1
EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
BETWEEN
GATX TERMINALS CORPORATION
AND
TRANSAMERICAN REFINING CORPORATION
DATED AS OF SEPTEMBER 19, 1997
2
TABLE OF CONTENTS
PAGE
RECITALS
ARTICLE 1 Definitions
Section 1.1 Acquired Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.2 Act of Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.3 Actual Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.4 Assigned Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.5 Assigned Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.6 Assumed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.7 Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.8 Cancellation Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.9 Casualty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.10 Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.11 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.12 Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.13 Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.14 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.15 Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.16 Disbursement Confirmation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.17 Dock No. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.18 Dock No. 1 Purchase Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.19 Dock No. 1 Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.20 Dock No. 1 Put Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.21 Docks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.22 Effective Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.23 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.24 Environmental Consultant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.25 Environmental Consulting Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.26 Environmental Continuation Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.27 Environmental Escrow Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.28 Environmental Escrow Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.29 Environmental Escrow Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.30 Environmental Escrow Termination Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.31 Environmental Indemnity Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.32 Environmental Liability(ies) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.33 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.34 ERISA Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.35 Excluded Environmental Liabilities(ies) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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Section 1.36 Excluded Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.37 Existing Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.38 Fifteenth Anniversary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.39 FTC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.40 GATC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.41 GATC Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.42 General Indemnity Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.43 Hazardous Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.44 HSR Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1.45 Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1.46 Inventory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1.47 Land Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1.48 Legal Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1.49 Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1.50 Material Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1.51 Operating Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1.52 Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1.53 Permitted Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1.54 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.55 Purchaser Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.56 Purchaser Indemnitees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.57 Qualified Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.58 Real Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.59 Refinery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.60 Refinery Parcel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.61 Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.62 Remediation Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.63 Remediation Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.64 Retained Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.65 Retained Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.66 Retained Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1.67 Retained Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1.68 Scheduled Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1.69 Seller Indemnitees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1.70 Servitudes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1.71 Shell Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1.72 Stanley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1.73 Stanley Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1.74 Subcontract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1.75 Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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Section 1.76 Tank Car Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1.77 Tanks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1.78 Terminal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1.79 Terminal Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1.80 Title Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1.81 Warehousing Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1.82 WARN Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1.83 Wharfage Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1.84 Withdrawal Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE 2 Purchase and Sale
Section 2.1 Purchase and Sale of Acquired Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.2 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.3 The Nonrefundable Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.4 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.5 Seller's Dock No. 1 Put Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.6 Stanley Guaranty Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.7 Pro Rations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.8 Payments Under Existing Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.9 Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.10 Assumed and Retained Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.11 Like-Kind Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 3 Representations and Warranties and Agreements of Seller
Section 3.1 Title to the Terminal Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.2 Environmental Condition of the Terminal Assets . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.3 Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.4 Authority of Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.5 Articles of Incorporation and Bylaws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.6 No Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.7 Assigned Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.8 HSR Act Exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.9 Seller's Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.10 Collective Bargaining Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.11 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.12 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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Section 3.13 WARN Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.14 Union Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.15 Existing Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.16 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.17 Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.18 No Rescission of Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.19 Finders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.20 Events Prior to Closing and Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 4 Representations, Warranties and Agreements of
Purchaser
Section 4.1 Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.2 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.3 Articles of Incorporation and Bylaws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.4 No Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.5 Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.6 Purchaser's Hiring Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.7 GATC Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.8 Dock Services Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.9 HSR Act Exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.10 Existing Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.11 Seller's Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.12 Finders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.13 Events Prior to Closing and Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE 5 Title, Survey, Purchaser's Inspection and Condition
of Terminal Assets
Section 5.1 Title and Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 5.2 Purchaser's Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 5.3 Condition of Terminal Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 5.4 Assumption of Liabilities and Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 5.5 No Obligation to Improve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 5.6 Contents of Tanks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 6 Action Prior to the Closing Date
Section 6.1 Preserve Accuracy of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . 21
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Section 6.2 Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.3 New Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.4 No Negotiations with Third Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.5 Reservation of Servitude . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.6 No New Encumbrances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.7 Cancellation Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.8 Gauging of the Tanks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.9 Equipment, Spare Parts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.10 Tank Car Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.11 Judgment Preventing Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.12 Title Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 7 Conditions Precedent to Closing
Section 7.1 Representations and Warranties Accurate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.2 Performance by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.3 Performance by Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.4 Approvals and Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.5 Contractual Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.6 Environmental Escrow Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.7 Seller's Performance at Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.8 Purchaser's Performance at Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE 8 Assumption of Environmental Liabilities;
Environmental Indemnification
Section 8.1 Definition of Environmental Liability(ies) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 8.2 Due Diligence by Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 8.3 Environmental Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 8.4 Environmental Release and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 8.5 Environmental Escrow Account; Environmental Escrow Agreement;
Environmental Consulting Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 8.6 Purchaser's Remediation Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE 9 Default and Remedies
Section 9.1 Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 9.2 Purchaser's Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7
PAGE
Section 9.3 Seller's Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 9.4 Sole Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE 10 Actions to be Taken Subsequent to the Closing Date
Section 10.1 Mutual Cooperation with Respect to Taxes and Other Financial Matters . . . . . . . . . . . . . . 37
Section 10.2 Cooperation in Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 10.3 Uncured Title Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 10.4 Performance Under Assigned Contracts; Indemnification . . . . . . . . . . . . . . . . . . . . . . 37
Section 10.5 Seller's Assigned Contracts Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 10.6 Seller's Representative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 10.7 Dock Use Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 10.8 Payments under Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 10.9 Conveyances or Leases to Purchaser Affiliates . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 10.10 Removal of Retained Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE 11 Other Provisions
Section 11.1 Survival Claims for Breaches of Representations,
Warranties and Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 11.2 Transfer, Sales and Property Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 11.3 Preservation of Right to Contest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 11.4 Certificates and Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 11.5 Attorney Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 11.6 Claims Under Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 11.7 Complete Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 11.8 Passage of Title and Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 11.9 Waiver, Discharge, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 11.10 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 11.11 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 11.12 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 11.13 Public Announcements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 11.14 No Recordation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 11.15 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 11.16 Titles and Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 11.17 Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 11.18 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 11.19 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
8
Section 11.20 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 11.21 TransTexas Gas Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 11.22 No Third-Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 11.23 Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
EXHIBITS:
Exhibit "A" - description of Real Estate
Exhibit "B" - description of real estate included in Dock No. 1
Exhibit "C" - the Dock No. 1 Survey
Exhibit "D" - form of Pipeline Servitude Agreement (Dock No. 1)
Exhibit "E" - form of Access Servitude Agreement (Dock No. 1)
Exhibit "F" - form of Stanley Guaranty
Exhibit "G" - existing Environmental Liabilities
Exhibit "H" - form of GATC Lease
Exhibit "I" - form of Dock Services Agreement
Exhibit "J" - form of reservation of servitude over Dock No. 1
Exhibit "K" - form of Act of Sale
Exhibit "L" - form of Assignment and Assumption Agreement
Exhibit "M" - form of Subcontract
Exhibit "N" - form of Environmental Release and Indemnity Agreement
Exhibit "O" - form of General Release and Indemnity Agreement
Exhibit "P" - form of Cancellation Agreements
Exhibit "Q" - form of Environmental Consulting Agreement
Exhibit "R" - form of Environmental Escrow Agreement
Exhibit "S" - form of Seller's Officer's Certificate
Exhibit "T" - form of Purchaser's Officer's Certificate
Exhibit "U" - form of Dock Use Certificate
SCHEDULES:
Schedule 1.4 - list of Assigned Contracts
Schedule 1.52 - list of Permits
Schedule 1.53 - list of Permitted Exceptions
Schedule 1.64 - list of Retained Assets
Schedule 1.65 - list of Retained Contracts
Schedule 1.67 - description of Retained Litigation
Schedule 2.1(e) - list of personal property at the Terminal
Schedule 3.7 - Assigned Contracts exceptions
9
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement"), entered into as of
the 19th day of September, 1997, between GATX Terminals Corporation, a Delaware
corporation ("Seller") and TransAmerican Refining Corporation, a Texas
corporation ("Purchaser") with respect to certain property located in St.
Charles Parish, Louisiana.
R E C I T A L S
A. Seller is the owner of a bulk liquid terminal facility at
Norco, St. Charles Parish, Louisiana.
B. Seller's real estate at Norco includes approximately 240.8
acres within the fence line of Seller's Norco terminal facility between the
Mississippi River and U.S. Highway #61 and approximately 463 acres of wetlands,
the majority of which wetlands are on the north side of U.S. Highway #61 and
approximately 1.149 acres subject to a 50' I.C. Railroad right of way (the
"Real Estate"). The Real Estate is more particularly described on Exhibit "A"
attached hereto and made a part hereof. Approximately 84 above ground storage
tanks with a shell capacity of approximately 5.5 million barrels (the "Tanks")
are located on the Real Estate.
C. Purchaser has constructed and operated an oil refinery and
related facilities (the "Refinery") on certain property (the "Refinery Parcel")
owned by Purchaser and located adjacent to the Real Estate.
D. Purchaser warehoused certain of its commodities in certain of
the Tanks at various times since 1971 under a Warehousing Agreement and an
Operating Agreement with Seller in connection with Purchaser's operation of the
Refinery.
E. John R. Stanley, a resident of Texas ("Stanley") is an
indirect shareholder of Purchaser, and is an officer of Purchaser.
F. Seller has entered or expects to enter into an asset purchase
agreement (the "Dock No. 1 Purchase Agreement") with Shell Norco Refining
Company (the "Dock No. 1 Purchaser"), pursuant to which Seller may convey Dock
No. 1 (as hereinafter defined) to the Dock No. 1 Purchaser or an affiliate of
the Dock No. 1 Purchaser.
G. Purchaser desires to acquire from Seller the Real Estate, the
Tanks, the Docks and the other Acquired Assets (as hereinafter defined), all
in accordance with the terms and conditions contained in this Agreement.
10
H. General American Transportation Corporation, a New York
corporation ("General American") is the parent of Seller. The transactions
contemplated under this Agreement will benefit General American.
I. Therefore, in consideration of the mutual covenants,
agreements, benefits and burdens hereinafter set forth, and other good and
valuable consideration, Purchaser and Seller agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement the following terms shall have the
following respective meanings:
1.1 Acquired Assets: shall have the meaning set forth in Section
2.1 hereof.
1.2 Act of Sale: shall have the meaning set forth in Section
7.7(a) hereof.
1.3 Actual Knowledge: shall mean the actual knowledge of (i) Mr.
Bruce Thompson, formerly General Manager of the Norco Business Unit, currently
Director of Global and National Accounts, (ii) Mr. Tony Thevenot, Manager of
the Norco Terminal, (iii) Mr. Richard Rykosky, EHS Manager of the Norco
Terminal, or (iv) Ms. Usha Mehra, Environmental Health and Safety Manager, Gulf
Region, and shall not be construed to refer to the knowledge of any other
officer, agent or employee of Seller or any affiliate of Seller.
1.4 Assigned Contracts: shall mean all Contracts designated on
Schedule 1.4, which, at Seller's option, will be either assigned or
subcontracted to Purchaser.
1.5 Assigned Records: shall mean the records to be transferred by
Seller to Purchaser as described in Section 2.1(i).
1.6 Assumed Liabilities: shall have the meaning set forth in
Section 2.10 hereof.
1.7 Bonds: shall have the meaning ascribed thereto in the
Financing Documents as that term is defined in the Trust Indenture between the
South Louisiana Port Commission and Harris Trust and Savings Bank dated as of
December 1, 1992 regarding $13,330,000 Principal Amount South Louisiana Port
Commission Terminal Revenue Refunding Bonds, Series 1993.
1.8 Cancellation Agreements: shall have the meaning set forth in
Section 6.7 hereof.
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1.9 Casualty: shall mean any (1) fire, explosion; or (2) Act of
God, including hurricane, cyclone or flood; (3) any other acts of a similar
nature; or (4) any other act or event for which Seller currently has casualty
insurance coverage in effect.
1.10 Claim: shall have the meaning set forth in Section 11.6
hereof.
1.11 Closing: shall have the meaning set forth in Section 2.2
hereof.
1.12 Closing Date: shall have the meaning set forth in Section 2.2
hereof.
1.13 Commitment: shall have the meaning set forth in Section 5.1
hereof.
1.14 Contracts: shall mean all written contracts, instruments,
agreements, purchase orders, sales contracts, leases, licenses and franchises
between Seller (or Seller and/or one or more affiliates of Seller) and third
parties relating to the business, assets or operations of the Terminal.
1.15 Deposits: shall have the meaning set forth in Section 2.3(b)
hereof.
1.16 Disbursement Confirmation: shall have the meaning set forth
in the Environmental Consulting Agreement.
1.17 Dock No. 1: shall mean the real estate described in Exhibit
"B" attached hereto and made a part hereof, together with that certain dock
internally designated by Seller as "Ship Dock #1" and all component parts
thereof, substantially as shown on the survey attached hereto and made a part
hereof as Exhibit "C" (the "Dock No. 1 Survey"), including without limitation,
dockline numbers 23, 26, 27 and 40 and the 3" fresh water line paralleling
dockline number 26.
1.18 Dock No. 1 Purchase Agreement: shall have meaning set forth
in Recital F hereof.
1.19 Dock No. 1 Purchaser: shall have meaning set forth in Recital
F hereof.
1.20 Dock No. 1 Put Option: shall have the meaning set forth in
Section 2.5 hereof.
1.21 Docks: shall mean the three docks internally designated by
Seller as "Ship Docks #'s 2, 3 and 4" and all appurtenances thereto, situated
on and in the Mississippi River adjacent to the portion of the Real Estate
fronting on the Mississippi River, all as shown on the Survey.
1.22 Effective Time: shall mean 9:00 a.m. Central Daylight Time on
the Closing Date.
1.23 Employee Benefit Plans: shall mean all Employee Benefit Plans
(within the meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA") and all bonus, stock option, stock purchase,
restricted stock, incentive, deferred compensation, retiree medical or life
insurance, supplemental retirement, severance, vacation or other benefit plans,
programs or arrangements, or any collective bargaining agreement, with respect
to which
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Seller or any member of Seller's controlled group (within the meaning of
Section 414(b), (c) or (m) of the Internal Revenue Code of 1986, as amended
(collectively, "ERISA Affiliates"), has any obligation or which are maintained,
contributed to or sponsored by Seller or any ERISA Affiliate for the benefit of
any current employee of Seller located at the Terminal.
1.24 Environmental Consultant: shall have the meaning set forth in
Section 8.5(a) hereof.
