CONFORMED COPY
DATED 26TH JANUARY 1999
AGREEMENT
relating to the sale and purchase of certain GATX UK Terminals Assets
GATX TERMINALS LIMITED (1)
ST SERVICES LTD. (2)
ST EASTHAM LTD. (3)
GATX TERMINALS CORPORATION (4)
SUPPORT TERMINALS OPERATING PARTNERSHIP, L.P. (5)
KANEB PIPE LINE PARTNERS, L.P. (6)
XXXXXXXX XXXXXX
000 Xxxxxx,
Xxxxxx XX0X 0XX
Tel: 0000-000 0000
Fax: 0000-000 0000
Ref.: JR/G2086/67
CONTENTS
No. Heading Page
1. DEFINITIONS AND INTERPRETATION............................................8
2. ASSETS TO BE SOLD........................................................18
3. CONSIDERATION............................................................19
4. PAYMENT DUE ON COMPLETION................................................20
5. CONDITIONS PRECEDENT.....................................................21
6. COMPLETION...............................................................24
7. COMPLETION STATEMENT.....................................................26
8. ACTION PENDING THE COMPLETION DATE.......................................27
9. TITLE AND RISK...........................................................29
10. PERMITS.................................................................30
11. CONTRACTS...............................................................31
12. TANK AUDIT..............................................................32
13. MUTUAL INDEMNITY........................................................33
14. EMPLOYEES...............................................................33
15. ENVIRONMENTAL...........................................................35
16. THE VENDOR'S RECEIVABLES................................................37
17. NAMES AND SIGNAGE.......................................................38
18. POST-COMPLETION ACCESS AND SERVICES.....................................38
19. VAT ....................................................................39
20. REPRESENTATIONS AND WARRANTIES..........................................41
21. LIMITATIONS ON LIABILITY................................................43
22. GUARANTEES AND INDEMNITIES..............................................45
23. KANEB, STOP AND PURCHASER'S WARRANTIES..................................46
24. ASSIGNMENT..............................................................47
25. WAIVER..................................................................48
26. NATURE OF AGREEMENT.....................................................48
27. COSTS...................................................................48
28. ANNOUNCEMENTS...........................................................48
29. CONFIDENTIALITY.........................................................49
30. FURTHER ASSURANCE.......................................................50
31. LAW AND JURISDICTION....................................................50
32. NOTICES.................................................................50
33. VARIATIONS..............................................................53
34. COUNTERPARTS............................................................53
