EXHIBIT 7(c)(ii)
CONVEYANCE AND CONTRIBUTION AGREEMENT
This Conveyance and Contribution Agreement dated as of December
20, 1995 (this "Agreement"), is entered into by and among STAR GAS
PARTNERS, L.P., a Delaware limited partnership (the "Master Partnership"),
STAR GAS PROPANE, L.P., a Delaware limited partnership (the "Operating
Partnership"), STELLAR PROPANE SERVICE CORP. ("Stellar Service"), STAR GAS
CORPORATION, a Delaware corporation ("Star Gas"), SILGAS INC., an Indiana
corporation and SILGAS OF ILLINOIS INC., an Illinois corporation (Silgas
Inc. and Silgas of Illinois Inc. are referred to herein collectively as the
"Star Gas Subsidiaries") (Star Gas and the Star Gas Subsidiaries are
referred to herein collectively as the "Star Gas Companies").
RECITALS
WHEREAS, Star Gas, a Delaware corporation (the "General
Partner"), as the general partner, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., as the
organizational limited partner, have heretofore formed the Master
Partnership pursuant to the Delaware Revised Uniform Limited Partnership
Act (the "Delaware Act") and have entered into the Agreement of Limited
Partnership of the Master Partnership (the "Master Partnership Agreement")
pursuant to which the Master Partnership shall serve as the sole limited
partner of the Operating Partnership; and
WHEREAS, the General Partner and the Master Partnership have
heretofore formed the Operating Partnership pursuant to the Delaware Act
and have entered into the Agreement of Limited Partnership of the Operating
Partnership (the "Operating Partnership Agreement") and the Operating
Partnership has heretofore formed Stellar Service, for the purpose of
acquiring, owning and operating the business and assets of the Star Gas
Companies, including the Propane Business (as defined in a Conveyance and
Contribution Agreement of even date between Star Gas and Petroleum Heat and
Power Co., Inc.), (the "Business"); and
WHEREAS, the Operating Partnership has heretofore formed Stellar
Service for the purpose of acquiring, owning and operating the business and
assets of the Star Gas Companies, including the Propane Business, relating
to the Service Assets (the "Service Business"); and
WHEREAS, pursuant to a separate Conveyance and Contribution
Agreement dated as of the date hereof, Petroleum Heat and Power Co., Inc.
("Petro") is transferring its propane assets to the General Partner and the
General Partner is assuming the propane business-related liabilities of
Petro (the "Petro Conveyance"); and
WHEREAS, the Star Gas Companies have agreed to contribute to the
Operating Partnership all of their assets, including the assets transferred
to the General Partner by Petro as described in the immediately preceding
paragraph (the "Star Gas Conveyance"), as capital contributions thereto,
(except those assets specifically excluded hereby) in exchange for limited
partner interests in the Operating Partnership, the assumption of all of
their liabilities (except those specifically excluded hereby) by the
Operating Partnership and other good and valuable consideration; and
WHEREAS, at the direction of the Operating Partnership, the Star
Gas Companies have agreed to convey directly to Stellar Service their
assets consisting of appliances, parts, inventories and related supplies in
the State of New York, New Jersey, Connecticut, Maine, Massachusetts, Rhode
Island and Pennsylvania ("Service Assets"); and
WHEREAS, pursuant to the Master Partnership Agreement, the
General Partner has agreed to contribute to the Master Partnership, as a
capital contribution thereto, all of its limited partner interest in the
Operating Partnership and has agreed to make additional contributions to
the Master Partnership as set forth in Section 4.2 of the Master
Partnership Agreement in exchange for 2,220,444 Subordinated Units and
other good and valuable consideration; and
WHEREAS, Silgas Inc. desires to contribute to the Master
Partnership, as a capital contribution thereto, all of its limited partner
interest in the Operating Partnership in exchange for 175,633 Subordinated
Units and other good and valuable consideration; and
WHEREAS, Silgas of Illinois Inc. desires to contribute to the
Master Partnership, as a capital contribution thereto, all of its limited
partner interest in the Operating Partnership in exchange for one
Subordinated Unit and other good and valuable consideration; and
WHEREAS, after the contributions to the Master Partnership by the
General Partner, Silgas Inc. and Silgas of Illinois Inc. of limited partner
interests in the Operating Partnership, the Master Partnership will hold a
98.9899% limited partner interest in the Operating Partnership.
