Common use of Additional Conditions to Buyer’s Obligations Clause in Contracts

Additional Conditions to Buyer’s Obligations. The obligations of Buyers to effect the transactions contemplated hereby shall be subject to the satisfaction at or prior to the Closing of the following conditions, any or all of which may be waived by Buyers, in whole or in part, to the extent permitted by Law: (a) Each of the representations and warranties of Sellers set forth in this Agreement shall be true and correct (it being understood that, for purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the Execution Date and as of the Closing Date as though made on and as of the Closing Date (except that, in each case, representations and warranties that speak as of a specified date shall have been true and correct only on such date) except for failures that would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect or materially or adversely affect the ability of Sellers to perform their obligations under this Agreement (other than the first two sentences of Section 3.1 and all of Section 3.2, for which this exclusion shall not apply), and Buyers shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect. (b) Sellers shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them on or prior to Closing Date, and Buyers shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect. (c) All Third Person Consents and all Authorizations specified in Sections 3.3(a) and 3.3(b) of the Disclosure Schedules, the lack of which would reasonably be expected to have a Material Adverse Effect, shall have been obtained. (d) No Material Adverse Effect shall have occurred since the Execution Date and be continuing.

Additional Conditions to Buyer’s Obligations. The obligations of Buyers Buyer to effect the transactions contemplated hereby shall be subject to the satisfaction at or prior to the Closing of the following conditions, any or all of which may be waived by BuyersBuyer, in whole or in part, to the extent permitted by applicable Law: (a) Each of the representations and warranties of Sellers Seller set forth in this Agreement shall be true and correct in all material respects (it being understood that, that for purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the Execution Date and as of the Closing Date as though made on and as of the Closing Date (except that, in each case, representations and warranties that speak as of a specified date shall have been true and correct (or true and correct in all material respects, as appropriate) only on such date) ), except for failures that would not be reasonably likely inaccuracies of representations or warranties the circumstances giving rise to havewhich, individually or in the aggregate, do not constitute a Material Adverse Effect or materially or adversely affect the ability of Sellers to perform their obligations under this Agreement (other than the first two sentences of Section 3.1 and all of Section 3.2, for which this exclusion shall not apply)Effect, and Buyers Buyer shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect; provided, however, that for purposes of this Section 8.3(a), a Material Adverse Effect shall be deemed to have occurred if and only if effects of the circumstances giving rise to any such inaccuracies of representations or warranties have caused, will cause, or may reasonably be expected to cause any Loss or Losses, individually or in the aggregate, in excess of $3,400,000. (b) Sellers Seller shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them it on or prior to Closing Date, and Buyers Buyer shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect. (c) The applicable waiting period under the HSR Act and any extension thereof shall have terminated or expired, and neither the FTC nor the DOJ shall have imposed any material conditions upon Buyer’s ability to acquire, own or operate the Transferred Assets or require Buyer to dispose of, hold separate or take any other action with respect to the Transferred Assets. (d) Seller shall have, or shall have caused to be, duly executed and delivered, each of the Other Agreements simultaneously with the Closing. (e) CITGO shall have, or shall have caused to be, duly executed and delivered a Noncompetition Agreement in the form attached hereto as Exhibit L simultaneously with the Closing. (f) Each of the Partners shall have, or shall have caused to be, duly executed and delivered a Guarantee Agreement in the form attached hereto as Exhibit J simultaneously with the Closing. (g) All Third Person Third-Party Consents and all Authorizations specified in Sections 3.3(alisted on Schedule 8.3(g) and 3.3(b) of the Disclosure Schedules, the lack of which would reasonably be expected to have a Material Adverse Effect, shall have been obtainedobtained in a form reasonably satisfactory to Buyer and, to the extent relating to Real Property, recordable in the applicable real property records. (dh) No Material Adverse Effect shall have occurred since the Execution Date and be continuing. (i) To the extent required by the Title Company, Buyer shall have received all documents it may reasonably request relating to the existence of Seller and CITERCO and the authority of Seller for this Agreement and the transactions contemplated hereby. (j) Seller shall have, or shall have caused to be, duly executed and delivered the Subcharter Agreement in the form attached hereto as Exhibit G. (k) Buyer shall have received an Affidavit of Non-Foreign Status of Seller in the form of Exhibit M attached to this Agreement.

