exv10w1



 




Exhibit
10.1




ASSET PURCHASE AND SALE AGREEMENT




     This ASSET PURCHASE AND SALE AGREEMENT (hereinafter referred to as “this Agreement”) made and
entered into this 22nd day of December, 2005, by and between PIONEER AMERICAS LLC, a Delaware
limited liability company (hereinafter the “Seller”) and MARIANA PROPERTIES, INC., a Delaware
corporation (hereinafter called “Purchaser”).



WITNESSETH:




     WHEREAS, Seller is the owner of a former chlor-alkali manufacturing facility located in
Tacoma, WA, consisting of approximately 33 acres of land, improvements, fixtures and personal
property (collectively, the “Facility”); and



     WHEREAS, Seller has agreed to sell and convey to Purchaser and Purchaser has agreed to
purchase the Assets, as defined below, for the consideration and upon the terms and conditions
hereinafter set forth.



     NOW, THEREFORE, in consideration of the foregoing and the mutual covenants hereinafter set
forth and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by Seller and Purchaser, Seller hereby agrees to sell and convey such property
to Purchaser upon the terms and conditions hereinafter set forth.



ARTICLE I

DEFINITIONS



“Agreement” has the meaning specified in the Preamble.



“Assets” has the meaning specified in Section 2.01.



“Affiliate” means, with respect to any specified Person, any other Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or is under common
control with, such specified Person.



“Agreed Order” shall mean that Administrative Order on Consent for Removal Activities Embankment
and Area 5106, EPA Docket No. 10-97-0011 — CERCLA, as amended through and after the Closing Date.



“Assumed Liabilities” has the meaning specified in Section 8.01(a).



“Claim” means any claim, demand, investigation, action, suit, assessment, litigation or other
proceeding, including arbitral proceedings and proceedings by a Third Party or by or before any
Governmental Authority.



“Closing” has the meaning specified in Section 2.03(a).



“Closing Date” means the date on which the Closing occurs.




 









 







“Consent Decree” shall mean that RD-RA Consent Decree, Mouth of Hylebos Waterway Problem Area,
Commencement Bay Nearshore Tideflats Superfund Site dated January 14, 2005, as amended through and
after the Closing Date.



“Contracts” has the meaning specified in Section 3.08.



“Damages” means all losses, damages, penalties, fines, costs, amounts paid in settlement, expenses
and fees, including reasonable attorneys’ fees and expenses.



“EOA Termination Agreement” shall have the meaning specified in Section 6.01(d).



“Employee Plans and Agreements” means all pension, thrift, savings, profit sharing, retirement,
incentive bonus or other bonus, medical, dental, life, accident insurance, benefit, employee
welfare, disability, group insurance, stock purchase, stock option, stock appreciation, stock
bonus, executive or deferred compensation, loan, hospitalization, cafeteria plan and other similar
fringe or employee benefit or compensation plans, programs and arrangements, and any employment or
consulting contracts, “golden parachutes,” severance agreements or plans, vacation and sick leave
plans, programs, arrangements and policies, in each case relating to the Seller’s employees or
former employees, and including all related “employee benefit plans” (as defined in Section 3(3) of
ERISA), all employee manuals, and all binding written, or, to the knowledge of Seller, oral
statements of policies, practices or understanding relating to employment.



“Environmental Law” means the Comprehensive Environmental Response, Compensation and Liability Act
(42 U.S.C. § 9601, et seq.), the Hazardous Materials Transportation Act (49 U.S.C.
§ 1801, et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 7401,
et seq.), the Federal Water Pollution Control Act (33 U.S.C. § 1251, et
seq.), the Clean Air Act (42 U.S.C. § 7401, et seq.), the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. §§ 136, et seq.), the
Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C. §§ 11001, et
seq.), the Safe Drinking Water Act (42 U.S.C. §§ 300f, et seq.), the Toxic
Substances Control Act (15 U.S.C. § 2601, et seq.), the Oil Pollution Act of 1990
(P.L. 101-380, 104 Stat. 486), the Occupational Safety and Health Act (29 U.S.C. § 651, et
seq.) (with respect to exposure to Hazardous Materials only), the Washington Model Toxics
Control Act, Chapter 70.105D RCW (“MTCA”), the Washington Hazardous Waste Management Act, Chapter
70.015D RCW, the Washington Water Pollution Control Act, Chapter 90.48 RCW, the Washington Clean
Air Act, Chapter 70.94 RCW, the Shoreline Management Act of 1971, Chapter 90.58 RCW, and the
Washington State Environmental Policy Act, Chapter 43.21C, et. seq., RCW, as such laws may be
amended or otherwise modified from time to time, and any other present or future applicable Law
pertaining to, relating to or in any way arising out of or concerning: (a) the environment,
including pollution, contamination, clean-up, preservation, protection, or reclamation of the
environment; (b) exposure of employees and other persons to any Hazardous Material; (c) any
Release or threatened Release of any Hazardous Material, including investigation, monitoring,
clean-up, removal, treatment, or any other action to address such Release or threatened Release; or
(d) the management of any Hazardous Material, including the manufacture, production, generation,
presence, formulation, processing, labelling, distribution, introduction into commerce,
registration, use, treatment, handling, storage, disposal, discharge, transportation, re-use,
recycling or reclamation of any Hazardous Material or the containment, removal or remediation
thereof.



“Excluded Personal Property” has the meaning specified in Section 2.01.




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“Facility” has the meaning specified in the Recitals.



“Governmental Approvals” means any authorization, consent, approval, license, franchise, lease,
ruling, permit, certificate or exemption of, or filing or registration with, any Governmental
Authority.



“Governmental Authority” means any United States federal, state or local governmental, regulatory
or administrative authority agency or commission of any court, tribunal or judicial body.



“Hazardous Material” means any “hazardous substance” or “hazardous waste” as defined, identified or
listed as of the Closing in any Environmental Laws in effect as of the Closing, and includes,
solely for purposes of this Agreement, any radioactive substance, pesticide, petroleum product,
crude oil or any fraction thereof, and asbestos in friable form (other than asbestos in the
chlor-alkali cells).



“Indemnification Claim” means any Claim made by an Indemnified Party seeking indemnification for a
Loss pursuant to Article VIII.



“Indemnified Group” has the meaning specified in Section 8.04(a).



“Indemnified Party” means any person entitled to indemnification under this Agreement, and shall
refer to a Purchaser Indemnified Person or a Seller Indemnified Person as the context requires.



“Indemnifying Party” means any party obligated under this Agreement to indemnify an Indemnified
Party, and shall refer to the Purchaser or Seller as the context requires.



“Joint Defense Agreement” shall have the meaning specified in Section 6.01(d).



“Law” means any federal, state, or local or foreign statute, law, ordinance, regulation, rule, code
or other requirement or rule of law, including all Environmental Laws.



“Lien” means any mortgage, lien, charge, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, security interest, assessment, lease, adverse claim, levy, preference or priority or
other security agreement of any kind or nature whatsoever (whether voluntary of involuntary,
affirmative or negative, and whether imposed or created by operation of Law or otherwise) in, on or
with respect to, or pledge of, any Assets whether now owned or hereafter acquired, or any other
interest in Assets designed to secure the repayment of debt or any other obligation, whether
arising by contract, operation of law or otherwise.



“Losses” means any and all damages, fines, penalties, judgments, deficiencies, losses, costs and
expenses, including court costs, reasonable fees of attorneys, accountants and other experts and
other reasonable expenses of any Claim.



“Material Adverse Effect” means, with respect to any Person, asset or operation, any set of
circumstances or events which in the aggregate would constitute, or cause, a material adverse
effect on such asset or operation and, in the case of any Person, its condition, financial or
otherwise, or on the ability of such Person to perform its obligations under this Agreement or to
consummate the transaction contemplated hereby.



“Ordinary Course of Business” of any Person, means any action taken by such Person that is
consistent with the past practices of such Person or, in the case of Seller and its Affiliates,
their past practices taken in the ordinary course of maintaining the Assets.



“Party” means Purchaser or Seller, as applicable; and “Parties” means Purchaser and Seller.




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“Permit Assignments” has the meaning specified in Section 5.05.



“Permits” has the meaning specified in Section 2.01(iii).



“Permitted Encumbrances” means (i) Liens for current real and personal property taxes not yet due
and payable, (ii) statutory Liens of warehousemen, mechanics and materialman and other like
statutory Liens, which arose in the Ordinary Course of Business and are for obligations not yet due
and payable, and (iii) those Encumbrances, imperfections of title, easements (including easements
for power lines, telephone lines, and railways), rights-of way, servitudes, conditions, covenants
and restrictions, if any, which (A) are not substantial in character, amount or extent and do not
materially detract from the value of the Assets, (B) do not materially interfere with the ownership
of the Assets and (C) have arisen only in the Ordinary Course of Business.



“Person” means an individual, corporation, partnership, limited liability company, joint venture,
person trust, group, association, Government Authority or any other legal entity.



“Personal Property” has the meaning specified in 2.01.



“Pioneer Period” shall mean the period from June 17, 1997, until the Closing Date.



“Purchase Price” has the meaning specified in 2.02(a).



“Purchaser” has the meaning specified in the preface.



“Purchaser Indemnified Persons” has the meaning specified in Section 8.03.



“Real Property” has the meaning specified in Section 2.01.



“Records” has the meaning specified in Section 2.01.