NOW, THEREFORE, in consideration of their mutual undertakings and
agreements hereunder, the Master Partnership, the Operating Partnership,
Stellar Service and the Star Gas Companies undertake and agree as follows:
ARTICLE I.
Definitions
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The following capitalized terms shall have the meanings given
below.
"Assets" means all of the assets owned, leased or held by the
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Star Gas Companies, as of the Effective Time (including the assets of the
Propane Business which may be acquired simultaneously with the Effective
Time, but excluding the Service Assets) of every kind, character and
description, whether tangible or intangible, whether real, personal or
mixed, whether accrued or contingent, and wherever located, including,
without limitation, all of the assets necessary to operate the Business as
currently being operated by the Star Gas Companies and all right, title and
interest of the Star Gas Companies in and to the following assets:
(a) copies of all of the books, records, papers and
instruments of the Star Gas Companies, of whatever nature
and wherever located, including, without limitation,
accounting and financial records, documentation related to
the Assets, customer correspondence/ sales records, credit
reports, and other data relating to the Business;
(b) propane inventory and other inventories and
supplies of any kind;
(c) storage tanks and containers, storage facilities,
propane cylinders, office furniture, furnishings, computers
and equipment of any kind;
(d) all real property wherever located, together with
all buildings, structures, improvements, equipment,
appurtenances and fixtures of every kind or nature located
thereon;
(e) all rights in real property or personal property
arising under leases, easements or other contracts or
arrangements including, without limitation, leasehold
properties, all rights-of-way, servitudes, surface rights,
interests in land, licenses and grants, and all amendments
to each thereof, together with all prescriptive rights and
all franchises, privileges, grants and consents in favor of
the Star Gas Companies, or their predecessors-in-title, in,
on, over, under or adjacent to lands, roads, highways,
railroads, rivers, canals, ditches, drains, bridges, state
and national parks, forests, reservations and wilderness
areas, public grounds or structures, or elsewhere, and all
rights incident thereto, rights under condemnation
judgments, judgments on declaration of taking, and permits
and grants for the installation, maintenance, repair,
removal and operation of above and below ground tanks,
storage containers and pipelines;
(f) all motor vehicles, trailers, tanks, railroad tank
cars, distribution centers and related equipment, whether
owned or leased;
(g) every contract, agreement, arrangement, grant,
gift, trust or other arrangement or understanding of any
kind;
(h) every right to sell or distribute any product or
service;
(i) any and all monies, rents, revenues, accounts
receivable or other proceeds receivable or owing to the Star
Gas Companies;
(j) all deposits, prepayments and prepaid expenses;
(k) all unbilled receivables;
(l) all rights under all covenants and warranties
pertaining to the Assets, express or implied, to the extent
transferable, that have heretofore been made by any
predecessors in title of the Star Gas Companies or by any
third party manufacturers, suppliers and contractors;
(m) any and all rights, claims and causes of action
that the Star Gas Companies may have under insurance
policies or otherwise against any person or property,
whether known or unknown, accrued or contingent, and whether
or not reflected on the books and records of the Star Gas
Companies as of the Effective Time, and such rights, claims
or causes of action representing reimbursement or recovery
of amounts actually paid by the Operating Partnership after
the Effective Time;
(n) all trade names, trademarks, service marks, logos,
marks and symbols of any kind, together with all goodwill
associated therewith;
(o) all know-how, every trade secret, every customer
list and all other confidential information of every kind;
(p) every customer relationship, employee
relationship, supplier relationship and other relationship
of any kind;
(q) every business conducted prior to the Effective
Time by the Star Gas Companies;
(r) every other proprietary right of any kind;
(s) all governmental licenses, permits and
authorizations of every kind; and
(t) the capital stock of any other corporation;
excluding, however, any of such assets that constitute Excluded Assets.
"Assumed Liabilities" means all liabilities of the Star Gas
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Companies arising from or relating to the Assets and the Service Assets or
the Business or otherwise, as of the Effective Time, of every kind,
character and description, whether known or unknown, accrued or contingent,
and whether or not reflected on the books and records of the Star Gas
Companies as of the Effective Time; excluding, however any of such
liabilities that constitute Excluded Liabilities.