SCHEDULE 1 - TERMINALS
SCHEDULE 2 - EXCLUDED ASSETS
SCHEDULE 3 - COMPLETION STATEMENT
SCHEDULE 4 - THE WARRANTIES
SCHEDULE 5 - GTC GUARANTEES
SCHEDULE 6 - EMPLOYEES
SCHEDULE 7 - ENGLISH FREEHOLD AND LEASEHOLD SCHEDULE
SCHEDULE 8 - SCOTTISH LEASEHOLD SCHEDULE
SCHEDULE 9 - N.I. LEASEHOLD SCHEDULE
SCHEDULE 10 - PERMITS
SCHEDULE 11 - CUSTOMER CONTRACTS
SCHEDULE 12 - HIRE EQUIPMENT
SCHEDULE 13 - SUPPLIER CONTRACTS
SCHEDULE 14 - THIRD PARTY EQUIPMENT
SCHEDULE 15 - ESCROW TERMS
SCHEDULE 16 - BILLING PROCEDURES
SCHEDULE 17 - POST-COMPLETION SERVICES
SCHEDULE 18 - SOFTWARE APPLICATIONS
APPENDIX A - DATA ROOM INDEX
APPENDIX B - ASSIGNMENT CONTRACT
APPENDIX C - PRO FORMA SUB-CONTRACT
APPENDIX D - INSPECTION SCHEDULE (EASTHAM PRODUCT TESTING)
APPENDIX E - RUNCORN TANK 3 REPAIRS SCOPE OF WORK
APPENDIX F - ENGLISH PROPERTY DOCUMENTS
APPENDIX G - ENGLISH DEED OF INDEMNITY
APPENDIX H - MAIDENHEAD LICENCE TO UNDERLET AND UNDERLEASE
APPENDIX I - MURCO DEED OF RELEASE
APPENDIX J - SCOTTISH PROPERTY DOCUMENTS
APPENDIX K - NORTHERN IRELAND PROPERTY DOCUMENTS
APPENDIX L - BELFAST AGREEMENT FOR LEASE (DRAFT LEASE ATTACHED)
APPENDIX M - NORTHERN IRELAND DEED OF INDEMNITY
APPENDIX N - MANCHESTER SHIP CANAL LICENCES AND AGREEMENT
APPENDIX O - PROPERTY BUNDLE
APPENDIX P - RAILTRACK HEADS OF TERMS
THIS AGREEMENT is made 26TH JANUARY 1999
BETWEEN:
(1) GATX TERMINALS LIMITED whose registered office is at Xxxxxxxxx Xxxxx,
Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxx XX0 0XX, England ("the Vendor");
(2) ST SERVICES LTD. (No. 3618750) whose registered office is at 0 Xxxxxx
Xxxxxx, Xxxxxx XX0X 0XX ("the Purchaser");
(3) ST EASTHAM LTD. (No. 3619979) whose registered office is at 0 Xxxxxx
Xxxxxx, Xxxxxx XX0X 0XX ("Eastham Terminal Purchaser");
(4) GATX TERMINALS CORPORATION of 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000, XXX ("GTC");
(5) SUPPORT TERMINALS OPERATING PARTNERSHIP of 00000 Xxxxxxx Xxxx, Xxxxx
0000, Xxxxxx, Xxxxx,
00000 XXX ("STOP"); and
(6) KANEB PIPE LINE PARTNERS, L.P. of 0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxx 00000-0000, XXX ("Kaneb").
WHEREAS:
(A) The Vendor owns certain freehold and leasehold interests in the
Terminals (as hereinafter defined) and the businesses carried on at or
in relation to the Terminals and the Vendor has agreed to transfer its
interest in the Terminals and the Business (as hereinafter defined) to
the Purchaser subject to and upon the terms of this Agreement.
(B) GTC is the parent company of the Vendor and has entered into this
Agreement at the request of the Purchaser to guarantee the Warranties
(as hereinafter defined) and the performance of the obligations of the
Vendor subject to and upon the terms of this Agreement.
(C) STOP is the parent company of the Purchaser and Kaneb is the ultimate
parent company of STOP and the ultimate parent company of the
Purchaser, and each of STOP and Kaneb has entered into this Agreement
at the request of the Vendor to guarantee the warranties and the
performance of the obligations of the Purchaser subject to and upon the
terms of this Agreement.