“Related Agreements” means the EOA Termination Agreement, the Joint Defense Agreement, the special
warranty deed to be delivered pursuant to Section 2.03(b)(i), the bill of sale to be delivered
pursuant to Section 2.03(b)(ii) and the guaranty to be delivered pursuant to Section 2.03(c)(iii).



“Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, leaching,
dumping or disposing of Hazardous Materials or other substances or materials into the atmosphere
(excluding indoor air), onto or into the soil or sediment, or into groundwater or surface water,
excluding mitigation.



“Remediation” has the meaning specified in Section 8.01(a)(i).



“Replacement Cost” of any Asset means the cost that would be incurred to repair or replace, as
applicable, such Asset to substantially the same condition as immediately prior to any damage,
destruction or condemnation of such Asset which amount shall be determined by the agreement of
Seller and Purchaser or by appraisal .



“Representative” means any director, officer, employee, agent, accountant, legal counsel,
contractor or other representative of a Person acting on such Person’s behalf (whether or not the
actions exceed the scope of representation); provided, however, that one Party or
its Affiliates shall not be considered or deemed to be a Representative of the other Party or its
Affiliates.



“Retained Liabilities” has the meaning specified in Section 8.01(b).




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“Seller” has the meaning specified in the preface.



“Seller Indemnified Persons” has the meaning specified in Section 8.02.



“Third Party” means any Person that is not (a) a Party; (b) a successor to or permitted assign of a
Party; (c) an Affiliate of any of (a) or (b); (d) a Representative of any of (a), (b) or (c); or
(e) a Governmental Authority.




ARTICLE II

PURCHASE AND SALE OF ASSETS



Section 2.01 Assets. Subject to and upon the terms and conditions set forth in this
Agreement, Seller will sell, transfer, convey and deliver to Purchaser, and Purchaser will
purchase, at the Closing, the following assets:





	 	(i)	 	the real property described in Schedule 2.01(i) together with all
appurtenant rights (the “Real Property”);
	 
	 	(ii)	 	all of the equipment, fixtures and other personal property
currently located on the Real Property, other than those items of personal
property listed on Schedule 2.01(ii)-I (the “Excluded Personal Property”),
including, but not limited to, those items of personal property listed on
Schedule 2.01(ii)-II (the “Personal Property”). The Personal Property shall
include any technology agreements, licenses, maintenance agreements, warranties
and similar agreements associated with the Personal Property and to the extent
they are transferable. Seller shall remove the Excluded Personal Property from
the Real Property pursuant to Section 5.10 below;
	 
	 	(iii)	 	the governmental permits, authorizations and licenses relating
to the Assets listed on Schedule 2.01(iii) (the “Permits”) subject, however, to
the obligations of the Parties under Section 5.05 and Purchaser’s right not to
accept designated Permits pursuant to Section 5.05; and
	 
	 	(iv)	 	a complete set of the records, reports, data, analysis results,
maps, operating manuals and other documents relating to the physical condition
of the Assets or the environmental investigation or remediation thereof,
including, but not limited to, prints, drawings and CAD drawings relating to the
Facility or any of the Assets, including those that relate to utilities,
structures, plant lay-out, pipelines and marine structures (the “Records”);




(the Real Property, Personal Property, Permits and Records are hereinafter referred to as the
“Assets”).



Section 2.02 Consideration for the Assets. In consideration for the sale, transfer,
conveyance, assignment, and delivery of the Assets by Seller to Purchaser, and in reliance upon the
representations and warranties made herein by Seller to Purchaser, Purchaser shall at Closing, pay
to Seller by wire transfer, in immediately available funds, the sum of Seven Hundred Fifty Thousand
Dollars ($750,000.00) (the “Purchase Price”). The Purchase Price has been determined by the Parties
on the basis of an arms’-length negotiation, taking into consideration the inactive nature of the
Facility and the potential Remediation and demolition activities associated with ownership of the
Assets.




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Section 2.03 Closing.




     (a) Time and Place. Upon the terms and subject to the conditions of this Agreement,
the closing of the purchase and sale of the Assets contemplated hereby (the “Closing”) shall take
place at such time and date and at such place as the Seller and the Purchaser may mutually agree
upon in writing; provided, however, that the Closing shall take place no later than December 31,
2005.



     (b) Actions to be Taken by Seller. At the Closing, Seller shall:




	 	(i)	 	Deed. Deliver a special warranty deed, executed by the
Seller, necessary to effect conveyance of the Real Property, substantially in
the form of Exhibit 2.03(b)(i);
	 
	 	(ii)	 	Bill of Sale. Deliver a bill of sale sufficient to
convey the Personal Property, duly executed by the Seller, as required,
substantially in the form of Exhibit 2.03(b)(ii);
	 
	 	(iii)	 	Permit Assignments. Deliver the Permit Assignments as
required by Section 5.05;
	 
	 	(iv)	 	Records. Deliver all of the Records to Purchaser.
	 
	 	(v)	 	General Conveyances. Deliver all other documents
required under the provisions of this Agreement, including such other good and
sufficient instruments of conveyance, assignment and transfer, in form and
substance satisfactory to Purchasers’ counsel, to vest in Purchaser title to the
Assets;
	 
	 	(vi)	 	Termination Agreement. Deliver an executed counter-part
of the EOA Termination Agreement;
	 
	 	(vii)	 	Closing Certificate. Deliver the certificate of the
Seller substantially in the form of Exhibit 2.03(b)(vii);
	 
	 	(viii)	 	Consents and Approvals. Deliver to Purchaser all authorizations,
consents, orders and approvals of all Governmental Authorities and third parties
necessary for the consummation by Sellers of the transactions contemplated by
this Agreement, if any, with the exception of any authorizations, consents,
orders and approvals related to the transfer of Permits, to the extent any such
authorization, consent, order or approval is to be effected in response to the
Permit Assignments; and
	 
	 	(ix)	 	Joint Defense Agreement. Deliver an executed
counter-part of the Joint Defense Agreement.




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     (c) Actions to be Taken by Purchasers. At Closing, Purchaser shall:




	 	(i)	 	Pay the Purchase Price. Pay the Purchase Price to the
Seller as set forth in Section 2.02;
	 
	 	(ii)	 	Closing Certificate. Deliver the certificate of
Purchaser substantially in the form of Exhibit 2.03(c)(ii);
	 
	 	(iii)	 	Guaranty of Occidental Chemical Corporation. Deliver
the Guaranty of Occidental Chemical Corporation, duly signed substantially in
the form of Exhibit 2.03(c)(iii);
	 
	 	(iv)	 	Termination Agreement. Deliver an executed counterpart
of the EOA Termination Agreement; and
	 
	 	(v)	 	Joint Defense Agreement. Deliver an executed
counter-part of the Joint Defense Agreement.





     (d) Further Assurances. At any time and from time to time after the Closing, at
Purchaser’s reasonable request and without further consideration, Seller covenants to and shall
execute and deliver such other reasonable instruments of sale, transfer, conveyance, assignment,
consent, release and confirmation and take such reasonable action as Purchaser may reasonably deem
necessary or desirable in order to more effectively transfer, convey and assign to Purchaser, and
to confirm Purchaser’s ownership and title to, all of the Assets, to put Purchaser in actual
possession and operating control of the Assets and to assist Purchaser in exercising all rights and
privileges with respect thereto.



ARTICLE III

REPRESENTATIONS AND WARRANTIES

OF SELLER




     Subject to all of the terms, conditions and provisions of this Agreement, Seller hereby
represents and warrants to Purchaser, as of the date hereof and as of the Closing Date, as follows:



     Section 3.01 Organization and Qualification. Seller is a limited liability company
duly formed, validly existing and in good standing under the laws of the State of Delaware. Seller
has all requisite power and authority to own the Assets, as applicable. Seller is duly qualified
or licensed to do business and in good standing or authorized to do business in the State of
Washington.



     Section 3.02 Authority. Seller has all requisite power and authority to execute and
deliver this Agreement and to consummate the transaction contemplated hereby. The execution and
delivery by Seller of this Agreement and the consummation of the transaction contemplated hereby,
have been duly and validly authorized by all necessary company (including any member action) on the
part of Seller, and



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no other company proceedings on the part of Seller are necessary to authorize the execution and
delivery by Seller of this Agreement or to consummate the transaction contemplated hereby.
Assuming the due authorization, execution and delivery of this Agreement by the parties hereto,
this Agreement constitutes, and when executed and delivered by Seller, will constitute, a valid and
binding obligation of Seller, enforceable against Seller in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar Laws affecting creditors’ rights generally and general equitable principles (whether
applied in a court of law or equity).




     Section 3.03 No Conflict. The execution and delivery by Seller of this Agreement and
the consummation of the transaction contemplated hereby, do not and will not: (i) assuming the
receipt of any required Governmental Approvals and the completion of the notifications, filings and
registrations set forth on Schedule 3.04, violate any provision of any Law, or of any
Governmental Approval or any writ, injunction, order, judgment or decree of any Governmental
Authority, in each case presently in effect and applicable to Seller or any Affiliate of Seller or
to the Assets, including, but not limited to, any order or decree arising out of that Bankruptcy
Proceeding styled In re: Pioneer Companies, Inc., et al., U.S. Bankruptcy Court, Southern District
of Texas (Case No. 01-38259-H3-11, July 31, 2001), (ii) result in a breach of or constitute (with
or without the giving of notice or the passage of time or both) a default under (x) the Articles of
Organization of Seller, or (y) any resolution adopted by the members of Seller, (iii) result in a
breach of or constitute (with or without the giving of notice or the passage of time or both) a
default under any Contract to which Seller is a party or by which Seller or any of the Assets is
bound or affected, or (iv) result in, or require, the imposition or creation of any Lien upon the
Assets.