Additional Conditions to Buyer’s Obligations. The obligations of Buyers Buyer to effect the transactions contemplated hereby shall be subject to the satisfaction at or prior to the Closing of the following conditions, any or all of which may be waived by BuyersBuyer, in whole or in part, to the extent permitted by Law: (a) Each of the representations and warranties of Sellers set forth in this Agreement shall be true and correct in all material respects (it being understood that, for purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the Execution Date and as of the Closing Date as though made on and as of the Closing Date (except that, in each case, representations and warranties that speak as of a specified date shall have been true and correct only on such date) except for failures that would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect or materially or adversely affect the ability of Sellers to perform their obligations under this Agreement (other than the first two sentences of Section 3.1 and all of Section 3.2, for which this exclusion shall not apply)Effect, and Buyers Buyer shall have received a certificate of an executive officer of each SellerSellers, dated the Closing Date, to such effect. (b) Sellers shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them it on or prior to the Closing Date, and Buyers Buyer shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect. (c) All Third Person Consents Buyer shall have received from Sellers the audited combined consolidated financial statements of MIC and all Authorizations specified MWH as of and for the fiscal year ended December 31, 2006, which statements will not vary in Sections 3.3(aany material respect from the 2006 Unaudited Financial Statements. For the avoidance of doubt, the following items shall not be considered a material variation for purposes of this Section 9.3(c): (i) and 3.3(b) any audit adjustments that are not material in significance to the underlying performance of the Disclosure Schedules, Business reflected in the lack 2006 Unaudited Financial Statements and (ii) the inclusion of which would reasonably the notes required by GAAP; provided that the information included in the notes can be expected to have considered in determining whether a Material Adverse Effect, shall have been obtainedmaterial variation has occurred. (d) No Material Adverse Effect shall have occurred since the Execution Date and be continuing.

Additional Conditions to Buyer’s Obligations. The obligations of Buyers Buyer to effect the transactions contemplated hereby Contemplated Transactions shall be subject to the satisfaction at or prior to the Closing of each of the following conditions, any or all of which may be waived by BuyersBuyer, in whole or in part, to the extent permitted by Law: (a) Each of the representations and warranties of Sellers Seller set forth in this Agreement shall be true and correct in all respects (it being understood that, for purposes of determining the accuracy satisfaction of such representations and warrantiesthis Section 8.3(a), all materiality qualifications (other than “Material Adverse EffectThreshold Amount” qualifications and other the materiality or dollar amount qualifications set forth in Section 4.7(a) and Section 4.8) contained in such representations and warranties shall be disregarded) as of the Execution Date and as of the Closing Date as though made on and as of the Closing Date (except that, in each case, representations and warranties that speak as of a specified date (other than the term “current” or “currently”) shall have been true and correct only on such date) ), except for failures that have not had or would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect or materially or adversely affect the ability of Sellers to perform their obligations under this Agreement (other than the first two sentences of Section 3.1 and all of Section 3.2, for which this exclusion shall not apply)Effect, and Buyers Buyer shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect. (b) Sellers Seller shall have performed or complied in all material respects with all agreements each agreement and covenants covenant required by this Agreement to be performed or complied with by them it on or prior to the Closing Date, and Buyers Buyer shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such that effect. (c) All Third Third-Person Consents and all Authorizations specified listed in Sections 3.3(aSchedule 8.3(c) and 3.3(bshall have been obtained. (d) Since the Execution Date, there must not have been any event or series of the Disclosure Schedules, the lack of events which has had or would reasonably be expected to have a Material Adverse Effect, and Buyer shall have received a certificate of either the chief executive officer or the chief financial officer of Seller, dated the Closing Date, to the effect that, to the knowledge of such officer, there has been obtainedno such event or series of events. (d) No Material Adverse Effect shall have occurred since the Execution Date and be continuing.

