EXHBIT 10.7
PURCHASE AND SALE AGREEMENT
On the 26th day of June, 2008 (the "EFFECTIVE DATE"), this Purchase and
Sale Agreement (the "AGREEMENT") is entered into between:
SAFELAND STORAGE, L.L.C., a Louisiana limited liability company, having a
permanent mailing address of ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ #▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ("SAFELAND");
FUTURE ENERGY INVESTMENTS, LLC, a Louisiana limited liability company,
having a permanent mailing address of ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ #▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ("FEI"; FEI and Safeland are collectively
referred to here in as "SELLER"); and
BLACKWATER MIDSTREAM CORP., a Nevada corporation, having a permanent
mailing address of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
("BUYER");
who declared the following:
ARTICLE I
CONVEYANCE PROVISIONS AND APPROVAL OF TITLE
1.1 AGREEMENT TO SELL AND BUY. When executed and delivered, this Agreement
will constitute a binding agreement by Seller to sell, and Buyer to buy, in
accordance with the terms and conditions of this Agreement, Seller's right,
title and interest in certain real property located in St. ▇▇▇▇ the Baptist
Parish, Louisiana (the "LAND") described in EXHIBIT A attached hereto and
incorporated herein by this reference, together with all improvements thereon,
if any, and all rights-of-way, easements, servitudes, rights of access and
ingress to and egress from such property appurtenant thereto, (the "PROPERTY").
The Angelina Tract (defined in Exhibit A) is subject to a Servitude
Agreement (the "SERVITUDE AGREEMENT") between Safeland and Maurepas Diversion,
L.L.C., a copy of which is attached as EXHIBIT B. Neither the Servitude
Agreement or the rights and servitudes granted in the Servitude Agreement will
be part of the Property conveyed to the Buyer under the terms of this Agreement.
Buyer will have no right or interest in or to the Servitude Agreement or any
award, payment or other consideration related to the diversion canal described
within the Servitude Agreement.
Each party will have the right to disapprove of the legal description set
forth in the Title Report by so notifying the Title Company (defined in Article
1.2) and the other party within ten (10) days following receipt of the Title
Report. This Agreement will also constitute the joint instructions of Seller and
Buyer to the Title Company, which will act as their independent agent to
receive, disburse, file, record and deliver all funds and documents in
connection with the sale and purchase of the Property pursuant to this
Agreement.
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1.2 PURCHASE PRICE. As consideration for the sale of the Property (defined
herein as the "PURCHASE PRICE"), at the Closing (defined in Article 2.1 below),
Buyer will:
(a) pay to Seller TWENTY MILLION FIVE HUNDRED THOUSAND AND NO/100
($20,500,000) Dollars, after application of any deposits made pursuant to this
Agreement, plus or minus credits, prorations and adjustments described in this
Agreement (the "CASH PAYMENT");
(b) issue to Safeland shares of capital stock of Buyer (or similar
equity interest in any permitted assignee or successor of Buyer) representing
ten percent (10%) of Buyer's (or permitted assignee's or successor's)
outstanding capital stock, on an as converted, fully diluted basis, immediately
following the Closing (the "CARRIED INTEREST") (such entity in which the Carried
Interest relates, the "OPERATING ENTITY"); and
(c) surrender all of its membership interest in Safeland (the
"REDEEMED INTEREST") for redemption for no additional consideration payable to
Purchaser by Safeland, FEI or any of their members or affiliates.
Notwithstanding Article 1.2(a), on or before the Closing, Buyer will
deposit with ▇▇▇▇▇▇▇▇▇ Title Agency, L.L.C. (the "TITLE COMPANY"), ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III, the
balance of the Cash Payment in immediately available funds and all certificates
evidencing the Redeemed Interests. For the avoidance of doubt, the redemption of
the Redeemed Interest shall occur simultaneously with the Closing and Purchaser
shall have no rights to receive any portion of the Cash Payment or the Carried
Interest.
It is the intent of the parties that the Carried Interest shall entitle
Safeland to participate in the proceeds of all operations carried out on the
Property, pro rata with all other investors in the Property. The Carried
Interest shall be PARI PASSU with the remaining ninety percent (90%) of the
equity interest of the Operating Entity (the "INVESTOR INTEREST"), and shall be
subject to dilution on the same basis and terms as the Investor Interest.
Safeland shall have the right to participate in all future financings of the
Operating Entity in order to maintain the Carried Interest as ten percent (10%)
of the Operating Entity's outstanding equity interests. In addition, if
Blackwater Midstream Corp. ("BLACKWATER") undertakes any other businesses or
projects on the Property through a business entity other than the Operating
Entity, Blackwater shall offer Safeland the right to participate in all such
businesses and projects up to ten percent (10%), provided that Safeland shall
purchase its interest therein on the same terms and conditions as Blackwater.
If the Operating Entity is an entity other than Blackwater, Safeland and
Blackwater will enter into an agreement with respect to their respective
ownership interests in the Operating Entity similar to agreements entered into
between majority and minority investors of a closely held company (a
"PARTNERSHIP AGREEMENT"). The Partnership Agreement will contain customary terms
and conditions, including without limitation (i) protective provisions requiring
the vote of Safeland for specified extraordinary transactions, provided that
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Safeland's vote shall not carry any more weight than that required by law or the
Operating Entity's constituting documents, (ii) a prohibition on related party
transactions that are not on arms'-length basis, (iii) drag along and tag along
rights, (iv) right of first refusal with respect to transfers of ownership
interests in the Operating Entity and (v) a put right in favor of Safeland and a
call right in favor of Blackwater, in each case from and after the seventh
anniversary of the Closing (or sooner in the event of a change of control of
Blackwater) and at fair market value determined by a mutually acceptable
appraiser (without application of any discount for the lack of control and lack
of liquidity associated with the Carried Interest).
Buyer acknowledges and agrees that as a result of the surrender and
redemption of the Redeemed Interest, Buyer shall not have, and will not assert,
any right to any portion of the Purchase Price.
1.3 DEPOSIT AND INVESTMENT OF DEPOSIT. Concurrently with the execution of
this Agreement, Buyer will deposit the amount of ONE THOUSAND AND NO/100
($1,000) DOLLARS (the "DEPOSIT") with the Title Company in the form of a
cashier's check or wire transfer of funds, to be held in escrow and delivered by
the Title Company in accordance with the provisions of this Agreement. The
Deposit will not be deemed to be ▇▇▇▇▇▇▇ Money. At Closing, the Deposit will be
applied against the Purchase Price at the Closing (hereinafter defined). If the
Seller and/or Buyer fail to close, the Deposit will be refunded to Buyer or paid
to Seller in accordance with the provisions of this Agreement. Upon Buyer's
election (or deemed election) to proceed with the Closing as described in
Article 3.3 of this Agreement, the Deposit will become nonrefundable and, should
the Closing fail to occur for any reason other than Seller's default under this
Agreement or Buyer's exercise of any right to cancel this Agreement described
herein, will be paid to Seller immediately upon termination.
1.4 TITLE REPORT; TITLE INSURANCE.
(a) TITLE REPORT. Within thirty (30) business days after the
execution of this Agreement, the Title Company will provide to Buyer and Seller
a current preliminary title report or commitment for title insurance with
respect to the Property (the "TITLE REPORT"), disclosing all matters of record
which relate to the title to the Property and the requirements for issuance of
the Owner's Title Policy described below.
(b) EXAMINATION AND APPROVAL OF TITLE. Buyer will have ten (10)
business days after its receipt of the Title Report, and copies of all documents
referred to therein to provide to Seller and the Title Company written notice of
Buyer's objections to any matters disclosed by the Title Report. Buyer's failure
to provide timely written notice of its objection to any such matter will be
deemed to constitute Buyer's approval of such matters. Within ten (30) days
after Seller's receipt of written notice of Buyer's objections, Seller will, at
Seller's option: (i) obtain title agent's commitment to delete from the Title
Report matters to which Buyer has reasonably objected or to insure over such
matters by appropriate endorsement, (ii) otherwise agree to satisfy Buyer's
objection in a specified manner reasonably satisfactory to Buyer, or (iii)
decline to take any curative or remedial action with respect to the matter
objected to by Buyer. Seller's failure to elect one of the options described in
(i) or (ii) will constitute Seller's election of the option described in (iii).
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(c) BUYER'S RIGHTS FOR FAILURE TO CURE TITLE OBJECTIONS. If, within
the thirty (30) day period described in (b) above, Seller does not cure any
matter to which Buyer will have reasonably objected, Buyer may, within five (5)
days after the expiration of such thirty (30) day period, either waive the
uncured matter and buy the Property subject to that matter, or may terminate
this Agreement, in which event the Buyer will be entitled to a return of the
Deposit and any interest earned thereon. Any matters affecting title to the
Property which Buyer has accepted or is deemed to have accepted pursuant to this
Article 1.4, together with: (i) any objected to matters with respect to which
Buyer has waived or is deemed to have waived Seller's failure or declination to
cure as provided in this Article 1.4; and/or (ii) any matter that a survey or
reasonable inspection of the Property or review of the public records would have
disclosed, are collectively referred to herein as "PERMITTED EXCEPTIONS".
(d) TITLE INSURANCE POLICY. At the Closing, the Title Company will
be unconditionally committed and prepared to issue to Buyer promptly following
the Closing an owner's policy of title insurance (the "OWNER'S TITLE POLICY")
insuring that Buyer owns title to the Property and providing coverage in the
amount of the Purchase Price plus the estimated value of Buyer's planned
improvements. The Owner's Title Policy will insure title subject only to the
usual exclusions, conditions and stipulations contained in the preprinted form
of the policy and the Permitted Exceptions. Nothing in this Agreement will
require the Seller to procure a survey of the Property, as a condition to the
issuance of the Owner's Title Policy or otherwise. The procurement of any survey
required by Buyer will be the sole responsibility and cost of Buyer. The premium
for the Owner's Title Policy, including the cost of any extended coverage and/or
endorsements required by Buyer, will be charged to Buyer.