     Section 3.04 Consents and Approvals. Except as set forth in Schedule 3.04,
no Governmental Approvals, and no consents, licenses, authorizations, approvals, permits,
notifications, filings or registrations to or with any Person, are required to be obtained or made
by Seller, or any of its Affiliates, in connection with the execution and delivery by Seller of
this Agreement or the consummation of the transaction contemplated hereby, other than (i) such
Governmental Approvals, consents, licenses, authorizations, approvals, permits, notifications,
filings and registrations which have been obtained or made and are in full force and effect, (ii)
other filings with Governmental Authorities in the Ordinary Course of Business of Seller that are
not required to be made prior to the consummation of the transaction contemplated by this
Agreement, and (iii) consents, notices, authorizations and approvals of parties to Contracts not
required to be listed on Schedule 3.08.



     Section 3.05 Litigation. Except as set forth in Schedule 3.05, there is no
action, suit, proceeding, arbitration, assessment or investigation served or pending of which
Seller or any of its Affiliates has received notice, or, to the knowledge of Seller, threatened,
relating to any of the Assets before or by any Governmental Authority or any other Person which is
reasonably expected to result in Liabilities of more than $25,000 with respect to any of the
Assets. There is no such action, suit, proceeding, arbitration, assessment or investigation
pending or, to the knowledge of Seller, threatened which seeks to restrain or enjoin the execution
and delivery of this Agreement or the consummation of any of the transactions contemplated hereby
or thereby. Except as set forth in Schedule 3.05, there are no outstanding judgments,
orders, injunctions, decrees, stipulations or awards (whether rendered by a Governmental Authority
or by an arbitrator) against Seller, any of its Affiliates or any of the Assets: (i) that are



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reasonably expected to result in Liabilities of more than $25,000 with respect to the Assets; or
(ii) which prohibit or restrict, or could reasonably be expected to result in any delay of, the
consummation of the transaction contemplated by this Agreement.




     Section 3.06 Assets. Except as set forth in Schedule 3.06, Seller has good
and indefeasible title to the Real Property and the Personal Property, free and clear of Liens
(other than Permitted Encumbrances).



     Section 3.07 Condemnation. Except as set forth in Schedule 3.07, there are
no pending condemnation or eminent domain proceedings, or contemplated sales in lieu thereof of
which Seller or any of its Affiliates has received notice or, to the knowledge of Seller,
threatened proceedings, in each case involving a partial or total taking of any of the Assets other
than any such condemnation or eminent domain proceeding or any such sale which may become pending,
threatened or contemplated after the date hereof and which is subject to Section 5.07.



     Section 3.08 Contracts. Schedule 3.08 sets forth a complete and accurate
list of all agreements or contracts (the “Contracts”) relating to the Assets (including all
amendments thereto) and which are intended to survive the Closing and transfer of the Assets.
Seller is not, and to the knowledge of Seller, no other party to any Contract is, in breach or
violation of any Contract or in default thereunder, and, except as so set forth, there does not
exist any event that, with the giving of notice or the lapse of time, or both, would become a
breach, violation or default by Seller or, to the knowledge of Seller, any other party thereto,
except for such breaches, violations, defaults and events as to which requisite waivers or consents
have been or will, on or prior to the Closing Date, be obtained. Except as set forth on
Schedule 3.08, no consents or other authorizations are required for the assignment to
Purchaser of any of Contracts included in the Assets.



     Section 3.09 Permits. Except as set forth in Schedule 3.09; (i) Seller has
all Permits required for the ownership of the Assets and the conduct of the operation of the
Facility, as presently conducted, (ii) all of such Permits are in full force and effect, except for
any such Permit with respect to which applications for renewal shall have been filed; (iii) Seller
is in compliance in all material respects with all of such Permits; and (iv) Seller has not
received any notice of violation of any of the terms of any such Permits, which violation is
outstanding and unresolved or unsatisfied. No revocation, termination, limitation or withdrawal of
any such Permit is pending of which Seller or any of its Affiliates has received notice or, to the
knowledge of Seller, threatened.



Section 3.10 Compliance with Laws. Except as set forth in Schedule 3.10,




          (a) (i) Seller is in compliance with all Laws applicable to the Assets, and (ii) has not
received any notice alleging or charging any lack of compliance or violation of any material
requirement of any such Law which remains pending and unresolved, except, in the case of each of
clauses (i) and (ii), where such lack of compliance or violation will not result in a Material
Adverse Effect on the Assets. Except as set forth in Schedule 3.10, no investigation or
review by any Governmental Authority with respect to the Assets is pending of which Seller or any
of its Affiliates has received notice or, to the knowledge of Seller, threatened.



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          (b) During the Pioneer Period, Seller or its Affiliates operated the Facility and maintained
the Assets in compliance with all applicable Environmental Laws, including, but not limited to, the
proper and timely reporting to Governmental Authorities of all Releases to the environment.



     Section 3.11 Real Property. Except as set forth on Schedule 3.11:



          (a) The Real Property does not violate in any material respect any provisions of any
applicable building code, fire, health or safety regulation, or any other governmental ordinance,
order or regulation including all Environmental Laws.



          (b) There are utility services, including water, sewer, and electricity lines, to the Real
Property, and neither Seller nor any of its Affiliates has received notice from any applicable
Governmental Authority or any other Person that any such utilities will be terminated.



          (c) The Real Property has full and free access to and from public highways, streets or roads
and, neither Seller nor any of its Affiliates has received written notice of any pending or
threatened proceeding by any Governmental Authority which would impair or result in the termination
of such access.



          (d) Schedule 3.11(d) is a list of any easements, right-of-ways, licenses or similar property
rights that it has granted, conveyed, acquired or obtained during the Pioneer Period that affects,
burdens or benefits the Real Property.



     Section 3.12 Brokers’ Fees. Seller does not have any liability to pay any fees or
commissions to any broker, finder or agent with respect to the transaction contemplated by this
Agreement for which Purchaser or any of its Affiliates could become liable or obligated.



     Section 3.13 Limitation on Representation and Warranties.



          (a) Except as and to the extent expressly set forth in this Article III, included on any
Schedule hereto or included in any Related Agreement or other writing delivered by Seller to
Purchaser concurrently herewith or subsequent hereto expressly pursuant to this Agreement, Seller
makes no other representation or warranty and disclaims all liability and responsibility for any
representation, warranty, statement or information (financial or otherwise) made or communicated
(orally or in writing) to Purchaser or any of its Affiliates, employees, agents, consultants or
representatives (including, without limitation, any opinion, information, projection, financial
statement or advice that may have been provided to Purchaser by any officer, director, employee,
agent, consultant or representative of Seller or of any Affiliate thereof).



          (b) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND WITHOUT DIMINISHING IN ANY MANNER
THE SCOPE OF THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS ARTICLE III, EXCEPT TO THE EXTENT
EXPRESSLY SET FORTH IN THIS ARTICLE III, SELLER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, AS TO THE FOLLOWING MATTERS: THE MAINTENANCE, REPAIR,



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CONDITION, QUALITY, SUITABILITY, DESIGN OR MARKETABILITY OF ANY OF THE ASSETS, INCLUDING, WITHOUT
LIMITATION, ANY REPRESENTATION OR WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE OF ANY OF THE ASSETS, IT BEING EXPRESSLY UNDERSTOOD AND AGREED BY THE PARTIES THAT
PURCHASER IS OBTAINING RIGHTS IN THE ASSETS “AS IS”, “WHERE IS” AND “WITH ALL FAULTS”. THE
PROVISIONS OF THIS SECTION 3.13(b) HAVE BEEN SPECIFICALLY NEGOTIATED IN THIS AGREEMENT.




ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF PURCHASER




     Subject to all of the terms, conditions and provisions of this Agreement, Purchaser hereby
represents and warrants to Seller, as of the date hereof, and as of the Closing Date, as follows:



     Section 4.01 Organization and Qualification. Purchaser is a corporation duly
incorporated, validly existing and in good standing under the laws of the State of Delaware.
Purchaser has all requisite corporate power and authority to own, lease and operate its properties
and to carry on its business as now being conducted. Purchaser is duly qualified or licensed to do
business and in good standing as a foreign corporation authorized to do business in each other
jurisdiction where, because of the nature of its properties or the nature of its business, such
qualification or licensing is required, except for such jurisdictions where the failure to be so
qualified or licensed will not have a Material Adverse Effect with respect to Purchaser.



     Section 4.02 Authority. Purchaser has all requisite corporate power and authority to
execute and deliver this Agreement to which Purchaser is a party, and to consummate the transaction
contemplated hereby. The execution and delivery by Purchaser of this Agreement and the
consummation of the transaction contemplated hereby have been duly and validly authorized by all
necessary corporate action (including any stockholder action) on the part of Purchaser, and no
other corporate proceedings on the part of Purchaser are necessary to authorize the execution and
delivery by Purchaser of this Agreement or to consummate the transaction contemplated hereby or
thereby. Assuming the due authorization, execution and delivery of this Agreement by the parties
hereto, this Agreement constitutes, and when executed and delivered by Purchaser, will constitute,
a valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar Laws affecting creditors’ rights generally and general
equitable principles (whether applied in a court of law or equity).