Additional Conditions to Buyer’s Obligations. The obligations Obligations of Buyers Buyer to effect the transactions contemplated hereby shall be subject to the satisfaction at or prior to the Closing of the following conditions, any or all of which may be waived by BuyersBuyer, in whole or in part, to the extent permitted by Law: (a) Each of the The representations and warranties of Sellers set forth Seller and the Company, as applicable, made in this Agreement Section 3.1 and Section 4.1 (Organization and Qualification), Section 3.2 and Section 4.2 (Authority; Enforceability), Section 3.5 (Ownership of the TH Interest), Section 4.4 (Capitalization of the Company), and Section 4.5 (Capitalization of the Acquired Subsidiary) shall be true complete and correct (it being understood that, for purposes of determining the accuracy of such representations in all respects when made and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the Execution Date on and as of the Closing Date Date, as though made on and as of the Closing Date (except thatfor representations and warranties that speak only as of a specific date or time, which need be so complete and correct only as of such date or time). The other representations and warranties of Seller and the Company, as applicable, made in each caseArticle III and Article IV shall, when read without any qualification as to "materiality" or "Material Adverse Effect" or another similar qualifier shall be complete and correct in all respects when made and on and as of the Closing Date, as though made on and as of the Closing Date (except for representations and warranties that speak as of a specified specific date shall have been true or time, which need be so complete and correct only on as of such datedate or time) except for failures that would not where the failure to be reasonably likely to haveso complete and correct, individually or and in the aggregate, has not had and is not reasonably likely to have a Material Adverse Effect or materially or adversely affect a material adverse effect on the ability of Sellers Seller to consummate the transactions contemplated by this Agreement or to perform their obligations its Obligations under this Agreement (other than the first two sentences of Section 3.1 and all of Section 3.2, for which this exclusion shall not apply)Agreement, and Buyers Buyer shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect.; (b) Sellers Seller shall have performed or complied in all material respects with all agreements and covenants Obligations required by this Agreement to be performed or complied with by them it on or prior to Closing Date, and Buyers Buyer shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect.; (c) All Third Person Consents and all Authorizations specified in Sections 3.3(a) and 3.3(bSection 8.2(c) of the Disclosure SchedulesSchedules shall have been obtained; (d) Since the Execution Date, the lack there must not have been any event or series of events which has had or would reasonably be expected to have a Material Adverse Effect, ; (e) The Startup Criteria shall have been obtained.met in all material respects; and (df) No Material Adverse Effect Seller (or its Affiliates) shall have occurred since successfully created a functional SAP "clone" of Seller's current Hawaii operating system pursuant to the Execution Date Pre-Closing Transition Services Agreement which shall be hosted and be continuingmanaged by Seller (or its Affiliates) at its datacenter and without any modifications by Buyer.

Additional Conditions to Buyer’s Obligations. The obligations of Buyers Buyer to effect the transactions contemplated hereby shall be subject to the satisfaction at or prior to the Closing of the following conditions, any or all of which may be waived by BuyersBuyer, in whole or in part, to the extent permitted by Law: (a) Each of the representations and warranties of Sellers Seller set forth in this Agreement shall be true and correct (it being understood that, for purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the Execution Date and as of the Closing Date as though made on and as of the Closing Date (except that, in each case, representations and warranties that speak as of a specified date shall have been true and correct only on such date) except for failures that would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect or materially or adversely affect the ability of Sellers Seller to perform their its obligations under this Agreement (other than the first two sentences of Section 3.1 and all of Section 3.2, for which this exclusion shall not apply)Agreement, and Buyers Buyer shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect. (b) Sellers Seller shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them it on or prior to Closing Date, and Buyers Buyer shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect. (c) All Each of the Third Person Consents and all Authorizations specified in Sections 3.3(a) and 3.3(bSection 8.3(c) of the Disclosure SchedulesSchedules shall have been obtained, or Seller shall, at Seller’s cost and expense (but with the lack reasonable and timely cooperation of Buyer), have provided alternative contractual arrangements pursuant to which Buyer or the Company shall receive the benefits of the underlying contract on the same terms and conditions as presently provided to the Business which arrangements shall not be cancelable without the prior written consent of Buyer. (d) Other than any Taking or Casualty (which are the subject of Article IX), no Material Adverse Effect shall have occurred or be continuing which would reasonably be expected to have a Material Adverse Effectresult in damages, shall have been obtaineddeficiencies, diminution in value, or losses, including loss of income or business disruption losses, in excess of $50,000,000, excluding any such amounts which Seller is obligated to pay or indemnify Buyer against under the terms of this Agreement. (d) No Material Adverse Effect shall have occurred since the Execution Date and be continuing.