1.25 Environmental Consulting Agreement: shall mean an agreement
among Seller, Purchaser and the Environmental Consultant substantially in the
form of Exhibit "Q" attached hereto and made a part hereof.
1.26 Environmental Continuation Condition: shall mean a
determination made by the Environmental Consultant on or before the Fifteenth
Anniversary pursuant to the Environmental Consulting Agreement that, effective
on the Fifteenth Anniversary, Remediation Activities required by a Legal
Requirement respecting the Terminal Assets to satisfy an Environmental
Liability have not been completed.
1.27 Environmental Escrow Account: shall have the meaning set
forth in Section 8.5 (d) hereof.
1.28 Environmental Escrow Agent: shall have the meaning set forth
in Section 8.5(b).
1.29 Environmental Escrow Agreement: shall mean an agreement among
Seller, Purchaser and Environmental Escrow Agent substantially in the form of
Exhibit "R" attached hereto and made a part hereof.
1.30 Environmental Escrow Termination Date: shall mean the earlier
to occur of (i) the proper disbursement of all the funds in the Environmental
Escrow Account, (ii) the Fifteenth Anniversary provided that no Environmental
Continuation Condition exists on the Fifteenth Anniversary, or (iii) if an
Environmental Continuation Condition exists on the Fifteenth Anniversary, the
satisfaction of the Environmental Continuation Condition.
1.31 Environmental Release and Indemnity Agreement: shall mean an
agreement, substantially in the form of Exhibit "N" attached hereto and made a
part hereof, which sets forth all of Purchaser's environmental indemnity
obligations under this Agreement.
1.32 Environmental Liability(ies): shall have the meaning set
forth in Section 8.1 hereof.
1.33 ERISA: shall have the meaning set forth in Section 1.23
hereof.
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1.34 ERISA Affiliates: shall have the meaning set forth in Section
1.23 hereof.
1.35 Excluded Environmental Liability(ies): shall mean any
Environmental Liability relating to the Terminal Assets (i) that exists as of
the date of this Agreement or arises between the date of this Agreement and the
Effective Time, and (ii) of which Seller has Actual Knowledge, and (iii) that
is not disclosed on Exhibit "G" hereof, or, with respect to any such
Environmental Liability arising between the date of this Agreement and the
Effective Time, is not disclosed to Purchaser prior to the Closing hereunder.
In addition to the above, the term "Excluded Environmental Liability(ies)"
shall include any claim, exposure, liability, potential liability or obligation
for any damage to property other than the Terminal Assets and the Refinery
Parcel as a result of a Release from the Terminal Assets which occurred prior
to the Closing Date, including without limitation, any and all claims, demands
and liabilities (including any reasonable attorneys' fees in connection
therewith) arising from or in connection with the Guste v. Shell Oil Co.,
Civil Action No. 95-0601 pending in the U.S. District Court for the Eastern
District of Louisiana (the "Shell Litigation") and/or any other subsequent
action, proceeding, notice or cause of action that is brought in the future by
any private, public and/or governmental party in connection with or arising out
of the facts and circumstances which were the subject matter of the Shell
Litigation. Additionally, the term "Excluded Environmental Liability(ies)"
shall include any Liability arising out of wrongful death, personal injury,
mental anguish, fear of contracting disease or injury, cost of medical
monitoring or any other claims based on occurrences prior to the Closing Date,
to the extent the injury or exposure occurred prior to the Closing Date.
1.36 Excluded Fees: shall have the meaning set forth in Section
8.4(c) hereof.
1.37 Existing Agreements: shall have the meaning set forth in
Section 3.15 hereof.
1.38 Fifteenth Anniversary: shall mean the date which is fifteen
(15) years after the Closing Date.
1.39 FTC: shall have the meaning set forth in Section 3.8 hereof.
1.40 GATC: shall have the meaning set forth in Section 4.7 hereof.
1.41 GATC Lease: shall have the meaning set forth in Section 4.7
hereof.
1.42 General Release and Indemnity Agreement : shall mean an
agreement, substantially in the form of Exhibit "O" attached hereto and made a
part hereof, which sets forth all of Seller's and Purchaser's indemnity
obligations (other than environmental indemnity obligations) under this
Agreement.
1.43 Hazardous Materials: shall have the meaning set forth in
Section 8.1 hereof.
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1.44 HSR Act: shall mean the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended or modified.
1.45 Improvements: shall mean all buildings, improvements and
other constructions located on the Real Estate (other than the Tanks and the
Docks), and all component parts thereof.
1.46 Inventory: shall mean the contents of all of the Tanks,
together with all line fill, unit fill, and tank bottoms (except product owned
by Seller's customers).
1.47 Land Lease: shall mean that certain Amended and Restated Land
Lease Agreement (Contract No. 86-583) between Seller and Purchaser dated April
29, 1997.
1.48 Legal Requirement: shall have the meaning set forth in
Section 8.1 hereof.
1.49 Liabilities: shall mean, as to any person or entity, all
debts, adverse claims, liabilities and obligations, direct, indirect, absolute
or contingent of such person or entity, whether accrued, vested or otherwise,
whether in contract, tort or otherwise and whether or not actually reflected,
or required by generally accepted accounting principles to be reflected, in
such person's or entity's balance sheets or other books and records, including,
without limitation, (i) obligations arising under any law, rule or regulation
of any governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, or imposed by any court or any arbitrator
of any kind; and (ii) obligations arising in connection with products sold or
services rendered by, or under contracts, agreements (whether written or oral),
leases, commitments or undertakings of, such person or entity.
1.50 Material Event: shall have the meaning set forth in Section
11.8 hereof.
1.51 Operating Agreement: shall mean that certain Operating
Agreement between Seller and Purchaser dated January 11, 1989, as amended.
1.52 Permits: shall mean all permits, licenses, authorizations,
approvals or other indicia of authority issued by any governmental agency,
authority or other instrumentality of the United States or any state or
political subdivision thereof to Seller as of the Closing (i) to own, occupy
or operate the Terminal Assets, or (ii) to transport or store any substance
(including without limitation any Hazardous Material) in, on or through any of
the Terminal Assets.
1.53 Permitted Exceptions: shall mean (i) all servitudes and other
encumbrances (excluding liens) existing on the date of this Agreement on any of
the Terminal Assets noted on Schedule 1.53 attached hereto and made a part
hereof and any other servitudes or encumbrances existing on the date of this
Agreement and not shown on Schedule 1.53, of which Seller has no Actual
Knowledge; and (ii) any servitudes or other encumbrances (other than liens)
arising between the date of this Agreement and the Closing Date which do not
materially impair the value or utility of the Terminal Assets subject thereto,
including without limitation the Servitudes. Seller
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acknowledges that the term "Permitted Exceptions" shall not include any liens,
judicial mortgages or encumbrances arising from or in connection with the Tank
Car Litigation.
1.54 Purchase Price: shall have the meaning set forth in section
2.4(a) hereof.
1.55 Purchaser Affiliates: shall mean all present and future
corporations, partnerships, limited partnerships, limited liability companies
and unincorporated associations that directly, or indirectly through one or
more intermediaries, controls or is controlled by, or is under common control
with, Purchaser.
1.56 Purchaser Indemnitees: shall mean Purchaser, its insurers,
its present, former and future officers, directors, stockholders, employees,
agents and direct or indirect parents and affiliated companies and their
successors and assigns, and the insurers of all of them.
1.57 Qualified Bank: shall have the meaning set forth in Section
8.5(b) hereof.
1.58 Real Estate: shall have the meaning set forth in Recital B
hereof.
1.59 Refinery: shall have the meaning set forth in Recital C
hereof.
1.60 Refinery Parcel: shall have the meaning set forth in Recital
C hereof.
1.61 Releases: shall have the meaning set forth in Section 8.1
hereof.
1.62 Remediation Activities: shall have the meaning set forth in
Section 8.5(f) hereof.
1.63 Remediation Costs: shall have the meaning set forth in
Section 8.5(f) hereof.
1.64 Retained Assets: shall mean the following assets of Seller:
(i) Seller's cash and bank accounts, (ii) accounts receivable owed to Seller by
reason of deliveries or services made by or for the Terminal prior to the
Effective Time, (iii) all Retained Contracts (including without limitation all
Employee Benefit Plans), and all rights thereunder, (iv) the books and records
of Seller which are not Assigned Records under Section 2.1(i) hereof, including
without limitation all of Seller's employee personnel files and records, and
all customer and Seller proprietary information and documents, (v) all computer
hardware and software systems such as Galahad (inventory and scheduling
system), Lawson (financial and purchasing systems) and CAS (Customer
Administrative System), and (vi) Seller's name, good will and tax attributes,
all of which assets and rights are not being sold and transferred to Purchaser
hereunder.
1.65 Retained Contracts: shall mean the Contracts designated on
Schedule 1.65 attached hereto and made a part hereof and all other Contracts,
agreements and undertakings between Seller and any third party not expressly
assumed by Purchaser as described on Schedule 1.4.
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1.66 Retained Liabilities: shall have the meaning set forth in
Section 2.10(b) hereof.
1.67 Retained Litigation: shall mean the litigation matters
described on Schedule 1.67 attached hereto and made a part hereof.
1.68 Scheduled Closing Date: shall have the meaning set forth in
Section 2.2 hereof.
1.69 Seller Indemnitees: shall mean Seller, its insurers, its
present, former and future officers, directors, stockholders, employees, agents
and direct or indirect parents and affiliated companies and their successors
and assigns, and the insurers of all of them.
1.70 Servitudes: shall mean the servitudes intended to be granted
by Seller to the Dock No. 1 Purchaser in connection with the consummation of
the transactions contemplated in the Dock No. 1 Purchase Agreement, which
servitudes (assuming that the transactions contemplated in the Dock No. 1
Purchase Agreement are consummated) shall be granted pursuant to (i) a Pipeline
Servitude Agreement substantially in the form of Exhibit "D" attached hereto
and made part hereof, and (ii) an Access Servitude Agreement substantially in
the form of Exhibit "E" attached hereto and made a part hereof.
1.71 Shell Litigation: shall have the meaning set forth in Section
1.35 hereof.
1.72 Stanley: shall have the meaning set forth in Recital E
hereof.
1.73 Stanley Guaranty: shall have the meaning set forth in Section
2.6 hereof.
1.74 Subcontract: shall have the meaning set forth in Section
7.7(b)(ii) hereof.
1.75 Survey: shall have the meaning set forth in Section 5.1
hereof.
1.76 Tank Car Litigation: shall mean the In Re New Orleans Tank
Car Leakage Fire Litigation, Civil Action No. 87-16374 pending in the Civil
District Court for the Parish of Orleans, State of Louisiana.
1.77 Tanks: shall have the meaning set forth in Recital B hereof.
1.78 Terminal: shall mean Seller's Norco terminal facility and all
related assets, including the Terminal Assets.
1.79 Terminal Assets: shall mean the Real Estate, (including the
immovable property conveyed by Seller to the South Louisiana Port Commission
pursuant to an act of sale dated August 4, 1981, recorded in C.O.B. 269, Folio
373, and an act of sale dated May 23, 1983, recorded in C.O.B. 296, Folio 688
of the conveyance records of St. Charles Parish, Louisiana), the Improvements,
the Docks, the Tanks, the Inventory, other storage facilities and equipment,
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pipelines, and other tangible personal property located on or used in
connection with any of the foregoing, but excluding, except as otherwise
expressly provided in Section 2.5 hereof, Dock No. 1, and excluding the
Retained Assets.
1.80 Title Objections: shall have the meaning set forth in Section
10.3 hereof.
1.81 Warehousing Agreement: shall mean that certain Revised and
Restated Warehousing Agreement between Seller and Purchaser dated January 11,
1989, as amended, and providing, among other things, for the warehousing by
Purchaser and one of its affiliates of certain commodities in the facilities
owned by Seller and located on the Real Estate, including in particular, the
Tanks.
1.82 WARN Act: shall mean the Worker's Adjustment Retraining and
Notification Act, as amended or modified.
1.83 Wharfage Fee: shall mean that certain wharfage fee payable to
the South Louisiana Port Commission under the terms of the Bonds. Said
wharfage fee is payable in lieu of dockage fees being levied on vessels
berthing at the Docks which are related to the project funded by the Bonds.
The wharfage fee is $2,500.00 per month to and including May 1, 2003 and
$1,200.00 per month thereafter until the Bonds are retired.
1.84 Withdrawal Date: shall have the meaning set forth in Section
8.5(h) hereof.
ARTICLE 2
PURCHASE AND SALE
2.1 Purchase and Sale of Acquired Assets. Subject to the terms
and conditions set forth in this Agreement, at the Closing (but effective as of
the Effective Time), Seller shall sell, assign, transfer, grant, convey and
deliver to Purchaser, and Purchaser shall purchase, acquire, assume and accept,
free and clear of all liens and security interests, but subject to all
Permitted Exceptions, all of Seller's right, title and interest in and to the
assets, properties, rights, obligations and contracts described in the
following paragraphs (a) through (l) (the "Acquired Assets"):
(a) The Real Estate;
(b) The Improvements;
(c) The Tanks;
(d) The Docks;
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(e) All the machinery, equipment, furniture, fixtures,
boats, trailers, trucks, automobiles, cranes, tools, spare parts and other
tangible personal property owned by Seller at the Terminal including without
limitation all the personal property listed or referenced in Schedule 2.1(e);
(f) The Inventory;
(g) All assignable rights of Seller, if any, under or
pursuant to all warranties, representations and guarantees made by suppliers,
licensors, manufacturers and contractors in connection with Terminal Assets to
the extent that such warranties, representations and guarantees (i) relate to
claims that accrue or arise on or after the Effective Time, (ii) create an
obligation to repair or replace Terminal Assets (or refund the purchase price
therefor), (iii) constitute warranties of title or (iv) relate to claims which
have not been asserted prior to the Effective Time (whether or not such claims
accrued or arose prior to the Effective Time);
(h) All rights, obligations and interests of Seller as of
the Closing Date in, to and under all Assigned Contracts that are assigned to
Purchaser (including without limitation all customer deposits and prepayments),
and all obligations of Seller as of the Closing Date under the Assigned
Contracts that are subcontracted to Purchaser;
(i) All of Seller's records directly relating to the
ownership, operation and maintenance of the Terminal Assets, including without
limitation all training, safety, and maintenance manuals, environmental
records, guidelines, procedures and manuals, and all records relating to the
Permits or the Assigned Contracts, but excluding the Retained Assets;
(j) All Permits, but only to the extent assignable, and
any pending applications therefor;
(k) the Assumed Liabilities; and
(l) the rights and benefits in favor of Purchaser under
the General Release and Indemnity Agreement.