(e) SUPPLEMENTS OR AMENDMENTS TO TITLE REPORT. If any supplement or
amendment to the Title Report or update search by the Title Company discloses
any additional requirements to be satisfied by Buyer or matters materially and
adversely affecting title to the Property (except for specifically described
encroachments or other physical items that would have been revealed by an
inspection or survey of the Property), Buyer may: (i) within five (5) business
days after its receipt of copies of any document evidencing such a matter, give
Seller notice of Buyer's objection to any such additional requirements or other
matters; or (ii) refrain from giving such notice, in which case such additional
requirements and matters will become additional obligations of Buyer and
Permitted Exceptions, respectively. If Buyer objects to any such additional
matters or requirements, Seller will have an additional five (5) business days
to obtain the Title Company's commitment to delete such matters from the Title
Report or to insure over such matters by appropriate endorsement or will
otherwise agree to satisfy Buyer's objection in a specified manner reasonably
satisfactory to Buyer. In no event will Seller be considered responsible for
failure of the transaction contemplated by this Agreement to close because of
any error of the Title Company or because of any exception (other than the
Permitted Exceptions) or requirement added to the Title Report because of any
act, event or condition that did not result from an act of Seller.
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ARTICLE II
CLOSING
2.1 CLOSING. The Closing with respect to the conveyance of the Property
(the "CLOSING") will occur within one hundred twenty (120) days following the
Effective Date, and if the Closing has failed to occur by 5:00 p.m. Central
Standard Time on the date that is one hundred twenty (120) days following the
Effective Date, and such failure is not the result of the default of Seller
hereunder, then this Agreement will automatically terminate without further
notice or demand and all of the Deposit will be paid to Seller. If the date for
the Closing is not a business day for the Title Company or the Clerk of Court of
the Parish in which the Property is located, then the Closing will occur on the
first business day thereafter. The Closing will occur at the office of the Title
Company or at such other location as the parties may agree.
2.2 ITEMS TO BE DELIVERED BY SELLER AT CLOSING. At or prior to the
Closing, Seller, at its cost and expense, will deliver or cause to be delivered
to the Buyer:
(a) A Cash Sale in the form attached hereto as EXHIBIT C for the
real property described therein (the "CASH SALE"), executed by each Seller;
(b) Any affidavit or disclosure statement or certification as may be
required under the laws of the State of Louisiana for the conveyance of the
Property;
(c) An Assignment and Assumption Agreement in the form attached
hereto as EXHIBIT D (the "ASSIGNMENT") for the permits and other items described
therein, executed by Safeland and FEI; and
(d) A seller/owner affidavit and indemnity agreement substantially
in the form attached hereto as EXHIBIT E regarding parties in possession,
inchoate liens and gap matters, executed by each Seller;
(e) The Partnership Agreement, if applicable, in such form as
mutually acceptable to Safeland and Blackwater; and
(f) Any other documents that are reasonably necessary to close the
transaction contemplated by this Agreement.
2.3 ITEMS TO BE DELIVERED BY BUYER AT CLOSING. At the Closing, Buyer, at
its sole cost and expense, will deliver, or cause to be delivered, to the
Seller:
(a) The Cash Payment;
(b) A certificate representing the Carried Interest;
(c) A certificate representing the Redeemed Interest, duly executed
for transfer or coupled with a duly executed stock power;
(d) Any affidavit or disclosure statement or certification as may be
required under the laws of the State of Louisiana for the conveyance of the
Property;
(e) The Assignment executed by Buyer;
(f) A Preferred Provider Agreement in the form attached hereto as
EXHIBIT F executed by Buyer, regarding the provision of the services and
equipment specified therein by A3M Vacuum Services, Inc. to Buyer with respect
to the Property;
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(g) A certificate signed by an executive officer of Buyer certifying
the number and type of shares of capital stock of Buyer (or the number and type
of equity interests of the Operating Entity) outstanding immediately prior to
the Closing, on an as converted, fully diluted basis;
(h) The Partnership Agreement, if applicable, in such form as
mutually acceptable to Safeland and Blackwater; and
(i) Any other documents reasonably necessary to close the
transaction contemplated by this Agreement.
2.4 PRORATIONS.
(a) All non-delinquent rents, ad valorem real property taxes,
general and special assessments, water use fees, irrigation project assessments,
non-separately billed utilities and other services (if Buyer continues such
services), will be prorated as of the Closing. In making all prorations, Buyer
will be credited or debited with all matters for the day on which the Closing
occurs. Seller will pay to Buyer all unearned advances. All existing improvement
liens or special assessments affecting the Property, the installments under
which are not yet due, will become Buyer's obligation upon the Closing and the
Property may be conveyed subject thereto.
(b) All items to be prorated between Seller and Buyer, as well as
other charges and credits reflected on the closing statement(s), will be based
upon the best information available to the parties at the time of Closing. If ad
valorem real property taxes have not been assessed for the current year, or the
tax rate has not been established by the relevant taxing authority, then ad
valorem taxes will be prorated based upon the tax rate for the preceding year
applied to the latest assessed valuation. If, following the Closing, any party
discovers that any item prorated, charged or credited pursuant to the provisions
of this subparagraph was erroneous, or was based upon an inaccurate estimate,
then such party will notify the other party of such error and an appropriate
adjustment will be made between the parties so that any item will have been
correctly and accurately prorated, charged or credited between the parties. The
amount of any adjustment will be due and payable by the appropriate party ten
(10) days following demand for payment thereof accompanied by such documents as
may be reasonably required to establish the accuracy of such adjustment. The
provisions of this subparagraph will survive the Closing.
2.5 ALLOCATION OF OTHER CLOSING COSTS.
(a) BUYER'S COSTS. In addition to the prorations described in
Article 2.4 above, Buyer will pay (i) its attorneys' fees relating to the
preparation and negotiation of this Agreement and the other closing documents
hereunder, (ii) all escrow fees and related expenses, (iii) the premium for the
Owner's Title Policy (and costs associated with obtaining an ALTA survey to
obtain such policy), if desired, and any endorsements required by Buyer, (iv)
the recording fees for the Cash Sale, and (v) the cost of the title insurance
policy required by Buyer's lender, recording fees with respect to such lender's
security documents, any note servicing fees and all other costs incident to
Buyer's financing of the purchase of the Property.
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(b) SELLER'S COSTS. In addition to the prorations described in
Article 2.4 above, Seller will pay (i) its attorneys' fees relating to the
preparation and negotiation of this Agreement and the other closing documents
hereunder, and (ii) all recording fees for releases of any existing encumbrances
that do not constitute Permitted Exceptions.
(c) OTHER CLOSING COSTS. Any closing costs to be paid at Closing
that are not specifically provided for in this Agreement will be paid by Buyer
and Seller in accordance with local custom.
2.6 DELIVERY OF POSSESSION OF PROPERTY; RISK OF LOSS. Seller will deliver
to Buyer possession of the Property immediately upon the Closing (subject to the
rights of any other parties under the Permitted Exceptions and those matters
which Seller has agreed to cure), whereupon all risk of loss to the Property
from any source and all liability to third persons will also pass to Buyer.
Effective upon the Closing, Buyer will be responsible and liable for all loss or
damage suffered by third parties by reason of the operation of the Property.
Buyer will indemnify, defend, protect and hold Seller harmless for, from and
against any loss or damage for which Buyer is responsible under the terms of the
preceding sentence. Seller will indemnify, defend, protect and hold Buyer
harmless for, form and against any loss or damage to third parties by reasons of
acts or omissions of Seller occurring on or about the Property during Seller's
ownership thereof.
ARTICLE III
CONTINGENCIES AND CONDITIONS TO CLOSING
3.1 SELLER'S CONTINGENCIES. The obligation of Seller to sell the Property
to Buyer is contingent upon, and subject to the satisfaction of, each of the
following conditions as of the Closing:
(a) BUYER COMPLIANCE WITH AGREEMENT. Buyer will have fully performed
and complied with all covenants, agreements and conditions that this Agreement
requires Buyer to have performed or complied with prior to or as of the Closing.
(b) BUYER REPRESENTATIONS AND WARRANTIES TRUE. All representations
and warranties of Buyer contained herein will be true and correct in all
material respects as of the date of this Agreement and the Closing.
If any of the conditions described in this Article 3.1 will not have been
satisfied as of the Closing, Seller, at its option, may consider Buyer to be in
default under this Agreement and pursue any right or remedy available under
Article 5.2 of this Agreement.
3.2 BUYER'S CONTINGENCIES. The obligation of Buyer to purchase the
Property from Seller is contingent upon, and subject to the satisfaction of,
each of the following conditions as of the Closing:
(a) SELLER COMPLIANCE WITH AGREEMENT. Seller will have fully
performed and complied with all covenants, agreements and conditions that this
Agreement requires Seller to have performed or complied with prior to or as of
the Closing.
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(b) SELLER REPRESENTATIONS AND WARRANTIES TRUE. All representations
and warranties of Seller contained herein will be true and correct in all
material respects as of the date of this Agreement and the Closing.
(c) LITIGATION. There shall not be pending any suit, action,
prosecution, investigation or proceeding against Seller or the Property that
relates to or will have a material adverse effect on Buyer's ability to
construct and operate a tank facility for storage of crude oil, refined
petroleum products and alternative fuels on the Property.
If any of the conditions described in this Article 3.2 will not have been
satisfied as of the Closing, Buyer, at its option, may consider Seller to be in
default under this Agreement and pursue any right or remedy available under
Article 5.1 of this Agreement.
3.3 REVIEW PERIOD.
(a) Within five (5) business days after the Effective Date, Seller
will deliver to Buyer or Buyer's counsel, upon Seller's receipt of a release of
claims from Buyer in such form reasonably acceptable to Seller, originals or
copies of (i) all real estate tax statements with respect to the Property since
the date of acquisition of the Property by Seller, (ii) all leases and subleases
in effect, if any, affecting the Property, (iii) all environmental reports, soil
studies and analyses, title insurance policies and/or title commitments,
geological engineering reports and surveys relating to the Property and (iv) any
other agreements, licenses, permits, entitlements or documents that bind the
Property. Provided Seller has timely delivered all such materials, Buyer will
have a NINETY (90) DAY period from the Effective Date (the "REVIEW PERIOD") to
enter upon and inspect the Property. Buyer will have until the end of the Review
Period (the "REVIEW DEADLINE") to investigate any and all other matters
concerning the Property, including zoning, access, servitudes, availability of
water and utilities, availability of financing, the physical and environmental
condition, assessments and improvement liens and any restrictions or other
matters concerning the Property. If Buyer, after conducting such inspections,
investigations and tests, determines that the Property is not suitable for its
purposes, then Buyer will, prior to the end of the Review Period, provide to
Seller the notice described in the first sentence of the following subparagraph
(b).