"Common Units" has the meaning assigned to such term in the
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Master Partnership Agreement.
"Deeds" means all deeds and acts of sale, from any of the Star
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Gas Companies to the Operating Partnership conveying the Star Gas
Companies' respective fee owned tracts or parcels of land listed on Exhibit
B hereto and more particularly described in Exhibit A attached to such
Deeds.
"Effective Time" means immediately after the Petro Conveyance.
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"Excluded Assets" means those assets of the Star Gas Companies
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described on Schedule 1 hereto.
"Excluded Liabilities" means those liabilities of the Star Gas
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Companies described on Schedule 2 hereto.
"First Mortgage Notes" means the $85 million of First Mortgage
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Notes to be issued by the Operating Partnership in exchange for the $85
million of First Mortgage Notes issued by Star Gas (the "Initial Notes") in
each case pursuant to the Note Purchase Agreements described in the
Registration Statement.
"Laws" means any and all laws, statutes, ordinances, rules or
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regulations promulgated by a governmental authority, orders of a
governmental authority, judicial decisions, decisions of arbitrators or
determinations of any governmental authority or court.
"Registration Statement" means a registration on Form S-1 and
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filed by the Master Limited Partnership with the Securities and Exchange
Commission relating to a public offering of Common Units.
"Service Assets" means those assets of the Star Gas Companies
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described on Schedule 3 hereto.
"Subordinated Units " has the meaning assigned to such term in
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the Master Partnership Agreement.
ARTICLE II.
Contribution to the Operating Partnership and Stellar Service
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Contribution. The Star Gas Companies hereby grant, contribute,
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bargain, sell, convey, assign, transfer, set over and deliver to the
Operating Partnership, or, with respect to the Service Assets to Stellar
Service, as the case may be and their respective successors and assigns,
for their own use forever, all of their right, title and interest in and to
the Assets in exchange for (a) the consideration stated in Section 2.2, (b)
the assumption of substantially all their liabilities by the Operating
Partnership as provided in Article IV, and (c) other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and the Operating Partnership hereby accepts the Assets as a
contribution to the capital of the Operating Partnership and Stellar
Service hereby accepts the Service Assets as a contribution to the capital
of Stellar Service; provided, however, that the Star Gas Companies shall
convey directly to Stellar Service those Assets set forth in Schedule 3.
In addition, within 30 days after the Effective Time, the General
Partner shall contribute to the Operating Partnership for no additional
consideration an amount equal to the excess, if any, of $6.2 million over
the net working capital of the Operating Partnership at the Effective Time.
TO HAVE AND TO HOLD the Assets unto the Operating Partnership and
the Service Assets unto Stellar Service, their successors and assigns,
together with all and singular the rights and appurtenances thereto in any
way belonging, subject, however, to the terms and conditions stated in this
Agreement, forever.
Consideration for Contribution. In consideration for the
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contribution of the Assets to the Operating Partnership and for the
contribution of the Service Assets to Stellar Service, the Operating
Partnership hereby (a) issues, grants, contributes, bargains, sells,
conveys, transfers, sets over and delivers to the Star Gas Companies
limited partner interests in the Operating Partnership (the "Limited
Partner Interest") which interests, collectively, shall be contributed,
transferred, conveyed, assigned and delivered by the Star Gas Companies to
the Master Partnership as provided in Article III of this Agreement, and
which, together with the limited partner interest previously held by the
Master Partnership and the limited partner interest being contributed to
the Master Partnership by the General Partner pursuant to this Agreement
will represent a 98.9899% limited partner interest in the Operating
Partnership, and (b) assumes substantially all of the liabilities of the
Star Gas Companies other than Excluded Liabilities, as more particularly
provided in Article IV.
Form of Conveyance. To further evidence the conveyance of the
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Assets that constitute the real property listed on Exhibit B, the Star Gas
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Companies have executed and delivered to the Operating Partnership Deeds
and certain other assignments of leases and conveyances, all of which are
subject to this Agreement. To further evidence the conveyance of certain
of the Assets that constitute the personal property, such as contracts and
other agreements, the Star Gas Companies have executed and delivered to the
Operating Partnership certain other assignments and instruments of
transfer, all of which are subject to this Agreement.