     Section 4.03 No Conflict. The execution and delivery by Purchaser of this Agreement
and the consummation of the transaction contemplated hereby, do not and will not: (i) assuming the
receipt of the Governmental Approvals and the completion of the notifications, filings and
registrations set forth on Schedule 4.04, violate any provision of any Law, or of any
Governmental Approval or any writ, injunction, order, judgment or decree of any Governmental
Authority, in each case presently in effect and applicable to Purchaser or any Affiliate of
Purchaser or the Properties of Purchaser, (ii) result in a breach of or constitute (with or without
the giving of notice or the passage of time or both) a default under the charter or by-laws of
Purchaser, or any resolution adopted by the Board of Directors or stockholders of



11









 




Purchaser, (iii) result in a breach of or constitute (with or without the giving of notice or the
passage of time or both) a default under any contract to which Purchaser is a party or by which
Purchaser or any of Purchaser’s properties is bound or affected, or (iv) result in, or require, the
imposition or creation of any Lien upon Purchaser’s properties.




     Section 4.04 Consents and Approvals. Except as set forth in Schedule 4.04,
no Governmental Approvals, and no consents, licenses, authorizations, approvals, permits,
notifications, filings or registrations to or with any Person, are required to be obtained or made
by Purchaser, or any of its Affiliates, in connection with the execution and delivery by Purchaser
of this Agreement or the consummation of the transaction contemplated hereby, other than (i) such
Governmental Approvals, consents, licenses, authorizations, approvals, permits, notifications,
filings and registrations which have been obtained or made and are in full force and effect and
(ii) other filings with Governmental Authorities in the Ordinary Course of Business of Purchaser
that are not required to be made prior to the consummation of the transactions contemplated by this
Agreement.



     Section 4.05 Litigation. There is no action, suit, proceeding, arbitration,
assessment or investigation pending or, to the knowledge of Purchaser or any of its Affiliates
threatened, which seeks to restrain or enjoin the execution and delivery of this Agreement or the
consummation of the transaction contemplated hereby.



     Section 4.06 Brokers’ Fees. Purchaser does not have any liability to pay any fees or
commissions to any broker, finder or agent with respect to the transactions contemplated by this
Agreement for which Seller or any of its Affiliates could become liable or obligated.



     Section 4.07 Limitation on Representations and Warranties.



          Except as and to the extent expressly set forth in this Article IV, included on any Schedule
hereto or included in any Related Agreement or any other writing delivered by Purchaser to Seller
concurrently herewith or subsequent hereto expressly pursuant to this Agreement, Purchaser makes no
other representation or warranty and disclaims all liability and responsibility for any
representation, warranty, statement or information (financial or otherwise) made or communicated
(orally or in writing) to Seller or any of its Affiliates, employees, agents, consultants or
representatives (including, without limitation, any opinion, information, projection, financial
statement or advice that may have been provided to Seller by any officer, director, employee,
agent, consultant or representative of Purchaser or of any Affiliate thereof).



ARTICLE V

COVENANTS




     Section 5.01 Access to Properties and Records.



          (a) After the date hereof and prior to the Closing Date or the earlier termination of this
Agreement, Seller shall (i) afford to Purchaser and its consultants, counsel, agents and other
representatives involved in the transaction contemplated by this Agreement (the “Purchaser 



12









 




Representatives”), upon reasonable request, during normal business hours, full and complete
access to the Assets and reasonable access to personnel of Seller for the purpose of making
surveys, conducting engineering and other non-intrusive studies, tests and inspections as are, in
the opinion of Purchaser, necessary or desirable.




          (b) In the event that this Agreement is terminated in accordance with its terms, Purchaser
shall promptly destroy or redeliver to the Seller all non-public written material provided or
obtained pursuant to this Section 5.01 or otherwise and shall not retain any copies, extracts or
other reproductions in whole or in part of such written material. In such event, all documents,
memoranda, notes and other writings prepared by Purchaser based on the information in such material
shall also be destroyed (and Purchaser shall use commercially reasonable efforts to cause the
Purchaser Representatives to similarly destroy their documents, memoranda, notes and other
writings).



          (c) Purchaser shall provide reasonable access to the Assets as may be necessary in connection
with any of the Retained Liabilities.



     Section 5.02 Closing Conditions; Obtaining Consents. After the date hereof and prior
to the Closing Date or the earlier termination of this Agreement, subject to the terms and
conditions herein provided, each of Seller and Purchaser agrees to use commercially reasonable
efforts to take, or cause to be taken, all actions and to use commercially reasonable efforts to
do, or cause to be done, all things necessary, proper or advisable to consummate and make effective
as promptly as practicable the transaction contemplated by this Agreement and to cooperate in
connection with the foregoing, including using commercially reasonable efforts to: (i) obtain all
Governmental Approvals required to be obtained under any Law, if any; (ii) effect all necessary
registrations and filings including submissions of information requested by Governmental
Authorities, if any; and (iii) fulfill its respective conditions (to the extent within its control)
set forth in Article VI of this Agreement.



     Section 5.03 Further Assurances. Each of Seller and Purchaser agrees that, from time
to time, whether at or after the Closing Date, it will take, and will cause its Affiliates to take,
such other action as may be reasonably requested and necessary or appropriate to carry out the
purposes and intent of this Agreement. Each of Seller and Purchaser agrees that, from time to time
after the Closing Date, at the request of the other Party, it, to the extent it then may lawfully
do so: (i) shall, and shall cause each of its Affiliates to, take such actions and execute,
acknowledge and deliver such deeds, assignments, conveyances, transfers, powers of attorney and
assurances as may reasonably be necessary to effect or evidence the transfer to Purchaser of any of
the Assets held by or in the name of, or which may appear in any public record to be owned by, any
such Person; and (ii) shall cooperate with the requesting Party in transferring to Purchaser the
Permits.



     Section 5.04 Conduct of Business.



          (a) Prior to Closing. The Seller shall, between the date hereof and the time of the
Closing, continue to maintain the Assets in accordance with its normal practices and good industry
standards for maintaining inactive industrial properties.



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          (b) Decommissioning of the Assets.




	 	(i)	 	Prior to Closing, Seller, in accordance with all
applicable Laws and applicable industry standards and practices, shall
remove from all of the tanks that are part of the Assets all residual
solids and liquids and properly dispose of the same off-site. In
performing the removal of the solids and liquids from the tanks Seller
shall not damage or demolish the same, but shall use methods normally
used for thoroughly cleaning tanks. Further, Seller shall properly
remove and dispose of any asbestos-containing materials from any tanks
used in removing asbestos from the diaphragm cells in the Facility to the
extent feasible without destroying any such tanks (it being acknowledged
by the Purchaser that residual asbestos fibers currently in the asbestos
slurry mix tank (located in the cell renewal building) cannot be feasibly
removed therefrom without the destruction of such tank).
	 
	 	(ii)	 	Seller shall, prior to Closing, remove all
chemicals, trash, solvents, paints, cleaning agents, debris, inventory,
raw materials, laboratory chemicals, samples, contaminated containers and
similar items from the Assets and properly dispose of the same.
	 
	 	(iii)	 	All salt currently located on the salt pads at the
Real Property shall be removed and properly disposed of by Seller prior
to Closing.





          (c) Purchaser and its Representatives shall, prior to Closing, but no earlier than three (3)
calendar days prior to Closing, have the right to conduct a thorough walk-through inspection of the
Assets, including the right to inspect all rooms and Personal Property in order to verify
compliance with the terms of this Section 5.04.



     Section 5.05 Permits. Seller shall keep all Permits active and in full compliance
with all applicable laws and regulations. At, or prior to Closing, Seller shall deliver to
Purchaser any and all applications, transfers, assignments or other documents or instruments (the
“Permit Assignments”), fully executed and signed by Seller and which, upon completion and execution
by Purchaser, will be sufficient to allow the transfer or assignment of the Permits to Purchaser.
It is provided, however, that Purchaser may, in its sole discretion, within five (5) days of the
date hereof, indicate to Seller, in writing, any Permits that it does not want transferred or
assigned to it, in which case, Seller shall take all commercially reasonable actions to terminate
the same.



          Commencing as of the Closing, and continuing until the Permits (except the Asbestos Annual
Registration, the Annual Registration for Registered Sources, the Radio License — Microwave
Station, and the 2005 Annual Business License) are transferred to Purchaser, or otherwise
terminated or disposed of (the “Transfer Period”), Purchaser shall comply with the Permits as
though it was the permittee and shall keep the Permits in compliance with all applicable Laws.
During the Transfer Period: (i) Purchaser shall provide to Seller copies of any written citations
issued on the Permits as soon



14









 




as practicable after issuance; and (ii) Seller shall take all steps reasonably necessary to
transfer or assign the Permits to Purchaser, or terminate the same, as the case may be, and to
assist Purchaser to contest citations, file reports and take other actions as may be appropriate
with respect to the Permits.




     Section 5.06 Public Announcements. Without the prior written approval of the other
Party, neither Seller nor Purchaser will issue, or permit any agent or Affiliate thereof to issue,
any press release or otherwise make or permit any agent or Affiliate thereof to make, any public
statement or announcement with respect to this Agreement or the transaction contemplated hereby.



     Section 5.07 Casualty Loss and Condemnation.