2.2 Closing. The Closing of the transactions contemplated hereby
(the "Closing") shall take place at the offices of Phelps Dunbar, L.L.P. in New
Orleans, Louisiana, following the satisfaction or written waiver of the
conditions precedent set forth in Article 8, on or before October 1, 1997, or
such later date as provided for hereunder (the "Scheduled Closing Date"). The
date on which the Closing actually occurs shall be referred to herein as the
"Closing Date." If the Closing shall not have occurred on the Scheduled
Closing Date, or as same may be extended pursuant to the express terms of this
Agreement, then this Agreement shall be deemed to have terminated.
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2.3 The Nonrefundable Deposits.
(a) Seller acknowledges that Purchaser has heretofore
made to Seller a nonrefundable (except as provided in Section 9.1 hereof)
initial deposit (the "Initial Deposit") of FIVE MILLION AND NO/100
($5,000,000.00) DOLLARS in connection with the transactions contemplated by
this Agreement.
(b) Upon execution of this Agreement, Purchaser shall
make an additional nonrefundable (except as provided in Section 9.1 hereof)
deposit (the "Additional Deposit", and together with the Initial Deposit, the
"Deposits") of FIVE MILLION AND NO/100 ($5,000,000.00) DOLLARS. The Deposits
shall not include any interest which may be earned thereon. The Additional
Deposit shall be paid to Seller by wire transfer of immediately available funds
to Seller's account at the First National Bank of Chicago; and this Agreement
shall not be effective until the Additional Deposit is received by Seller. The
Deposits are not, and shall not be deemed to be, earnest money.
Notwithstanding the foregoing, Seller acknowledges that the Additional Deposit
will be paid as part of the Purchase Price at Closing.
2.4 Purchase Price.
(a) The Purchase Price shall be either
(i) FORTY MILLION AND NO/100 ($40,000,000.00)
DOLLARS cash if Seller does not exercise the Dock No.
1 Put Option, or
(ii) FORTY-SEVEN MILLION AND NO/100
($47,000,000.00) DOLLARS cash if Seller exercises the
Dock No. 1 Put Option,
(b) Purchaser acknowledges that the cash Purchase Price,
as described above in Section 2.4(a), reflects that Seller has and will receive
additional consideration from Purchaser for the conveyance by Seller to
Purchaser of the Acquired Assets, in the form of Purchaser's indemnity
obligations under the General Release and Indemnity Agreement and the
Environmental Release and Indemnity Agreement.
(c) At the Closing, Purchaser shall pay Seller, by wire
transfer of immediately available funds or other payment mechanism satisfactory
to Seller, an amount equal to the cash portion of the Purchase Price less the
Deposits, and subject to pro rations as set forth in Section 2.7 hereof.
2.5 Seller's Dock No. 1 Put Option. At any time between the date
of this Agreement and the Closing, Seller shall have the right (the "Dock No. 1
Put Option"), upon written notice to Purchaser, to include Dock No. 1 in the
Acquired Assets. In the event that Seller exercises the Dock No. 1 Put Option,
notwithstanding anything in this Agreement to the contrary, the terms
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"Acquired Assets", "Terminal Assets", and "Docks" shall be deemed to be
automatically amended to include Dock No. 1, and the applicable conveyance
documents referenced in Section 7.7 hereof shall be amended to include the
conveyance of all of Seller's right, title and interest in and to Dock No. 1.
Additionally, in the event that Seller exercises the Dock No. 1 Put Option
after September 5, 1997, Purchaser shall have the right, upon written notice to
Seller, to delay the Scheduled Closing Date for up to fourteen (14) days in
order to arrange for funding of the incremental portion of the Purchase Price
relating to Dock No. 1; provided, however, that nothing herein shall be
construed to make Purchaser's obligations under this Agreement, including
without limitation Purchaser's obligation to purchase Dock No. 1 if Seller
exercises the Dock No. 1 Put Option, in any way conditioned upon Purchaser's
ability to secure financing or funding for any portion of the Purchase Price.
2.6 Stanley Guaranty Obligation. Contemporaneously with the
execution of this Agreement, Purchaser shall cause Stanley to execute and
deliver to Seller a Guaranty Agreement (the "Stanley Guaranty") substantially
in the form of Exhibit "F" attached hereto and made a part hereof. Also, prior
to the date of this Agreement, Stanley shall have delivered to Seller evidence
reasonably satisfactory to Seller of Stanley's ability or, in lieu thereof,
Purchaser's ability to satisfy his obligations under the Stanley Guaranty.
2.7 Pro Rations. The amount of any prepayments paid to Seller by
customers under Assigned Contracts shall be prorated as of the Closing Date.
Additionally, any expense paid by Seller prior to Closing directly related to
services to be rendered on or under Assigned Contracts subsequent to Closing
shall be netted against any amounts due Purchaser. If the net of all such
adjustments produces an amount owing to Purchaser, such amount shall be
credited against the Purchase Price at Closing; or if the net of all such
adjustments produces an amount owing to Seller, such amount shall be added to
the Purchase Price at Closing.
In addition, adjustment and proration of real estate and
personal property taxes shall be handled between the parties as provided in
Section 11.2(b). Further, nothing contained herein shall serve to alter and/or
modify Seller's obligations under Section 2.10(b).
2.8 Payments Under Existing Agreements. At the Closing, Purchaser
shall pay to Seller, in immediately available funds, all amounts due and owing
to Seller under the Existing Agreements for services provided prior to Closing.
Further, this Section is subject to the proration provisions of Section 2.7
hereof.
2.9 Accounts. Any payments made by wire transfer of immediately
available funds to a party hereto shall be made to an account or accounts which
shall be designated by such party to the other party at least two business days
prior to payment.
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2.10 Assumed and Retained Liabilities.
(a) On the terms and subject to the conditions set forth in
this Agreement, Purchaser agrees to assume at the Closing (i) all of Seller's
Liabilities under the Assigned Contracts (other than any Liability to customers
for shortages in customer products stored in the Tanks at Closing), (ii)
Seller's obligation to pay the Wharfage Fee from and after the Closing Date,
(iii) all Liabilities for occurrences on or after the Closing Date and arising
out of the condition (except for Environmental Liabilities and Excluded
Environmental Liabilities, which are addressed in Section 8.4 hereof) of the
Terminal Assets at Closing and thereafter, and (iv) all Environmental
Liabilities, other than Excluded Environmental Liabilities (collectively, the
"Assumed Liabilities").
(b) Purchaser will not assume, and Seller shall retain,
(i) any Liabilities of Seller under the Retained Contracts, (ii) any
Liabilities of Seller under the Bonds (with the exception of the obligation to
pay the Wharfage Fee from and after the Closing Date), (iii) any Liabilities of
Seller under the Retained Litigation, (iv) the Excluded Environmental
Liabilities, (v) Liability to customers for shortages in customer product
stored in the Tanks at Closing as determined by the gauging of the Tanks to be
conducted pursuant to Section 6.8 hereof, (vi) fines, penalties and fees
incurred by Seller prior to the Closing, and (vii) any other Liabilities of
Seller which are not Assumed Liabilities (collectively, the"Retained
Liabilities").
2.11 Like-Kind Exchange.
(a) It is Seller's intention to exchange all or a portion
of the Acquired Assets for other property of like-kind in a non-simultaneous
exchange (the "Non-Simultaneous Exchange") under such terms and conditions as
qualify for the nonrecognition of gain pursuant to Section 1031 of the Internal
Revenue Code of 1986, as amended. At Seller's election, made to Purchaser
prior to the transfer of the Acquired Assets to Purchaser at the Closing, and
pursuant to an assignment in the form of Exhibit "V" attached hereto and made a
part hereof, (the "Exchange Assignment"), Purchaser's obligation to pay the
Purchase Price to Seller at Closing shall be fulfilled by Purchaser's deposit
of such amount at the Closing in immediately available funds by bank wire
transfer in a trust established with Cole Taylor Bank as trustee (the
"Trustee"), pursuant to an exchange trust agreement between Seller and the
Trustee.
(b) Purchaser shall execute a copy of the Exchange
Assignment and return such copy to Seller solely for the purposes of
acknowledging receipt of the notice from Seller that Seller intends to
effectuate the Non- Simultaneous Exchange. The like-kind exchange referred to
in Section 2.11(a) hereof shall not affect any obligations of Seller under the
terms of this Agreement, or other closing documents, including without
limitation the General Release and Indemnity Agreement.
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ARTICLE 3
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF SELLER
Seller represents and warrants to Purchaser and agrees as follows:
3.1 Title to the Terminal Assets. Seller has not, by its own act
or acts, (i) conveyed (except for conveyances to the South Louisiana Port
Commission referred to in Section 1.79 hereof, which have been redeemed) the
Terminal Assets, or any part thereof, to any party other than Purchaser, (ii)
granted or created any encumbrances on the Terminal Assets or any part thereof,
except for the Permitted Exceptions, or (iii) granted any lien on the Terminal
Assets or any part thereof or pledged the Terminal Assets or any part thereof
as collateral or security for any debt or obligation (including without
limitation, the Bonds). Seller warrants that title to the Terminal Assets is
not encumbered by a judicial mortgage arising from or in connection with the
Tank Car Litigation. Seller has no Actual Knowledge of any liens, security
interests, servitudes or other encumbrances existing on the date of this
Agreement on any of the Terminal Assets, other than those shown on Schedule
1.53 hereof.
3.2 Environmental Condition of the Terminal Assets. To Seller's
Actual Knowledge, all existing Environmental Liabilities arising out of the
Terminal Assets and their prior use or operation are set forth on Exhibit "G",
attached hereto and made a part hereof.
3.3 Existence. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and has
the right, power and authority to enter into this Agreement and to sell the
Acquired Assets in accordance with the terms and conditions of this Agreement.
3.4 Authority of Seller. This Agreement and all instruments and
documents delivered or to be delivered by Seller hereunder have been duly
authorized pursuant to resolutions of Seller's board of directors, a certified
copy of which was delivered to Purchaser contemporaneously with the execution
of this Agreement, and do and shall constitute valid and binding agreements of
Seller.
3.5 Articles of Incorporation and Bylaws. The execution of this
Agreement and the consummation of the transactions contemplated herein do not
violate any provision of the Articles of Incorporation or Bylaws of Seller.
3.6 No Defaults. Neither the execution of this Agreement, nor the
consummation of the transactions contemplated hereby will conflict with, or
result in a breach of, the terms, conditions or provisions of, or constitute a
default under, any agreement, decree, order, judgment, or instrument to which
the Seller is bound.
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3.7 Assigned Contracts. Schedule 1.4 lists all of the Assigned
Contracts. Except as otherwise disclosed on Schedule 3.7, all Assigned
Contracts are in full force and effect, are valid and enforceable in accordance
with their terms, all requisite consents for the assignments have been
obtained, and no condition exists or event has occurred which, with notice or
lapse of time or both, would constitute a material default on the part of
Seller under any thereof.
3.8 HSR Act Exemption. Seller agrees that transactions
contemplated in this Agreement are not reportable under the HSR Act.
3.9 Seller's Employees. The employment of Seller's employees at
the Terminal will end effective before the Effective Time on the Closing Date,
and at or after the Effective Time none of Seller's employees, other than
Seller's representative referenced in Section 10.6 hereof, will be employed by
Seller at the Terminal.
3.10 Collective Bargaining Agreements. Seller's current union
contract with OCAW, Local 4-447 is the only collective bargaining agreement in
effect with respect to Seller's employees at the Terminal.
3.11 Employee Benefit Plans. Seller hereby agrees to indemnify and
hold Purchaser harmless at all times from and after the Closing Date against
and in respect of any losses, liabilities, and damages incurred by Purchaser
(including reasonable out-of-pocket costs, charges and expenses resulting from
participation of officers or employees of the Purchaser in defense thereof)
that result or arise from any ERISA claim, unfunded vested benefit claim or
withdrawal liability claim, which is made by or on behalf of any current
employee of Seller and relates to any of the Employee Benefit Plans.
3.12 Taxes. All real estate and ad valorem taxes and any other tax
assessments against the Terminal Assets for all calendar years prior to the
calendar year of Closing have been paid in full.
3.13 WARN Act. Seller acknowledges that it understands that the
WARN Act may be applicable to the transactions contemplated by this Agreement.
Seller agrees that, with respect to the transactions contemplated by this
Agreement, it will be solely responsible for complying with the WARN Act and
any rules or regulations promulgated thereunder. Seller agrees to indemnify
and hold Purchaser Indemnitees harmless at all times from and after the Closing
Date against and in respect of any losses, liabilities and damages incurred by
Purchaser Indemnitees that result or arise from any violation or alleged
violation by Seller of the WARN Act or any rules or regulations promulgated
thereunder, and from all claims, suits, actions, proceedings, demands,
assessments, judgments, costs, attorney's fees and expenses incident to such
violations or alleged violations, including those out-of-pocket costs, charges
and expenses resulting from the participation of officers or employees of
Purchaser in defense thereof.
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3.14 Union Contract. Seller agrees to indemnify and hold Purchaser
Indemnitees harmless at all times from and after the Closing Date against and
in respect of any losses, liabilities and damages incurred by Purchaser
Indemnitees that result or arise from any breach or alleged breach of Seller's
current union contract with OCAW, Local 4-447, and from all claims, suits,
actions, proceedings, demands, assessments, judgments, costs, attorney's fees
and expenses incident to such breach or alleged breach by Seller, including
those out-of-pocket costs, charges and expenses resulting from the
participation of officers or employees of Purchaser in defense thereof.
3.15 Existing Agreements. Seller agrees that any and all existing
Contracts between Seller and Purchaser and/or one or more of Purchaser's
affiliates relating to or involving the use of any of the Terminal Assets
(including without limitation the Land Lease, the Warehousing Agreement and the
Operating Agreement, collectively, the "Existing Agreements") shall terminate
upon the Closing; and Purchaser and its affiliates shall have no further
liability to Seller under any of the Existing Agreements with the exception of
the payment of all amounts which are due and owing to Seller for services
provided prior to Closing. Further, this Section is subject to the proration
provisions of Section 2.7 hereof.
3.16 Insurance. Contemporaneously with the execution of this
Agreement, Seller has furnished Purchaser with a certificate evidencing that
the Terminal Assets are covered by property insurance at replacement value.