ARTICLE III.
Contribution to the Master Partnership
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The General Partner, Silgas Inc., and Silgas of Illinois Inc.
each hereby grants, contributes, bargains, sells, conveys, assigns,
transfers, sets over and delivers to the Master Partnership, its successors
and assigns, for its and their own use forever all their right, title in
and to all limited partnership interests it owns in the Operating
Partnership in exchange
for 2,220,444, 175,633 and one Subordinated Units, respectively, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged; and the Master Partnership hereby accepts the Limited Partner
Interest as a contribution to the capital of the Master Partnership.
TO HAVE AND TO HOLD such limited partner interests unto the
Master Partnership, its successors and assigns, together with all and
singular the rights and appurtenances thereto in any way belonging,
subject, however, to the terms and conditions stated in this Agreement,
forever.
ARTICLE IV.
Assumption of Liabilities
by the Operating Partnership
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In connection with the contribution and transfer of the Assets to
the Operating Partnership, the Operating Partnership hereby assumes and
agrees to duly and timely pay, perform and discharge the Assumed
Liabilities relating to the business transferred to it to the full extent
that the Star Gas Companies have been heretofore or would have been in the
future, were it not for the execution and delivery of this Agreement,
obligated to pay, perform and discharge the Assumed Liabilities;
provided,however, that said assumption and agreement to duly and timely
pay, perform and discharge the Assumed Liabilities shall not increase the
obligation of the Operating Partnership with respect to the Assumed
Liabilities beyond that of the Star Gas Companies, waive any valid defense
that was available to the Star Gas Companies with respect to the Assumed
Liabilities or enlarge any rights or remedies of any third party under any
of the Assumed Liabilities.
ARTICLE V.
Indemnification
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Indemnification With Respect to Excluded Liabilities. The Star
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Gas Companies shall indemnify, defend and hold harmless the Operating
Partnership, Stellar Service, the Master Partnership, their respective
officers and directors and their respective successors and assigns and
lenders from and against any and all claims, demands, costs, liabilities
(including, without limitation, liabilities arising by way of active or
passive negligence) and expenses (including, without limitation, court
costs and reasonable attorneys' fees) of every kind, character and
description, whether known or unknown, accrued or contingent, and whether
or not reflected on the books and records of the Star Gas Companies as of
the Effective Time, arising from or relating to the Excluded Liabilities.
Indemnification With Respect to Assumed Liabilities. The
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Operating Partnership shall indemnify, defend and hold harmless the Star
Gas Companies, their respective officers and directors and their
successors and assigns from and against any and all claims, demands, costs,
liabilities (including, without limitation, liabilities arising by way of
active or passive negligence) and expenses (including, without limitation,
court costs and reasonable attorneys' fees) of every kind, character and
description, whether known or unknown, accrued or contingent, and whether
or not reflected on the books and records of the Star Gas Companies as of
the Effective Time, arising from or relating to the Assumed Liabilities.
ARTICLE VI.
Title Matters
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Encumbrances. The contribution of Assets and Service Assets made
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under Section 2.1 is made expressly subject to (a) all recorded and
unrecorded liens, encumbrances, agreements, defects, restrictions, adverse
claims and all Laws, in each case to the extent the same are valid,
enforceable and affect the Assets, including, without limitation, all
matters that a current survey or visual inspection of the Assets would
reflect, (b) the Assumed Liabilities, and (c) all matters contained in the
Deeds and the other assignment of leases, conveyances, assignments and
instruments of transfer referenced in Section 2.3.
Disclaimer of Warranties: Subrogation.
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(a) THE STAR GAS COMPANIES ARE CONVEYING THE ASSETS "AS IS "
WITHOUT REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY
(ALL OF WHICH THE STAR GAS COMPANIES HEREBY DISCLAIM), AS TO (i) TITLE,
(ii) FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTABILITY OR DESIGN OR
QUALITY OR (iii) ANY OTHER MATTER WHATSOEVER. THE PROVISIONS OF THIS
SECTION 6.2 HAVE BEEN NEGOTIATED BY THE OPERATING PARTNERSHIP, THE MASTER
PARTNERSHIP, STELLAR SERVICE AND THE STAR GAS COMPANIES AFTER DUE
CONSIDERATION AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF
ANY REPRESENTATIONS OR WARRANTIES OF THE STAR GAS COMPANIES, WHETHER
EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICE ASSETS, THE
ASSETS, THE SERVICE BUSINESS AND THE BUSINESS THAT MAY ARISE PURSUANT TO
ANY LAW NOW OR HEREAFTER IN EFFECT OR OTHERWISE, EXCEPT AS EXPRESSLY SET
FORTH HEREIN.