(b) Buyer will have the right to terminate this Agreement by written
notice delivered in accordance with Article 6.3 of this Agreement to Seller
prior to the end of the Review Period, in which event the Deposit will be
returned to Buyer and neither party will have any further liability under this
Agreement. The Deposit will become nonrefundable upon the sooner to occur of:
(i) prior to the Review Deadline, Buyer fails to provide the notice
described in the foregoing sentence to Seller;
(ii) Buyer provides Seller written notice that the Property is
suitable for its intent and purpose and will proceed to the Closing; or
(iii) Seller agrees to cure and does cure or correct any
deficiencies or defects noticed by Buyer prior to the Closing.
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(c) Buyer hereby acknowledges and agrees that Seller will have no
obligation to remediate, cure or correct any environmental condition associated
with the Property.
3.4 CONDEMNATION OR EMINENT DOMAIN. If, prior to the Closing, (a) any
portion of the Property having a value of greater than twenty percent (20%) of
the Purchase Price, or (b) that portion of the Property that provides deep
water, highway or rail access is taken by condemnation or eminent domain, or if
proceedings are commenced for such a taking or a demand for conveyance or offer
to purchase in lieu of condemnation is made by any governmental authority,
utility or other person authorized by statute to condemn, then Buyer will have
the right either: (i) by written notice to Seller given within five (5) business
days after Buyer receives written notification from Seller of such taking, the
commencement of such proceedings or demand for conveyance or offer to purchase,
to terminate this Agreement, in which event the Deposit (and any interest earned
thereon) will be refunded to Buyer; or (ii) by failure to give such written
notice to Seller within such five (5) business day period, to perform its
obligations under this Agreement (including payment of the full Price) and to
receive from Seller an assignment and delivery of Seller's rights in and to the
award, payment and/or damages for such taking.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 BUYER'S ACKNOWLEDGEMENTS.
(a) As an express condition to this Agreement, Buyer acknowledges
that it will be Buyer's sole responsibility to satisfy itself regarding: (i) the
scope and extent of all operations or activities on the Property, (ii) the
impact of such operations on the suitability of the Property for Buyer's
purposes or any other purpose, (iii) the existence or possible existence of all
conditions of the Property, and (iv) all rights of access to the Property and
open and publicly dedicated rights-of-way. Buyer acknowledges and agrees that:
(i) Buyer is purchasing the Property solely on the basis of its examination,
inspection and investigation described in Article 3.3 above and not on the basis
of any statement, representation, warranty, expressed or implied, written or
oral, made by Seller or its agents or its employees that is not expressly
contained in this Agreement; and (ii) Buyer is purchasing the Property in its
"AS-IS, WHERE-IS" condition, with all faults and with no representation or
warranty of any type or nature being made by Seller or any person on Seller's
behalf, except as expressly otherwise provided in this Agreement.
(b) Buyer further acknowledges that although Seller may know or have
reason to know of the particular use Buyer intends for the Property, or Buyer's
particular purpose for buying the Property, Buyer is not relying on Seller's
skill or judgment in selecting the Property. Accordingly, Seller makes no
warranty or representation that the Property is fit for Buyer's intended use or
his particular purpose and Buyer waives any such warranty to which it might be
entitled under La. C.C. art. 2524 and Buyer further waives any warranty to which
it might be entitled under said article 2524 that the Property be reasonably fit
for its ordinary use.
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(c) All other implied warranties with respect to the Property,
including those related to Buyer's peaceable possession of the Property, the
merchantability thereof, hidden defects therein or the fitness thereof for a
particular purpose, zoning, or other regulatory matters, are hereby disclaimed
by Seller and expressly waived by Buyer. Buyer will have no right or cause of
action against Seller to assert in any controversy, claim, demand or litigation
arising from or in connection with the Property. Without limiting the generality
of the foregoing, Seller does not warrant that the Property is free from hidden,
redhibitory or latent defects or vices or that the Property is fit for the use
intended by the Buyer, and Buyer hereby expressly waives all rights in
redhibition pursuant to La. C.C. arts. 2520 et seq., the warranties of ownership
and peaceable possession of the Property, the warranties against hidden or
redhibitory defects in the Property, and the warranty that the Property is fit
for its intended use, each of which would otherwise be imposed upon Seller by
La. C.C. art. 2475.
(d) Buyer hereby releases Seller from any liability under La. C.C.
arts. 2520 to 2548 for hidden, redhibitory or latent defects or vices that may
be found on the Property.
(e) Without limiting the generality of the foregoing, Buyer
acknowledges that Seller makes no representation or warranty as to: (i) the
value, physical condition of the Property (including soils, geological
conditions, the presence or absence of radioactive, petroleum-based, Hazardous
Substances (as defined below), and availability or quality of water); (ii) the
sufficiency or suitability of the Property for Buyer's purposes or any purpose;
(iii) the square footage, acreage or configuration of the Property; (iv) the
sufficiency or completeness of any plans for the Property; (v) zoning or land
use controls affecting the Property; (vi) the state of repair or structural
integrity of any improvements on the Property or their compliance (or the
compliance of any activities previously conducted thereon or therein) with any
federal, state or municipal laws, ordinances, regulations or requirements
(including those relating to the sale of subdivided lands), except as may be
expressly described elsewhere in this Agreement; (vii) the environmental status
or condition of the Property; or (viii) the extent to which the Property or
Seller has complied or failed to comply with any permits, approvals or
requirements of applicable Environmental Laws (defined below).
(f) In particular, but without in any way limiting the foregoing,
Buyer, on behalf of itself and any entity affiliated with, owned or controlled
by Buyer or a controlling member of Buyer ("BUYER ENTITIES") hereby forever
waives, releases and covenants not to assert any claims against Seller, its
successors, assigns, employees, agents, representatives, past, present and
future, their affiliates and subsidiaries, past present and future, their
respective parents, subsidiaries, and affiliates past present and future, and
each of their officers, directors, and shareholders, past, present and future,
("SELLER'S REPRESENTATIVES") from any and all responsibility, liability, claims,
rights, remedies, causes of action and damages arising from or relating to: (1)
the investigation, removal and remediation of past, present or future releases
or discharges or threatened releases and discharges of Hazardous Substances on,
at, under, about or emanating from the Property; (2) any other claims, for or
arising out of the presence of Hazardous Substances on, at, under, about or
emanating from the Property or any property in the vicinity of the Property
(including in the soil, air, structures and surface and subsurface water),
including natural resource damage claims; (3) the performance or non-performance
of remedial actions with respect to any past, present or future releases or
threatened releases of Hazardous Substances on the Property; and (4) any past,
present or future violations by Seller or Seller Representatives of any
Environmental Laws regarding the Property.
10
As used herein, the term "ENVIRONMENTAL LAW" will mean, as amended and in
effect from time to time, any federal, state or local statute, ordinance, rule,
regulation, judicial decision, or the judgment or decree of a governmental
authority, arbitrator or other private adjudicator by which Buyer or the
Property is bound, pertaining to health, industrial hygiene, public safety,
occupational safety or the environment, including, without limitation, the
Surface Mining Control and Reclamation Act (30 U.S.C. ss.1201 - et seq.), the
Uranium Mill Tailings Reclamation Control Act (42 U.S.C. ss.7901 - et seq.), the
Mining Health and Safety Act (30 U.S.C. ss.801 - et seq.), the Comprehensive
Environmental Response, Compensation & Liability Act of 1980 (42 U.S.C. ss. 9601
- et seq.), the Resource, Conservation and Recovery Act of 1976 (42 U.S.C. ss.
6901 - et seq.), the Toxic Substances Control Act (15 U.S.C. ss. 2601 - et
seq.), the Clean Water Act (33 U.S.C. ss. 1251 - et seq.), the Oil Pollution Act
of 1990 (33 U.S.C. ss. 2701 - et seq.), the Clean Air Act (42 U.S.C. ss. 7401 -
et seq.), the Hazardous Substance Transportation Act; the Emergency Planning and
Community Right-To-Know Act (42 U.S.C. ss. 11001 - et seq.), the Endangered
Species Act of 1973 (16 U.S.C. ss. 1531 - et seq.), the Federal Land Policy and
Management Act of 1976 (43 U.S.C. ss. 1701 - et seq.), the Lead-Based Paint
Exposure Reduction Act (15 U.S.C. ss. 2681 - et seq.), the Safe Water Drinking
Act Amendments of 1996 (42 U.S.C. ss. 300), the Solid Waste Disposal Act (42
U.S.C. ss. 6901 - et seq.), the National Historic Preservation Act of 1966
(U.S.C. 470 - et seq.), the Louisiana Environmental Quality Act (La. R.S.
30:2001 - et seq), Statewide Order 29-B of the Louisiana Department of Natural
Resources, Office of Conservation, federal, state and local counterparts of each
of the foregoing along with any federal, state or local laws, regulations or
ordinances relating to or promulgated under authority of any such statutes or
laws.
As used herein, the term "HAZARDOUS SUBSTANCES" will mean (a) any
chemicals, materials, elements or compounds or substances defined as or included
in the definition of "hazardous substances," "hazardous wastes," "solid wastes,"
"hazardous materials," "extremely hazardous wastes," "restricted hazardous
wastes," "toxic substances," "toxic pollutants," "hazardous air pollutants,"
"pollutants," "contaminants," "toxic chemicals," "petroleum or petroleum
products," "toxics," "hazardous chemicals," "extremely hazardous substances,"
"pesticides" or related materials, as now, in the past, or hereafter defined in
any applicable Environmental Law; (b) any petroleum or petroleum products
(including but not limited to gasoline and fuel additives including MTBE and
other oxygenates, typically added to gasoline or their degradation products),
natural or synthetic gas, radioactive materials, asbestos-containing materials,
urea formaldehyde foam insulation, polychlorinated biphenyls, sewage,
non-hazardous oilfield waste, or waste tires, and radon; and (c) any other
chemical, material or substance, exposure to which is prohibited, limited or
regulated under any Environmental Law.
The provisions of this Article 4.1(c) will survive Closing.