          (a) In the event of, prior to the Closing, (i) the destruction of, or material damage to, any
Asset which shall, together with all other Assets damaged or destroyed, (x) have a Replacement Cost
exceeding $500,000, or (y) would increase the remediation, demolition or cleanup of the Assets by
an amount exceeding $500,000 (a “Casualty Event”) which Seller shall have elected not to
repair, rebuild, restore or replace as provided below, or (ii) the condemnation of any Asset which
shall, together with all other Assets so condemned, have a Replacement Cost exceeding $500,000,
Purchaser, at its sole option, may elect, prior to Closing:




	 	(i)	 	with respect to any such Asset that has been
condemned or has suffered a Casualty Event (other than any Asset that
Seller has elected to repair, rebuild, restore or replace), Purchaser
may, by notice to Seller, request that Seller, and, upon any such
request, Seller shall, (i) pay to Purchaser, at the Closing, all sums
theretofore paid to Seller by third parties by reason of such
condemnation or Casualty Event, (ii) assign to Purchaser, no later than
the Closing, all of the right, title and interest of Seller in and to any
unpaid awards or other amounts payable by third parties or under Seller’s
personal property and casualty insurance policies arising out of such
condemnation or Casualty Event, and (iii) pay to Purchaser any deductible
or retention under any applicable insurance; or
	 
	 	(ii)	 	to terminate this Agreement.





          (b) Seller shall give Purchaser prompt written notice (a “Casualty Notice”) of any
such condemnation or Casualty Event, indicating the Asset or Assets which suffered such
condemnation or Casualty Event, and Seller’s estimate of the Replacement Cost of each such Asset
accompanied, in the case of any Casualty Event, by copies of all insurance related thereto, any
deductibles or retention applicable thereto, any defenses threatened or asserted by the insurer or
known to Seller, its estimate of, and all available information relevant to, the cost of repair,
rebuilding, restoration or replacement thereof, and any other information reasonably requested by
Purchaser. In the case of any retention or deductible, Seller shall provide to Purchaser prompt
notice of such retention or deductible. Purchaser shall make any election permitted by Section
5.07(a) promptly, but in any event within five (5) Business Days of the receipt of a Casualty
Notice.



15









 





          (c) At any time during which Purchaser may elect to receive the proceeds thereof pursuant to
Section 5.07(a), Seller shall not, without the consent of Purchaser, compromise, settle or adjust
any material amounts receivable by reason of any condemnation or Casualty Event occurring with
respect to any such Company Asset.



     Section 5.08 Certain Notifications; Specific Performance.



          (a) Prior to Closing, each of the Seller and the Purchaser shall promptly notify the other
Party if, to the knowledge of the Seller or the Purchaser, as the case may be, any event, fact or
condition exists which constitutes or will constitute a material breach by the other Party of any
representation, warranty, covenant or agreement set forth in this Agreement. In the event of any
such breach by any Party, the other Party may elect to consummate the transaction contemplated by
this Agreement, and, upon any such election, (i) the Parties may enter into a mutually acceptable
amendment to this Agreement addressing such breach and any other matters related thereto, or (ii)
such other Party shall be deemed to have unilaterally waived such breach, provided that in no event
shall the Party responsible for such breach be required to enter into any such amendment unless
such amendment provides that such breach shall be deemed unconditionally waived by such other Party
for all purposes of this Agreement.



          (b) This Agreement shall not be specifically enforceable, except that, in the event of the
satisfaction by Seller, on the one hand, or Purchaser, on the other hand, of their respective
conditions to Closing (including any such satisfaction by waiver by the other Party or parties),
the obligation of Seller or Purchaser, as the case may be, to consummate the transaction
contemplated by this Agreement shall be specifically enforceable by such other Party or parties to
the full extent permitted by Law.



Section 5.09 [INTENTIONALLY LEFT BLANK.]




     Section 5.10 Removal of Excluded Personal Property. Not later than five days prior
to the Closing, Seller shall remove any Excluded Personal Property. Seller shall use commercially
reasonable efforts to remove the Excluded Personal Property from the Real Property in such manner
as to minimize interference with or damage to the remaining Assets. Further, Seller shall remove
and properly dispose of any debris, scrap, residual chemicals and other materials that were
produced as a result of the removal of the Excluded Personal Property. Any utilities that were
disconnected in connection with such removal shall be reconnected to the extent they are still
required for operation of the Assets.



     Section 5.11 Prorations.



          (a) Any real and personal property taxes and ad valorem taxes with respect to the Assets for
any taxable period commencing prior to the Closing Date and ending after the Closing Date shall be
apportioned on a per diem basis between (i) the period commencing on the initial day of such
taxable period and ending one day prior to the Closing Date (“Pre-Closing Taxes”), and (ii) the
period commencing on the Closing Date and ending on the last day of such taxable period
(“Post-Closing Taxes”). On the Closing Date, or as promptly as practicable following the Closing
Date, but in no event later than sixty (60) calendar days thereafter, Pre-Closing Taxes and
Post-Closing Taxes, local business or



16









 




other license fees or taxes, merchants’ association dues and other similar periodic charges payable
with respect to the Assets shall be prorated between Purchaser and Seller effective as of the
Closing Date. If any of the real property or personal property tax rates for the current tax year
are not established by the Closing Date, the prorations shall be made on the basis of the rate in
effect for the preceding tax year, and such proration shall be adjusted upon presentation of
written evidence by Purchaser that the actual taxes paid differ from the amount used on the Closing
Date. Any payment by Seller or Purchaser required by this Section 5.11 shall be made within five
(5) days after a mutually acceptable determination of the amount due.




          (b) Electricity, telephone, gas and water utility charges shall be pro-rated as of the opening
of business on the Closing Date between Purchaser and Seller effective as of the Closing (based on
the number of days in applicable pre-Closing and post-Closing billing periods). Seller shall
deliver to Purchaser copies of each relevant bill or statement to the extent relating to the
proration obligations under this Section 5.11. Seller shall cooperate with Purchaser in arranging
for the transfer of electricity, telephone, gas and water services.



     Section 5.12 Records.



     Inspection. Each of Seller and Purchaser agrees that, for a period of five years
following the Closing Date, such Party shall take all necessary action to ensure that (i) all
Records pertaining to the Assets with respect to periods ending on or before the Closing Date and
in the possession or control of such Party or any of its Affiliates shall be open for inspection by
representatives of the other Party at any time during regular business hours, and (ii) such other
Party may during such period at its expense make such excerpts therefrom as it may reasonably
request. During such period, each Party shall use its commercially reasonable efforts to cooperate
with the other Party and make available such Records to the employees and representatives of such
Party to the extent that such Party may reasonably require for its corporate and other business
purposes (including, without limitation, attendance at depositions or legal proceedings, or audits
requested by such Party to be performed by such Party’s independent accountants for any period
through the Closing Date).



ARTICLE VI

CONDITIONS




     Section 6.01 Conditions to Obligations of each of the Parties. The respective
obligations of each Party to consummate the transactions contemplated hereby shall be subject to
the fulfillment on or prior to the Closing Date of the following conditions:



          (a) no preliminary or permanent injunction or other order, decree or ruling by any
Governmental Authority or any other Person which prevents the consummation of the transaction
contemplated by this Agreement shall have been issued and remain in effect;



          (b) no suit, litigation or other proceeding shall have been commenced by any Governmental
Authority or any other Person, and no Law shall have been enacted, promulgated or issued by any
Governmental Authority, which would (i) prohibit the ownership or operation by Purchaser of all



17









 




or any material portion of the Assets, (ii) prohibit the consummation of the transaction
contemplated by this Agreement or (iii) make the consummation of such transaction illegal;




          (c) (i) all Governmental Approvals legally required for the consummation of the transactions
contemplated by this Agreement and, (ii) all registrations and filings, including submissions of
information requested by Governmental Authorities, necessary to consummate the transaction
contemplated by this Agreement, shall have been obtained or effected and be in full force and
effect on the Closing Date, except as to clauses (i) and (ii) such which, if not obtained or
effected, would not have a Material Adverse Effect with respect to the Assets, taken as a whole, or
which are to be obtained in response to the Permit Assignments;



          (d) an agreement terminating the Environmental Operating Agreement (the “EOA Termination
Agreement”), releasing all claims thereunder and a joint defense agreement (the “Joint Defense
Agreement”) shall each have been executed and delivered by the Parties; and



          (e) all actions, proceedings, instruments, opinions and documents required to consummate the
transaction contemplated by this Agreement, and all other related legal matters, shall be
reasonably satisfactory to counsel to each of Seller and Purchaser.



     Section 6.02 Conditions to Obligations of Seller. The obligations of Seller to
consummate the transaction contemplated hereby shall be subject to the fulfillment on or prior to
the Closing Date of the following additional conditions, except as Seller may waive in writing:



          (a) Purchaser and any Affiliate of Purchaser shall have complied with and performed in all
material respects all of the terms, covenants, agreements and conditions contained in this
Agreement to which each is a party which are required to be complied with and performed by
Purchaser or such Affiliate on or prior to the Closing Date;



          (b) the representations and warranties of Purchaser and any Affiliate of Purchaser in this
Agreement if qualified by reference to a Material Adverse Effect, shall be true and correct in all
respects, and, if not so qualified, shall be true and correct except in such respects as, in the
aggregate, do not have a Material Adverse Effect with respect to Purchaser, in each case, on and as
of the Closing Date, with the same force and effect as though such representations and warranties
had been made on and as of the Closing Date, except (i) to the extent that such representations and
warranties expressly related to an earlier date, or (ii) as contemplated by this Agreement;



          (c) Seller shall have received each of the following, dated the Closing Date or, with respect
to certificates of Governmental Authorities, dated within ten Business Days prior to the Closing
Date:




	 	(i)	 	a certificate of the Secretary of State of the
State of Delaware as to the existence and good standing of Purchaser;




18









 












	 	(ii)	 	a certificate of incumbency certified by the
Secretary or an Assistant Secretary of Purchaser certifying the names of
the officers of Purchaser authorized to execute this Agreement (including
the certificates contemplated herein) together with specimen signatures
of such officers; and
	 
	 	(iii)	 	a certificate of Purchaser signed on Purchaser’s
behalf by the President or a Vice President of Purchaser certifying as to
the fulfillment of the conditions specified in Section 6.02(a) and
Section 6.02(b); and





          (d) Purchaser shall have paid to Seller the Purchase Price as provided in Section 2.02.