Additional Conditions to Buyer’s Obligations. Under This Agreement The obligations of Buyers Buyer to effect consummate the transactions contemplated hereby Acquisition shall be subject to the satisfaction at on or prior to the Closing Date of each of the following conditions, any or all of which may be conditions unless waived by Buyers, in whole or in part, Buyer pursuant to the extent permitted by LawSection 8.3 hereof: (a) Each (i) The obligations of the Company required to be performed on or prior to the Closing Date pursuant to the terms of this Agreement shall have been duly performed and complied with in all material respects, (ii) the representations and warranties of Sellers the Company set forth in this Agreement shall be true and 112 113 correct (it being understood that, for purposes of determining the accuracy of such representations and warranties, in all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) material respects as of the Execution Date date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except thatfor any representation or warranty which speaks as of an earlier date), provided, however, that for purposes of determining the satisfaction of the condition contained in each casethis clause (ii), no effect shall be given to any exception in such representations and warranties relating to materiality or a "Material Adverse Effect," and provided further, however, that speak as the condition contained in this clause (ii) shall be deemed to be satisfied even if all of a specified date shall have been such representations and warranties are not true and correct only on such date) except for failures that would not unless the failure of any of the representations or warranties to be reasonably likely to haveso true and correct, individually or in the aggregate, a Material Adverse Effect would have or materially or adversely affect the ability of Sellers to perform their obligations under this Agreement (other than the first two sentences of Section 3.1 and all of Section 3.2, for which this exclusion shall not apply), and Buyers shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect. (b) Sellers shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them on or prior to Closing Date, and Buyers shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect. (c) All Third Person Consents and all Authorizations specified in Sections 3.3(a) and 3.3(b) of the Disclosure Schedules, the lack of which would reasonably be expected to have a Material Adverse Effect, and provided further, however, that nothing contained in this Section 6.3(a) shall be deemed to preclude, or otherwise limit, the right of Buyer to be indemnified for any breach of a representation or warranty by the Company in accordance with the provisions of Article VII hereof, and (iii) Buyer shall have been obtained. received a certificate of an executive officer of the Company in form and substance satisfactory to Buyer; and 113 114 (db) No Material Adverse Effect proceeding initiated by any Governmental Entity seeking an Injunction shall have occurred since the Execution Date and be continuing.pending; and

Additional Conditions to Buyer’s Obligations. The obligations of Buyers Buyer to effect the transactions contemplated hereby shall be subject to the satisfaction at or prior to the Closing of the following conditions, any or all of which may be waived by BuyersBuyer, in whole or in part, to the extent permitted by Applicable Law: (a) Each of the representations and warranties of Sellers set forth Seller contained in this Agreement shall be true and correct (it being understood thatcorrect, for purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the Execution Date date of this Agreement and as of the Closing Date as though made again on and as of the Closing Date (except that, in each case, representations and warranties that speak as of a specified date shall have been true and correct only on such date) except for failures that would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect or materially or adversely affect the ability of Sellers to perform their obligations under this Agreement (other than the first two sentences of Section 3.1 and all of Section 3.2, for which this exclusion shall not apply), and Buyers Date. Buyer shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect.; (b) Sellers Seller shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them it on or prior to Closing Date, and Buyers the Closing. Buyer shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect.; (c) All Third Person Consents and all Authorizations specified No action, suit, proceeding, arbitration or investigation shall be pending or threatened in Sections 3.3(a) and 3.3(b) writing against Buyer or any of its Affiliates that is based on or arises out of the Disclosure Schedulestransactions contemplated by this Agreement by: (i) any Governmental Authority, regardless of the lack validity of the claim; or (ii) any third Person who claims damages that are Material and for which would reasonably be expected to have claim there is a Material Adverse Effect, shall have been obtainedreasonable legal and factual basis. (d) No Except for (i) water well concessions that comprise part of the Assets, (ii) Third Person Consents for Contracts other than the Material Adverse Effect Contracts and (iii) Authorizations other than the Required Authorizations, the documents tendered by Seller at the Closing shall be sufficient to convey good title to the Assets at the Closing, free and clear of any Encumbrances. (e) Buyer shall have occurred since received certified copies of (i) all organizational documents of Seller and (ii) resolutions of the Execution Date board of directors of Seller authorizing it to enter into this Agreement. (f) Buyer shall have received all Third Person Consents necessary to transfer the Contracts listed on Schedule 13.3 (f) (the “Material Contracts”) to Buyer pursuant hereto, all in forms reasonably satisfactory to Buyer. (g) Buyer shall have received each of the Authorizations listed on Schedule 13.3 (g) (collectively, the “Required Authorizations”). (h) The Merger shall have become effective as to all Persons, and be continuingBuyer shall have received a certificate of an executive officer of Seller, dated the Closing Date, certifying that the Merger (i) has been completed in accordance with all Applicable Law (including satisfaction of all of the conditions of Article 224 of the Mexican General Corporation Law), and (ii) is effective as to all Persons in accordance with Article 224 of the Mexican General Corporation Law (Ley General de Sociedades Mercantiles). (i) Buyer shall have received a certificate of an executive officer of Seller, dated the Closing Date, certifying that the written consent from International Finance Corporation with respect to the transactions contemplated by this Agreement remains in full force and effect and that there has been no amendment, modification, waiver, termination or withdrawal of such consent. (j) Buyer shall have approved any and all Schedules and Exhibits referred to in this Agreement buy not yet attached hereto. Notwithstanding the failure of any one or more of the foregoing conditions, Buyer may proceed with the Closing without satisfaction, in whole or in part, of any one or more of such conditions and without written waiver.