4.2 SELLER'S REPRESENTATIONS AND WARRANTIES. Each Seller warrants,
represents and covenants (with the understanding that Buyer is relying on these
warranties, representations and covenants) that:
(a) ORGANIZATION; AUTHORITY. Each Seller represents that it is a
duly organized limited liability company authorized to transact business in the
State of Louisiana, and has full legal power and authority to enter into, and
perform its obligations under, this Agreement in accordance with their terms,
without the consent of any partner, co-owner, member, investor, creditor,
governmental authority, judicial or administrative body, or any other person.
Each of the individuals executing this Agreement on Seller's behalf warrants
that he/she is authorized to do so and to bind Seller thereby.
11
(b) LITIGATION; PROCEEDINGS. Except as set forth on SCHEDULE 4.2(B),
Seller represents that there are no suits, actions, prosecutions, investigations
or proceedings, actual or pending or, to the knowledge of Seller, threatened,
against or affecting Seller that relate to or will have an adverse effect on the
Property.
(c) TITLE. Seller represents that it has good and marketable fee
simple title to the Property.
(d) NO CONFLICTING AGREEMENTS. The execution and delivery by each
Seller, and the performance and compliance by such Seller with the terms and
provisions, of this Agreement do not violate, conflict with or result in a
breach of any of the terms, conditions or provisions of (i) such Seller's
organizational documents, (ii) any judgment, order, injunction, decree,
regulation or ruling of any court or other governmental authority to which such
Seller is subject, or (iii) any agreement or contract to which such Seller is a
party or to which it is subject.
4.3 BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer warrants, represents and
covenants (with the understanding that Seller is relying on these warranties,
representations and covenants) that:
(a) ORGANIZATION; AUTHORITY. Buyer is a corporation duly organized
and validly existing under the laws of State of Nevada. Buyer is duly authorized
to transact business in the State of Louisiana. Buyer has full legal power and
authority to enter into, and perform its obligations under, this Agreement in
accordance with their terms, without the consent of any partner, co-owner,
member, investor, creditor, governmental authority, judicial or administrative
body, or any other person. Each of the individuals executing this Agreement on
Buyer's behalf warrants that he/she is authorized to do so and to bind Buyer
thereby.
(b) BUYER SOPHISTICATION. Buyer is familiar with the special
characteristics of the Property and has access to any legal, financial or other
professional advice that may be necessary to fully investigate all matters
pertaining to the Property and to comply with Buyer's obligations hereunder.
Buyer has examined and inspected, and will have the right to examine and
inspect, the physical nature and condition of the Property, including
structural, mechanical, plumbing, electrical, environmental and safety
conditions, and agrees to purchase the Property in its "AS IS" "WHERE IS"
condition on the Closing Date, solely in reliance on its own tests,
investigations and studies and not in reliance on any representations or
warranties made by Seller with regard to those matters except as expressly set
forth in this Agreement. Neither Seller nor any Seller Representative, nor any
real estate broker or agent has/have made any representation or warranty
regarding the physical condition of the Property, or any part thereof, or
anything relating to the subject matter of this Agreement, except as expressly
set forth in this Agreement, or as specifically set forth in a writing addressed
to Buyer or its agents after the date hereof; and Buyer, in signing and
delivering this Agreement, has not and will not rely upon any statement,
information, or representation to whomsoever made or given, whether to Buyer or
others, and whether directly or indirectly, verbally or in writing, made by any
person, except as expressly set forth in this Agreement.
12
(c) NO CONFLICTING AGREEMENTS. The execution and delivery by Buyer,
and the performance and compliance by Buyer with the terms and provisions, of
this Agreement do not violate, conflict with or result in a breach of any of the
terms, conditions or provisions of (i) Buyer's organizational documents, (ii)
any judgment, order, injunction, decree, regulation or ruling of any court or
other governmental authority to which Buyer is subject, or (iii) any agreement
or contract to which Buyer is a party or to which it is subject.
ARTICLE V
DEFAULT AND REMEDIES
5.1 BUYER REMEDIES FOR SELLER DEFAULT. If any of Seller's representations
or warranties herein are false as of the date of this Agreement or the Closing
(as applicable), or if Seller fails to perform any of its obligations hereunder
for any reason, then Buyer, at its option, will have the right to: (i) terminate
this Agreement by giving written notice thereof to Seller, whereupon the Deposit
and all interest earned thereon will be refunded to Buyer, or (ii) specific
performance of the terms and provisions of this Agreement. Buyer will not
otherwise be entitled to damages and/or pursue any other right or remedy
available in law or in equity. Any such action to specifically enforce the
provisions contemplated herein will be brought within ninety (90) days from the
termination of this Agreement and/or within ninety (90) days from the date
Seller's default under this Agreement, otherwise, Buyer will be deemed to have
waived its rights to bring any such action.
5.2 SELLER REMEDIES FOR BUYER DEFAULT. If Buyer fails to perform any of
its obligations hereunder for any reason, then Seller will have the right to
terminate this Agreement by giving written notice thereof to Buyer, whereupon
the Deposit and all interest earned thereon will be delivered to Seller, as
liquidated damages and not as a penalty, and the rights and obligations of the
parties hereunder, except for the obligations described in Article 6.9 hereof
and other obligations which, by the terms of this Agreement, survive the
Closing, will terminate.
ARTICLE VI
GENERAL AND MISCELLANEOUS PROVISIONS
6.1 AGENTS/BROKERAGE COMMISSIONS/BROKER DISCLOSURES. Buyer and Seller
warrant and represent to each other that no real estate sales or brokerage
commissions, finder's fees, deposits or similar payments are or will be due in
connection with the transaction described in this Agreement. Each party will
indemnify, defend, protect and hold the other parties harmless for, from and
against any claims by third parties for real estate or brokerage commissions,
finder's fees, deposits or similar payments in connection with the transaction
described herein by reason of the indemnitor's actions or alleged actions, and
all costs and expenses incurred by the indemnitee in connection therewith,
including reasonable attorneys' fees. As used in this Agreement, "INDEMNITOR"
means the party obligated to indemnify, and "INDEMNITEE" means the party
entitled to be indemnified. The provisions of this Article 6.1 will survive the
Closing or the termination of this Agreement.
6.2 WAIVER. Either Buyer or Seller may waive any provision of this
Agreement intended for its benefit. Any waiver will be in writing and no such
waiver will invalidate this Agreement or be deemed to be a waiver of any other
provisions hereof. The waiver of any time for performing any act will not
constitute a waiver of the time for performing any other act or a similar act
required to be performed at a different time. However, Buyer's agreement to
allow the Closing to occur will be deemed to constitute Buyer's waiver of any
and all conditions precedent or contingencies to such closing.
13
6.3 NOTICES. All notices required or contemplated by this Agreement will
be given in writing and delivered by hand, by Federal Express, or by United
States Postal Service by certified mail with postage prepaid, at the following
addresses or at such other address as one party may give notice to the other:
If to Buyer: Blackwater Midstream Corp.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (___) ___-____
Attn.: ▇▇▇▇▇▇▇ ▇▇▇▇▇
With a required copy to: Milling ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
If to the Sellers: Safeland Storage, L.L.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ #▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
With required copy to: ▇▇▇▇▇ ▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
6.4 INTEGRATION AND MODIFICATION; EXHIBITS. This written Agreement
(including the exhibits hereto) and the Cash Sale constitute a complete
integration of the intended agreement of the parties. All prior oral and/or
written representations, promises, warranties and conditions relating to the
subject matter hereof (including any letter of intent between the parties) are
merged herein, and any representations, promises, warranties or conditions not
incorporated herein will not be binding upon any party. No agent of any party
had or has authority to the date of the execution of this Agreement to make
representations or agreements, verbal or written, which differ from the
representations and agreements contained in this Agreement, and no other
representations, covenants, promises or agreements exist which have induced any
of the parties to enter into this Agreement. This Agreement may be amended or
rescinded only by written instrument executed by Seller and Buyer.
14
6.5 ASSIGNMENT OF BUYER'S RIGHTS. Buyer may freely assign its rights under
this Agreement to any affiliate of Buyer without Seller's prior written consent;
provided, however, that no such assignment shall relieve Buyer of any of its
obligations hereunder. Buyer may not assign, sell, pledge, encumber or otherwise
transfer any of its rights under this Agreement to any other person without
Seller's prior written consent (which may not be unreasonably withheld,
conditioned or delayed), and any such purported assignment, sale, pledge,
encumbrance or transfer without Seller's prior written consent will be void,
will vest no right, title or interest in the purported assignee or transferee,
and will constitute a default hereunder.
6.6 SUCCESSORS AND ASSIGNS; NO THIRD PARTY BENEFICIARIES. This Agreement
will be binding upon, and inure to the benefit of, the parties hereto and their
respective successors and permitted assigns and nominees. However, this
Agreement will not confer any rights or remedies upon any person other than the
parties hereto and their respective successors and permitted assigns and
nominees, if any.
6.7 GOVERNING LAW. This Agreement relates to real property located in St.
▇▇▇▇ the Baptist Parish, Louisiana, and will be governed by and construed in
accordance with the substantive laws and judicial decisions of Louisiana,
regardless of the conflict of laws, principles or the residence, location,
domicile or place of business of any party or its constituent principals.
6.8 CONSTRUCTION OF AGREEMENT. This Agreement will apply to the parties
hereto according to the context hereof, without regard to the number or gender
of words or expressions used herein. The headings or captions of Articles and
paragraphs in this Agreement are for convenience and reference only, and in no
way define, limit or describe the scope or intent of this Agreement or the
provisions of such Articles or paragraphs. This Agreement will be construed as a
whole, in accordance with the fair meaning of its language, and, as each party
has been represented by legal counsel of its choice (or deliberately chosen not
to be so represented) in the negotiation of this Agreement, neither this
Agreement nor any provision thereof will be construed for or against either
party by reason of the identity of the party drafting this Agreement or any
other document. As used in this Agreement, the term(s): (a) "BUYER" or "SELLER"
will include all persons named as such on page 1 of this Agreement, and their
liability for any breach by any of them of any representation, warranty,
covenant or agreement contained in this Agreement will be joint and several; (b)
"INCLUDE" or "including" will mean without limitation by reason of enumeration;
(c) "HEREIN," "HEREUNDER," "HEREOF," "HEREINAFTER" or similar terms refer to
this Agreement as a whole rather than to any particular Article or paragraph;
(d) "PERSON" includes a corporation, trust, estate, partnership, association,
governmental authority or other entity, as well as a natural person; (e)
"BUSINESS DAYS" means those days other than Saturdays, Sundays and legal
holidays for Title Company or the Office of the Clerk of Court for the Parish in
which the Property is located; and (f) "INDEMNITOR" and "INDEMNITEE" have the
meanings provided in Article 6.1 of this Agreement. Unless otherwise expressly
provided in this Agreement or the Cash Sale, the provisions of the Cash Sale
will prevail in the event that an irreconcilable conflict or discrepancy exists
between the provisions of this Agreement and the provisions of the Cash Sale,
and specific provisions of this Agreement or the Cash Sale that irreconcilably
conflict with general provisions of the same or another document that is not
otherwise entitled to priority in construction will prevail over the general
provisions. Technical words and phrases and those that have acquired particular
meanings in the real estate industry will be construed according to those
particular meanings when the context in which they are used in this Agreement
reasonably indicates that the technical meaning is intended.
