant to Section 11.2 with respect to
Excluded Liabilities (other than Environmental Liabilities) shall survive
indefinitely whether or not the Excluded Liability involves any
misrepresentation or breach of warranty by Pennzoil under Article 3.
(c) Except as provided in Section 5.7(b), the indemnification
obligation of Pennzoil for Environmental Liabilities shall survive for five
years after the Closing Date (other than in connection with Known Remedial
Conditions, as to which the indemnification obligation of Pennzoil shall survive
indefinitely and shall include all future changes in Environmental Laws),
PROVIDED that if within such five-year period FRP notifies Pennzoil of the
existence of any Environmental Liability that requires remediation (whether at
the time of notification or at some future date) under Environmental Laws in
effect at the time of such notification, Pennzoil shall indemnify FRP and its
Affiliates for all Losses incurred or suffered by FRP or its Affiliates in
connection with such Environmental Liability and, in accordance with the
provisions of Section 5.7 relating to remediation, Pennzoil shall be responsible
for all Remedial Activities relating to any such Environmental Liability
(including Remedial Activities that might be required due to changes in
Environmental Laws after such five-year period) and such obligations shall
survive indefinitely.
11.2 INDEMNIFICATION. (a) Pennzoil hereby indemnifies FRP and its
Affiliates against and agrees to hold each of them harmless from any and all
damage, loss, liability and expense (including without limitation reasonable
expenses of investigation (including the cost of environmental consultants,
engineers or technical personnel) and reasonable attorneys' fees
74
and expenses in connection with any action, suit or proceeding) (collectively,
"LOSS") incurred or suffered by FRP or any of its Affiliates arising out of or
in connection with:
(i) any misrepresentation or breach of warranty by Pennzoil under
this Agreement, PROVIDED, HOWEVER, that Pennzoil shall be liable only if
the aggregate amount of any such Losses exceeds $500,000 and PROVIDED
FURTHER that for purposes of making such calculation the representation set
forth in Section 3.20(a)(iv) shall be read without any materiality
qualification (the "FRP Retention") and then only to the extent of such
excess;
(ii) any breach of any covenant or agreement made or to be performed
by Pennzoil pursuant to this Agreement;
(iii) the failure of Pennzoil to discharge or perform any Excluded
Liability;
(iv) subject to and consistent with the provisions of Section 5.7,
any Environmental Liabilities; or
(v) any liability to the State of Texas for royalties owed as a
result of sulphur production carried out prior to the Closing.
The FRP Retention shall not apply to Losses covered by Subsections 11.2(a)(ii)
through 11.2(a)(v) above whether or not such Losses are also covered by Section
11.2(a)(i).
(b) FRP hereby indemnifies Pennzoil and its Affiliates against and
agrees to hold each of them harmless from any and all Loss incurred or suffered
by Pennzoil or any of its Affiliates arising out of or in connection with any
misrepresentation or breach of warranty, covenant or agreement made or to be
performed by FRP pursuant to this Agreement.
11.3 PROCEDURES. The party seeking indemnification under Section
11.2 (the "INDEMNIFIED PARTY") agrees to give prompt notice to the party against
whom indemnity is sought (the "INDEMNIFYING PARTY") of the assertion of any
claim, or the commencement of any suit, action or proceeding in respect of which
indemnity may be sought under such Section. The Indemnifying Party may, and at
the request of the Indemnified
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Party shall, participate in and control the defense of any such suit, action or
proceeding at its own expense. The Indemnifying Party shall not be liable under
Section 11.2 or for any settlement effected without its consent of any claim,
litigation or proceeding in respect of which indemnity may be sought hereunder.
In addition, if a claim for indemnification for Environmental Liabilities
involves Remedial Activities, such claim shall be processed in accordance with
the applicable provisions of Section 5.7.
ARTICLE 12
TERMINATION
12.1 GROUNDS FOR TERMINATION. This Agreement may be terminated at
any time prior to the Closing:
(a) by mutual written agreement of Pennzoil and FRP;
(b) by either Pennzoil or FRP if the Closing shall not have been
consummated on or before December 31, 1995;
(c) by either Pennzoil or FRP if there shall be any Law that makes
the consummation of the transactions contemplated hereby illegal or
otherwise prohibited or if consummation of the transactions contemplated
hereby would violate any nonappealable final order, decree or judgment of
any Governmental Authority having competent jurisdiction; or
(d) by either Pennzoil or FRP if there shall occur any damage to or
destruction of any Purchased Asset or part thereof by fire or other
casualty if, in any such case, the cost of repair or replacement of the
damaged or destroyed Purchased Assets (net, in the case of Pennzoil, of the
estimated insurance proceeds related thereto) exceeds $2,000,000; PROVIDED,
HOWEVER, that Pennzoil may not terminate this Agreement pursuant to this
Section 12.1(d) if FRP waives Pennzoil's obligations pursuant to Section
5.8(b) in connection with the event of destruction of or damage to any
Purchased Assets.