Purchaser has been added to such policies as a loss payee, and such policies
may not be canceled except upon thirty (30) days advance written notice to
Purchaser.
3.17 Permits. Schedule 1.52 lists all of the Permits. Seller
makes no representation or warranty, however, that the Permits are all of the
permits, licenses, authorizations or approvals required in connection with the
ownership or operation of the Terminal Assets.
3.18 No Rescission of Sale. In the event that the Closing occurs,
Seller agrees that, except in the event of a failure by Purchaser to pay the
Purchase Price (as set forth in Section 2.4(a) hereof), Seller shall not have
any right, and Seller hereby waives any right that it may have, to rescind the
sale of the Acquired Assets by Seller to Purchaser.
3.19 Finders. Seller has not paid or become obligated to pay any
fee or commission to any broker, finder or intermediary for or on account of
the transactions provided for in this Agreement.
3.20 Events Prior to Closing and Other Information. Seller shall
immediately notify Purchaser in writing of any event or condition known to
Seller, which occurs prior to Closing hereunder, which causes a change in the
facts relating to, or the truth of, any of the above representations and
warranties contained in this Article 3.
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ARTICLE 4
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF PURCHASER
Purchaser represents and warrants to Seller and agrees as follows:
4.1 Existence. Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Texas, and has
the right, power, and authority to enter into this Agreement and to purchase
the Acquired Assets in accordance with the terms and conditions of this
Agreement.
4.2 Authority. This Agreement and all instruments and documents
delivered or to be delivered by Purchaser hereunder have been duly authorized
pursuant to resolutions of Purchaser's board of directors, a certified copy of
which was delivered to Seller, contemporaneously with the execution of this
Agreement, and do and shall constitute valid and binding agreements of
Purchaser.
4.3 Articles of Incorporation and Bylaws. The execution of this
Agreement and the consummation of transactions contemplated hereby do not
violate any provision of the Articles of Incorporation or Bylaws of Purchaser.
4.4 No Defaults. Neither the execution of this Agreement, nor the
consummation of the transactions contemplated hereby will conflict with, or
result in a breach of, the terms, conditions or provisions of, or constitute a
default under, any agreement, decree, order, judgment, or instrument to which
Purchaser is a party or by which Purchaser is bound.
4.5 Approvals. Prior to Closing, the Purchaser shall obtain all
amendments, approvals, consents, waivers, notices, and authorizations required
for the consummation by Purchaser of the transactions contemplated herein from
any governmental authorities, and any other persons or entities, other than
approvals relating to the assignment by Seller to Purchaser of the Assigned
Contracts.
4.6 Purchaser's Hiring Decisions. Purchaser agrees to indemnify
and hold Seller Indemnitees harmless at all times from and after the date of
this Agreement against and in respect of any losses, liabilities and damages
incurred by Seller Indemnitees that result or arise from any claims brought by
any of Seller's employees based upon Purchaser's unlawful or alleged unlawful
refusal to hire such employees, and from all suits, actions, proceedings,
demands, assessments, judgments, costs, attorney's fees and expenses incident
to such claims, including those out-of- pocket costs, charges and expenses
resulting from the participation of officers or employees of Seller in defense
thereof.
4.7 GATC Lease. Purchaser recognizes that Seller's affiliate,
General American Transportation Corporation ("GATC") is currently using a
portion of the Terminal as a railcar
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facility. Purchaser agrees to enter into a lease (the "GATC Lease") with GATC
at Closing in substantially the form of Exhibit "H" attached hereto and made a
part hereto.
4.8 Dock Services Agreement. In the event that the transactions
contemplated in the Dock No. 1 Purchase Agreement are consummated, Purchaser
agrees that the Dock Services Agreement between Seller and Dock No. 1 Purchaser
substantially in the form of Exhibit "I" attached hereto and made a part hereof
shall be an Assigned Contract under this Agreement.
4.9 HSR Act Exemption. Purchaser agrees that the transactions
contemplated in this Agreement are not reportable under the HSR Act.
4.10 Existing Agreements. Purchaser agrees that the Existing
Agreements shall terminate upon the Closing; and Seller shall have no further
liability to Purchaser or any of Purchaser's affiliates under any of the
Existing Agreements.
4.11 Seller's Records. Purchaser acknowledges that Seller has made
and makes no representations or warranties regarding the Assigned Records.
Purchaser agrees that it is not entitled to and will not rely on (i) any
information contained in the Assigned Records, or (ii) training provided by
Seller to any employees of Purchaser in connection with Purchaser's ownership,
operation and maintenance of the Terminal Assets.
4.12 Finders. Purchaser has not paid or become obligated to pay
any fee or commission to any broker, finder or intermediary for or on account
of the transactions provided for in this Agreement.
4.13 Events Prior to Closing and Other Information. Purchaser
shall immediately notify Seller in writing of any event or condition known to
Purchaser which occurs prior to Closing hereunder, which causes a change in the
facts relating to, or the truth of, any of the above representations and
warranties.
ARTICLE 5
TITLE, SURVEY, PURCHASER'S INSPECTION AND
CONDITION OF TERMINAL ASSETS
5.1 Title and Survey. Purchaser and Seller have received and
reviewed copies of the title commitment (the "Commitment") issued by First
American Title Insurance Company, Serial No. 20154-F, dated August 8, 1997,
covering the Real Estate and the Improvements. Purchaser and Seller have also
received and reviewed copies of surveys (collectively, the "Survey") of the
Real Estate, and also depicting the Docks and the Tanks, prepared by BFM
Corporation dated July 30, 1997, September 12, 1997, September 14, 1997,
September 16, 1997 and September 17, 1997. Without limiting the breadth of the
term "Permitted Exceptions," as defined in Section 1.53
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hereof, Purchaser agrees that all matters set forth on Schedule B Part 2 of the
Commitment, such matters being incorporated into Schedule 1.53 hereof, and all
matters reflected by the Survey, shall be deemed "Permitted Exceptions"
hereunder.
5.2 Purchaser's Inspection. Purchaser is familiar with the
Acquired Assets. Purchaser has undertaken all inspections, examinations, and
other investigations of the Acquired Assets that it deems necessary (and as
allowed by Seller) for the consummation of the transactions described in this
Agreement. Purchaser waives any rights and actions (other than any rights or
actions arising out of any breach by Seller of the representation set forth in
Section 3.2 hereof) that it may have now or in the future as a result of any
limitations imposed by Seller on Purchaser's right to inspect any of the
Acquired Assets.
5.3 Condition of Terminal Assets. Purchaser hereby acknowledges
that, except as to the express representations and warranties described in
Sections 3.1 and 3.2 hereof, Seller has not and will not make any warranties or
representations, either express or implied, as to any matter whatsoever
relating to the Terminal Assets, including but not limited to any warranty of
title (except as provided in Section 3.1), absence of vices or defects (whether
apparent or latent, known or unknown, easily discoverable or hidden), fitness
for any ordinary use, or fitness for any intended use or particular purpose,
even for the return or reduction of the purchase price or otherwise, the sole
peril and risk of eviction being assumed by Purchaser, but with full
substitution and subrogation in and to all of the rights and actions of
warranty which Seller has or may have against all preceding owners or sellers;
it being understood that Purchaser will take the Terminal Assets "as is" and
"where is," Purchaser hereby acknowledging reliance solely on its own title
examination and inspection of the Terminal Assets and not on any warranties or
representations from Seller (except as provided in Sections 3.1 and 3.2). In
addition, Purchaser acknowledges that Seller has made no representations or
warranties of any kind or character, express or implied, with respect to
habitability, merchantability, zoning, tax consequences, physical or
environmental condition (except as provided in Section 3.2), utilities,
operation history or projections, valuation or governmental approvals of or
respecting the Terminal Assets, the compliance of the Terminal Assets with
governmental laws, including without limitation the Americans with Disabilities
Act of 1990, 42 U.S.C. 12101, et seq., the accuracy or completeness of any
materials, data, or information provided by or on behalf of Seller to
Purchaser, or any other matter or thing regarding the Terminal Assets. All
warranties with respect to the Terminal Assets (except as provided in Sections
3.1 and 3.2) are hereby disclaimed by Seller and expressly waived by the
Purchaser. Purchaser has not relied and will not rely on, and Seller is not
and will not be liable for or bound by, any express or implied warranties,
guaranties, statements, representations or information pertaining to the
Terminal Assets or relating thereto made or furnished by Seller, any party
acting or purporting to act for Seller, or any real estate broker or agent
purporting to represent Seller, to whomever made or given, directly or
indirectly, verbally or in writing. Purchaser shall have no right or cause of
action in warranty or otherwise against Seller in any controversy, claim,
demand, or litigation arising from or in connection with the Terminal Assets
(other than for a breach of Seller's limited warranty of title set forth in
Section 3.1 or Seller's representation in Section 3.2), and Purchaser hereby
waives any such right or cause of action. Without limiting the
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generality of the foregoing, Seller does not warrant that the Terminal Assets
are free from redhibitory or latent defects or vices. Purchaser waives any and
all rights, claims and causes of action and releases Seller from all liability
(1) for redhibition or for diminution of the purchase price or otherwise under
Louisiana Civil Code Articles 2520, et seq., as now existing or as hereafter
amended, or (2) for peaceable possession or restitution of the purchase price
under Louisiana Civil Code Articles 2500, et seq., as now existing or as
hereafter amended, or (3) for breach of the warranties imposed by Louisiana
Civil Code Article 2475, as now existing or as hereafter amended. The
foregoing provisions of this Section 5.3 shall be set forth, in extenso, in the
Act of Sale.
5.4 Assumption of Liabilities and Indemnification. Except with
respect to Environmental Liabilities and Excluded Environmental Liabilities,
which are addressed in Section 8.4 hereof, upon Closing Purchaser will assume
all Liabilities for occurrences on or after the Closing Date and arising out of
the condition of any of the Terminal Assets at the time of Closing, or
thereafter. Purchaser, on behalf of itself, its successors and assigns (this
specifically includes any joint venture, partnership, corporation or other
entity in which Purchaser has any ownership interest or from which Purchaser
derives any benefit and which is engaged in the operation of the Refinery or
the Terminal Assets or any portion thereof at any time) further agrees, upon
Closing, to indemnify, hold harmless and defend Seller Indemnitees against and
in respect of any claims, governmental or other orders, lawsuits, losses,
damages (including without limitation all punitive damages), costs (including
reasonable attorneys' fees), judgments and recoveries that result or arise from
any Liabilities (other than Environmental Liabilities) for occurrences on or
after the Closing Date and relating to the condition of any of the Terminal
Assets at the time of Closing, or thereafter, and from all claims, lawsuits,
losses, damages, costs, judgments or recoveries incident to such claims,
including those out of pocket costs, charges and expenses resulting from the
participation of officers or employees of Seller after the Closing Date in
defense thereof. Upon Closing, Purchaser will agree to release and forever
discharge Seller Indemnitees from any claim or right that Purchaser, including
the officers, agents, employees, directors, insurers, related companies,
successors and assigns of Purchaser (as to Purchaser this specifically includes
any joint venture, partnership, corporation or other entity in which Purchaser
has any ownership interest or from which Purchaser derives any benefit and
which is engaged in the operation of the Refinery or the Terminal Assets or any
portion thereof at any time), have or may have against Seller Indemnitees or
any of them for, arising out of, or relating to any Liabilities (other than
Environmental Liabilities and Excluded Environmental Liabilities) for
occurrences on or after the Closing Date and relating to the condition of any
of the Terminal Assets at the time of Closing, or thereafter, whether any such
right is direct or indirect, by way of contribution, subrogation or indemnity,
and whether created by statute, regulation, contract, action of law or
otherwise. Reference is hereby made to Article 8 hereof, with respect to
Purchaser's assumption of Environmental Liabilities (but not Excluded
Environmental Liabilities) and its indemnification of Seller with respect
thereto.
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5.5 No Obligation to Improve. Purchaser acknowledges that Seller
is under no obligation to alter, repair or improve the Terminal Assets or any
portion thereof, subject to Section 6.2 hereof.
5.6 Contents of Tanks. All of the contents in the Tanks which are
owned by parties other than Seller as of the date hereof will continue to be
owned by such parties at and after the Closing. The Seller shall have no
obligation to remove the "tank bottoms" from any of the Tanks, and the Seller
shall likewise have no obligation to clean the Tanks.
ARTICLE 6
ACTIONS PRIOR TO THE CLOSING DATE
6.1 Preserve Accuracy of Representations and Warranties. Each of
the parties hereto shall refrain from taking or failing to take or permitting
or suffering to be taken any action within its control which would render any
representation and/or warranty contained in Articles 3 or 4 of this Agreement
inaccurate in any material respect as of the Closing Date. Seller will
promptly notify Purchaser, and Purchaser will promptly notify Seller, of all
lawsuits, claims, proceedings and investigations that may be threatened in
writing, brought, asserted or commenced against them or their respective
officers or directors (a) involving the transactions called for by this
Agreement or (b) which might have a material adverse effect on the Acquired
Assets.
6.2 Maintenance. Between the date of this Agreement and the
Closing Date, Seller shall operate the Terminal Assets in a manner consistent
with the current practice of Seller.
6.3 New Contracts. Seller agrees that it will not between the
date of this Agreement and the Closing Date enter into any new Contracts and/or
any renewals, extensions or modifications of any existing Contracts pertaining
to the Terminal Assets without the consent of Purchaser, which consent may not
be unreasonably delayed, conditioned or withheld.
6.4 No Negotiations with Third Parties. Seller agrees that it
will not engage in any negotiations pertaining to the sale of the Terminal
Assets (excluding Dock No. 1) with any third party so long as this Agreement is
in effect.
6.5 Reservation of Servitude. In the event that Seller
consummates the transactions contemplated in the Dock No. 1 Purchase Agreement,
Seller shall ensure that the act of sale to the Dock No. 1 Purchaser, which
shall be effective prior to the Effective Time, includes a reservation of a
servitude (substantially in the form of Exhibit "J" attached hereto and made a
part hereof) in favor of Seller and its successors and assigns (which will
include Purchaser upon the occurrence of the Effective Time under this
Agreement) over and across a portion of the real estate that is part of Dock
No. 1 for access to and from the Mississippi River for the purpose of loading
and unloading of terminal and/or refinery equipment via an access ramp which
Seller and its
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successors and assigns (i.e., Purchaser upon the occurrence of the Effective
Time under this Agreement) shall have the right, but not the obligation, to
construct and install.