(b) The contribution of Assets made under Section 2.1 is made
with full rights of substitution and subrogation of the Operating
Partnership and Stellar Service, as applicable, and all persons claiming
by, through and under
the Operating Partnership or Stellar Service, to the extent assignable, in and
to all covenants and warranties by the predecessors-in-title of the Star Gas
Companies, and with full subrogation of all rights accruing under applicable
statutes of limitation and all rights of action of warranty against all former
owners of the Assets other than predecessors in title.
(c) The Star Gas Companies, Stellar Service and the Operating
Partnership agree that the disclaimers contained in this Section 6. 2 are
"conspicuous" disclaimers. To the extent permitted by applicable law, any
covenants implied by statute or law by the use of the words "grant,"
"convey," "bargain," "sell," "assign," "transfer," "deliver,"or "set over"
or any of them or any other words used in this Agreement are hereby
expressly disclaimed, waived and negated.
ARTICLE VII.
Further Assurances
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The Star Gas Companies Assurances. From time to time after the
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date hereof, and without any further consideration, the Star Gas Companies
shall execute, acknowledge and deliver all such additional deeds,
assignments, bills of sale conveyances, instruments, notices, releases,
acquittances and other documents, and will do all such other acts and
things, all in accordance with applicable law, as may be necessary or
appropriate (i) more fully to assure the Operating Partnership, Stellar
Service and their respective successors and assigns all of the properties,
rights, titles, interests, estates, remedies, powers and privileges by this
Agreement granted to the Operating Partnership and Stellar Service or
intended so to be, (ii) more fully and effectively to vest in the Master
Partnership and its successors and assigns beneficial and record title to
the Limited Partner Interest hereby contributed and assigned to the Master
Partnership or intended so to be and to put the Master Partnership in
actual possession and control of the Limited Partner Interest and (iii)
more fully and effectively to carry out the purposes and intent of this
Agreement.
Operating Partnership, Stellar Service and Master Partnership
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Assurances. From time to time after the date hereof, and without any
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further consideration, the Operating Partnership, the Master Partnership
and Stellar Service shall execute, acknowledge and deliver all such
additional instruments, notices and other documents, and will do all such
other acts and things, all in accordance with applicable law, as may be
necessary or appropriate more fully and effectively to carry out the
purposes and intent of this Agreement.
ARTICLE VIII.
Power of Attorney
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The Star Gas Companies hereby constitute and appoint the
Operating Partnership, Stellar Service and their respective successors and
assigns the true and lawful attorney-in-fact of the Star Gas Companies with
full power of substitution for them and in their name, place and ▇▇▇▇▇ or
otherwise on behalf of the Star Gas Companies and their successors and
assigns, and for the benefit of the Operating Partnership and Stellar
Service, their respective successors and assigns, to demand and receive
from time to time the Assets and the Service Assets and to execute in the
name of the Star Gas Companies and their successors and assigns instruments
of conveyance, instruments of further assurance and to give receipts and
releases in respect of the same, and from time to time to institute and
prosecute in the name of the Operating Partnership or, Stellar Service or
the Star Gas Companies for the benefit of the Operating Partnership or
Stellar Service, as may be appropriate, any and all proceedings at law, in
equity or otherwise which the Operating Partnership and Stellar Service and
their respective successors and assigns may deem proper in order to
collect, assert or enforce any claims, rights or titles of any kind in and
to the Assets and the Service Assets, and to defend and compromise any and
all actions, suits or proceedings in respect of any of the Assets and the
Service Assets and to do any and all such acts and things in furtherance of
this Agreement as the Operating Partnership and Stellar Service and their
respective successors or assigns shall deem advisable. The Star Gas
Companies hereby declare that the appointment hereby made and the powers
hereby granted are coupled with an interest and are and shall be
irrevocable and perpetual and shall not be terminated by any act of any of
the Star Gas Companies, Star Gas or their successors or assigns or by
operation of law.