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The party desiring to terminate this Agreement pursuant to SECTIONS
12.1(b), 12.1(c) OR 12.1(d) shall give notice of such termination to the other
party.
12.2 EFFECT OF TERMINATION. If this Agreement is terminated as
permitted by Section 12.1, such termination shall be without liability of either
party (or any stockholder, director, officer, employee, agent, consultant or
representative of such party) to the other party to this Agreement; PROVIDED
that if such termination shall result from the willful failure of either party
to fulfill a condition to the performance of the obligations of the other party,
failure to perform a covenant of this Agreement or breach by either party to
this Agreement of any representation or warranty or agreement contained herein,
such party shall be fully liable for any and all Losses incurred or suffered by
the other party as a result of such failure or breach. The provisions of
Sections 5.2, 6.1 and 13.3 shall survive any termination hereof pursuant to
Section 12.1.
ARTICLE 13
MISCELLANEOUS
13.1 NOTICES. All notices, requests and other communications to
either party hereunder shall be in writing (including facsimile transmission)
and shall be given,
if to FRP to:
Roger T. Baker, Esq.
Vice President - Law
Freeport-McMoRan Resource Partners,
Limited Partnership
1615 Poydras Street
New Orleans, LA 70112
Telecopy: 504-582-4416
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with a copy to:
David W. Ferguson, Esq.
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Telecopy: (212) 450-4800
if to Pennzoil, to:
James W. Shaddix, Esq.
General Counsel
Pennzoil Company
Pennzoil Place
700 Milam Street
Houston, TX 77002
Telecopy:
with a copy to:
Frank W.R. Hubert, Jr., Esq.
Baker & Botts, L.L.P.
One Shell Plaza
Houston, TX 77002
Telecopy: (713) 229-1522
All such notices, requests and other communications shall be deemed received on
the date of receipt by the recipient thereof if received prior to 5 p.m. in the
place of receipt and such day is a Business Day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to have
been received until the next succeeding Business Day in the place of receipt.
13.2 AMENDMENTS AND WAIVERS. (a) Any provision of this Agreement
may be amended or waived prior to the Closing Date if, but only if, such
amendment or waiver is in writing and is signed, in the case of an amendment, by
each party to this Agreement, or in the case of a waiver, by the party against
whom the waiver is to be effective.
(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
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any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by law.
13.3 EXPENSES. Except as otherwise provided herein, all costs and
expenses incurred in connection with this Agreement shall be paid by the party
incurring such cost or expense.
13.4 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; PROVIDED that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto except that (i) FRP may transfer
or assign, in whole or from time to time in part, to one or more of its
Affiliates, the right to purchase all or a portion of the Purchased Assets, but
no such transfer or assignment will relieve FRP of its obligations hereunder and
(ii) Pennzoil may assign its rights to receive one or more Quarterly Installment
Payments to another Person or Persons, it being understood that FRP shall not be
required to make any such payment to any Person other than Pennzoil and that
Pennzoil may not transfer or delegate to any other Person any right or
obligation to resolve any dispute, amend any provision hereof or exercise or
waive any right hereunder, all of which rights or obligations shall be retained
solely by Pennzoil.
13.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE, EXCEPT TO THE
EXTENT THAT THE LAWS OF THE STATE WHERE A PURCHASED ASSET IS LOCATED NECESSARILY
MUST BE CONSULTED ON ISSUES RELATED TO THE OWNERSHIP OR TRANSFER OF THAT
PURCHASED ASSET.
13.6 COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
a counterpart hereof signed by the other party hereto.
13.7 ENTIRE AGREEMENT; THIRD PARTY BENEFICIARIES. This Agreement
constitutes the entire agreement between the
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parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter of this Agreement. No representation, inducement,
promise, understanding, condition or warranty not set forth herein has been made
or relied upon by either party hereto. Neither this Agreement nor any provision
hereof is intended to confer upon any Person other than the parties hereto any
rights or remedies hereunder.
13.8 BULK SALES LAWS. FRP hereby waives compliance by Pennzoil with
the provisions of the "bulk sales", "bulk transfer" or similar laws of any
state. Pennzoil agrees to indemnify and hold FRP harmless against any and all
claims, losses, damages, liabilities, costs and expenses incurred by FRP or any
of its affiliates as a result of any failure to comply with any such "bulk
sales", "bulk transfer" or similar laws.
13.9 CAPTIONS. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
FREEPORT-McMoRan RESOURCE
PARTNERS, Limited Partnership
By: FREEPORT-McMoRan INC.
Managing General Partner
By/s/ Charles W. Goodyear
--------------------------------
Title: Senior Vice President
PENNZOIL COMPANY
By/s/ Mark A. Malenski
--------------------------------
Title: Group Vice President--
Accounting and Controller
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