AGREEMENT
THIS AMENDED AND RESTATED ASSET PURCHASE AGREEMENT (this "Agreement"), dated as
of May 16, 2007, is by and between CALUMET FLORIDA, L.L.C., a Delaware limited
liability company ("Seller"), and BREITBURN OPERATING L.P., a Delaware limited
partnership ("Buyer").
WHEREAS, Seller and Buyer made and entered into that certain Asset Purchase
Agreement dated as of May, 16, 2007 (the "Original Agreement") pursuant to which
Seller agreed to sell and Buyer agreed to purchase the Assets (as defined
therein) upon the terms and subject to the conditions set forth in the Original
Agreement; and
WHEREAS, Buyer has requested that, prior to Closing, Seller convey the Assets to
a single member Delaware limited liability company of which Seller is the sole
member, and assign to Buyer at Closing, all of the issued and outstanding
membership interests in and to such company; and
WHREAS, Seller has agreed to accommodate such requests by Buyer upon the terms
and subject to the conditions set forth in this Agreement; and
WHEREAS, the Parties desire to amend and restate the Original Agreement in it
entirety to reflect the foregoing agreements and certain other agreements
between the Parties, as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
agreements set forth in this Agreement, the parties hereto agree that the
Original Agreement shall be amended and restated in its entirety as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1
CERTAIN DEFINED TERMS.
UNLESS THE CONTEXT OTHERWISE
REQUIRES, THE RESPECTIVE TERMS DEFINED IN APPENDIX A ATTACHED HERETO AND
INCORPORATED HEREIN SHALL, WHEN USED HEREIN, HAVE THE RESPECTIVE MEANINGS
THEREIN SPECIFIED, WITH EACH SUCH DEFINITION TO BE EQUALLY APPLICABLE BOTH TO
THE SINGULAR AND THE PLURAL FORMS OF THE TERM SO DEFINED.
SECTION 1.2
REFERENCES, GENDER, NUMBER.
ALL REFERENCES IN THIS
AGREEMENT TO AN "ARTICLE," "SECTION," OR "SUBSECTION" SHALL BE TO AN ARTICLE,
SECTION, OR SUBSECTION OF THIS AGREEMENT, UNLESS THE CONTEXT REQUIRES
OTHERWISE.
UNLESS THE CONTEXT OTHERWISE REQUIRES, THE WORDS "THIS AGREEMENT,"
"HEREOF," "HEREUNDER," "HEREIN," "HEREBY," OR WORDS OF SIMILAR IMPORT SHALL
REFER TO THIS AGREEMENT AS A WHOLE AND NOT TO A PARTICULAR ARTICLE, SECTION,
SUBSECTION, CLAUSE OR OTHER SUBDIVISION HEREOF.
WHENEVER THE CONTEXT REQUIRES,
THE WORDS USED HEREIN SHALL INCLUDE THE MASCULINE, FEMININE AND NEUTER GENDER,
AND THE SINGULAR AND THE PLURAL.
ARTICLE II.
SALE AND PURCHASE OF ASSETS
SECTION 2.1
SALE AND PURCHASE.
ON AND SUBJECT TO THE TERMS AND
CONDITIONS OF THIS AGREEMENT, SELLER AGREES TO SELL AND CONVEY TO BUYER, AND
BUYER AGREES TO PURCHASE FROM SELLER, ALL LIMITED LIABILITY COMPANY INTERESTS
(INCLUDING ALL MEMBERSHIP INTERESTS AND OTHER EQUITY INTERESTS) IN AND TO THE
COMPANY (COLLECTIVELY, THE "MEMBERSHIP INTERESTS").
SECTION 2.2
INTERCOMPANY ACCOUNTS.
ON OR BEFORE THE CLOSING DATE,
SELLER SHALL ELIMINATE ANY INTERCOMPANY ACCOUNTS THAT EXIST BETWEEN (A) SELLER
AND ITS AFFILIATES (OTHER THAN THE COMPANY) AND (B) THE COMPANY.
ARTICLE III.
PURCHASE PRICE AND PAYMENT
SECTION 3.1
PURCHASE PRICE.
THE PURCHASE PRICE FOR THE SALE AND
CONVEYANCE OF THE COMPANY TO BUYER IS ONE HUNDRED MILLION DOLLARS
$100,000,000.00