6.6 No New Encumbrances. Seller agrees that it will not between
the date of this Agreement and the Closing Date grant any new servitudes, liens
and/or encumbrances affecting the Terminal Assets, other than the Servitudes.
6.7 Cancellation Agreements. Seller agrees that it will, on or
prior to the Closing Date, execute and record in the Conveyance Records of St.
Charles Parish agreements (the "Cancellation Agreements") substantially in the
form of Exhibit "P" attached hereto and made a part hereof, effecting the
cancellation of certain Title Objections.
6.8 Gauging of the Tanks. Purchaser and Seller agree that within
twenty-four (24) hours prior to the Effective Time, at a time and location
mutually acceptable to the parties, representatives of Purchaser and Seller
shall meet and jointly conduct (and record the results of) a gauging of the
contents of the Tanks, including without limitation the tank bottoms. Seller
agrees that between the time that said gauging commences and the Closing, no
product or commodities shall be moved into or out of any of the Tanks, except
as agreed to by Purchaser and Seller. The results of said joint gauging of the
contents of the Tanks shall be conclusively presumed to represent the amount of
customer product in the Tanks at Closing for which Purchaser is responsible
under the Assigned Contracts. Seller shall use reasonable efforts to have
representatives of all of its customers present during the gauging process in
order to assist and facilitate in the determination of any shortages in
customer product in the Tanks. Seller acknowledges that it is responsible for
any shortages in customer product stored in the Tanks at Closing.
6.9 Equipment, Spare Parts. Seller agrees that it will not
between the date of this Agreement and the Closing Date remove or relocate any
equipment, spare parts or other tangible personal property (other than Retained
Assets) located at, on or under the Terminal Assets on the date of this
Agreement.
6.10 Tank Car Litigation. In the event that any judicial mortgage
affecting the Terminal Assets is created or arises from or in connection with
the recordation of a judgment in the Tank Car Litigation prior to the Closing
Date, Seller shall have a right to delay the Closing for a period of up to 90
days for the purpose of curing, bonding over or protecting against such
judicial mortgage to Purchaser's reasonable satisfaction; and Seller shall use
reasonable, good faith efforts to effect such cure, bonding over or protection
against said judicial mortgage within such time period.
6.11 Judgment Preventing Closing. In the event that,
notwithstanding Seller's compliance with its obligations under Section 6.10
above, the Closing does not occur as a result of the recordation of a judgment
in the Tank Car Litigation, Purchaser shall be entitled to the return of the
Deposits.
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6.12 Title Insurance. At or immediately subsequent to the Closing,
Purchaser agrees that it will obtain title insurance in an amount no less than
the Purchase Price covering the Terminal Assets.
ARTICLE 7
CONDITIONS PRECEDENT TO CLOSING
The obligations of Seller and Purchaser under this Agreement shall be
subject to the satisfaction, on or prior to the Closing Date, of all of the
following conditions, any one or more of which may be waived by Seller or
Purchaser, as the case may be, in writing:
7.1 Representations and Warranties Accurate. All representations
and warranties of Seller and Purchaser contained in this Agreement shall be
true, complete and accurate in all material respects at and as of the Closing
Date as if made at and as of the Closing Date.
7.2 Performance by Seller. Seller shall have performed and
complied in all material respects with all agreements and conditions required
by this Agreement to be performed and complied with by it prior to or on the
Closing Date.
7.3 Performance by Purchaser. Purchaser shall have performed and
complied in all material respects with all agreements and conditions required
by this Agreement to be performed and complied with by it prior to or on the
Closing Date.
7.4 Approvals and Consents. All material consents and approvals
of third parties or governmental agencies which Seller or Purchaser reasonably
deems necessary shall have been obtained.
7.5 Contractual Obligations. All third parties to which Seller
has obligations with respect to the Terminal under any Contract shall have
consented to the release and discharge of Seller, or Seller and such third
parties shall have reached agreement with respect to their respective contracts
satisfactory to Seller, in its sole discretion. In the event that the
condition described in the immediately preceding sentence is not satisfied
prior to the Closing Date, Seller shall have the right to terminate this
Agreement, in which case Purchaser shall be entitled to the return of the
Deposits.
7.6 Environmental Escrow Account. Purchaser shall have
established the Environmental Escrow Account in accordance with Section 8.5
hereof.
7.7 Seller's Performance At Closing. At the Closing, Purchaser
shall be furnished the following documents:
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(a) Act of Sale, Bills of Sale, Assignments, Etc.. For
the Real Estate and Improvements, an Act of Sale (the "Act of Sale") executed
by Seller and substantially in the form of Exhibit "K" attached hereto and made
a part hereof; and for personal property and the other Acquired Assets, such
bill(s) of sale, endorsements, assignments and other good and sufficient
instruments of transfer, conveyance and assignment as may be necessary to
transfer all of Seller's right, title and interest in and to such other
Acquired Assets.
(b) Assigned Contracts. For Assigned Contracts, at
Seller's option, either (i) an Assignment and Assumption Agreement (the
"Assignment and Assumption Agreement") substantially in the form of Exhibit "L"
attached hereto and made a part hereof, under which all of Seller's rights
under the Assigned Contracts are transferred to Purchaser, and under which
Purchaser shall assume and agree to discharge all of Seller's obligations under
the Assigned Contracts; or (ii) a Subcontract Agreement (the "Subcontract")
substantially in the form of Exhibit "M" attached hereto and made a part
hereof, under which all or any part of Seller's obligations under one or more
Assigned Contracts are subcontracted to Purchaser on terms no less favorable to
Purchaser than the terms of the pertinent Assigned Contract(s) are to Seller.
(c) Environmental Consulting Agreement. The
Environmental Consulting Agreement executed by Seller.
(d) Environmental Escrow Agreement. The Environmental
Escrow Agreement executed by Seller.
(e) Other Documents. To the extent possessed by Seller,
the originals or copies of all agreements and documents directly affecting the
Acquired Assets such as, by way of example only, the Permits, real and personal
property tax bills, maintenance contracts, ad valorem tax records, utility
bills for prior periods, certificates of occupancy and inspection, and invoices
and bills for work and other improvements.
(f) Corporate Authorization. A certificate from Seller's
corporate secretary certifying that the resolutions referenced in Section 3.4
hereof remain in full force and effect and have not been modified or amended in
any way.
(g) Officer's Certificate. A certificate, substantially
in the form of Exhibit "S" attached hereto and made a part hereof, executed by
an officer of Seller confirming that all representations and warranties of
Seller contained in this Agreement are true, complete and accurate in all
material respects at and as of the Closing as if made at and as of the Closing.
(h) General Release and Indemnity Agreement. The General
Release and Indemnity Agreement executed by Seller and its parent, General
American Transportation Corporation.
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(i) GATC Lease. The GATC Lease executed by General
American Transportation Corporation.
(j) Miscellaneous. Such other instruments as may
reasonably be required to consummate the transactions contemplated by this
Agreement.
(k) Legal Opinion. Legal Opinion of Seller's legal
counsel, containing such provisions as shall be reasonably requested by
Purchaser.
7.8 Purchaser's Performance at Closing. At the Closing and
contemporaneously with Seller's compliance with the provisions of Section 7.7
above, Purchaser shall deliver or cause to be delivered to Seller all of the
following:
(a) Purchase Price. The cash portion of the Purchase
Price less the Initial Deposit.
(b) Funding of Environmental Escrow Account. Evidence of
the funding by Purchaser of the Environmental Escrow Account in the amount of
five million ($5,000,000.00) dollars.
(c) Act of Sale. The Act of Sale executed by Purchaser.
(d) Assignment and Assumption Agreements. The Assignment
and Assumption Agreements executed by Purchaser.
(e) Subcontract. The Subcontract executed by Purchaser.
(f) GATC Lease. The GATC Lease executed by Purchaser.
(g) General Release and Indemnity Agreement. The General
Release and Indemnity Agreement executed by Purchaser and certain of the
Purchaser Affiliates.
(h) Environmental Release and Indemnity Agreement. The
Environmental Release and Indemnity Agreement executed by Purchaser and certain
of the Purchaser Affiliates.
(i) Environmental Consulting Agreement. The
Environmental Consulting Agreement executed by Purchaser.
(j) Officer's Certificate. A certificate, substantially
in the form of Exhibit "T" attached hereto and made a part hereof, executed by
an officer of Purchaser confirming that all representations and warranties of
Purchaser contained in this Agreement are true, complete and accurate in all
material respects at and as of the Closing as if made at and as of the Closing.
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(k) Corporate Authorization. A certificate from
Purchaser's corporate secretary certifying that the resolutions referenced in
Section 4.2 hereof remain in full force and effect and have not been modified
or amended in any way.
(l) Title Insurance Policy. A copy of Purchaser's title
insurance policy for the title insurance described in Section 6.12 hereof to be
delivered at Closing or immediately upon Purchaser's receipt thereof.
(m) Financing Statement. A UCC-1 Financing Statement
covering the Environmental Escrow Account, executed by Purchaser.
(n) Miscellaneous. Such other instruments as may
reasonably be required to consummate the transactions contemplated by this
Agreement.
(o) Legal Opinion. Legal Opinion of Purchaser's legal
counsel, containing such provisions as shall be reasonably requested by Seller.
ARTICLE 8
ASSUMPTION OF ENVIRONMENTAL LIABILITIES; ENVIRONMENTAL INDEMNIFICATION
8.1 Definition of Environmental Liability(ies). For purposes of
this Agreement, "Environmental Liability(ies)" shall mean any claim, exposure,
liability, potential liability or obligation that exists now or occurs in the
future (whether such claim, exposure, liability, potential liability or
obligation arises or allegedly arises out of alleged negligence, fault or
strict liability or otherwise) because of a Legal Requirement (as that term is
defined below) respecting the Terminal Assets or the Refinery Parcel.
Notwithstanding anything herein to the contrary, the term "Environmental
Liability(ies)" shall not include, and Purchaser shall not assume any liability
for, any Excluded Environmental Liability(ies). As used herein, "Legal
Requirement" shall mean any applicable federal, state, or local laws
(statutory, judicial or otherwise), ordinances and regulations, judgments,
orders, directives, injunctions, decrees, contracts, agreements, insurance
company requirements, arrangements or understandings with any federal, state or
local court, arbitrator or administrator or governmental authority, bureau or
agency, investigative inquiries, notices of deficiencies or other notices,
permits, authorizations, approvals, registrations, or other approvals and
licenses relating to the Refinery Parcel or the Terminal Assets and the
activities conducted thereon and therewith including, but not limited to those
(A) designed to protect persons (including, but not limited to, the health and
welfare of employees of Purchaser and Seller and the predecessors in interest
of any of them) from exposure to any toxic or Hazardous Materials (as defined
below), raw materials, refined products or wastes, and (B) designed to protect
the environment (including, but not limited to, wetlands, other protected
lands, wildlife or natural resources) or public health and welfare from water
pollution, air pollution, ground pollution, ground water pollution, the
manufacturing of toxic substances, solid wastes, petroleum
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compounds, Hazardous Materials, Releases (as defined below) or the substantial
threat of Releases of toxic or Hazardous Materials, transportation of Hazardous
Materials, or any pollutant or contaminant including, but not limited to, those
which may present an imminent and substantial danger to public health or
welfare. "Legal Requirement" shall further include any claims, lawsuits,
losses, damages, costs (including reasonable attorneys' fees), judgments and
recoveries for personal injuries, property damage, inconvenience, diminished
property value or other damages of any type claimed or sustained by any entity
or person (including, but not limited to, employees of Purchaser or Seller),
relating in any way to the operation of or past, present or future condition of
the Terminal Assets or the Refinery Parcel. Without limiting the foregoing,
Seller and Purchaser agree that Legal Requirements exist for all the
environmental conditions or exposures listed on Exhibit "G", and all such
matters are Environmental Liabilities as defined in this Agreement. As used
herein, the term "Releases" shall mean any actual or potential spill,
discharge, leak, emission, injection, escape, dispersal, seepage,
contamination, dumping or release of any kind whatsoever, including, but not
limited to, any defined under the Comprehensive Environmental Response,
Compensation and Liability Act, as amended from time to time, or the Louisiana
Environmental Quality Act, as amended from time to time, or under any other
federal, state or local laws or regulations. For purposes of this Agreement,
"Hazardous Materials" shall mean
(a) any "hazardous waste" as defined by either the
Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.) or the
Louisiana Environmental Quality Act (La. R.S. 30:2001 et seq.), as amended from
time to time, and regulations promulgated thereunder;
(b) any "hazardous substance" as defined by either the
Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C.
Section 9601 et seq.) or the Louisiana Environmental Quality Act (La. R.S.
30:2001 et seq.), as amended from time to time, and regulations promulgated
thereunder;
(c) any "pesticide" as defined by the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Section 136 et seq.),
as amended from time to time, and regulations promulgated thereunder;
(d) any "chemical substance" as defined by the Toxic
Substance Control Act (15 U.S.C. Section 2601 et seq.), as amended from time
to time, and regulations promulgated thereunder;
(e) any naturally occurring radioactive materials, the
possession, use, transfer, processing, distribution, or disposal of which is
subject to regulation by the Louisiana Department of Environmental Quality
pursuant to the provisions of La. Adm. Code 33:XV, Chapter 14;
(f) asbestos;
(g) polychlorinated biphenyls;
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(h) petroleum or any fraction thereof;
(i) any "regulated substance" as defined under
Underground Storage Tank Regulations, 40 C.F.R. Section 280.12, or La. Adm.
Code 33:XI.103;
(j) any substance the presence of which on the Terminal
Assets, or any part thereof, is prohibited by any lawful rules or regulations
of legally constituted authorities from time to time in force and effect
relating to the Terminal Assets or any part thereof; and
(k) any other substance which by any such rule or
regulation requires special handling in its collection, storage, treatment, or
disposal.
8.2 Due Diligence by Purchaser. Purchaser, in entering into this
Agreement, has relied solely upon its own knowledge and examination regarding
the environmental condition of the Terminal Assets (including without
limitation its review of public records at the Environmental Protection Agency
and the Louisiana Department of Environmental Quality) and has not relied in
whole or in part on any information or representations regarding the
environmental condition of the Terminal Assets made by Seller or anyone acting
or purporting to act on behalf of Seller, with the exception of the
representation set forth in Section 3.2 hereof, upon which Purchaser is
entitled to rely. Purchaser waives any rights and actions (other than any
rights or actions arising out of any breach by Seller of the representation set
forth in Section 3.2 hereof) that it may have now or in the future as a result
of any limitations imposed by Seller on Purchaser's right to inspect the
Terminal Assets.