     Section 6.03 Conditions to Obligations of Purchaser. The obligations of Purchaser to
consummate the transactions contemplated hereby shall be subject to the fulfillment on or prior to
the Closing Date of the following additional conditions, except as Purchaser may waive in writing:



          (a) Seller and any Affiliate of Seller shall have complied with and performed in all material
respects all of the terms, covenants, agreements and conditions contained in this Agreement which
are required to be complied with and performed by Seller or such Affiliate on or prior to the
Closing Date;



          (b) the representations and warranties of Seller and any Affiliate of Seller in this
Agreement, if qualified by reference to a Material Adverse Effect, shall be true and correct in all
respects and, if not so qualified, shall be true and correct except in such respects as, in the
aggregate, do not have a Material Adverse Effect with respect to the Assets on and as of the
Closing Date, with the same force and effect as though such representations and warranties had been
made on and as of the Closing Date, except (i) to the extent that such representations and
warranties expressly related to an earlier date, or (ii) as contemplated by this Agreement;



          (c) Purchaser shall have completed, to its reasonable satisfaction, the inspection of the
Assets as provided for in Section 5.04(c) above; and



          (d) Purchaser shall have received each of the following, dated the Closing Date or, with
respect to certificates of Governmental Authorities, dated within ten Business Days prior to the
Closing Date:




	 	(i)	 	a certificate of the Secretary of State of the
State of Delaware as to the existence and good standing of Seller and
certificates of the Secretary of State of the State of Washington as to
the authority of Seller to transact business in the State of Washington;
	 
	 	(ii)	 	a certificate of incumbency certified by the
Secretary or an Assistant Secretary of Seller certifying the names of the
officers of Seller authorized




19









 












	 	 	 	to execute this Agreement (including the certificates contemplated
herein) together with specimen signatures of such officers; and
	 
	 	(iii)	 	a certificate of Seller signed on Seller’s behalf
by the Chairman of the Board, Chief Executive Officer, President,
Treasurer or a Vice President of Seller, certifying as to the fulfillment
of the conditions specified in Section 6.03(a) and Section 6.03(b).





ARTICLE VII

TERMINATION




     Section 7.01 Termination. This Agreement may be terminated at any time prior to the
Closing Date:



          (a) by the mutual written consent of Seller and Purchaser;



          (b) by Seller if (i) Purchaser shall have breached in any material respect any covenant or
agreement contained in this Agreement and required to be performed by Purchaser on or before the
Closing Date, which breach shall not have been either cured within ten days following notice
thereof by Seller to Purchaser or waived by Seller or (ii) Purchaser shall have breached in any
material respect any representation or warranty made by Purchaser and contained in this Agreement,
which breach shall not have been cured as of the Closing Date or waived by Seller;



          (c) by Purchaser if (i) Seller shall have breached in any material respect any covenant or
agreement contained in this Agreement and required to be performed by Seller on or before the
Closing Date, which breach shall not have been either cured within ten days following notice
thereof by Purchaser to Seller or waived by Purchaser or (ii) Seller shall have breached in any
material respect any representation or warranty made by Seller and contained in this Agreement,
which breach shall not have been cured as of the Closing Date or waived by Purchaser;



          (d) by either Seller or Purchaser if the Closing shall not have occurred on or prior to
December 31, 2005 (the “Termination Date”), unless such failure to close shall be due to a breach
of this Agreement by the Party seeking to terminate this Agreement pursuant to this clause (d);



          (e) by either Seller or Purchaser upon the issuance of an injunction, stay or restraining
order issued by any court of competent jurisdiction enjoining or preventing the consummation of the
transaction contemplated by this Agreement beyond the Termination Date, which injunction, stay or
order has not been reversed, vacated or expired so as to permit the Closing to occur on or before
the Termination Date; or



          (f) by Purchaser, (i) in the event that Seller shall have amended any of the Schedules to this
Agreement to disclose the occurrence of any event, or the existence of any condition, (x) between
the date of this Agreement and the Closing Date and, absent such amendment, Seller would have
breached in any material respect any representation, warranty, covenant or agreement contained in
this Agreement



20









 




(which breach shall not have been cured as of the Closing Date or waived by Purchaser) or (y)
on or prior to the date of this Agreement (without regard to the materiality of such event or
condition); or (ii) pursuant to the provisions of Section 5.07(a)




     Section 7.02 Effect of Termination. In order to elect to terminate this Agreement
pursuant to Section 7.01, written notice of such election must be given by the terminating Party to
the other Party specifying the provision hereof pursuant to which such termination shall be made
and, upon receipt of such notice by the non-terminating Party, this Agreement shall terminate and
have no further effect, and the transaction contemplated hereby shall be abandoned without any
further action by the Parties, except that the provisions of Sections 5.01(b) and 7.02 and the
provisions of Article IX shall survive the termination of this Agreement; provided,
however, that any termination pursuant to the provisions of clauses (b), (c) or (f) of
Section 7.01 shall not relieve either Party from any liability to the other Party for its willful
or intentional breach of any of the provisions of this Agreement occurring prior to such
termination.



ARTICLE VIII

ASSUMPTION, RETENTION AND INDEMNIFICATION




     Section 8.01 Assumption and Retention of Liabilities.



          (a) Subject to the Closing, the representations and warranties of Seller and other terms of
this Agreement (including, but not limited to the Retained Liabilities as defined below), Purchaser
shall fulfill, perform, pay and discharge the following responsibilities, obligations and
liabilities with respect to the Assets:




	 	(i)	 	from and after the Closing, all obligations for and
related to the investigation, cleanup or remediation of the environment,
but only to the extent of the requirements of applicable Environmental
Laws (collectively, the “Remediation”) as a result of either (i) all past
operations at the Real Property; or (ii) those obligations under the
Consent Decree and Agreed Order, including the completion of any existing
remediation programs; except that Seller shall remain liable for any and
all Claims by Third Parties and Governmental Authorities that pertain to
the Facility or the operation thereof, or the Real Property, to the
extent attributable to Seller’s or its Affiliates’ acts or omissions
during the Pioneer Period, including Claims by Third Parties and
Governmental Authorities arising as a result of the environmental or
physical condition of the Real Property, except to the extent such Claims
seek Remediation; and
	 
	 	(ii)	 	all litigation and Claims arising from the Assets
to the extent they relate to any period other than the Pioneer Period,
except to the extent they are Retained Liabilities;




21









 










(all such assumed obligations and liabilities being referred to herein as “Assumed Liabilities”).




          (b) Subject to the Closing, representation and warranties of Purchaser and other terms of this
Agreement (including, but not limited to the Assumed Liabilities), Seller hereby retains and agrees
to fulfill, perform, pay and discharge the following responsibilities, obligations and liabilities
now existing or arising hereafter with respect to the Assets:




	 	(i)	 	the Third Party and Governmental Authority Claims
referred to in Section 8.01(a)(i) above;
	 
	 	(ii)	 	All liabilities and obligations (including costs of
defense, prosecution, collection and reasonable attorney’s fees) with
respect to (i) any Employee Plans and Agreements, or Claims of employees
or former employees of Seller or its Affiliates or of any spouse,
dependent, estate, or other beneficiary of such employees or former
employees for any salary, benefits, workers’ compensation claims,
severance pay or any other Claims from such employees or former
employees; or (ii) any Claims or charges relating to wrongful
termination, discrimination, harassment, or violation of (A) the Fair
Labor Standards Act, (B) the Labor Management Relations Act, (C) the
Workers Adjustment and Retraining Notification Act, (D) the Americans
With Disabilities Act, (E) ERISA, (F) the Consolidated Omnibus Budget
Reconciliation Act of 1985, (G) Title VII of the Civil Rights Act of
1964, (H) the Family and Medical Leave Act, (I) the Health Insurance
Portability and Accountability Act, or (J) the Age Discrimination in
Employment Act, all as attributable to the conduct of Seller or its
Affiliates with respect to any employees or former employees of Seller or
its Affiliates; and
	 
	 	(iii)	 	Claims (except Claims for Remediation assumed by
Purchaser pursuant to Section 8.01(a)(i)) arising from the Assets to the
extent they relate to the Pioneer Period.




(all such retained obligations and liabilities being referred to herein as the “Retained
Liabilities”).