Additional Conditions to Buyer’s Obligations. The obligations of Buyers Buyer to effect the transactions contemplated hereby shall be subject to the satisfaction at or prior to the Closing of the following conditions, any or all of which may be waived by BuyersBuyer, in whole or in part, to the extent permitted by applicable Law: (a) Each of the representations and warranties of Sellers set forth Seller contained in this Agreement that is qualified as to materiality shall be true and correct, and each of such representations and warranties that is not so qualified shall be true and correct (it being understood that, except for purposes any failure of determining the accuracy of such representations same to be true and warranties, all “correct that would not reasonably be expected to have a Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) Effect with respect to Seller, the Company, the Business, or the ability of Seller to perform its obligations under this Agreement, as of the Execution Date and as of the Closing Date as though made again on and as of the Closing Date (except that, in each case, representations and warranties that speak as of a specified date shall have been true and correct only on such date) except for failures that would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect or materially or adversely affect the ability of Sellers to perform their obligations under this Agreement (other than the first two sentences of Section 3.1 and all of Section 3.2, for which this exclusion shall not apply)Date, and Buyers Buyer shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect. (b) Sellers Seller shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them it on or prior to Closing Date, and Buyers Buyer shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect. (c) All Third Person Consents and all Authorizations specified in Sections 3.3(a3.3(b) and 3.3(b3.3(c) of the Disclosure Schedules, Schedule required for the lack consummation of which would reasonably be expected to have a Material Adverse Effect, the transactions contemplated by this Agreement shall have been obtained. (d) No Since January 1, 2004, there shall have been no casualty loss to the Assets, except any such casualty loss (i) that has been substantially repaired or replaced, (ii) relating to the Insurance Claims, (iii) relating to other claims for which the Company has received or is entitled to receive insurance proceeds sufficient to pay the full cost of such repair and compensate for business interruption losses, less any applicable retention amounts or (iv) that would not reasonably be expected to have a Material Adverse Effect with respect to the Business or the Company and the Transferred Subsidiaries, taken as a whole. (e) Notice of termination of the Vitol Agreement shall have been given to Vitol on or prior to the Closing Date. (f) The portion of the Restructuring described in clauses (i) and (ii) of the definition of Restructuring shall have been completed. (g) If the portion of the Restructuring described in clause (iii) of the definition of Restructuring has not been completed by March 30, 2004, then the election described in Section 6.2(k) shall have been filed as provided in Section 6.2(k). (h) For purposes of determining whether (i) a failure of the representations and warranties of Seller to be true and correct (as described in the first sentence of Section 8.3(a)) or (ii) a casualty loss to the Assets (as described in Section 8.3(d) would be material and adverse under clauses (i), (ii), or (iii) of the last sentence of the definition of "Material Adverse Effect," the parties agree that a Material Adverse Effect will be deemed to have occurred since the Execution Date and for purposes of Section 8.3(a) or Section 8.3(d), as applicable, if it has caused, will cause, or may reasonably be continuingexpected to cause any Loss in excess of $20.0 million.