ARTICLE IX.
Miscellaneous
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Order of Completion of Transactions; Effective Time.
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(a) The Petro conveyance shall be completed. Then the Initial
Notes shall be issued by Star Gas, then the transactions described in
Article II of this Agreement shall be completed and thereafter the
transactions provided for in Article III of this Agreement shall be
completed.
(b) The contribution of the Assets and the Service Assets to the
Operating Partnership and to Stellar Service, respectively, shall be
effective for all purposes as of the Effective Time.
Consents; Restriction on Assignment. If there are prohibitions
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against or conditions to the conveyance of one or more portions of the
Assets or the Service Assets without the prior written consent of third
parties, including, without limitation, governmental agencies (other than
consents of a ministerial nature which are normally granted in the ordinary
course of business), which if not satisfied would result in a breach of
such prohibitions or conditions or would give an outside party the right to
terminate the rights of the Operating Partnership or Stellar Service with
respect to such portion of the Assets or the Service Assets (herein called
the "Restriction"), then any provision contained in this Agreement to the
contrary notwithstanding, the transfer of title to or interest in each such
portion of the Assets or the Service Assets (herein called the
"Restriction-Asset") pursuant to this Agreement shall not become effective
unless and until such Restriction is satisfied, waived or no longer
applies. When and if such a Restriction is so satisfied, waived or no
longer applies, to the extent permitted by applicable law and any
applicable contractual provisions, the assignment of the Restriction-Asset
subject thereto shall become effective automatically as of the Effective
Time, without further action on the part of the Operating Partnership,
Stellar Service or the Star Gas Companies. The Star Gas Companies, Stellar
Service and the
Operating Partnership agree to use their best efforts to obtain satisfaction of
any Restriction on a timely basis. The description of any portion of the Assets
or the Service Assets as a "Restriction-Asset" shall not be construed as an
admission that any Restriction exists with respect to the transfer of such
portion of the Assets or the Service Assets. In the event that any Restriction
Asset exists, the Star Gas Companies agree to hold such Restriction Asset in
trust for the exclusive benefit of the Operating Partnership and Stellar
Service, as applicable, and to otherwise use its best efforts to provide the
Operating Partnership and Stellar Service, as applicable, with the benefits
thereof, and the Star Gas Companies will enter into other agreements, or take
such other action as it deems necessary, in order to help ensure that the
Operating Partnership and Stellar Service, as applicable, has the assets and
concomitant rights necessary to enable it to operate the Assets contributed
to the Operating Partnership or the Service Assets contributed to Stellar
Service, as applicable in all material respects as described in the
Prospectus contained in and made a part of the Registration Statement.
Costs. The Operating Partnership and Stellar Service shall pay
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all sales, use and similar taxes arising out of the contributions,
conveyances and deliveries to be made to it hereunder and shall pay all
documentary, filing, recording, transfer, deed and conveyance taxes and
fees required in connection therewith. In addition, the Operating
Partnership and Stellar Service shall each be responsible for all costs,
liabilities and expenses (including, without limitation, court costs and
attorneys' fees) incurred in connection with the satisfaction or waiver of
any Restriction applicable to it pursuant to Section 9.2.
Headings; References; Interpretation. All Article and Section
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headings in this Agreement are for convenience only and shall not be deemed
to control or affect the meaning or construction of any of the provisions
hereof.
Successors and Assigns. The Agreement shall be binding upon and
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inure to the benefit of the parties signatory hereto and their respective
successors and assigns.
No Third Party Rights. The provisions of this Agreement are
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intended to bind the parties signatory hereto as to each other. Such
provisions shall also be for the benefit of lenders to the Operating
Partnership at and after giving effect to all transactions occurring at,
the Effective Time (including bank lenders with outstanding commitments at
such time) and are not intended to and do not create rights in any other
person or confer upon any other person any benefits, rights or remedies and
no person is or is intended to be a third party beneficiary of any of the
provisions of this Agreement.
Counterparts. This Agreement may be executed in any number of
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counterparts, all of which together shall constitute one agreement binding
on the parties hereto.