     Section 8.02 Indemnification of Seller. Subject to the terms and conditions of this
Article VIII from and after the Closing, Purchaser agrees to indemnify, defend and hold harmless
Seller, its Affiliates, the respective present and former directors and officers of Seller and its
Affiliates and their respective heirs, executors, personal representatives, administrators,
successors and assigns (the “Seller Indemnified Persons”), from and against any and all
Losses which may be imposed on, incurred by or asserted against any Seller Indemnified Person,
resulting from, directly or indirectly:



          (a) the inaccuracy of any representation or breach of any warranty of Purchaser contained in
this Agreement, if the Seller did not have actual knowledge of such inaccuracy or breach on or
prior to the Closing Date;



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          (b) the breach of any covenant or agreement of Purchaser contained in this Agreement; and



          (c) any Assumed Liabilities.



     Section 8.03 Indemnification of Purchaser. Subject to the terms and conditions of
this Article VIII from and after the Closing, Seller agrees to indemnify, defend and hold harmless
Purchaser, its Affiliates, including, without limitation, Occidental Chemical Corporation, the
respective present and former directors and officers of Purchaser and their respective heirs,
executors, personal representatives, administrators, successors and assigns (the “Purchaser
Indemnified Persons”), from and against any and all Losses which may be imposed on, incurred by
or asserted against any Purchaser Indemnified Person, resulting from, directly or indirectly:



          (a) the inaccuracy of any representation or breach of any warranty of Seller contained in this
Agreement, if the Purchaser did not have actual knowledge of such inaccuracy or breach on or prior
to the Closing Date;



          (b) the breach of any covenant or agreement of Seller contained in this Agreement; and



          (c) any Retained Liabilities.



     Section 8.04 Limitations on Indemnification. The obligations of Purchaser and Seller
to indemnify any Person pursuant to this Article VIII shall be subject to the following
limitations:



          (a) except as provided in Section 8.04(c), neither the Seller Indemnified Persons nor the
Purchaser Indemnified Persons shall be entitled to indemnification unless for any individual
Indemnification Claim, the Loss incurred by the Party, or Parties, seeking indemnification for such
individual Indemnification Claim (the “Indemnified Group”) is in an amount greater than
$10,000. If the applicable individual threshold set forth in the preceding sentence has been
reached with respect to any individual Indemnification Claim by an Indemnified Group (or any
member(s) thereof) against Seller or Purchaser, as applicable, the Indemnified Group shall be
entitled to indemnification for the full amount of the Loss with respect to such Claim as provided
pursuant to this Article VIII;



          (b) for purpose of indemnification hereunder, an Indemnification Claim’s gross amount shall be
reduced by (i) the net present value of any correlative insurance proceeds actually realized by the
Indemnified Party to the extent such proceeds are not directly charged back to Indemnified Party
and/or Indemnified Party’s future insurance premiums are not increased by such matter and (ii) the
amount of any proceeds the Indemnified Party receives from a Third Party for such claim;



          (c) notwithstanding the foregoing, the thresholds established by Section 8.04(a) shall not
apply to claims for indemnification arising from a breach of the representations, warranties and
covenants in Section 3.02, Section 3.06, Section 3.12, Section 4.02, Section 4.06; the pro-rations
requirements of Section 5.11 and Section 9.13; or the Remediation obligations of Section
8.01(a)(i).



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          (d) no Party shall have liability for any lost business opportunities, loss of revenue,
speculative or prospective profits or any other special, incidental, consequential, exemplary,
punitive or indirect damages.



     Section 8.05 Indemnification Procedures. The obligations of any Party to indemnify
any other Party pursuant to this Article VIII shall be subject to the following terms and
conditions:



          (a) Notice and Defense. Within sixty (60) days after a Party or Parties to be
indemnified (whether one or more, the “Indemnified Party”) receives notice of any Claim
covered by Section 8.02 or 8.03, as the case may be, the Indemnified Party shall, if an
Indemnification Claim in respect thereof is to be made pursuant to Section 8.02 or 8.03, notify the
Party from whom indemnification is sought (the “Indemnifying Party”) in writing of such
Claim; provided, however, that “notice” as used in this Section shall mean either (i) actual
knowledge of a claim; or (ii) when the Party should have known of such Claim. It is further
provided, however, that the failure to so notify the Indemnifying Party shall not
relieve the Indemnifying Party from any liability which it may have to the Indemnified Party
pursuant to Section 8.02 or 8.03, except to the extent of any material detriment suffered by the
Indemnifying Party as a result of such failure. The amount of each Indemnification Claim ,
together with a list identifying each separate item of loss, liability, damage, cost or expense to
the extent known, shall be set forth in the Indemnification Claim notice delivered to the
Indemnifying Party. In the event that an Indemnification Claim arises out of or results from
Claims of Third parties or Governmental Authorities, the Indemnifying Party may at its option
undertake the defense thereof by counsel or representatives chosen by it which are reasonably
acceptable to the Indemnified Party. The Indemnifying Party may select the same counsel, in is
sole discretion, to represent both the Indemnifying Party and Indemnified Party, and in such case,
the Parties will waive any actual or potential conflict of interest from such representation. The
Indemnifying Party shall have the sole right to compromise or settle any such Claim if (i) such
settlement or disposition shall impose no material obligation or burden whatsoever on the
Indemnified Party which is not wholly discharged by the Indemnifying Party, and shall provide a
full release to the Indemnified Party, and (ii) the Indemnifying Party shall be fully capable of
performing its obligations pursuant to such settlement or disposition. The Indemnifying Party
shall have the right to compromise or settle all other such Third-Party Claims with the prior
written consent of the Indemnified Party, which consent shall not be unreasonably withheld. Each
of the Indemnifying Party and the Indemnified Party shall be entitled to consult with each other,
to the extent it reasonably requests, in respect of the defense of such Claim and shall cooperate
in the defense of any such Claim, including making its officers, directors, employees and Records
available for use in defending against such Claim, and shall take those commercially reasonable
actions within its power which are necessary to preserve any legal defenses to such matters.



          (b) Failure to Defend. If the Indemnifying Party, within a reasonable time (and in
any event not more than 30 days) after notice of any Claim by a Third Party or Governmental
Authority, fails to undertake the defense of such Claim, the Indemnified Party shall have the right
to undertake the defense of such Claim with counsel or representatives chosen by it. The Losses of
the Indemnified Party shall include the reasonable costs and expenses (including attorneys’ fees
and expenses) incurred in any such defense of a Third Party’s or Governmental Authority’s Claim.
Notwithstanding the foregoing, the Indemnified Party shall have no right to settle or compromise
any such Claim without the prior written



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consent of the Indemnifying Party which consent shall not unreasonably be withheld;
provided, however, that if any third party’s offer of settlement solely for money
is proffered by the Indemnified Party to the Indemnifying Party and is not consented to by the
Indemnifying Party, then the Indemnifying Party shall be deemed to have waived any rights it may
otherwise have retained to contest the validity of any damages suffered by the Indemnified Party by
reason of a judgment rendered in favor of such Third Party or Governmental Authority to the extent
that the award in such judgment exceeds the offer of settlement.




Section 8.06 Payment




          (a) The Indemnifying Party shall reimburse each Indemnified Party for all reasonable costs and
expenses of defense (including reasonable counsel fees) for which the Indemnified Party is entitled
to be indemnified hereunder as they are incurred by such Indemnified Party. The Indemnifying Party
shall pay any Indemnification Claim under this Article VIII within 30 days after its receipt of a
proper notice of such Indemnification Claim under Section 8.05(a); provided,
however, that if, within such 30-day period, the Indemnifying Party notifies the claimant
of its objection to such payment (or, if a Third-Party or Governmental Authority Claim, the contest
thereof), then payment shall be made promptly after such time as it is finally determined whether
such Indemnification Claim is entitled to indemnity hereunder and the extent or amount to which so
entitled. The Indemnifying Party shall be subrogated to the rights of the Indemnified Party, to
the extent of any payments made by the Indemnifying Party to the Indemnified Party pursuant to this
Article VIII.



          (b) If an Indemnifying Party is determined by a final and unappealable judgment of a court of
competent jurisdiction to have breached its obligations to indemnify an Indemnified Party
hereunder, (subject to Section 8.04(b)) the Indemnified Party shall be entitled to receive from the
Indemnifying Party, in addition to all other amounts due hereunder, interest on all amounts
otherwise paid by the Indemnified Party in respect of such breach from the date of the breach at
12% per annum (but not in excess of the maximum lawful rate permitted by applicable Law).



     Section 8.07 Survival of Representations and Warranties.



          (a) All representations and warranties made by Seller and Purchaser in this Agreement or in
any certificate delivered at Closing pursuant to Article VI shall survive the execution and
delivery of this Agreement, regardless of any investigation made by or on behalf of any Party;
provided, however, that:




	 	(i)	 	the representations and warranties of Seller shall
terminate and have no further force or effect on the second anniversary
of the Closing (except that those contained in Sections 3.01, 3.02 and
Section 3.06 shall terminate and have no further force or effect on the
fourth anniversary of the Closing (each of the representations and
warranties of Seller contained in Sections 3.01, 3.02 and 3.06 are
collectively the “Seller Major Representations”)); and




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	 	(ii)	 	the representations and warranties of Purchaser
shall terminate and have no further force or effect on the second
anniversary of the Closing (except that those contained in Sections 4.01
and 4.02 shall terminate and have no further force or effect on the
fourth anniversary of the Closing (each of the representations and
warranties of Purchaser contained in Sections 4.01 and 4.02 are
collectively the “Purchaser Major Representations”)).