Additional Conditions to Buyer’s Obligations. The obligations Obligations of Buyers Buyer to effect the transactions contemplated hereby shall be subject to the satisfaction at or prior to the Closing of the following conditions, any or all of which may be waived by BuyersBuyer, in whole or in part, to the extent permitted by Law: (a) Each of the The representations and warranties of Sellers set forth Seller and the Company, as applicable, made in this Agreement Section 3.1 and Section 4.1 (Organization and Qualification), Section 3.2 and Section 4.2 (Authority; Enforceability), Section 3.5 (Ownership of the TH Interest), Section 4.4 (Capitalization of the Company), and Section 4.5 (Capitalization of the Acquired Subsidiary) shall be true complete and correct (it being understood that, for purposes of determining the accuracy of such representations in all respects when made and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the Execution Date on and as of the Closing Date Date, as though made on and as of the Closing Date (except thatfor representations and warranties that speak only as of a specific date or time, which need be so complete and correct only as of such date or time). The other representations and warranties of Seller and the Company, as applicable, made in each caseArticle III and Article IV shall, when read without any qualification as to “materiality” or “Material Adverse Effect” or another similar qualifier shall be complete and correct in all respects when made and on and as of the Closing Date, as though made on and as of the Closing Date (except for representations and warranties that speak as of a specified specific date shall have been true or time, which need be so complete and correct only on as of such datedate or time) except for failures that would not where the failure to be reasonably likely to haveso complete and correct, individually or and in the aggregate, has not had and is not reasonably likely to have a Material Adverse Effect or materially or adversely affect a material adverse effect on the ability of Sellers Seller to consummate the transactions contemplated by this Agreement or to perform their obligations its Obligations under this Agreement (other than the first two sentences of Section 3.1 and all of Section 3.2, for which this exclusion shall not apply)Agreement, and Buyers Buyer shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect.; (b) Sellers Seller shall have performed or complied in all material respects with all agreements and covenants Obligations required by this Agreement to be performed or complied with by them it on or prior to Closing Date, and Buyers Buyer shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect. (c) All Third Person Consents and all Authorizations specified in Sections 3.3(a) and 3.3(b) of the Disclosure Schedules, the lack of which would reasonably be expected to have a Material Adverse Effect, shall have been obtained. (d) No Material Adverse Effect shall have occurred since the Execution Date and be continuing.;

Additional Conditions to Buyer’s Obligations. The obligations of Buyers Buyer to effect the transactions contemplated hereby shall be subject to the satisfaction at or prior to the Closing of the following conditions, any or all of which may be waived by BuyersBuyer, in whole or in part, to the extent permitted by applicable Law: (a) Each of the representations and warranties of Sellers set forth Seller contained in this Agreement shall be true and correct (it being understood that, for purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the Execution Date date of this Agreement and as of the Closing Date as though made again on and as of the Closing Date (without regard to any qualification thereof as to materiality, except that, in each case, representations and warranties that speak as for any failure of a specified date shall have been the same to be true and correct only on such date) except for failures that would not reasonably be reasonably likely expected to have, individually or in the aggregate, have a Material Adverse Effect or materially or adversely affect with respect to the ability Assets, provided that solely for purposes of Sellers this Section 7.3(a) the $3,000,000 threshold referred to perform their obligations under this Agreement (other than in the first two sentences definition of Section 3.1 and all of Section 3.2, for which this exclusion "Material Adverse Effect" shall not apply)instead be $25,000,000, and Buyers Buyer shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect. (b) Sellers Seller shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them it on or prior to Closing DateDate except for any failure of Seller to perform or comply with the same that would not reasonably be expected to have a Material Adverse Effect, provided that solely for purposes of this Section 7.3(b) the $3,000,000 threshold referred to in the definition of "Material Adverse Effect" shall instead be $25,000,000, and Buyers Buyer shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect. (c) All Third Person Consents and all Authorizations specified in Sections 3.3(a) and 3.3(b) of the Disclosure Schedules, the lack of which would reasonably be expected to have a Material Adverse Effect, There shall have been obtainedno casualty loss to the Assets, except any such casualty loss (i) that has been substantially repaired or replaced, or (ii) for which Seller has received or is entitled to receive, and will assign to Buyer at Closing such receipts or Seller's right to receive, property damage and business interruption insurance proceeds sufficient to pay the reasonably expected (as of Closing) full cost of such repair and loss due to business interruption; provided that if the insurance proceeds that are assigned to Buyer are insufficient to pay such reasonably expected cost of such repair, the number of shares of Preferred Stock to be delivered at Closing shall be reduced by a number of shares equal to (i) the sum of the amount of such reasonably expected repair costs and business interruption losses not compensated by such insurance proceeds so assigned divided by (ii) the stated