Governing Law. This Agreement shall be governed by, and
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construed in accordance with, the laws of the State of New York applicable
to contracts made and to be performed wholly within such state without
giving effect to conflict of law principles thereof, except to the extent
that it is mandatory that the law of some other jurisdiction. wherein the
Assets or the Service Assets are located, shall apply.
Severability. If any of the provisions of this Agreement are
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held by any court of competent jurisdiction to contravene, or to be invalid
under, the laws of any political body having jurisdiction over the subject
matter hereof, such contravention or invalidity shall not invalidate the
entire Agreement. Instead, this Agreement shall be construed as if it did
not contain the particular provision or provisions held to be invalid, and
an equitable adjustment shall be made and necessary provision added so as
to give effect to the intention of the parties as expressed in this
Agreement at the time of execution of this Agreement.
Deed; ▇▇▇▇ of Sale; Assignment. To the extent required by or
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permitted under applicable law, this Agreement shall also constitute a
"deed," "▇▇▇▇ of sale" or "assignment" of the Assets and the Service
Assets.
Amendment or Modification. This Agreement may be amended or
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modified from time to time only by the written agreement of all the parties
hereto and such other parties whose consent may be required pursuant to
other agreements.
Integration. This Agreement supersedes all previous
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understandings or agreements between the parties. whether oral or written,
with respect to its subject matter. This document is an integrated
agreement which contains the entire understanding of the parties. No
understanding, representation, promise or agreement, whether oral or
written, is intended to be or shall be included in or form part of this
Agreement unless it is contained in a written amendment hereto executed by
the parties hereto after the date of this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first above written.
STAR GAS PARTNERS, LP STAR GAS CORPORATION
by STAR GAS CORPORATION,
its General Partner
By: By:
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President Title: Vice President
STAR GAS PROPANE, L.P. SILGAS INC.
by STAR GAS CORPORATION,
its General Partner
By: By:
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President Title: Vice President
STELLAR PROPANE SERVICE CORP. SILGAS OF ILLINOIS, INC.
By: By:
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President Title: Vice President
Schedule l
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EXCLUDED ASSETS
1. All rights to all tax refunds attributable to operations of the Star
Gas Companies prior to the Effective Time, and all rights to all
income tax benefits attributable to expenses paid and incurred by the
Star Gas Companies prior to the Effective Time but not deductible
until after the Effective Time.
2. The corporate seal, certificate or articles of incorporation, minute
books, stock books, books of account or other records having to do
with the corporate organization of the Star Gas Companies.
3. $250,000 escrow account established with respect to the purchase price
for real estate to be transferred to the purchaser on a post-closing
basis with respect to sale of the Southeast Division.
4. $702,000 accounts receivable from former customers of the Southeast
division which accounts receivable were not sold to the purchaser of
the Southeast Division and which are fully reserved against on Star
Gas' books.
5. Real estate at:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ (▇▇-▇)
▇▇▇▇▇▇▇, ▇▇ Athol, MA Gardner, MA Corydon Ind.
▇▇. ▇▇ ▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇ ▇▇▇. Extension ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. (▇-▇)
▇▇▇▇▇▇▇, ▇▇ Winchendon, MA Winchendon, MA Frackville, PA
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ Pensauken, NJ ▇▇. ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇
6. $85,000 truck deposit related to sale of Highway Trucking.
7. $203,000 note receivable relating to the sale of property in TX.
8. $40,000 escrow receivable relating to the anticipated sale of ▇▇. ▇▇,
▇▇▇▇▇▇▇, ▇▇.
9. Approximately $83,900,000 in cash from the sale of the First Mortgage
Notes by the General Partner.
Schedule 2
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EXCLUDED LIABILITIES
1. Federal, state and local income tax liabilities attributable to the
operations of the Star Gas Companies prior to the Effective Time,
including any such income tax liabilities that may result from the
consummation of the transactions contemplated by this Agreement.
2. Any indebtedness of the Star Gas Companies to Petro Inc. other than
notes aggregating approximately $51.0 million, copies of which have
been filed as Exhibits to the Registration Statement plus additional
indebtedness in an amount equal to the excess, if any, of the
consolidated net working capital of the Star Gas Companies over $6.2
million as of the Closing.
3. Any environmental cleanup or compliance obligations of the Star Gas
Companies arising out of or relating to acts or omissions of Petro and
the Star Gas Companies or any third party prior to the Effective Time.