15
6.9 ENFORCEMENT EXPENSES; THIRD-PARTY ACTION EXPENSES. In the event of any
dispute between the parties hereto with respect to any rights or obligations
hereunder which is the subject of litigation (neither party waiving by this
reference the right to have all matters arbitrated as provided herein), the
prevailing party therein will be entitled to recover all costs and expenses,
including court costs and reasonable attorneys' fees incurred therein by the
prevailing party, which amounts will be included in any judgment or award
rendered. The provisions of this Article 6.9 will survive the Closing or
termination of this Agreement.
6.10 TAX MATTERS. Seller will furnish to Buyer, on or before the Closing,
a sworn affidavit (the "NON-FOREIGN TRANSFEROR AFFIDAVIT") in a form acceptable
to Buyer stating under penalty of perjury that Seller is not a "FOREIGN PERSON"
as such term is defined in ss. 1445 of the Internal Revenue Code of 1986, as
amended, and any relevant regulations promulgated thereunder (the "CODE") or
other reasonable documentary evidence that Buyer is not required to withhold
taxes from the Purchase Price under ss. 1445(a) of the Code.
6.11 ADDITIONAL ACTS AND DOCUMENTS. The parties agree to take such further
actions, and to execute, acknowledge and deliver such further documents as Buyer
or Seller may reasonably request to effectuate the intent of this Agreement. The
provisions of this Article 6.11 will survive the Closing or termination of this
Agreement.
6.12 TIME OF THE ESSENCE. Time is of the essence of this Agreement and of
each term, provision and condition hereof. Any extension of time granted for the
performance of any duty under this Agreement will not be considered an extension
of time for the performance of any other duty under this Agreement.
6.13 SEVERABILITY; PARTIAL INVALIDITY. Each covenant, provision and
condition of this Agreement will be interpreted in such a manner as to be valid
and effective under applicable law. If any such covenant, provision or condition
will be held to be void or invalid, the same will not affect the remainder
hereof, which will be valid and effective as though the void or invalid
covenant, provision or condition had not been contained herein.
6.14 RELATIONSHIP BETWEEN PARTIES. The sole and only relationship created
by this Agreement is that of buyer and seller, and neither party is or will be
the partner, joint venturer or agent of the other for any purpose whatsoever.
6.15 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which may be executed by one or more of the signatory parties hereto. Signature
pages may be detached from the counterparts and attached to one or more copies
of this Agreement to form multiple legally effective documents.
6.16 NO RECORDATION OF AGREEMENT OR MEMORANDUM. Neither this Agreement nor
a memorandum thereof will be recorded, and Buyer's attempted recordation thereof
will constitute a default by Buyer hereunder.
6.17 OFFER. Upon execution by and delivery to Buyer, this Agreement will
constitute the offer of Seller to consummate the sale and purchase of the
Property upon the terms and conditions set forth herein. Buyer may accept this
offer only by executing and delivering to the Seller three (3) copies of this
Agreement and by concurrently depositing the Deposit with the Title Company as
provided in Article 1.3 herein. Should acceptance fail to timely occur in such
manner, this offer will automatically terminate without further notice. Seller
may revoke this offer, upon written notice to Buyer, at any time prior to
acceptance.
16
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the day and year first above written.
SELLER:
SAFELAND STORAGE, L.L.C.,
A LOUISIANA LIMITED LIABILITY COMPANY
BY: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
NAME: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
TITLE: MANAGING MEMBER
FUTURE ENERGY INVESTMENTS, LLC,
A LOUISIANA LIMITED LIABILITY COMPANY
BY: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
NAME: : ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
TITLE: MANAGING MEMBER
BUYER:
BLACKWATER MIDSTREAM CORP.,
A NEVADA CORPORATION
BY: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
TITLE: CHIEF EXECUTIVE OFFICER
17
EXHIBIT A
SAFELAND PROPERTY:
ITEM 1:
CERTAIN PARCELS OR TRACTS OF LAND, together with all the buildings and
improvements thereon, and all the rights, ways, privileges, servitudes,
appurtenances, prescriptions and advantages thereunto belonging or in anywise
appertaining, including but not limited to all batture, batture rights,
alluvion, alluvion rights, dereliction and/or accretion, situated in St. ▇▇▇▇
the Baptist Parish, Louisiana, on the left descending bank of the Mississippi
River, comprising the greater part of Lot 3 of Angelina Plantation as defined on
a plan of subdivision of said plantation by H. E. ▇▇▇▇▇▇, ▇.▇., dated February
28, 1934, and as shown on a survey by ▇▇▇▇ ▇. ▇▇▇▇▇▇, C.E., dated March 22,
1976, a copy of which is annexed to vendor's act of purchase, and more
particularly described as follows:
Beginning at the intersection of the centerline of the Airline Highway
with the line separating Lots 3 and 4 of Angelina Plantation; thence along
the line between Lots 3 and 4 South 26 degrees 35 minutes West a distance
of 9798.81 feet to the mean low water line of the Mississippi River;
thence up the Mississippi River along the mean low water line 1085 feet
more or less to the upper line of Lot 3; thence North 26 degrees 35
minutes East a distance of 6509.57 feet to the northerly right-of-way line
of Louisiana ▇▇▇▇▇▇▇ ▇▇. ▇▇; thence easterly along Louisiana Highway no.
44 along a curve to the left having a radius of 1859.86 feet a distance of
130.49 feet; thence continuing along ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇ a distance
of 120.00 feet; thence North 26 degrees 35 minutes East a distance of
891.98 feet; thence North 63 degrees 25 minutes West a distance of 231.4
feet to the upper line of Lot 3; thence North 26 degrees 35 minutes East
along the upper line of Lot 3 a distance of 7780.41 feet to the centerline
of the Airline Highway; thence North 89 degrees East along the centerline
of Airline Highway a distance of 1223.01 feet to the point of beginning.
The property is also partly designated as Parcels A, B, C, D, E and F on
survey by ▇▇▇▇ ▇. ▇▇▇▇▇▇, Civil Engineer, dated March 22, 1976, revised
April 1976, bearing survey No. T174-30A.
ITEM 2:
A CERTAIN PARCEL OR TRACT OF LAND, together with all the buildings and
improvements thereon, and all appurtenances, privileges, servitudes, rights,
ways, prescriptions and advantages thereunto belonging or in anywise
appertaining, situated in St. ▇▇▇▇ the Baptist Parish, Louisiana, on the left
descending bank of the Mississippi River and extending from the Mississippi
River to the Airline Highway, and being all of Lot 4 of Angelina Plantation,
said Lot 4 being as shown on survey subdividing said Angelina Plantation made by
▇. ▇. ▇▇▇▇▇▇, Civil Engineer and Surveyor, New Orleans, February 28, 1934, as
well as any interest vendors may have in and to the river road, levee and
batture of Angelina Plantation,
LESS AND EXCEPT THE FOLLOWING DESCRIBED PARCELS:
PARCEL A:
That portion of Lot 4 Angelina Plantation previously subdivided being know
and ▇▇▇▇▇▇▇▇▇ Subdivision and ▇▇▇▇▇ Subdivision, and including Angelina
Avenue, ▇▇▇▇▇ Street and Crossroad, all as shown on the plat of said
subdivision attached to the option to purchase. Said parcel further
described as being bounded on the west by Jefferson Highway or River Road,
on the north or upriver side by the unsubdivided portion of Lot 4 Angelina
Plantation, on the east by the right of way line of the Y & M V or
Illinois Central Railroad and on the south or down river side by the
southerly most or down river boundary of Lot 4 Angelina Plantation,
comprising 22.34 acres.
PARCEL B:
A strip of land on the plat attached to the option to purchase and also
hereto, being further described as commencing at the southeast corner of
said property, thence proceed north along the west side of the Airline
Highway a distance of 365.90 feet and corner, thence proceed in a westerly
direction in a line drawn parallel to the upper boundary of said property
as shown in survey of ▇. ▇. ▇▇▇▇▇▇ dated December 21, 1967, thence along
the east side of the southern boundary of said property, thence proceed in
generally easterly direction along the southern boundary of said property
to the point of beginning, comprising 2.526 acres.
ITEM 3:
A CERTAIN TRACT OF LAND, together with all the buildings and improvements
situated thereon, and all of the rights, ways, privileges, servitudes, and
advantages thereunto belonging or in anywise appertaining, situated in the State
of Louisiana, Parish of St. ▇▇▇▇ the Baptist, Southeastern Land District, in
▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 6 East, being that portion of Angelina
Plantation awarded to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, et. al., by Judgment rendered February
9, 1979, in Proceedings No. 5886 on the Docket of the 29th Judicial District
Court in and for the Parish of St. ▇▇▇▇ the Baptist, State of Louisiana; as
affirmed by the Fourth Circuit Court of Appeal, State of Louisiana, Docket
Number 10907, dated May 13, 1980; Writs Refused, Supreme Court of the State of
Louisiana, Docket No. 80-C 1872, dated October 24, 1980.
Said tract of land is commonly referred to as batture and being part of the
original ANGELINA PLANTATION and that part of LOT 4 of ANGELINA PLANTATION, as
subdivided, which is bounded North by the south right of way line of Jefferson
Highway or River Road; South by the low water ▇▇▇▇ of the Mississippi River;
West by a line common to Lot 3 and Lot 4 of the Angelina Plantation and the
extension of said line to the low water ▇▇▇▇ of the Mississippi River and East
by the East line of Lot 4 of Angelina Plantation and the extension of said line
to the low water ▇▇▇▇ of the Mississippi River.