8.3 Environmental Compliance. Upon Closing, Purchaser shall be
responsible for compliance with all federal, state, and local requirements with
respect to air and water quality and with respect to handling, treatment,
storage, and disposal of wastes (including Hazardous Materials) at or in
connection with the ownership or operation of the Terminal Assets at the time
of Closing or thereafter.
8.4 Environmental Release and Indemnity.
(a) Upon Closing, Purchaser will agree to release and
forever discharge Seller Indemnitees from any claim or right that Purchaser,
including the officers, agents, employees, directors, insurers, related
companies, successors and assignees of Purchaser (as to Purchaser this
specifically includes any joint venture, partnership, corporation or other
entity in which Purchaser has any ownership interest or from which Purchaser
derives any benefit and which is engaged in the operation of the Refinery
Parcel or the Terminal Assets or any portion thereof at any time), has or may
have against Seller Indemnitees or any of them for, arising out of, or relating
to any Environmental Liability (other than any Excluded Environmental
Liability(ies)), whether any such claim or right is direct or indirect, by way
of contribution, subrogation or indemnity, and whether created by statute,
regulation, contract, action of law or otherwise, except any claim for Excluded
Fees. Specifically, but without limitation of the foregoing, Purchaser agrees
to release, discharge,
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hold harmless and not sue the Seller Indemnitees or any of them for any costs
involved in or related to any form of Remediation Activities of the Terminal
Assets or the Refinery Parcel, which Purchaser pays or becomes liable for at
any time in the future as the result of an Environmental Liability (other than
any Excluded Environmental Liability(ies)).
(b) Upon Closing, Purchaser, on behalf of itself, its
successors and assigns (this specifically includes any joint venture,
partnership, corporation or other entity in which Purchaser has any ownership
interest or from which Purchaser derives any benefit and which is engaged in
the operation of the Refinery Parcel or the Terminal Assets or any portion
thereof at any time) will (i) assume all Environmental Liabilities (other than
any Excluded Environmental Liability(ies)) relating to the Terminal Assets
except Seller's liability for Excluded Fees, and (ii) agree to indemnify, hold
harmless and defend the Seller Indemnitees against any claims, governmental or
other orders, lawsuits, losses, damages (including without limitation all
punitive damages or statutory remedial cost multipliers, if any), costs
(including reasonable attorneys' fees and environmental consulting fees),
judgments and recoveries arising out of or related to any Environmental
Liability (but not any Excluded Environmental Liability(ies)) of the Terminal
Assets or the Refinery Parcel or any portion thereof, including, but not
limited to, any such claims, lawsuits, losses, damages, costs, judgments or
recoveries involving Remediation Activities (including disposal) and any claims
of injuries or damage, except Seller's liability for Excluded Fees.
(c) For purposes of this Agreement, "Excluded Fees" shall
mean the Seller's share of the fees and expenses of the Environmental Escrow
Agent and the Environmental Consultant not paid from the Environmental Escrow
Account, such share being (i) one-half ( 1/2) of such ordinary fees and
expenses of the Environmental Escrow Agent, (ii) any expenses owed by Seller as
a non-prevailing party under Section 8(i) of the Environmental Escrow
Agreement, (iii) one-half ( 1/2) of such ordinary fees and expenses of the
Environmental Consultant, (iv) any extraordinary fees and expenses of the
Environmental Consultant owed by Seller under the Environmental Consulting
Agreement, and (v) any expenses owed by Seller as a non-prevailing party under
Section 13.2 of the Environmental Consulting Agreement.
8.5 Environmental Escrow Account; Environmental Escrow Agreement;
Environmental Consulting Agreement.
(a) For purposes of this Agreement, "Environmental
Consultant" shall mean G&E Engineering, a Division of TreaTek-CRA Company, a
New York Partnership, or such other person or company selected as the successor
environmental consultant under this Agreement in accordance with the following
provisions. Seller and Purchaser shall enter into an Environmental Consulting
Agreement with each Environmental Consultant substantially in the form of
Exhibit "Q" to this Agreement, with such changes as may be reasonably required
by the Environmental Consultant. Seller and Purchaser agree that neither party
shall hire the Environmental Consultant to perform any Remediation Activities
or other services with respect to the Terminal Assets except for the services
pursuant to the Environmental Consulting Agreement. In the event that an
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Environmental Consultant should resign, cease operations or become bankrupt or
insolvent, or be discharged by the mutual agreement of Seller and Purchaser,
then a successor Environmental Consultant under this Agreement shall be
selected as follows: Seller shall promptly recommend in writing to Purchaser a
proposed successor person or company to serve as Environmental Consultant under
this Agreement. Purchaser shall accept or reject such recommendation within
ten (10) days after such notice, provided that if Purchaser fails to reply to
Seller in writing within such time period then Purchaser shall be deemed to
have accepted such successor appointment. Purchaser shall not unreasonably
reject such recommendation. If Purchaser rejects Seller's first
recommendation, then Seller shall promptly recommend another proposed successor
environmental consultant to Purchaser by written notice. Purchaser shall
accept or reject such recommendation within ten (10) days after receipt of such
notice, provided that if Purchaser fails to reply to Seller in writing within
such time period then Purchaser shall be deemed to have accepted such successor
appointment. Purchaser shall not unreasonably reject such recommendation. If
Purchaser again rejects Seller's recommendation, then the selection of the
successor Environmental Consultant shall be settled by arbitration administered
by the American Arbitration Association under its Commercial Rules. If one but
not the other of Seller and Purchaser desire to discharge an Environmental
Consultant, then such decision shall be settled by arbitration administered by
the American Arbitration Association under its Commercial Rules. Such
arbitration shall determine whether that Environmental Consultant should be
replaced due to fraud, corruption, evident bias, misconduct in refusing to
receive pertinent and material evidence or other misconduct by such Consultant
by which the rights of either Seller or Purchaser have been prejudiced.
(b) For purposes of this Agreement, "Environmental Escrow
Agent" shall mean First National Bank of Commerce, or such other national bank
in the State of Louisiana (a "Qualified Bank") selected as the successor escrow
agent under this Agreement in accordance with the following provisions. Seller
and Purchaser shall enter into an Environmental Escrow Agreement with each
Environmental Escrow Agent substantially in the form of Exhibit "R" to this
Agreement, with such changes as may be reasonably required by the Environmental
Escrow Agent. In the event that an Environmental Escrow Agent should resign,
cease operations or become insolvent, or be discharged by the mutual agreement
of Seller and Purchaser, then a successor Environmental Escrow Agent under this
Agreement shall be selected as follows: Purchaser shall promptly recommend in
writing to Seller a proposed successor Qualified Bank to serve as escrow agent
under this Agreement. Seller shall accept or reject such recommendation within
ten (10) days after such notice, provided that if Seller fails to reply to
Purchaser in writing within such time period then Seller shall be deemed to
have accepted such successor appointment. Seller shall not unreasonably reject
such recommendation. If Seller rejects Purchaser's first recommendation, then
Purchaser shall promptly recommend another proposed Qualified Bank as successor
escrow agent to Seller by written notice. Seller shall accept or reject such
recommendation within ten (10) days after receipt of such notice, provided that
if Seller fails to reply to Purchaser in writing within such time period then
Seller shall be deemed to have accepted such successor appointment. Seller
shall not unreasonably reject such recommendation. If Seller again rejects
Purchaser's recommendation, then the selection of the successor Environmental
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Escrow Agent shall be settled by arbitration administered by the American
Arbitration Association under its Commercial Rules.
(c) Although Seller and Purchaser may be liable
solidarily to the Environmental Consultant for indemnity obligations to the
Environmental Consultant under the Environmental Consulting Agreement and for
the Environmental Consultant's fees and to the Environmental Escrow Agent for
indemnity obligations under the Environmental Escrow Agreement and for the
Environmental Escrow Agent's fees, as between Seller and Purchaser such fees
generally shall be paid out of the Environmental Escrow Account and such
indemnity payments (and, if there are insufficient funds in the Environmental
Escrow Account, such ordinary fees) shall be divided equally between Seller and
Purchaser, except as otherwise expressly provided in the Environmental
Consulting Agreement or the Environmental Escrow Agreement. If either Seller
or Purchaser pays more than its share of fees or indemnification to the
Environmental Consultant or the Environmental Escrow Agent, then the other
party shall pay such party's share of such fees or indemnification to the party
which paid the Environmental Consultant or the Environmental Escrow Agent
within thirty (30) days after receipt of written demand therefor.
(d) On the Closing Date, Purchaser shall establish the
Environmental Escrow Account with the Environmental Escrow Agent pursuant to
the Environmental Escrow Agreement and shall deposit therein five million
($5,000,000.00) dollars in immediately available funds. The Environmental
Escrow Account and all proceeds therefrom shall be in addition to the Purchase
Price. The Environmental Escrow Account shall be maintained until the
Environmental Escrow Termination Date. For purposes of this Agreement, the
"Environmental Escrow Account" shall mean such escrow account maintained by
Purchaser at the Environmental Escrow Agent, and all securities, security
entitlements, cash, financial assets and investment property in such account
from time to time, now or in the future, and all other rights of Purchaser
against the Environmental Escrow Agent arising out of such account, and
together with all interest, earnings and proceeds from, on or of all or any of
the foregoing, in whatever form, and all proceeds of such proceeds. Interest
and other proceeds earned on the escrow funds in the Environmental Escrow
Account shall be for the account of Purchaser, and shall be retained as part of
the escrow funds in the Environmental Escrow Account to be disbursed as
provided in this Agreement and the Environmental Escrow Agreement. Purchaser
shall grant to Seller a first priority security interest in the Environmental
Escrow Account as security for the payment and performance of Purchaser's
assumption and indemnification obligations under Section 8.4(b) of this
Agreement, now existing or hereafter arising. The escrow agreement with each
Environmental Escrow Agent shall contain control provisions in form and
substance satisfactory to Seller in order to perfect such security interest
whereby Purchaser directs the Environmental Escrow Agent to comply with
entitlement orders with respect to the Environmental Escrow Account originated
by Seller before the Environmental Escrow Termination Date which are in
accordance with this Agreement without further consent by Purchaser, and the
Environmental Escrow Agent agrees to so comply. Each Environmental Escrow
Agent shall waive any security interest or lien or right of setoff in the
Environmental Escrow Account. The funds in the Environmental Escrow Account
shall be invested only as permitted by the Environmental Escrow Agreement.
Funds shall be withdrawn
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from the Environmental Escrow Account only as provided in paragraphs (e), (g)
and (h) below. The existence of the Environmental Escrow Account shall not
lessen or limit in any manner Purchaser's obligations under Section 8.4 of this
Agreement or under the Environmental Release and Indemnity Agreement. The
obligation of Purchaser to establish and maintain the Environmental Escrow
Account, and the proceeds therein, are separate from (although also partial
accessory security for) the Purchaser's assumption and indemnity obligations
relating to Environmental Liabilities, and the obligation of Purchaser to
provide the Environmental Escrow Account shall survive any rejection,
discharge, disallowance or termination thereof or any dissolution or
liquidation of Purchaser. The Environmental Escrow Account shall remain
irrevocable until the Environmental Escrow Termination Date. The Environmental
Escrow Account and the proceeds therein are for the exclusive benefit of Seller
and Purchaser, and are not for the benefit of any other person.
(e) The Environmental Escrow Agreement shall permit
multiple, successive partial withdrawals from the Environmental Escrow Account,
but only in the following manner:
(i) upon receipt by the Environmental Escrow
Agent of written instructions signed by both Seller and Purchaser, then in
accordance with such instructions; or
(ii) to pay the fees and expenses of the
Environmental Escrow Agent in accordance with the Environmental Escrow
Agreement; or
(iii) upon receipt by the Environmental Escrow
Agent of an invoice from the Environmental Consultant for its fees and expenses
in accordance with the Environmental Consulting Agreement and this Section 8.5,
and the absence of receipt by the Environmental Escrow Agent within thirty (30)
days thereafter of a written objection thereto from either Seller or Purchaser,
then to the Environmental Consultant in the amount of such invoice; or
(iv) upon receipt by the Environmental Escrow
Agent of a Disbursement Confirmation from the Environmental Consultant, then in
accordance with such Disbursement Confirmation; or
(v) upon receipt by the Environmental Escrow
Agent of a written instruction by Seller certifying that Seller has obtained a
final, non-appealable judgment in Seller's favor in a specified amount on an
indemnification claim under Section 8.4(b) or under the Environmental Release
and Indemnity Agreement, and that Seller has sent a copy of this instruction to
Purchaser or other obligor, then after the tenth (10th) day following the
Environmental Escrow Agent's receipt of such instruction in accordance with
such instruction.
Seller and Purchaser shall cooperate in good faith, in each of the following
instances, to attempt to agree reasonably promptly upon mutual instructions
contemplated by subparagraph (i) above: to pay Remediation Costs as provided
in paragraph (f) below, to pay the fees and expenses of the Environmental
Consultant as determined in mediation or arbitration following an objection to
such
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fees and expenses by either Seller or Purchaser, to pay all the remaining funds
(if any) in the Environmental Escrow Account to Purchaser upon a determination
that the Environmental Escrow Termination Date has occurred as provided in
paragraph (g) below, or to pay a portion of the funds to Purchaser under the
circumstances provided in paragraph (h) below. Seller shall send a copy to
Purchaser of each written instruction under subparagraph (v) above at the same
time as it is sent to the Environmental Escrow Agent. The Environmental
Consulting Agreement shall require the Environmental Consultant to send a copy
of each Disbursement Confirmation to both Seller and Purchaser at the same time
it is sent to the Environmental Escrow Agent.
(f) Seller and Purchaser shall agree on mutual
instructions to pay Remediation Costs, and the Environmental Consultant shall
make its determinations for Disbursement Confirmations, in accordance with the
following provisions. For purposes of the Agreement, "Remediation Activities"
shall mean the remediation, treatment, transport, storage, removal or disposal
of contaminated soil, debris and ground water, and buried sludges (but not to
include Tank cleaning or management of Tank bottoms or other material deemed
waste upon transfer of assets), including but not limited to the containment of
contaminated groundwater, the capping of areas to minimize the infiltration of
surface waters or rainfall into the subsurface, landfarming, risk-based
corrective actions or alternatives, including no further action determinations
and natural attenuation, and any other similar activities. For purposes of
this Agreement, "Remediation Costs" shall mean the reasonable costs (including
without limitation the Environmental Consultant's fees and expenses) to satisfy
an Environmental Liability relating to Remediation Activities arising from
Hazardous Materials which existed with respect to the Terminal Assets on or
before the Closing Date (other than any Excluded Environmental Liability(ies)),
but shall not include general or administrative support costs, whether for
internal or external services, such as costs for accounting or legal services.