value of $25 per share, with such number of shares of Preferred Stock to be delivered to the Escrow Agent for disposition as provided in the last sentence of this Section 7.3(c). At Closing, Buyer shall deliver such shares of Preferred Stock to the Escrow Agent and specify that such shares of Preferred Stock are to be deposited in the Casualty Subaccount under the Escrow Agreement, and Seller shall deliver to the Escrow Agent an instruction confirming the number of shares of Preferred Stock to be deposited into the Casualty Subaccount. Buyer shall use its commercially reasonable best efforts to complete the repair of such casualty as promptly as practicable after the Closing and to collect amounts of insurance proceeds the right to receive which has been assigned to Buyer in accordance with this Section 7.3(c). Following the completion of the repair of such casualty, the Escrow Agent, pursuant to the Escrow Agreement, shall release to Buyer a number of shares of the Preferred Stock held by the Escrow Agent in the Casualty Subaccount equal to the amount of the repair cost and business interruption losses not covered by such insurance proceeds, as mutually agreed to by Seller and Buyer or as finally determined pursuant to a judicial proceeding, divided by $25, and shall release the remainder of such shares of Preferred Stock to Seller. For the avoidance of doubt, the parties hereto agree that the fire in the Refinery's coker unit on January 29, 2003 shall not result in the failure of this Xxxxion 7.3(c) to be satisfied. (d) No Material Adverse Effect Seller shall make the deliveries required of Seller under Section 3.2. (e) The Coker Unit at the Refinery shall be Operational (as defined below); prxxxxxd that, if, at such time as all other conditions to the Closing set forth in this Article VII have occurred since been satisfied or waived by the Execution Date applicable party, the Coker Unit is not Operational, Buyer and Seller agree that this conditxxx xhall be continuing.satisfied as set forth below: (i) Seller shall (1) direct Buyer to deliver to the Escrow Agent at Closing shares of Preferred Stock, otherwise deliverable at Closing to Seller by Buyer pursuant to Section 3.2(d)(y), with an aggregate stated value equal to the Coker Escrow Value (as defined below); and (2) assign to Buyex xx Closing all rights of Seller to property damage and business interruption insurance proceeds with respect to damages to the Coker Unit resulting from the January 2003 casualty, in the cxxx xf property damage proceeds, to the extent Seller has not incurred costs or losses prior to Closing giving rise to such proceeds and, in the case of business interruption insurance proceeds, to the extent the period covered by such business interruption insurance extends past the Closing Date, including Seller's right to receive any such proceeds funded into the GE Capital insurance escrow account (provided that Seller shall be entitled to withdraw from such escrow account the amount of such proceeds not assigned to Buyer under this clause (i)(2));

Additional Conditions to Buyer’s Obligations. The obligations of Buyers Buyer to effect the transactions contemplated hereby shall be subject to the satisfaction at or prior to the Closing of the following conditions, any or all of which may be waived by BuyersBuyer, in whole or in part, to the extent permitted by applicable Law: (a) Each of the representations and warranties of the Sellers set forth in this Agreement shall be true and correct (it being understood that, for purposes of determining the accuracy satisfaction of such representations and warrantiesthis Section 9.3(a), all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the Execution Date and as of the Closing Date as though made on and as of the Closing Date (except that, in each case, representations and warranties that speak as of a specified date shall have been true and correct only on such date) except for failures that would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect or materially or adversely affect (provided, however, that the ability Fundamental Representations of the Sellers shall be true and correct in all respects without giving effect to perform their obligations under this Agreement (other than the first two sentences of Section 3.1 and all of Section 3.2, for which this exclusion shall not applysuch Material Adverse Effect qualifier), and Buyers Buyer shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect. (b) Sellers Each Seller shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them it on or prior to Closing Date, and Buyers Buyer shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect. (c) There shall not be pending or threatened any Proceeding to materially restrain, prohibit or otherwise materially interfere with or obtain substantial monetary damages in connection with Buyer’s ownership of the Class A Shares or the Executive Contributed Shares or the Company’s operation of the Business after Closing. (d) All Third Person Consents and all Authorizations specified in Sections 3.3(a) and 3.3(b) listed on Section 9.3 of the Sellers Disclosure SchedulesSchedule shall have been obtained. (e) Since the Execution Date, the lack of there must not have been any event which has had or would reasonably be expected to have a Material Adverse Effect, shall have been obtained. (df) No Material Adverse Effect Buyer shall have occurred since received each of the Execution Date Contribution Agreements, executed by Xxxxxxxxxx and each of the respective Contributing Executives, accompanied by certificates representing the Xxxxxxxxxx Contributed Shares or Executive Contributed Shares, as applicable, free and clear of all Liens other than Permitted Equity Liens, which certificates shall be continuingduly endorsed in blank (or accompanied by duly executed stock powers). (g) The Sellers shall have executed and delivered, or cause to be delivered, all documents, instruments, certificates or other items required to be delivered at Closing by the Sellers pursuant to Section 2.4(b). (h) Buyer shall have received the Debt Financing for the consummation of the transactions contemplated hereby.