NOW IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement (including the Recitals and Schedules hereto) the
following words and expressions shall, where the context so admits,
have the following respective meanings:
"Advanced Xxxxxxxx" the aggregate of all advanced xxxxxxxx and
other payments (exclusive of VAT) due to or received by the
Vendor in respect of any obligations of the Business
committed to in the ordinary course of trading prior to the
Completion Date but to be performed after the Completion
Date;
"Agreement" this contract made between the Vendor, the Purchaser,
the Eastham Terminal Purchaser, GTC, STOP and Kaneb for the
sale and purchase of the Business and the Assets;
"Assets" the Terminals, the I.T. Systems, the Contracts, the
Goodwill, the Vendor's Fixtures and Fittings, the Vendor's
Chattels, and all other property, rights and assets of the
Vendor used in the Business (other than the Excluded Assets)
described in Clause 2;
"Assignable Key Permits" those permits listed in Part A of
Schedule 10;
"Assumed Liabilities" amounts which will fall due for payment to
creditors of the Vendor in relation to the Business but
which are not yet payable as at the Completion Date (with
the exception of all amounts which will fall due for payment
under any of the Leases) and other accruals;
"Books and Records" the lists of customers and suppliers,
financial and tax records, manuals and operating procedures,
and all other records relating to the Business on whatsoever
medium they are stored (unless otherwise provided in this
Agreement), including the right and licence to use the same
for the purposes of the Business;
"Business" the business carried on at the date of this Agreement
by the Vendor at the Terminals being the business of the
storage of bulk liquids and related activities;
"Business Day" a day other than a Saturday on which banks are
open for business in England;
"CashFloat" the sum of the cash floats held by the Vendor at
each Terminal on the Completion Date;
"CHAPS" clearing houses automated payment system;
"Completion" completion of the sale and purchase of the Business
and the Assets in accordance with the provisions of Clause
6;
"Completion Date" 00.01 hours on Monday 1st February 1999, or
such other date as the parties may agree;
"Completion Statement" the statement to be prepared and delivered
in accordance with the provisions of Clause 7;
"Conditions Precedent" the conditions specified in Clause 5.1;
"Consideration" the consideration for the sale of the Business
and the Assets as described in Clause 3;
"Contaminated Land Regime" the liability regime in respect of
contaminated land whensoever brought into force pursuant to
the provisions in Part IIA of the Environmental Protection
Act 1990 and any statutory guidance notes, regulations and
equivalent controls enacted at any time under those
provisions;
"Contracts" all contracts and agreements entered into prior to
the Completion Date binding on the Vendor in connection with
the Business (and no other part of the business of the
Vendor) listed in Schedules 11, 12, 13 and 18 including the
Customer Contracts, the Supplier Contracts, and any computer
maintenance and service contracts which at the Completion
Date remain (in whole or in part) to be completed or
performed, but excluding any Excluded Assets (other than
Supplier Contracts relating to Hire Equipment) and any
leases, subleases, licences, tenancy agreements or other
contracts relating to the Terminals that are subject to the
provisions of the Property Conditions Schedules;
"Customer Contracts" all contracts and agreements entered into
prior to the Completion Date binding on the Vendor with
customers for the provision of services by the Vendor in
connection with the Business which at the Completion Date
remain (in whole or in part) to be completed or performed
including (without limitation) those listed in Schedule 11
headed "Customer Contracts";
"Cut Off Time" bears the meaning ascribed to it in Clause 12.1;
"DataRoom Index" the data room index identified as such and
annexed hereto as Appendix `A';
"Defaulting Party" bears the meaning ascribed to it in Clause
6.3;
"Disclosure Letter" a letter of the same date as this Agreement,
with the attachments thereto, addressed by the Vendor to the
Purchaser in relation to the Warranties in accordance with
Clause 22;
"Employees" those persons who are listed in Schedule 6;
"Encumbrance" any mortgage, charge, pledge, lien, claim,
security, or other third party right or interest (legal or
equitable) or restriction over or in respect of the use of
the relevant asset, security or right;
"English Freehold and Leasehold Schedule" Schedule 7 containing
the terms and conditions of sale of the Terminals in England
to which the Vendor holds a freehold or leasehold title;
"English Leases" the leases specified in the Second Addition to
the English Freehold and Leasehold Schedule;
"Environment" all or any of the following media: air (including
air within buildings and other natural or man-made
structures above or below ground), water (including
groundwater, surface and sub-surface water) and land
(including all land whether at surface or below ground) and
shall include any living organisms or other ecological
systems supported by the said media;
"Environmental Laws" means (i) all laws (whether of England and
Wales or any other jurisdiction whatsoever) whether
presently existing or in future, including without prejudice
to the generality of the foregoing European Union
Directives, national and local statutes, codes, legislation,
rules, regulations, statutory instruments, orders, notices
and (ii) all common law or other judgments or orders,
instructions or awards of any court or competent authority
whatsoever (whether of England and Wales or any other
jurisdiction whatsoever) whether presently existing or in
future insofar as anything referred to in (i) or (ii) above
relates to (a) health and/or safety or (b) pollution and/or
protection and/or condition of the Environment including all
statutory nuisance and the manufacture, processing,
distribution, use, treatment, storage, disposal, transport
and handling (including without limitation thereto the leak,
emission, seepage, discharge, burial, dumping, deposit,
release and migration) of any waste or other hazardous
material;
"Environmental Permits" all Permits which are required under
Environmental Law in order to carry on the Business in
compliance with Environmental Laws;
"Escrow Account" shall bear the meaning ascribed to it in
Paragraph 1 of Schedule 15;
"Escrow Amount" the aggregate amount of the Tank 1 Retention and
the Tank 3 Retention (as those terms are defined in Schedule
15);
"Escrow Terms" the terms set out in Schedule 15;
"Executive Summary" the document entitled "Executive Summary"
dated 13th March 1998 and delivered by the Vendor to the
Purchaser prior to the date hereof.