(i) As to each Remediation Activity that is
required or ordered pursuant to some governmental action or order involving
either Seller or Purchaser relating to the Terminal Assets, such party may
request the other party's agreement to a written claim setting forth the
nature, extent and other details of any proposed Remediation Activities which
the submitting party asserts will qualify, once undertaken, or if already
undertaken do qualify, as Remediation Costs. In the absence of such mutual
agreement within a reasonable time after submission of the claim to the other
party, either Seller or Purchaser, as applicable, then may submit such claim to
the Environmental Consultant. The submitting party shall simultaneously
provide a duplicate copy of such submission to the other party. Such
submission shall include copies of all pertinent written communications
pertaining to such matter between the submitting party and any governmental
authority. The non-submitting party shall have the right to provide written
comment on each submission promptly to the Environmental Consultant and the
submitting party. The Environmental Consultant shall evaluate such claim to
determine the extent to which such Remediation Activities involve Hazardous
Materials which existed with respect to the Terminal Assets on or before the
Closing Date and, if applicable, whether such Remediation Activities involve an
Excluded Environmental Liability(ies) because a Release from the Terminal
Assets prior to the Closing Date resulted in damage to property other than the
Terminal Assets. As to
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each such claim, the Environmental Consultant shall not have responsibility
for, and shall not make, any determination as to the reasonableness of the
governmental action or order or the scope of the Remediation Activities
required thereby or as to whether the governmental action or order covers an
Environmental Liability which is an Excluded Environmental Liability(ies)
because of Seller's non-disclosure of an Environmental Liability that existed
on the Closing Date and of which Seller had Actual Knowledge. Instead, Seller
and Purchaser hereby agree to the reasonableness for purposes of this Agreement
of such Remediation Activities which are required by any governmental action or
order, and further agree that any determination as to Seller's non-disclosure
of an Environmental Liability that existed on the Closing Date and of which
Seller had Actual Knowledge shall be made by mutual agreement of the parties or
as necessary by a court of competent jurisdiction as provided in Section 11.11.
(ii) Furthermore, even in the absence of an
existing governmental action or order Purchaser may request the Seller's
agreement to such a claim that proposed Remediation Activities will or do
qualify as Remediation Costs, and in the absence of such mutual agreement may
request the Environmental Consultant's determination, all by use of the
procedures set forth above in subparagraph (i). However, as to such Purchaser
voluntary claims, the Environmental Consultant shall also determine whether the
claimed Environmental Liability respecting the Terminal Assets exists and if so
the extent thereof (in addition to the determinations set forth in subparagraph
(i) above).
(iii) In any and all of the foregoing instances,
when the Environmental Consultant determines that Remediation Activities for an
Environmental Liability qualify as Remediation Costs, the actual expenses
incurred for such Remediation Activities shall be submitted by the applicable
party to the Environmental Consultant as provided in the Environmental
Consulting Agreement. To be actual, incurred Remediation Costs, if payments
are to be made directly to the environmental remediation contractor, such costs
need only have been billed by the environmental remediation contractor and need
not have been paid to such contractor; in the alternative, if Purchaser or
Seller is seeking reimbursement for the cost of Remediation Activities, that
party must have paid the environmental remediation contractor. The
Environmental Consultant shall issue a Disbursement Confirmation to the
Environmental Escrow Agent, with copies to both Seller and Purchaser, as to the
amount of such requested payment which the Environmental Consultant determines
is qualified and reasonable as set forth in the Environmental Consulting
Agreement, and such payments shall be made by the Environmental Escrow Agent as
set forth in the Environmental Escrow Agreement. Moreover, notwithstanding a
determination by the Environmental Consultant that an Environmental Liability
did not exist on or before the Closing Date, if a final, non-appealable order
or judgment of a governmental authority imposes liability upon Seller for such
expenses because such Environmental Liability is found by such governmental
authority to have existed on or before the Closing Date or otherwise includes
such a finding, then the Environmental Consultant thereafter shall grant
Disbursement Confirmations with respect thereto for otherwise qualified
Remediation Costs notwithstanding the Environmental Consultant's earlier
determination to the contrary.
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(g) Upon the Fifteenth Anniversary, if an Environmental
Continuation Condition exists, Purchaser may withdraw from the Environmental
Escrow Account any funds in excess of the amount certified by the Environmental
Consultant as the amount to be retained in the Environmental Escrow Account in
connection with such Environmental Continuation Condition. Upon the
Environmental Escrow Termination Date, the obligation of Purchaser to maintain
the Environmental Escrow Account shall expire, and Purchaser shall have the
right to withdraw any funds then remaining in the Environmental Escrow Account.
Purchaser shall not assign or encumber or attempt to assign or encumber these
rights under this Agreement or the corresponding rights under the Environmental
Escrow Agreement. Seller hereby waives any claim against Purchaser that funds
in the Environmental Escrow Account could or should have been used to satisfy
an Environmental Liability but were not so used because of a failure of
Purchaser to notify any governmental authority regarding such Environmental
Liability.
(h) In the event that, subsequent to the Closing Date,
Purchaser (i) has outstanding debt, and (ii) achieves and maintains a rating on
its outstanding debt of investment grade or better from either Moody's
Investors Service, Inc. ("Moody's") or Standard & Poor's Corporation ("S&P")
for the twenty-four consecutive month period immediately preceding the fifth
anniversary of the Closing Date or any twenty-four consecutive month period
thereafter, then beginning on the fifth anniversary of the Closing Date,
Purchaser may after such twenty-four consecutive month period make, and Seller
agrees to execute a joint certificate to the Environmental Escrow Agent for,
annual withdrawals from the Environmental Escrow Account in an amount equal to
the lesser of (x) One Million Dollars ($1,000,000) or (y) the then balance of
the Environmental Escrow Account. The date of Purchaser's first withdrawal is
hereinafter referred to as the "Withdrawal Date." Provided, however, if at any
time after the Withdrawal Date and prior to the Environmental Escrow
Termination Date either Moody's or S&P ceases to rate Purchaser's debt
investment grade or better, then within thirty (30) days thereafter Purchaser
shall commence making consecutive monthly deposits into the Environmental
Escrow Account in minimum amounts of Five Hundred Thousand Dollars ($500,000)
each until the balance of the Environmental Escrow Account is equal to the
balance that existed on the Withdrawal Date, prior to Purchaser's withdrawal.
In the event that the funds in the Environmental Escrow Account have been
depleted, then Purchaser shall reestablish an Environmental Escrow Account with
the payments required under the immediately preceding sentence pursuant to an
Environmental Escrow Agreement. Thereafter, no further withdrawals shall be
made pursuant to this Section 8.5(h), until Purchaser has again achieved and
maintained an investment grade or better rating on its outstanding debt from
either Moody's or S&P for a second twenty-four consecutive month period, after
which the above provisions regarding reduction and increase shall be applicable
again.
8.6 Purchaser's Remediation Activities. With respect to all
Environmental Liabilities (other than Excluded Environmental Liabilities), in
the event that Purchaser fails to initiate and diligently pursue to completion
in a timely manner any form of Remediation Activities relating to the Terminal
Assets that is required or ordered pursuant to some governmental action or
order, Seller shall have the right, but not the obligation, to evaluate, assess
and/or effect such
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Remediation Activities after giving Purchaser 120 days advance written notice
of Seller's intent to effect such Remediation Activities (or, if Purchaser is
in bankruptcy proceedings or the Legal Requirement is directed to or imposed on
Seller, after giving 60 days advance written notice). In such event, Purchaser
agrees to reimburse Seller, upon demand, for all reasonable costs and expenses
incurred by Seller in connection with such Remediation Activities; provided,
however, that Purchaser shall only be obligated to reimburse Seller after
Seller has first exhausted any then remaining funds in the Environmental Escrow
Account.
ARTICLE 9
DEFAULT AND REMEDIES
9.1 Deposits. At Closing, the Deposits shall be applied to the
payment of the Purchase Price. If Closing, as it may be delayed pursuant to
the terms of this Agreement, does not occur, and except as otherwise expressly
provided in Sections 6.11, 7.5, 9.3 and 11.8(b) herein, the Deposits shall be
retained by Seller.
9.2 Purchaser's Default. If Purchaser defaults in any of its
obligations under Sections 7.3 or 7.8 of this Agreement, Seller shall be
entitled to give Purchaser written notice of Purchaser's default, and
thereupon keep the Deposits, which shall be forfeited by Purchaser to Seller as
liquidated damages. The liquidated damages payable pursuant to this Section
9.2 are not a penalty; rather, they represent a bargained for measure of
damages specifically negotiated between Seller and Purchaser. The liquidated
damages are in consideration of the costs, liabilities and loss of business or
profits incurred by Seller in anticipation of the Closing. Seller shall not be
required to prove the extent of any such costs, liabilities or losses.
Alternatively, Seller shall have the right to demand specific performance.
9.3 Seller's Default. In the event Seller defaults in any of its
obligations under Sections 6.10, 7.2 or 7.7 of this Agreement, Purchaser shall
have the right upon Seller's default to demand the return of the Deposits
within 15 days thereafter. In any action by Purchaser to recover the Deposits,
the prevailing party shall be entitled to its enforcement costs, including
reasonable legal fees. Alternatively, Purchaser shall have the right to demand
specific performance.
9.4 Sole Remedies. The remedies set forth in Section 9.2 and 9.3
above shall be the sole and exclusive remedies available to Seller and
Purchaser respectively for any default under this Agreement, other than a
default under any of the obligations described in Article 10 below, or other
closing documents (including without limitation the General Release and
Indemnity Agreement and the Environmental Release and Indemnity Agreement) that
survive the Closing.
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ARTICLE 10
ACTIONS TO BE TAKEN SUBSEQUENT TO THE CLOSING DATE
10.1 Mutual Cooperation With Respect to Taxes and Other Financial
Matters. Each of Purchaser and Seller will provide the other with such
assistance as may reasonably be requested by either of them in connection with
the preparation of any tax return, any audit or other examination by any taxing
or governmental authority, or any judicial or administrative proceedings
relating to liability or taxes or other governmental matters relating to the
transactions contemplated by this Agreement. The party requesting assistance
hereunder shall reimburse the other for reasonable out-of-pocket expenses
incurred in providing such assistance.
10.2 Cooperation in Litigation. In the event that, after the
Closing Date, Seller or Purchaser shall require the participation of officers
and employees employed by each other to aid in the defense or prosecution of
litigation or claims, and so long as there exists no conflict of interest
between the parties, each of Seller and Purchaser shall make such officers and
employees reasonably available to participate in such defense or prosecution
provided that, except as required pursuant to the indemnity provisions of this
Agreement, the party requiring the participation of such officers or employees
shall pay all reasonable out-of-pocket costs, charges and expenses arising from
such participation.
10.3 Uncured Title Objections. In the event that there are any
objections to the matters disclosed in the Commitment ("Title Objections")
which (i) were identified by Purchaser to Seller within five (5) business days
after Purchaser's receipt of the Commitment, and (ii) remained uncured at
Closing, then Seller shall, on the Closing Date, escrow an amount equal to
$50,000.00 LESS all funds previously expended by Seller (excluding Seller's
attorneys' fees) to cure the Title Objections. The funds in said escrow shall
be used by Purchaser to cure the Title Objections within one hundred eighty
(180) days after the Closing Date. Any funds remaining in said escrow upon the
expiration of the one hundred eighty (180) day period shall be returned to
Seller.
10.4 Performance Under Assigned Contracts; Indemnification.
Purchaser agrees that, upon and after the Closing hereunder, it will timely
pay, perform and discharge all of Seller's and its obligations under the
Assigned Contracts assigned to Purchaser and all of Purchaser's obligations
under the Subcontracts. Purchaser agrees to indemnify and hold Seller
Indemnitees harmless at all times from and after the Closing against and in
respect of any losses, liabilities and damages incurred by Seller Indemnitees
that result or arise from any claims brought by third parties based upon
Purchaser's failure or alleged failure to timely pay, perform and discharge
subsequent to Closing (i) any of Seller's or Purchaser's obligations under any
of the Assigned Contracts assigned to Purchaser or (ii) any of Purchaser's
obligations under any of the Subcontracts, and from all suits, actions,
proceedings, demands, assessments, judgments, costs, reasonable attorneys' fees
and expenses incident to such claims, including those out-of-pocket costs,
charges and expenses resulting from the participation of officers or employees
of Seller in defense thereof.
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10.5 Seller's Assigned Contracts Indemnification. Seller agrees to
indemnify and hold Purchaser Indemnitees harmless at all times from and after
the Closing against and in respect of any losses, liabilities and damages
incurred by Purchaser Indemnitees that result or arise from any claims brought
by third parties based upon (i) Seller's default, prior to the Closing, under
any Assigned Contracts, or (ii) any of the matters disclosed on Schedule 3.7
hereof, and from all suits, actions, proceedings, demands, assessments,
judgments, costs, reasonable attorneys' fees and expenses incident to such
claims, including those out-of-pocket costs, charges and expenses resulting
from the participation of officers or employees of Purchaser in defense
thereof.
10.6 Seller's Representative. Purchaser agrees that, at Seller's
option and at Seller's expense, Seller shall be allowed to have a
representative at the Terminal for a period of up to six (6) months after the
Closing to facilitate post-Closing servicing of Seller's customers under the
Assigned Contracts. Purchaser shall provide such representative with office
space at the Terminal that is reasonably acceptable to Seller. The
representative shall act as a liaison only and shall have no right to interfere
in Purchaser's operation of the Terminal.
10.7 Dock Use Certificate. Upon written request of Seller, but not
more often than four (4) times in any calendar year, an officer of Purchaser
with knowledge of the use and operation of the Tanks listed on the Dock Use
Certificate attached hereto as Exhibit "U" shall complete such Dock Use
Certificate and return it to Seller at the address on Seller's request within
five (5) business days after Purchaser's receipt of such request. In addition,
such officer will provide such other information related to the use of the
Tanks listed on the Dock Use Certificate in connection with docks in the South
Louisiana Port District as Seller may reasonably request to supplement any Dock
Use Certificate submitted by Purchaser to Seller hereunder, provided that
Purchaser shall not be required to provide as part of such additional
information any information which is proprietary or otherwise confidential to
Purchaser.