FEI PROPERTY:
A certain tract or parcel of land containing 5.008 acres or 218,130 sq.
ft., being a portion of Lot 3 of Angelina Plantation, located in ▇▇▇▇▇▇▇
▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 6 East, near the community of Garyville, St.
▇▇▇▇ the Baptist Parish, Louisiana and being more particularly described
as follows:
Commencing at the intersection of the northerly right of way line of River
Road - Louisiana ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇ and the common line of Lots 2 and 3
or Angelina Plantation, said point being a found 1" iron pipe in concrete
and said point being the "POINT OF BEGINNING" and labeled "P.O.B.,"
Then, departing said right of way line and continuing along said common
plantation lot line as follows:
North 26 degrees 32 minutes 10 seconds East a distance of 129.17 feet to a
found axle, a distance of 513.96 feet to a found 1" iron pipe in concrete
and a distance of 345.22 feet to a found grate bar containing an overall
dimension of North 26 degrees 32 minutes 10 seconds East a distance of
988.35 feet from said "P.O.B.," Then, departing from said common
plantation lot line; South 63 degrees 32 minutes 21 seconds East a
distance of 231.69 feet to a found railroad rail; Then, departing said
railroad rail as follows: South 26 degrees 33 minutes 47 seconds West a
distance of 345.70 feet to a found 1" iron pipe in concrete, a distance of
513.83 feet to a found 2" iron pipe, and a distance of 33.65 feet to a
found 1" iron pipe in concrete located along the northerly right of way
line of River Road - Louisiana State Highway No. 44 containing an overall
dimension of South 26 degrees 33 minutes 47 seconds West a distance of
893.18 feet from said rail; Then, continuing along said right ▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇ degrees 56 minutes 20 seconds West a distance of 120.00 feet to a
set 3/4" iron rod; Then, continuing along a curve to the right having a
delta of 04 degrees 00 minutes 47 seconds, a radius of 1,859.86 feet, an
arc length of 130.27 feet, a chord bearing of North 84 degrees 55 minutes
56 seconds West and a chord distance of 130.24 feet to the "POINT OF
BEGINNING."
As shown on survey entitled "ALTA/ACSM LAND TITLE SURVEY OF A 5.008 ACRE
TRACT BEING A PORTION OF LOT 3 OF ANGELINA PLANTATION" prepared by Acadia
Land Surveying, L.L.C., dated May 25, 2007.
EXHIBIT B
COPY OF SERVITUDE AGREEMENT
EXHIBIT C
CASH SALE
Before the undersigned Notary Public and witnesses personally appeared:
SAFELAND STORAGE, L.L.C., a Louisiana limited liability company, having a
permanent mailing address of _________________________ ("SAFELAND");
FUTURE ENERGY INVESTMENTS, LLC, a Louisiana limited liability company,
having a permanent mailing address of _________________________ ("FEI";
FEI and Safeland are collectively referred to here in as "SELLER");
who declared that for the price of _____________________________ DOLLARS, cash,
and other valuable consideration, receipt and sufficiency of which is
acknowledged, Seller hereby sells, transfers, conveys, assigns, sets over,
abandons and delivers without any legal warranties whatsoever, except as to
title, but with full substitution and subrogation in and to all rights and
actions of warranty which Seller has or may have against all preceding owners
and vendors unto:
____________________, a __________ __________, having a permanent mailing
address of _________________________ ("BUYER");
all right, title and interest that Seller may have in and to the following
described property (the "PROPERTY"), the possession and delivery of which Buyer
acknowledges:
[LEGAL DESCRIPTION OF PROPERTY]
the Property being conveyed together with all servitudes, rights and
appurtenances, all buildings and improvements now located on the Property.
It is expressly agreed that the Property herein conveyed and all
improvements and component parts, plumbing, electrical systems, mechanical
equipment, heating and air conditioning systems, built-in appliances, and all
other items located hereon are conveyed by Seller and accepted by Buyer "AS IS,
WHERE IS," without any warranties of any kind whatsoever, except as to title,
even as to zoning, operation, or suitability of the property for the use
intended by Buyer, without regard to the presence of apparent or hidden defects
and with Buyer's full and complete waiver of any and all rights for the return
of all or any part of the purchase price by reason of any such defects.
Buyer acknowledges and declares that neither Seller nor any party,
whomsoever, acting or purporting to act in any capacity whatsoever on behalf of
Seller has made any direct, indirect, explicit or implicit statement,
representation or declaration, whether by written or oral statement or
otherwise, and upon which Buyer has relied, concerning the existence or
non-existence of any quality, characteristic or condition of the property herein
conveyed. Buyer has had full, complete and unlimited access to the property
herein conveyed for all tests and inspections which Buyer, in Buyer's sole
discretion, deems sufficiently diligent for the protection of Buyer's interests.
Buyer further acknowledges that although Seller may know or have reason to
know of the particular use Buyer intends for the Property, or Buyer's particular
purpose for buying the Property, Buyer is not relying on Seller's skill or
judgment in selecting the Property. Accordingly, Seller makes no warranty or
representation that the Property is fit for Buyer's intended use or his
particular purpose and Buyer waives any such warranty to which it might be
entitled under La. C.C. art. 2524 and Buyer further waives any warranty to which
it might be entitled under said article 2524 that the Property be reasonably fit
for its ordinary use.
All other implied warranties with respect to the Property, including those
related to Buyer's peaceable possession of the Property, the merchantability
thereof, hidden defects therein or the fitness thereof for a particular purpose,
zoning, or other regulatory matters, are hereby disclaimed by Seller and
expressly waived by Buyer. Buyer will have no right or cause of action against
Seller to assert in any controversy, claim, demand or litigation arising from or
in connection with the Property. Without limiting the generality of the
foregoing, Seller does not warrant that the Property is free from hidden,
redhibitory or latent defects or vices or that the Property is fit for the use
intended by the Buyer, and Buyer hereby expressly waives all rights in
redhibition pursuant to La. C.C. arts. 2520 et seq., the warranties of ownership
and peaceable possession of the Property, the warranties against hidden or
redhibitory defects in the Property, and the warranty that the Property is fit
for its intended use, each of which would otherwise be imposed upon Seller by
La. C.C. art. 2475.
Buyer hereby releases Seller for any liability under La. C.C. arts. 2520
to 2548 for hidden, redhibitory or latent defects or vices found on the
Property.
Buyer also waives any rights Buyer may have in redhibition to a return of
the purchase price or to a reduction of the purchase price paid pursuant to
Louisiana Civil Code Articles 2520 to 2548, inclusive, in connection with the
property hereby conveyed to Buyer by Seller. By Buyer's signature, Buyer
expressly acknowledges all such waivers and Buyer's exercise of Buyer's right to
waive warranty pursuant to Louisiana Civil Code Article 2520 and 2548,
inclusive.
Without limiting the generality of the foregoing, Buyer acknowledges that
Seller makes no representation or warranty as to: (i) the value, physical
condition of the Property (including soils, geological conditions, the presence
or absence of radioactive, petroleum-based, Hazardous Substances (as defined
below), and availability or quality of water); (ii) the sufficiency or
suitability of the Property for Buyer's purposes or any purpose; (iii) the
square footage, acreage or configuration of the Property; (iv) the sufficiency
or completeness of any plans for the Property; (v) zoning or land use controls
affecting the Property; (vi) the state of repair or structural integrity of any
improvements on the Property or their compliance (or the compliance of any
activities previously conducted thereon or therein) with any federal, state or
municipal laws, ordinances, regulations or requirements (including those
relating to the sale of subdivided lands), except as may be expressly described
elsewhere in this Agreement; (vii) the environmental status or condition of the
Property; or (viii) the extent to which the Property or Seller has complied or
failed to comply with any permits, approvals or requirements of applicable
Environmental Laws (defined below).
In particular, but without in any way limiting the foregoing, Buyer, on
behalf of itself and any entity affiliated with, owned or controlled by Buyer or
a controlling member of Buyer ("BUYER ENTITIES") hereby forever waives, releases
and covenants not to assert any claims against Seller, its successors, assigns,
employees, agents, representatives, past, present and future, their affiliates
and subsidiaries, past present and future, their respective parents,
subsidiaries, and affiliates past present and future, and each of their
officers, directors, and shareholders, past, present and future, ("SELLER'S
REPRESENTATIVES") from any and all responsibility, liability, claims, rights,
remedies, causes of action and damages arising from or relating to: (1) the
investigation, removal and remediation of past, present or future releases or
discharges or threatened releases and discharges of Hazardous Substances on, at,
under, about or emanating from the Property; (2) any other claims for or arising
out of the presence of Hazardous Substances on, at, under, about or emanating
from the Property or any property in the vicinity of the Property (including in
the soil, air, structures and surface and subsurface water), including natural
resource damage claims; (3) the performance or non-performance of remedial
actions with respect to any past, present or future releases or threatened
releases of Hazardous Substances on the Property; and (4) any past, present or
future violations by Seller or Seller's Representatives of any Environmental
Laws regarding the Property. As used herein, the term "ENVIRONMENTAL LAW" will
mean, as amended and in effect from time to time, any federal, state or local
statute, ordinance, rule, regulation, judicial decision, or the judgment or
decree of a governmental authority, arbitrator or other private adjudicator by
which Buyer or the Property is bound, pertaining to health, industrial hygiene,
public safety, occupational safety or the environment, including, without
limitation, the Surface Mining Control and Reclamation Act (30 U.S.C. ss.1201 -
et seq.), the Uranium Mill Tailings Reclamation Control Act (42 U.S.C. ss.7901 -
et seq.), the Mining Health and Safety Act (30 U.S.C. ss.801 - et seq.), the
Comprehensive Environmental Response, Compensation & Liability Act of 1980 (42
U.S.C. ss. 9601 - et seq.), the Resource, Conservation and Recovery Act of 1976
(42 U.S.C. ss. 6901 - et seq.), the Toxic Substances Control Act (15 U.S.C. ss.