"Excluded Assets" the items set out in Schedule 2;
"Excluded Employees" any employees of the Vendor who are not
Employees;
"Final Claim Date" 31st March 2000;
"Final Monitoring" bears the meaning ascribed to it in Clause
12.2;
"Final Payment Date" the date falling 14 days after the net
amount payable pursuant to the Completion Statement has been
finalised and communicated to each of the Vendor and the
Purchaser pursuant to Clause 7;
"Financial Summaries" the financial summary for each Terminal,
attached to the Disclosure Letter;
"Goodwill" the goodwill of the Business (excluding any goodwill
associated with the Names) together with the right for the
Purchaser to hold itself out as carrying on that part of the
Business previously carried on from each Terminal;
"GTC Guarantees" those guarantees provided by GTC, short
particulars of which are set out in Schedule 5;
"GTC Indemnified Claims" bears the meaning ascribed to it in
Clause 22.5;
"Hazardous Waste" any material not held by the Vendor under
contract, the disposition of which is subject to regulation
as "special waste" under Environmental Laws;
"HireEquipment" any equipment on hire or lease located at the
Terminals at the date hereof and not owned by the Vendor
listed in Schedule 12 headed "Hire Equipment";
"ICTA" Income and Corporation Taxes Xxx 0000;
"Inspector" bears the meaning ascribed to it in Clause 12.1;
"X.X.Xxxxxxx" all the computer equipment and software (excluding
Novell Groupwise) owned or licensed for use at the Terminals
or Maidenhead by the Vendor and/or GTC;
"Kaneb" Kaneb Pipe Line Partners, L.P.;
"Key Customer Contracts" those Customer Contracts so identified
in Schedule 11;
"Leases" the English Leases, the Scottish Leases and the N.I.
Lease;
"Liability" shall have the meaning given thereto in sub-Clause
21.1;
"Names" "GATX", "GATX Terminals Corporation", "GATX Terminals
Limited" "GTC", "GTL" or "GATX Corporation";
"X.X.Xxxxx" the lease specified in Paragraph 6 of the N.I.