          (b) No payment on account of any Loss pursuant to the breach of any representation or warranty
contained in this Agreement or any certificate delivered at the Closing pursuant to Article VI of
this Agreement shall be required to be made by Seller to any Purchaser Indemnified Person or by
Purchaser to any Seller Indemnified Person unless the Indemnified Party shall have delivered to
Seller or Purchaser, as applicable, a notice of Indemnification Claim prior to the second
anniversary of the Closing Date, or (i) with respect to breaches of Seller Major Representations,
prior to the termination date thereof specified in Section 8.07(a)(i), and (ii) with respect to
breaches of Purchaser Major Representations, prior to the termination date thereof specified in
Section 8.07(a)(ii).



     Section 8.08 Exclusive Remedy. Except as provided by Section 5.08(b), the right to
indemnification provided in this Article VIII shall be the exclusive remedy of any Purchaser
Indemnified Person or Seller Indemnified Person with respect to the inaccuracy of any
representation or the breach of any warranty, covenant or agreement made by Seller or Purchaser in
this Agreement or arising in connection with the subject matter of this Agreement. Seller and
Purchaser hereby waive and relinquish any other rights, remedies, causes of action or other Claims
in respect of any such inaccuracy or breach including, without limitation, equitable and common law
rights and rights created by statute, which Seller or Purchaser would otherwise have for any such
inaccuracy or breach or with respect to any Liability arising from, or related to, the Assets.



     Section 8.09 Mitigation of Damages. The Parties shall take all such reasonable
actions as may be necessary to mitigate damages for which any Party may claim indemnification under
this Article VIII.



ARTICLE IX

MISCELLANEOUS




          Section 9.01 Notices. Any and all notices, requests or other communications
hereunder shall be given in writing and delivered by: (a) regular, overnight or registered or
certified mail (return receipt requested), with first class postage prepaid; (b) hand delivery; (c)
facsimile transmission; or (d) overnight courier service, to the Parties at the following addresses
or facsimile numbers:



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	 	(i)	 	if to Seller, to:
	 
	 	 	 	Pioneer Americas, LLC

700 Louisiana, Suite 4300

Houston, Texas 77079

Attention: General Counsel

Facsimile number: (713) 223-9202

Telephone number: (713) 570-3257
	 
	 	(ii)	 	if to Purchaser, to:
	 
	 	 	 	Mariana Properties, Inc.

2480 Fortune Drive, Suite 300

Lexington, KY 40509

Attention: Jo Ellen Drisko, President

Facsimile number: 859-543-2171

Telephone number: 859-543-2100
	 
	 	 	 	With a copy to:




or at such other address or number as shall be designated by Seller or Purchaser in a notice to the
other Party or Parties given in accordance with this Section 9.01. Except as otherwise provided in
this Agreement, all such communications shall be deemed to have been duly given: (A) in the case
of a notice sent by regular or certified mail, three business days after it is duly deposited in
the mails; (B) in the case of a notice delivered by hand, when personally delivered; (C) in the
case of a notice sent by facsimile, upon transmission subject to telephone confirmation of receipt;
and (D) in the case of a notice sent by overnight mail or overnight courier service, the next
business day after such notice is mailed or delivered to such courier, in each case given or
addressed as aforesaid.




     Section 9.02 [INTENTIONALLY LEFT BLANK.]



     Section 9.03 Benefit and Burden. This Agreement shall inure to the benefit of, and
shall be binding upon, the Parties hereto and their successors and permitted assigns.



     Section 9.04 No Third Party Rights. Nothing in this Agreement shall be deemed to
create any right in any creditor or other Person not a Party hereto (other than the Seller
Indemnified Persons, the Purchaser Indemnified Persons and any assignee provided for in Section
9.06), and this Agreement shall not be construed in any respect to be a contract in whole or in
part for the benefit of any third party (other than the Persons hereinbefore stated).



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     Section 9.05 Amendments and Waiver. No amendment, modification, restatement or
supplement of this Agreement shall be valid unless the same is in writing and signed by the Parties
hereto. No waiver of any provision of this Agreement shall be valid unless in writing and signed
by the Party against whom that waiver is sought to be enforced. No failure or delay on the part of
any Party hereto in exercising any right, power or privilege hereunder and no course of dealing
between or among any of the Parties hereto shall operate as a waiver of any right, power or
privilege hereunder. No single or partial exercise of any right, power or privilege hereunder
shall preclude any other or further exercise thereof or the exercise of any other right, power or
privilege hereunder. No notice to or demand on any Party in any case shall entitle such Party to
any other or further notice or demand in similar or other circumstances or constitute a waiver of
the rights of any Party to any other or further action in any circumstances without notice or
demand.



     Section 9.06 Assignments. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned, by operation of law or otherwise (other than as a result
of any merger or consolidation), by any Party without the prior express written consent of the
other Party. It is provided, however, that Purchaser shall have the right, in its sole discretion,
after Closing, to sell or transfer any or all of the Assets and further, in the event of such sale
or transfer, Purchaser shall have the right to assign to the transferee all of its rights under
Section 3.10, and any related remedies under Article VIII of this Agreement.



     Section 9.07 Counterparts. This Agreement may be executed in counterparts and by the
different Parties in separate counterparts, each of which when so executed shall be deemed an
original and all of which taken together shall constitute one and the same agreement.



     Section 9.08 Captions and Headings. The captions and headings contained in this
Agreement are inserted and included solely for convenience and shall not be considered or given any
effect in construing the provisions hereof if any question of intent should arise.



     Section 9.09 Construction. The Parties acknowledge that each of them has had the
benefit of legal counsel of its own choice and has been afforded an opportunity to review this
Agreement with its legal counsel and that this Agreement shall be construed as if jointly drafted
by the Parties hereto.



     Section 9.10 Severability. Should any clause, sentence, paragraph, subsection,
Section or Article of this Agreement be judicially declared to be invalid, unenforceable or void,
such decision will not have the effect of invalidating or voiding the remainder of this Agreement,
and the Parties agree that the part or parts of this Agreement so held to be invalid, unenforceable
or void will be deemed to have been stricken herefrom by the Parties, and the remainder will have
the same force and effectiveness as if such stricken part or parts had never been included herein.



     Section 9.11 Applicable Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF, EXCEPT, HOWEVER, THAT
THE CONVEYANCE OF THE REAL PROPERTY AND ALL 



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MATTERS RELATING THERETO SHALL BE GOVERNED BY THE LAWS OF THE STATE OF WASHINGTON.




     Section 9.12 Service of Process; Consent to Jurisdiction; Etc. Each Party hereby
irrevocably agrees that any legal action or proceeding against it arising out of this Agreement may
be brought in the courts of the State of Washington, or of the United States of America for the
Western District of Washington, and does hereby irrevocably (i) designate, appoint and empower the
Secretary of State of the State of Washington to receive for and on behalf of it service of process
in the State of Washington, and (ii) consent to service of process outside the territorial
jurisdiction of such courts in the manner provided by law. In addition, each Party irrevocably
waives any objection which such Party may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of, or relating to, this Agreement brought in any such court, (y)
any claim that any such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum, and (z) the right to object, with respect to any such claim, suit, action or
proceeding brought in any such court, that such court does not have jurisdiction over such Party or
any other party. In addition, any such legal action or proceeding may be brought in any court
having jurisdiction pursuant to applicable law.



     Section 9.13 Expenses; Transfer Taxes. Except as otherwise provided in this
Agreement or any Related Agreement, Seller and Purchaser shall each pay its own expenses incident
to this Agreement and the Related Agreements and the transactions contemplated hereby and thereby,
including all legal and accounting fees and disbursements. Seller and Purchaser shall share
equally all real estate transfer taxes and all excise taxes and any other sales, use, transfer or
excise taxes in connection with the conveyance of the Assets.



     Section 9.14 Knowledge.



          (a) The terms “knowledge of Seller”, “Seller’s knowledge” or other similar terms when used in
this Agreement shall mean the knowledge of all officers, directors and key employees of Seller or
its Affiliates who are identified on Schedule 9.14.



          (b) The terms “knowledge of Purchaser”, “Purchaser’s knowledge” or other similar terms when
used in this Agreement shall mean the knowledge of all officers, directors and key employees of
Purchaser or its Affiliates who are identified on Schedule 9.14.



     Section 9.15 Schedules. Subject to Purchaser’s rights pursuant to the provisions of
Section 7.01(f), Seller shall have the right, prior to Closing, to supplement with updated
information or to correct any Schedules attached to this Agreement solely with respect to matters
occurring in the Ordinary Course of Business of Seller between the date hereof and the Closing
Date; provided, however, that Seller shall deliver the final form of any Schedule to Purchaser not
later than midnight New York time on the third business day preceding the Closing Date.



     Section 9.16 Entire Agreement. This Agreement sets forth all of the promises,
agreements, conditions, understandings, warranties and representations among the Parties with
respect to the transactions contemplated hereby and thereby, and supersede all prior agreements,
arrangements and



29









 





understandings between the Parties, whether written, oral or otherwise. There are no promises,
agreements, conditions, understandings, warranties or representations, oral or written, express or
implied, among the Parties concerning the subject matter hereof except as set forth herein and
therein.




     IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the day and year first
above written.



	 	 	 	 	 	 	 
	“SELLER”	 	“PURCHASER”
	 
	 	 	 	 	 	 
	PIONEER AMERICAS, LLC	 	MARIANA PROPERTIES, INC.
	 
	 	 	 	 	 	 
	By:_____________________

	 	By:_____________________	 	 	 	 
	Printed Name:_____________

	 	Printed Name:_____________	 	 	 	 
	Title:____________________

	 	Title:____________________	 	 	 	 







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