2601 - et seq.), the Clean Water Act (33 U.S.C. ss. 1251 - et seq.), the Oil
Pollution Act of 1990 (33 U.S.C. ss. 2701 - et seq.), the Clean Air Act (42
U.S.C. ss. 7401 - et seq.), the Hazardous Substance Transportation Act; the
Emergency Planning and Community Right-To-Know Act (42 U.S.C. ss. 11001 - et
seq.), the Endangered Species Act of 1973 (16 U.S.C. ss. 1531 - et seq.), the
Federal Land Policy and Management Act of 1976 (43 U.S.C. ss. 1701 - et seq.),
the Lead-Based Paint Exposure Reduction Act (15 U.S.C. ss. 2681 - et seq.), the
Safe Water Drinking Act Amendments of 1996 (42 U.S.C. ss. 300), the Solid Waste
Disposal Act (42 U.S.C. ss. 6901 - et seq.), the National Historic Preservation
Act of 1966 (U.S.C. 470 - et seq.), the Louisiana Environmental Quality Act (La.
R.S. 30:2001 - et seq), Statewide Order 29-B of the Louisiana Department of
Natural Resources, Office of Conservation, federal, state and local counterparts
of each of the foregoing along with any federal, state or local laws,
regulations or ordinances relating to or promulgated under authority of any such
statutes or laws. As used herein, the term "HAZARDOUS SUBSTANCES" will mean (a)
any chemicals, materials, elements or compounds or substances defined as or
included in the definition of "hazardous substances," "hazardous wastes," "solid
wastes," "hazardous materials," "extremely hazardous wastes," "restricted
hazardous wastes," "toxic substances," "toxic pollutants," "hazardous air
pollutants," "pollutants," "contaminants," "toxic chemicals," "petroleum or
petroleum products," "toxics," "hazardous chemicals," "extremely hazardous
substances," "pesticides" or related materials, as now, in the past, or
hereafter defined in any applicable Environmental Law; (b) any petroleum or
petroleum products (including but not limited to gasoline and fuel additives
including MTBE and other oxygenates, typically added to gasoline or their
degradation products), natural or synthetic gas, radioactive materials,
asbestos-containing materials, urea formaldehyde foam insulation,
polychlorinated biphenyls, sewage, non-hazardous oilfield waste, or waste tires,
and radon; and (c) any other chemical, material or substance, exposure to which
is prohibited, limited or regulated under any Environmental Law.
For purposes of Buyer's release of Seller, hazardous substances means (a)
any chemicals, materials, elements or compounds or substances defined as or
included in the definition of "hazardous substances," "hazardous wastes,"
"hazardous materials," "extremely hazardous wastes," "restricted hazardous
wastes," "toxic substances," "toxic pollutants," "hazardous air pollutants,"
"pollutants," "contaminants," "toxic chemicals," "petroleum or petroleum
products," "toxics," "hazardous chemicals," "extremely hazardous substances,"
"pesticides" or related materials, as now, in the past, or hereafter defined in
any applicable Environmental Law; (b) any petroleum or petroleum products
(including but not limited to gasoline and fuel additives including MTBE and
other oxygenates, typically added to gasoline or their degradation products),
natural or synthetic gas, radioactive materials, asbestos-containing materials,
urea formaldehyde foam insulation, and radon; and (c) any other chemical,
material or substance, exposure to which is prohibited, limited or regulated by
any Governmental Authority.
According to the records of the Sheriff, ___________, Louisiana, ad
valorem taxes on the Property have been paid for the calendar years 200_, 200_
and 200_. Taxes for 200_ have been prorated between parties and will be paid by
the Buyer on or before December 31, 200_.
Buyer will be responsible for providing the tax assessor for the Parish
where the immovable property is located with the address where property tax and
assessment notices are to be mailed. As of the date of this sale such notices
will be sent to Buyer at the following address: ________________________________
_______________________________________________________________________________.
All parties signing the within instrument have declared themselves to be
of full legal capacity. This Act of Cash Sale may be executed in one or more
counterparts, each of which will be deemed an original, and when taken together
will constitute one and the same instrument.
All agreements and stipulations herein and all the obligations herein
assumed will inure to the benefit of and be binding upon the heirs, successors
and assigns of the respective parties, and Buyer, its heirs, successors and
assigns, will have and hold the Property in full ownership forever.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
Signed this _____ day of __________, 200_, in _______________,
_______________, before the undersigned Notary Public and witnesses.
WITNESSES: SELLER:
SAFELAND STORAGE, L.L.C., A LOUISIANA
LIMITED LIABILITY COMPANY
_________________________________ ________________________________________
PRINTED NAME:____________________ NAME:___________________________________
TITLE:__________________________________
FUTURE ENERGY INVESTMENTS, LLC, A
LOUISIANA LIMITED LIABILITY COMPANY
_________________________________ ________________________________________
PRINTED NAME:____________________ NAME:___________________________________
TITLE:__________________________________
___________________________________
NOTARY PUBLIC
PRINTED NAME: _________________________
ID NO.: __________________
WITNESSES: BUYER:
____________________, a __________
__________
_________________________________ ________________________________________
PRINTED NAME:____________________ NAME:___________________________________
TITLE:__________________________________
___________________________________
NOTARY PUBLIC
PRINTED NAME: _________________________
ID NO.: __________________
EXHIBIT D
---------
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "AGREEMENT"), is entered
into as of the ______ day of __________ 20__, by each of Safeland Storage,
L.L.C., a Louisiana limited liability company ("ASSIGNOR"), and
____________________, a __________ __________ ("ASSIGNEE").
W I T N E S S E T H:
WHEREAS, Assignor and Assignee and others have entered into that certain
Purchase and Sale Agreement dated as of June 18, 2008 ("PURCHASE AGREEMENT"),
pursuant to which Assignor has sold, and Assignee has purchased, certain assets
specified therein (the "PROPERTY"); and
WHEREAS, Assignor desires to convey, transfer and assign to Assignee the
Permits (as defined in Section 1) and Assignee desires to accept such Permits.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. CONVEYANCE, TRANSFER AND ASSIGNMENT OF THE ACQUIRED ASSETS. Assignor
hereby grants, conveys, assigns, transfers, bargains and delivers unto Assignee
all right, title and interest in and to:
(a) the following permits pertaining to the Property (the
"PERMITS"):
(i) Air Permit Number ▇▇▇▇-▇▇▇▇▇-▇▇, Activity Number PER 20060001,
AI Number 144688; and
(ii) LPDES Water Discharge Permit Number LA0122572, Activity Number
PER20060002, AI Number 144688; and
(b) to the extent transferable, environmental reports, soil studies
and analyses, geological engineering reports, surveys, agreements, licenses,
permits, entitlements or documents in Assignor's possession and relating solely
to the Property (the "DOCUMENTS"); PROVIDED, HOWEVER, that Assignor makes no
representation or warranty with respect to the title to or validity of the
Documents or the completeness or accuracy of any information contained or
referred to in the Documents.
TO HAVE AND TO HOLD the Permits and Documents unto Assignee and its
successors and assigns forever, together with all and singular the rights
belonging or pertaining to the Permits.
Assignor does hereby represent and warrant that the Permits are fully
transferable by Assignor to Assignee and are fit for the purpose of constructing
and operating a tank facility for storage of crude oil, refined petroleum
products and alternative fuels on the Property (a "TERMINALLING FACILITY").
Notwithstanding the foregoing, Assignee acknowledges that Assignor does not
represent or warrant that the Permits constitute all permits, authorizations or
approvals that may be required to design, construct or operate a Terminalling
Facility on the Property and that additional federal, state or local permits,
authorizations and approvals may be required by authorities.
2. ASSUMPTION BY ASSIGNEE. Assignee hereby accepts the assignments,
transfers, deliveries and conveyances made in Section 1 hereof and agrees to
pay, perform and discharge as and when due the liabilities and obligations of
Assignor arising under the Permits, or otherwise directly related to the
Property, to the extent that such liabilities and obligations are required to be
paid, performed or discharged on or after the date hereof or are attributable to
events or periods of performance occurring on or after the date hereof (prorated
as of the date hereof).
3. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of Louisiana without
giving effect to conflicts of laws principles.
4. BINDING EFFECT. This Agreement shall be binding upon and shall inure to
the benefit of Assignor and Assignee and their respective successors and
assigns.
5. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same instrument.
6. SEVERABILITY. If any provision of this Agreement shall be held invalid
under any applicable laws, such invalidity shall not affect any other provision
of this Agreement that can be given effect without the invalid provision, and to
this end, the provisions hereof are severable.
7. FURTHER ASSURANCES. Assignor covenants and agrees to execute and
deliver to Assignee all such other and additional assignments, instruments and
other documents and to do all such other acts and things as may be necessary
more fully to vest in Assignee record title to all of the Permits and the
respective rights and interests herein granted or intended to be granted, and to
put Assignee in actual possession of the Permits.
[Signature page follows.]
IN WITNESS WHEREOF, Assignor has executed this Agreement as of the day and
year first above written.
----------------------------------------
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
SAFELAND STORAGE, L.L.C.
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
EXHIBIT E
---------
FORM OF SELLER AFFIDAVIT
FIDELITY NATIONAL TITLE INSURANCE COMPANY
POSSESSION, INCHOATE LIEN AND GAP MATTER AFFIDAVIT
STATE OF _______________
PARISH OR COUNTY OF ________________
I/We, ________________________________________ ("Affiant", whether one or
more), being first duly sworn, on oath did depose and state that Affiant owns
the following described property (the "Land"):
SEE EXHIBIT "A" ATTACHED HERETO,
and has owned the Land continuously for OVER 70 DAYS, and Affiant's enjoyment
thereof has been peaceable and undisturbed and the title to the Land has never
been disputed to Affiant's knowledge, nor does Affiant know of any facts by
reason of which the title to, or possession of, the Land might be disputed or by
reason of which any claim to any of the Land might be asserted adversely to
Affiant, and more particularly:
1. No party other than Affiant is in possession of all or a portion of the
Land under any unrecorded leases, tenancy at will or otherwise or past the
expiration of any term, including any renewal and extension terms, under
any recorded leases, except:
2. Affiant, at present, and for a period of 70 days past, has caused no
construction, erection, alteration or repairs of any structures or
improvements on the Land to be done having a cost or value of over
$500.00, nor has contracted for any material to be delivered to the Land
for which charges therefore remain unpaid, except:
3. If any Affiant is a limited liability company, the sale, exchange, lease,
mortgage, pledge or other transfer of the Land DOES constitute a sale,
exchange, lease, mortgage, pledge or other transfer of all or
substantially all of the assets of the limited liability company within
the meaning of La. R.S. 12:1318B requiring the approval of the members of
the limited liability company, AND ALL OF THE MEMBERS OF AFFIANT HAVE
GIVEN THEIR APPROVAL TO THE SALE OF THE LAND.