Leasehold Schedule;
"N.I.Leasehold Schedule" Schedule 9 containing the terms and
conditions of sale of the Terminal in Northern Ireland to
which the Vendor holds a leasehold title;
"Non-Assignable Key Permits" those Permits listed in Part B of
Schedule 10;
"Non-Defaulting Party" bears the meaning ascribed to it in Clause
6.3;
"PAYE" income tax paid under "Pay As You Earn" deduction;
"Permits" any licences, consents, approvals, certificates,
registrations, qualifications, specifications or any other
authorisation required to carry on the proper and efficient
operation of all or part of the Business listed in Schedule
10 headed "Permits";
"Prepayments" the aggregate amount of all payments made by the
Vendor prior to the Completion Date for goods to be supplied
or services to be performed in respect of the Business after
the Completion Date (with the exception of any payments made
under any of the Leases);
"Properties" the properties described in the Property Conditions
Schedules;
"Property Bundle" the bundle of documents and correspondence
annexed as Appendix O;
"Property Conditions Schedules" the English Freehold and
Leasehold Schedule, the Scottish Leasehold Schedule and the
N.I. Leasehold Schedule;
"Pro Rated Adjustment" the value of the Vendor's Stock, the Cash
Float and the Prepayments less the value of the Assumed
Liabilities and the Advanced Xxxxxxxx (to the extent payment
of Advanced Xxxxxxxx has been received by the Vendor as at
the Completion Date) as at the Completion Date, determined
as described in Clause 7.2;
"Purchase Price" the price for the sale of the Business and the
Assets, being the sum of Twenty two million six hundred and
forty eight thousand pounds ((pound)22,648,000), which shall
be apportioned between the Assets in accordance with Clause
3.1;
"Purchaser" ST Eastham Ltd. with respect to the Assets and
Business associated with the Eastham Terminal and ST
Services Ltd. with respect to the Assets and Business
associated with the other Terminals;
"Purchaser's Accountants" KPMG Peat Marwick or such other firm of
chartered accountants as the Purchaser may specify from time
to time;
"Purchaser's Group" the Purchaser, its ultimate holding company,
and any subsidiary of such holding company;
"Purchaser's Solicitors" Ashurst Xxxxxx Xxxxx of Xxxxxxxxx Xxxxx,
0 Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX or such other firm of
solicitors as the Purchaser may specify from time to time;
"Reconciliation Audit" bears the meaning ascribed to it in Clause
12.1;
"Regulatory Action" any action taken by a Regulatory Authority
pursuant to Environmental Laws requiring Remediation Works
whether on a voluntary or mandatory basis;
"Regulatory Authority" a regulatory authority empowered under
Environ-mental Laws to regulate the Environment and/or
implement or enforce Environmental Laws including without
limitation the Environmental Agency and local authorities;
"Remediation Works" all or any works required by a Regulatory
Authority to be carried out in order to clean up, remove,
treat, remediate or otherwise deal with any pollution or
contamination of the Environment;
"Replies to Pre-contract Enquiries" Property the replies to
enquiries before contract relating to property matters which
are contained in the Property Bundle;
"Rights" shall have the meaning given thereto in Clause 25;
"Schemes" bears the meaning ascribed to it in Paragraph 5.5 of
Schedule 4;
"Scottish Leases" the leases specified in the Second Addition to
the Scottish Leasehold Schedule;
"Scottish Leasehold Schedule" Schedule 8 containing the terms and
conditions of sale of the Terminals in Scotland to which the
Vendor holds a leasehold title;
"Signage" all signs, posters, panels, name plates, and lettering
at any of the Terminals carrying any of the Names or
otherwise relating to the Vendor's corporate identity;
"STOP" Support Terminals Operating Partnership, L.P.;
"Supplier Contracts" all contracts and agreements entered into
prior to the Completion Date binding on the Vendor with
suppliers (i) for the sale of goods or the provision of
services to the Vendor primarily in connection with the
Business or (ii) in relation to the Hire Equipment, which in
either case remain (in whole or in part) to be completed or
performed at the Completion Date, (but excluding any
Excluded Assets and any leases, subleases, licences, tenancy
agreements or other contracts relating to Terminals that are
subject to the provisions of the Property Conditions
Schedules) including (without limitation) those listed in
Schedule 13 headed "Supplier Contracts";
"Taxation" all forms of taxation and statutory, governmental,
state, provincial, local government or municipal
impositions, duties, contributions and levies, in each case