4. Any liability arising out of or relating to the maintenance or
termination of any pension plan or other similar or dissimilar
employee benefit plan by the Star Gas Companies, Petro or any
affiliate of any of them, whether before or after the Effective Time.
5. $2.1 million of long term debt and restrictive covenant payments due
to principals of businesses previously purchased by Star Gas.
Schedule 3
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ASSETS TO BE TRANSFERRED TO STELLAR SERVICE
Appliances, parts and related supplies located in the states of NY,
CT, RI, MA, ME, PA and NJ.
EXHIBIT B
NORTHEAST
BRANCH LOCATION
2-1 Maple Shade, NJ
▇-▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇ ▇▇▇▇▇▇▇▇, ▇▇
▇-▇ ▇▇▇▇▇▇▇▇, ▇▇
▇-▇ ▇▇▇▇▇▇▇▇, ▇▇
4-3 ▇▇▇▇▇▇▇▇, PA
▇ ▇▇▇▇ ▇▇▇, ▇▇
▇-▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇
8-2 Davisville, RI
8-3 N/A
▇-▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇-▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇
9-1 Poughkeepsie, NY
▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇-▇ ▇▇▇▇▇▇▇▇, ▇▇
▇▇-▇ ▇▇▇▇▇▇▇▇, ▇▇
▇▇-▇ ▇▇▇▇▇▇▇▇, ▇▇
12-4 N/A
▇▇-▇ ▇▇▇▇▇▇▇, ▇▇
▇▇-▇▇ ▇▇▇▇▇▇▇▇, ▇▇
▇▇-▇ ▇▇▇▇▇▇▇, ▇▇
▇▇-▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇-▇ ▇▇▇▇▇▇▇, ▇▇
▇▇-▇ ▇▇▇▇▇▇▇, ▇▇
17-4 ▇▇▇▇▇▇▇, ME
▇▇-▇ ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇-▇ ▇▇▇▇▇▇▇▇▇, ▇▇
18-3 N/A
19-2 Fryeburg, ME
MIDWEST
005 Rural Natural, OH
016 Jeffersonville, IN
▇▇-▇ ▇▇▇▇▇▇▇▇, ▇▇
▇▇-▇ ▇▇▇▇▇▇▇▇, ▇▇
23-1 Charlestown, IN
23-2 Seymour, IN
23-3 Seymour, IN
23-4 Seymour, IN
23-5 Seymour, IN
23-6 Seymour, IN
23-7 Seymour, IN
26-1 Silgas Glencoe, KY
▇▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇-▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇
31-1 New Salisbury, IN
31-2 Laconia, IN
31-3 Marengo, IN
31-4 Salem, IN
31-6 Pekin, IN
33-1 Seymour, IN
33-2
33-3 Seymour, IN
33-4 Seymour, IN
33-5 Seymour, IN
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇-▇ ▇▇▇▇▇▇▇▇▇, ▇▇
80-2 Remington, IN
▇▇-▇ ▇▇▇▇▇▇,▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇
83 Decatur, IN
85-1 Portland, IN
85-2 Portland, IN
86 Waterloo, IN
87 Columbia City, IN
88-1 Rural Loveland, OH
89 Versailles, IN
▇▇-▇ ▇▇▇▇▇▇, ▇▇
▇▇-▇ ▇▇▇▇▇▇, ▇▇
92-3 Madison, IN
92-4 Madison, IN
93-1 Greencastle, IN
93-2 Greencastle, IN
94 Sulphur Springs, IN
95 Richmond, IN
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
98 Waverly, OH
99 Ironton, OH
100 Lynchburg, OH
101-1 Mt. Orab, OH
101-2 ▇▇. ▇▇▇▇, ▇▇
▇▇▇-▇ ▇▇▇▇▇▇, ▇▇
▇▇▇-▇ ▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇
106-1 Macon, OH
107-1 Deshler, OH
BRANCH LOCATION
107-2 N/A
108 Defiance, OH
109 Akron, IN
111 Sabina, OH
112-1 North Manchester, IN
112-2 North Manchester, IN
▇▇▇-▇ ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
115 Hebron, OH
116 Batesville, IN
▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇
-▇
▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇
-▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