This affidavit is given to induce FIDELITY NATIONAL TITLE INSURANCE
COMPANY (the "Company") to issue its title insurance policy or policies pursuant
to the Company's title insurance commitment, including endorsements and
amendments thereto, bearing Issuing Office File No. ETF#__________ without
exception to claims of materialmen's and laborers' liens, survey matters,
special assessments and rights of parties in possession, as applicable.
This affidavit is further given to induce FIDELITY NATIONAL TITLE
INSURANCE COMPANY to issue its title insurance policy or policies without
exception to defects, liens, encumbrances, adverse claims or other matters known
to, created or suffered by Affiant, first appearing in the public records or
attaching subsequent to the effective date, namely, ___________________, 2008,
of the Company's above-referenced title insurance commitment, but prior to the
time the proposed insured acquires for value of record the estate or interest or
mortgage thereon covered by said policy ("Gap Matters").
AFFIANT:
____________________________________
BY: ________________________________
NAME:_______________________________
TITLE:______________________________
SWORN TO AND SUBSCRIBED BEFORE ME
THIS _____ DAY OF ___________, 2008.
___________________________________
NOTARY PUBLIC
PRINT NAME: _______________________
NOTARY ID NO.: ____________________
MY COMMISSION EXPIRES: ____________
[SEAL]
EXHIBIT F
---------
A3M PREFERRED PROVIDER AGREEMENT
PREFERRED PROVIDER AGREEMENT
THIS PREFERRED PROVIDER AGREEMENT (this "AGREEMENT") is entered into as of
the __ day of May, 2008, by and between ____________________, a __________
__________ (the "COMPANY"), and A3M Vacuum Services, Inc., a Louisiana
corporation ("A3M").
RECITALS
WHEREAS, the Company has acquired that certain immovable property
described on EXHIBIT A attached hereto (the "PROPERTY"); and
WHEREAS, the Company desires to designate A3M as its preferred provider of
certain services and equipment for use on the Property, and A3M desires to
provide such services and equipment, on the terms and subject to the conditions
of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, the parties hereto agree as follows:
1. DESIGNATION; PROVISION OF INDUSTRIAL WASTE SERVICES. During the term of
this Agreement, the Company designates A3M as its preferred provider of any and
all Industrial Waste Services that A3M is capable of providing for the Company.
A3M accepts such designation and agrees to provide Industrial Waste Services to
the Company in accordance with the standard terms, conditions and procedures
that A3M provides such services to its industrial customers. For purposes of
this Agreement, "INDUSTRIAL WASTE SERVICES" means the following services:
(a) dirt hauling and spreading - Fill work for environmental
remediation work only;
(b) vacuum truck services - Liquids, sludge, etc.;
(c) vessel cleaning;
(d) tank cleaning;
(e) waste water treatment and disposal;
(f) twenty-four hour emergency spill response, assessment, cleanup,
transportation and disposal;
(g) waste transportation/disposal;
(h) volume reduction/dewatering; and
(i) portable toilets.
2. TERM. The term of this Agreement shall commence as of the date hereof
and shall continue thereafter for a period of ten (10) years, unless sooner
terminated (a) by a party upon the occurrence of an Event of Default (as defined
in Section 10 hereof) by or with respect to the other party or (b) upon the
mutual written consent of the Company and A3M. Termination of this Agreement
shall not relieve a party of a liability or obligation accrued or incurred
before termination and is without prejudice to all continuing obligations in
this Agreement (including obligations relating to expense reimbursement for
expenses incurred prior to or in connection with such termination).
3. PROCEDURES. When Industrial Waste Services are required from time to
time to be performed on behalf of the Company, the Company shall use its
reasonable best efforts to promptly provide A3M with a request for proposal or
similar statement of need for each job or project requiring such Industrial
Waste Services. A3M shall promptly respond to such request or statement,
indicating if it is willing and able to perform such services and if so, the
pricing and other terms upon which it is willing to provide such services to the
extent not governed by the Master Service Agreement. To the extent that A3M is
willing and able to perform the Industrial Waste Services associated with such
job or project, the Company shall award or cause to be awarded the work for such
Industrial Waste Services to A3M unless the Company reasonably determines that
A3M is unable or unwilling to perform such work on a timely basis and at a
quality and cost that is competitive with third parties for similar services;
PROVIDED, that in making such determination as to cost, the Company may not make
an adverse determination with respect to A3M where A3M has provided reasonable
evidence that the pricing afforded the Company by A3M is at least as favorable
as the pricing afforded any other of its customers of similar status. Upon
making any adverse determination with respect to the provision of Industrial
Waste Services by A3M, the Company shall promptly notify A3M thereof and provide
A3M with a reasonably detailed written explanation of the basis for such
determination.
4. RELATIONSHIP OF THE PARTIES. Neither A3M, on the one hand, nor the
Company, on the other hand, is for any purposes of this Agreement an agent,
partner or employee of the other. This Agreement does not constitute a joint
venture between the parties, or any of their respective successors or assigns.
It is agreed that in providing Industrial Waste Services pursuant to this
Agreement and the Master Service Agreement, A3M, and its employees, agents and
consultants, will at all times be independent contractors to the Company.
5. WAIVER. The failure of any party to enforce its rights under this
Agreement will not be deemed to be a waiver of such rights absent an express,
written waiver signed by the waiving party. Waiver of any one breach will not be
deemed to be a waiver of any other breach of the same or any other provision of
this Agreement.
6. NOTICES. All notices and other communications under this Agreement
shall be in writing and shall be deemed given (a) when delivered personally by
hand (with written confirmation of receipt), (b) when sent by facsimile (with
written confirmation of transmission) or (c) one (1) Business Day after the day
sent by overnight courier (with written confirmation of receipt), in each case
at the following addresses and facsimile numbers (or to such other address or
facsimile number as a party may have specified by notice given to the other
party pursuant to this provision):
If to A3M: A3M Vacuum Services, Inc.
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇ ▇▇▇▇▇▇▇
If to the Company:
-----------------------------------
Telecopy: (___) ___-____
Attn.:
---------------------------
7. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter herein and
supersedes and cancels any prior agreements, representations, warranties, or
communications, whether oral or written, between the parties hereto relating to
the subject matter herein.
8. MODIFICATION. Neither this Agreement nor any provision hereof may be
modified, amended, changed, waived, discharged or terminated orally, but only by
an agreement in writing signed by the party against whom or which the
enforcement of such modification, amendment, change, waiver, discharge or
termination is sought.
9. ASSIGNMENT; BINDING EFFECT. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement may be assigned or
delegated, in whole or in part, by operation of Law or otherwise by any party
hereto without the prior written consent of the other parties hereto, and any
such assignment without such prior written consent shall be null and void.
Subject to the preceding sentence, this Agreement shall be binding upon, inure
to the benefit of, and be enforceable by, the parties hereto and their
respective successors and permitted assigns.
10. EVENTS OF DEFAULT. The events described in Sections 10(a) and 10(b)
shall constitute "EVENTS OF DEFAULT" under this Agreement:
(a) A breach by either the Company or A3M of any of its material
covenants or agreements set forth in this Agreement, which breach is not cured
within twenty (20) days following receipt of a written notice thereof from the
other party given in accordance with this Section 10(a). Any notice given
pursuant to this Section 10(a) shall specify the provision or provisions of this
Agreement that the non-breaching party believes the breaching party or parties
may have breached and include a reasonably detailed description of the related
facts and circumstances.
(b) The filing by either the Company or A3M of a petition commencing
a voluntary case under the Bankruptcy Code; and admission in writing by either
A3M or the Company of its inability to pay its debts as they become due; the
filing by either A3M or the Company of any petition or answer in any proceeding
seeking for itself or consenting to, or acquiescing in, any insolvency,
receivership, liquidation, dissolution, or similar relief under any present or
future statute, law or regulation, or the filing by either A3M or the Company of
an answer or other pleading admitting, or failing to deny or contest, the
material allegations of the petition filed against it in any such proceeding;
the seeking or consenting to, or acquiescence by either A3M or the Company in,
the appointment of any trustee, receiver, or liquidator of it, or any part of
its property; or the commencement against either A3M or the Company of an
involuntary case under the Bankruptcy Code or a proceeding under any insolvency,
receivership, liquidation, dissolution or like law statute.
(c) Subject to Section 10(a), upon the occurrence of any Event of
Default, this Agreement shall, at the option of the non-defaulting party, be
immediately terminated upon written notice to the defaulting party thereof, and
the defaulting party shall thereafter be liable and responsible to the
non-defaulting party for all damages sustained or incurred by the non-defaulting
party by reason of such default and for all other relief and remedies available
to the non-defaulting party by reason of such default. Upon termination of this
Agreement, all property of A3M that is in the possession of the Company shall
promptly be returned to A3M.
11. NO SPECIAL OR CONSEQUENTIAL DAMAGES. No party shall be liable, and
each party hereby agrees to waive and shall not seek the recovery of, any
special or consequential damages for the breach or threatened breach of any
provision of this Agreement.
12. GOVERNING LAW. The provisions of this Agreement, its execution,
performance or nonperformance, interpretation, construction and all matters
based upon, arising out of or related to this Agreement shall be governed by the
laws of the State of Louisiana without regard to its conflict of laws provisions
that if applied might require the application of the laws of another
jurisdiction.
13. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which will be deemed to be an original copy of this Agreement and all of which,
when taken together, will be deemed to constitute one and the same agreement.
Once signed, any reproduction of this Agreement made by reliable means (e.g.,
photocopy, facsimile) is considered an original.
14. SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal, or incapable of being enforced by any Law or public policy,
all other terms or provisions of this Agreement shall nevertheless remain in
full force and effect so long as the legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal, or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner in order that the
transactions contemplated hereby are consummated as originally contemplated to
the greatest extent possible.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized representatives, effective as of the date first written
above.
A3M VACUUM SERVICES, INC.
By:
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Name:
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Title:
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By:
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Name:
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Title:
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