whether of the United Kingdom or elsewhere, whenever imposed
and all penalties, charges, costs and interest relating
thereto;
"Terminals" the bulk liquid storage terminal sites short
particulars of which are set out in Schedule 1 (and referred
to in the Property Conditions Schedules in each case as "the
Property");
"Third Party Equipment" any special equipment supplied and owned
by any customer of the Business for use in the storage or
handling of any products stored by that customer at the
Terminals listed in Schedule 14 headed "Third Party
Equipment";
"Transfer Regulations" the Transfer of Undertakings (Protection
of Employment) Regulations 1981 and the Collective
Redundancies and Transfer of Undertakings (Protection of
Employment) (Amendment) Regulations 1985;
"VAT" United Kingdom Value Added Tax;
"VATA 1994" the Value Added Tax Xxx 0000;
"VAT Order" the Value Added Tax (Special Provisions) Order 1995;
"Vendor" GATX Terminals Limited;
"Vendor's Accountants" Messrs Ernst & Young of Xxxxxx Xxxxx, 0
Xxxxxxx Xxxxxx Xxxx, Xxxxxx XX0 0XX or such other auditors
of the Vendor for the time being;
"Vendor's Chattels" all loose plant, machinery, spare parts,
tools, equipment and chattels owned by the Vendor and used
primarily in connection with the Business as carried on by
the Vendor for the period of six months prior to the
Completion Date at any of the Terminals, but excluding Hire
Equipment;
"Vendor's Fixtures and Fittings" all fixed and immovable plant,
machinery and equipment on each Terminal (which for the
purposes of this Agreement, including the Property
Conditions Schedule, shall be treated as forming part of
each relevant Terminal) and used primarily in connection
with the Business as carried on by the Vendor for the period
of six months prior to the Completion Date at any of the
Terminals, but excluding Hire Equipment;
"Vendor's Group" the Vendor, its ultimate holding company and any
subsidiary of such holding company;
"Vendor's Pension Scheme" the GATX-UK Pension Scheme established
by a deed dated 31st August 1990;
"Vendor's Receivables" all payments accrued or accruing due to
the Vendor as at the Completion Date for services supplied
by the Vendor in the course of carrying on the Business
prior to the Completion Date;
"Vendor's Solicitors" Messrs. Xxxxxxxx Xxxxxx of 000 Xxxxxx,
Xxxxxx XX0X 0XX;
"Vendor's Stock" the Vendor's inventory of fuel oil and nitrogen
owned by the Vendor for use at the Terminals valued at
replacement cost;
"Vendor's Terminal Manager" the GATX terminal manager at each of
the Terminals on the date hereof; and
"Warranties" the representations and warranties set out in Clause
20 and Schedule 4.
1.2 References to Clauses, sub-clauses and Schedules are unless otherwise stated
references to Clauses and sub-clauses of and Schedules to this Agreement, and
the Schedules shall form part of this Agreement and shall have the same force
and effect as if expressly set out in the body of this Agreement.
1.3 Any document expressed to be "in the agreed form" means a document in a form
agreed by (and for the purpose of identification signed or initialled by or on
behalf of) the parties hereto.
1.4 References in this Agreement to statutory provisions shall be construed as
references to those provisions as respectively amended or re-enacted (whether
before or after the date hereof) from time to time and shall include any
provisions of which they are re-enactments (whether with or without
modification) and any subordinate legislation made from time to time under such
provisions (but, with the exception of the application of the provisions of
Clause 15, not so as to produce any greater liability for any of the parties
hereto than would have existed under the relevant provision in the form in which
it stood as at the date hereof).
1.5 The table of contents and headings in this Agreement are for convenience
only and shall not affect the construction hereof.
1.6 A reference to one gender shall denote all genders and a reference to the
singular shall include the plural and vice versa.
1.7 References to a "company" shall be construed so as to include any company,
corporation or other body corporate, wherever and however incorporated or
established; references to a "person" shall be construed so as to include any
individual, firm, company, government, state or agency of the state or any joint
venture, association or partnership (whether or not being a separate legal
personality).
1.8 In the event of any conflict or inconsistency between the provisions of the
Property Conditions Schedule and any other provisions of this Agreement, the
Property Conditions Schedule shall prevail.
1.9 References to "Purchaser" shall, unless the context otherwise requires,
include the Eastham Terminal Purchaser.