Additional Conditions to Buyer’s Obligations. The obligations of Buyers Buyer to effect the transactions contemplated hereby shall be subject to the satisfaction at or prior to the Closing of the following conditions, any or all of which may be waived by BuyersBuyer, in whole or in part, to the extent permitted by applicable Law: (a) Each of the representations and warranties of Sellers set forth Seller contained in this Agreement that is qualified as to materiality shall be true and correct, and each of such representations and warranties that is not so qualified shall be true and correct (it being understood that, except for purposes any failure of determining the accuracy of such representations same to be true and warranties, all “correct that would not reasonably be expected to have a Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) Effect with respect to Seller, the Company, the Business, or the ability of Seller to perform its obligations under this Agreement, as of the Execution Date and as of the Closing Date as though made again on and as of the Closing Date (except that, in each case, representations and warranties that speak as of a specified date shall have been true and correct only on such date) except for failures that would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect or materially or adversely affect the ability of Sellers to perform their obligations under this Agreement (other than the first two sentences of Section 3.1 and all of Section 3.2, for which this exclusion shall not apply)Date, and Buyers Buyer shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect. (b) Sellers Seller shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them it on or prior to Closing Date, and Buyers Buyer shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect. (c) All Third Person Consents and all Authorizations specified in Sections 3.3(a) and 3.3(b) Section 3.3 of the Disclosure Schedules, Schedule required for the lack consummation of which would reasonably be expected to have a Material Adverse Effect, the transactions contemplated by this Agreement shall have been obtained. (d) No Since January 1, 2004, there shall have been no casualty loss to the Assets, except any such casualty loss (i) that has been substantially repaired or replaced, (ii) relating to other claims for which the Company has received or is entitled to receive insurance proceeds sufficient to pay the full cost of such repair and compensate for business interruption losses, less any applicable retention amounts, or (iii) that would not reasonably be expected to have a Material Adverse Effect with respect to the Business or the Company and the Transferred Subsidiary, taken as a whole. (e) Seller or Seller's Affiliates shall have occurred since (i) repaid in full the Execution Date and be continuing.indebtedness evidenced by the Synthetic Lease Documentation;

Additional Conditions to Buyer’s Obligations. The obligations Obligations of Buyers Buyer to effect affect the transactions contemplated hereby Contemplated Transactions shall be subject to the satisfaction at or prior to the Closing of the following conditions, any or all of which may be waived by BuyersBuyer, in whole or in part, to the extent permitted by Law: (a) Each of the The representations and warranties of Sellers set forth Seller made in this Agreement Section 3.1 and Section 4.1 (Organization and Qualification), Section 3.2 and Section 4.2 (Authority; Enforceability), Section 3.5 (Ownership of the Purchased Shares), and Section 4.4 (Capitalization of the Company) shall be true complete and correct (it being understood that, for purposes of determining the accuracy of such representations in all respects when made and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the Execution Date on and as of the Closing Date Date, as though made on and as of the Closing Date (except thatfor representations and warranties that speak only as of a specific date or time, which need be so complete and correct only as of such date or time). The other representations and warranties of Seller made in each caseArticle III and Article IV shall, when read without any qualification as to “materiality” or “Material Adverse Effect” or another similar qualifier shall be complete and correct in all respects when made and on and as of the Closing Date, as though made on and as of the Closing Date (except for representations and warranties that speak as of a specified specific date shall have been true or time, which need be so complete and correct only on as of such datedate or time) except for failures that would not where the failure to be reasonably likely to haveso complete and correct, individually or and in the aggregate, has not had and is not reasonably likely to have a Material Adverse Effect or materially or adversely affect a material adverse effect on the ability of Sellers Seller to consummate the Contemplated Transactions or to perform their obligations its Obligations under this Agreement (other than the first two sentences of Section 3.1 and all of Section 3.2, for which this exclusion shall not apply)Agreement, and Buyers Buyer shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect.; (b) Sellers Seller shall have performed or complied in all material respects with all agreements and covenants Obligations required by this Agreement to be performed or complied with by them it on or prior to Closing Date, and Buyers Buyer shall have received a certificate of an executive officer of each Seller, dated the Closing Date, to such effect.; (c) All Third Person Consents and all Authorizations specified in Sections 3.3(aSchedule 8.2(c) and 3.3(bshall have been obtained; and (d) Since the Execution Date, there must not have been any event or series of the Disclosure Schedules, the lack of events which has had or would reasonably be expected to have a Material Adverse Effect, shall have been obtained. (d) No Material Adverse Effect shall have occurred since the Execution Date and be continuing.