10.8 Payments under Contracts. Seller and Purchaser agree that in
the event either party receives a payment under any Contract relating to the
Terminal Assets, which payment should have been made to the other party, the
party receiving such payment shall immediately forward such payment to the
other party.
10.9 Conveyances or Leases to Purchaser Affiliates. Purchaser
agrees that it will not convey or lease the Terminal Assets, in whole or in
part, to any Purchaser Affiliate that has not previously provided, or does not
contemporaneously with such lease or conveyance provide, Seller with releases
in favor of Seller, in the forms set forth in Section 4 of the Environmental
Release and Indemnity Agreement and Section 10 of the General Release and
Indemnity Agreement.
10.10 Removal of Retained Assets. Purchaser and Seller agree that,
for a period of seven (7) calendar days after the Closing Date, Seller shall
have the right to enter the Terminal for the purpose of removing any Retained
Assets therefrom.
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ARTICLE 11
OTHER PROVISIONS
11.1 Survival Claims For Breaches of Representations, Warranties
and Agreements. For all purposes hereunder, all claims arising out of the
breach of any representations and warranties contained herein or out of a
breach of any of the obligations described in Article 10 hereof shall survive
the Closing indefinitely.
11.2 Transfer, Sales and Property Taxes.
(a) Purchaser will pay any transfer, sales, purchase, use
or similar tax under the laws of any nation, state or any parish, city or
political subdivision thereof arising out of the transactions contemplated by
this Agreement and any filing or recording fees payable in connection with the
instruments of transfer provided for herein.
(b) All real estate, personal property, and ad valorem
taxes, water charges and sewer rents, if any, and all other taxes, charges or
assessments levied or imposed upon the Terminal Assets by the State of
Louisiana, Parish of St. Charles, or any political subdivision of any of the
foregoing or of any other locale, shall be apportioned or prorated on a per
diem basis between Purchaser and Seller as of the close of business on the day
before the Closing Date. If the Closing Date shall occur before the assessment
rate for the year of Closing is fixed by the appropriate taxing authority, the
apportionment of any such taxes shall be upon the basis of the tax assessment
for the preceding calendar year and shall be readjusted promptly after such
taxes are known. Such obligation to readjust shall survive the Closing.
11.3 Preservation of Right to Contest. Seller reserves the right
to contest, after Closing, any taxes and assessments with respect to the
Terminal Assets and any interest or penalties pertaining thereto, to the extent
same are applicable to periods prior to Closing. Seller shall be entitled to
receive any refunds made with respect to such contested taxes. All taxes
imposed because of a change of use or ownership of the Terminal Assets after or
in connection with the Closing shall be for the account of Purchaser.
11.4 Certificates and Fees. The cost of usual and customary
mortgage and conveyance certificates and tax researches shall be borne by
Seller. All transfer and recordation fees and taxes arising from the
conveyance of the Acquired Assets shall be paid by Purchaser.
11.5 Attorney Fees. If either party institutes legal action to
enforce, or as a result of a breach of, the other party's obligations under
this Agreement, the non-prevailing party shall pay the prevailing party's
reasonable attorneys' fees and court costs.
11.6 Claims Under Indemnities. All claims made under any
indemnification under this Agreement shall be made in accordance with the
following procedures:
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Within sixty (60) days after any indemnified party is served
with process in connection with the commencement of any claims, governmental or
other orders, or lawsuits related to any matter covered by an indemnification
under this Agreement (a "Claim"), such indemnified party shall, if a Claim
against the indemnifying party in respect thereof is to be made pursuant to an
indemnification under this Agreement, notify the indemnifying party in writing
of the commencement thereof. Failure to give timely notice to the indemnifying
party shall not relieve the indemnifying party of liability if the indemnifying
party has actual knowledge of the Claim. Each indemnified party shall have the
right to control, in its sole and absolute discretion, its defense of any Claim
against it, through attorneys selected by it and reasonably acceptable to the
indemnifying party. Such indemnified party shall not have the right to
compromise or settle any Claim for which indemnity is sought by it pursuant to
an indemnification under this Agreement without obtaining the prior written
consent of the indemnifying party, which consent shall not be unreasonably
withheld, delayed or conditioned; but an indemnified party shall have the right
to compromise or settle any Claim for which indemnity is sought pursuant to an
indemnification under this Agreement, without the consent of the indemnifying
party, if the indemnifying party (or its officers, agents, employees,
directors, insurers, related companies or successors) has asserted such Claim
or has brought or joined in such Claim in opposition to such indemnified party
or if the indemnifying party has denied, or failed to acknowledge expressly,
its obligation to indemnify under the terms of an indemnification under this
Agreement or has violated its obligation with respect to the payment of amounts
due under such indemnification, including without limitation fees and expenses.
11.7 Complete Agreement. This Agreement, including the Schedules
and Exhibits attached hereto and the documents referred to herein shall
constitute the entire agreement between the parties hereto with respect to the
subject matter hereof and shall supersede all previous negotiations,
commitments and writings with respect to such subject matter.
11.8 Passage of Title and Risk of Loss. Title and risk of loss to
the Acquired Assets shall pass from Seller to Purchaser at the Effective Time,
notwithstanding that the Closing shall take place later on the Closing Date.
If there is any material damage, destruction or loss to any material portion of
the Terminal Assets between the date of this Agreement and the Closing Date,
caused by a Casualty ("Material Event"), or if any condemnation proceeding
against any material portion of the Terminal Assets has been commenced prior to
the Closing Date ("Condemnation"), Purchaser and Seller shall have the
following rights with respect to such Material Event or Condemnation:
(a) Should a Material Event or Condemnation resulting, in either
case, in a loss that is less than one-third (1/3) of the Purchase Price occur
between the date of this Agreement and the Effective Time, Seller shall notify
Purchaser of such occurrence and Purchaser shall remain obligated under this
Agreement to complete the Closing and take possession of the Acquired Assets
without any reduction of the Purchase Price or of the other obligations of
Purchaser hereunder; provided, however, that Seller shall assign to Purchaser,
in respect to such Material Event or Condemnation, Seller's claim (and any cash
proceeds therefrom) against any third party
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including any condemning authority, or its right to recover under any insurance
policies maintained by Seller.
(b) Should a Material Event or Condemnation resulting, in either
case, in a loss equal to or greater than one-third (1/3) of the Purchase Price
occur between the date of this Agreement and the Effective Time, Seller shall
notify Purchaser of such occurrence and Purchaser may by notice to Seller given
within ten calendar days of its receipt of notice of such occurrence, elect to
either (i) complete the Closing and take possession of the Acquired Assets with
or without any reduction of the Purchase Price or of the other obligations of
Purchaser hereunder; provided, however, that Seller shall assign to Purchaser,
in respect to such Material Event or Condemnation, Seller's claim against any
third party including any condemning authority, or its right to recover under
any insurance policies maintained by Seller; or (ii) terminate this Agreement
and demand the return of the Deposits. If necessary, Purchaser shall have the
right to delay the Closing for a period of up to ten days after the date of
notice of occurrence of any such Material Event or Condemnation for the purpose
of determining whether to elect to complete the Closing or to terminate this
Agreement.
11.9 Waiver, Discharge, Etc.. This Agreement and its Exhibits and
Schedules may not be released, discharged, abandoned, changed or modified in
any manner, except by an instrument in writing signed on behalf of each of the
parties hereto by their duly authorized representatives. The failure of any
party hereto to enforce at any time any of the provisions of this Agreement
shall in no way be construed to be a waiver of any such provision, nor in any
way to affect the validity of this Agreement or any part thereof or the right
of any party thereafter to enforce each and every such provision. No waiver of
any breach of this Agreement shall be held to be a waiver of any other or
subsequent breach.
11.10 Severability. In the event that any provision of this
Agreement shall be determined to be invalid or unenforceable in any respect and
such determination does not have a material adverse effect on the interests of
Seller, or Purchaser, as the case may be, in the transactions contemplated
hereby, such determination shall not affect such provision in any other respect
or any other provision of this Agreement, which shall remain in full force and
effect.
11.11 Jurisdiction. Purchaser and Seller, by their execution of
this Agreement, each hereby irrevocably submits to the exclusive jurisdiction
of the state and federal courts of Louisiana over any action or proceeding
arising out of or relating to this Agreement, and Purchaser and Seller hereby
irrevocably agree that all claims in respect of such action or proceeding shall
be held and determined in such court. Purchaser and Seller hereby irrevocably
waive, to the fullest extent they may effectively do so, the defense of any
inconvenient forum to the maintenance of such action or proceeding. Purchaser
and Seller hereby irrevocably consent to the service of any and all process in
any such action or proceeding by the mailing of copies of such process to
either of Purchaser or Seller, at their address specified in Section 11.12.
Purchaser and Seller agree that a final judgment in any such action or
proceeding (all right of review or appeal having been exhausted or expired)
shall be conclusive and may be enforced in other jurisdictions by suit on the
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judgment or in any other manner provided by law. Nothing in this paragraph
shall affect the parties' right to serve legal process in any other manner
permitted by law.
11.12 Notices. All notices or other communications required or
permitted hereunder shall be in writing and shall be validly given if delivered
personally, by telefax, or sent by courier or by certified mail addressed, if
to Purchaser to:
TransAmerican Refining Corporation
14902 River Road
New Sarpy, Louisiana 70078
Attention: Gary Karr
with a copy to:
TransAmerican Refining Corporation
1300 North Sam Houston Parkway East, Suite 310
Houston, Texas 77032-2949
Attention: Legal Agent
and with a copy to:
Campbell, McCranie, Sistrunk, Anzelmo
& Hardy, P.C.
3445 North Causeway Boulevard, Suite 802
Metairie, Louisiana 70002
Attention: Burgess E. McCranie, Jr.
or to such other person or at such other place as Purchaser shall furnish to
Seller in writing, and if to Seller to:
GATX Terminals Corporation
500 West Monroe Street
Chicago, Illinois 60661
Attention: Richard J. Desiderio
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with a copy to:
Phelps Dunbar, L.L.P.
400 Poydras Street, 30th Floor
New Orleans, Louisiana 70130
Attention: Harvey D. Wagar, III
or to such other person or at such other place as Seller shall furnish to
Purchaser in writing. Notice given by telex shall be deemed delivered when
received as evidenced by their answer back. Notice given by certified mail as
set out above shall be deemed delivered five business days after the date the
same is postmarked. Notice given by courier shall be deemed delivered on the
next business day after dispatch.
11.13 Public Announcements. No party hereto shall issue any press
release or public announcement in connection with this Agreement or the
transactions contemplated hereby unless (i) the text thereof has been agreed to
by the other party, or (ii) issuance therefor is required by law.
11.14 No Recordation. Neither Seller nor Purchaser shall record
this Agreement or any memorandum thereof in the real property records of the
State of Louisiana.
11.15 Expenses. Except as expressly provided herein, whether the
transactions contemplated by this Agreement are consummated or fail to be
consummated for any reason whatsoever, each of the parties hereto shall pay its
own expenses and the fees of its counsel, accountants and other experts.
Additionally, Purchaser shall be responsible for (i) all title insurance
premiums for title insurance, if required by Purchaser, (ii) all costs and
expenses relating to Purchaser's inspection of the Dock Assets, and (iii) all
costs and expenses relating to the survey. Seller shall be responsible for
abstracting and title examination fees and charges incurred in connection with
the Commitment, not to exceed Thirty Thousand ($30,000.00) and No/100 Dollars.
11.16 Titles and Headings. Title and headings to sections herein
are inserted for convenience or reference only and are not intended to be a
part of or to affect the meaning or interpretation of this Agreement.
11.17 Construction. The parties acknowledge that the parties and
their counsel have reviewed and revised this Agreement and that the normal rule
of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this
Agreement or any exhibits or amendments thereto.
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11.18 Governing Law. THE VALIDITY, PERFORMANCE AND ENFORCEMENT OF
THIS AGREEMENT SHALL BE GOVERNED BY THE LAW OF THE STATE OF LOUISIANA.
11.19 Assignment. Purchaser may assign its rights under this
Agreement to any affiliate of Purchaser (an "Affiliate Assignee") upon advance
written notice to Seller; provided however in the event of such assignment,
Purchaser shall not be relieved of its obligations hereunder and Stanley shall
not be relieved of his obligations under the Stanley Guaranty. Purchaser may
not otherwise assign its rights or obligations under this Agreement. No sale
of the Acquired Assets subsequent to Closing, whether to an Affiliate Assignee
or to a third party, shall relieve or release Purchaser from its obligations
under this Agreement or under any closing documents (including without
limitation the obligations under the General Release and Indemnity Agreement
and the Environmental Release and Indemnity Agreement. Notwithstanding
anything in this Agreement to the contrary, in the event that (i) Purchaser or
an Affiliate Assignee sells all or substantially all of the Terminal Assets to
a third party subsequent to the Closing, and (ii) such third party expressly
assumes Purchaser's obligations under the Environmental Release and Indemnity
Agreement, and (iii) such third party establishes a substitute escrow account
acceptable to Seller, in Seller's sole discretion, for the Environmental Escrow
Account, and (iv) the financial condition of such third party is, in Seller's
sole discretion, acceptable to Seller, then Seller will release Purchaser from
its obligations under the Environmental Release and Indemnity Agreement.
Nothing in this Agreement shall be construed to limit, preclude or prohibit
Purchaser, subsequent to the Closing, from transferring all or part of the
Acquired Assets to a third party.
11.20 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
11.21 TransTexas Gas Corporation. Notwithstanding anything in this
Agreement to the contrary, Purchaser and Seller stipulate that, for purposes of
the indemnities granted by Purchaser in this Agreement, TransTexas Gas
Corporation is not a party to any such indemnity and is not otherwise bound by
any such indemnity.
11.22 No Third-Party Beneficiaries. Each of the provisions of this
Agreement is for the sole and exclusive benefit of Seller and Purchaser and not
for the benefit of any other person.
11.23 Execution in Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement, and shall become a binding agreement when one or more counterparts
have been signed by each of the parties.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
PURCHASER:
TRANSAMERICAN REFINING CORPORATION
By:
------------------------------------
Name: R. Glenn McGinnis
Title: Vice President of Manufacturing
SELLER:
GATX TERMINALS CORPORATION
By:
------------------------------------
Name: Richard J. Desiderio
Title: Vice President
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