2. ASSETS TO BE SOLD
2.1 The Vendor shall sell and the Purchaser shall purchase as a going concern as
at and with effect from the Completion Date (subject to the Conditions
Precedent) the Business and the Assets (other than the Excluded Assets),
comprising:
2.1.1 Grays Freehold
2.1.2 the Vendor's interests in the Leases;
2.1.3 the Goodwill;
2.1.4 the Vendor's Fixtures and Fittings;
2.1.5 the Vendor's Chattels and I.T. Systems;
2.1.6 the benefit of the Contracts;
2.1.7 the benefit of any sums to which the Vendor is entitled
either from third parties or insurers in respect of
damage or injury to the Terminals or other Assets, save
for any entitlement to any sums from contractual
warranty or insurance claims specifically excluded in
the second paragraph of Clause 15.2 and save to the
extent of sums properly expended prior to the
Completion Date in making good damage or injury; and
2.1.8 the Books and Records.
2.2 The Vendor hereby represents, warrants, covenants and undertakes with the
Purchaser as follows:
2.2.1 that it has the right to dispose of the interests in
the Business and the Assets which it purports to sell;
and
2.2.2 that it is disposing of its interests in the Assets and
the Business free from any Encumbrance (but subject to
and upon the terms of this Agreement, and except as
provided in the Property Conditions Schedules) together
with all such rights now or hereafter attaching
thereto.
2.3 The Vendor makes no warranty or representation as to the currency, accuracy
or legal compliance of any of its manuals, operating procedures or other written
materials relating to the manner in which the Vendor operated any of the
Terminals immediately prior to the Completion Date which may be delivered to the
Purchaser and accordingly any use which the Purchaser may make of any such
materials is entirely at the Purchaser's own risk and the Purchaser shall
indemnify and hold the Vendor indemnified accordingly. In the event of any
conflict or inconsistency between this Clause 2.3 and the Warranties, the
provisions of this Clause 2.3 shall prevail. 3. CONSIDERATION 3.1The
Consideration in respect of the Assets referred to in this sub-Clause 3.1 shall
be the Purchase Price which shall be apportioned between the Assets concerned as
set out in sub-clauses 3.1.1 to 3.1.7:
3.1.1 the Grays Freehold - (pound)601,000;
3.1.2 the Leases - -(pound)5,000;
3.1.3 the Goodwill - (pound)1;
3.1.4 the Vendor's Fixtures and Fittings - (pound)20,432,000;
3.1.5 the Vendor's Chattels and I.T. Systems
- (pound)1,609,997;
3.1.6 the Contracts - (pound)1; and
3.1.7 the Books and Records- (pound)1.
3.2That part of the Purchase Price apportioned to the Leases set out in
sub-Clause 3.1.2, and the Vendor's Fixtures and Fittings set out in sub-Clause
3.1.4, and the Vendor's Chattels and I.T. Systems set out in sub-clause 3.1.5,
shall be further apportioned between the individual Terminals as follows:
Grays F&F- (pound)4,934,000
Grays Chattels and I.T. Systems - (pound)474,000
Eastham Lease - (pound)1,000
Eastham F&F - (pound)10,141,000
Eastham Chattels and I.T. Systems - (pound)627,000
Runcorn Lease - (pound)1,000
Runcorn F&F - (pound)779,000
Runcorn Chattels and I.T. Systems - (pound)74,000
Belfast Lease - (pound)1,000
Belfast F&F - (pound)1,872,000
Belfast Chattels and I.T. Systems - (pound)178,997
Leith Lease - (pound)1,000
Leith F&F - (pound)1,353,000
Leith Chattels and I.T. Systems - (pound)128,000
Glasgow Lease - (pound)1,000
Glasgow F&F - (pound)1,353,000
Glasgow Chattels and I.T. Systems - (pound)128,000.
3.3 The Pro Rated Adjustment and any other relevant adjustments shall be
determined pursuant to the Completion Statement and/or the Property Conditions
Schedule.
4. PAYMENT DUE ON COMPLETION
4.1 On Completion the Purchaser shall pay to the Vendor the Purchase Price
together with or subject to (as the case may be) such amount (negative or
positive) as the Vendor shall bona fide estimate and not less than three
Business Days prior to the Completion Date shall notify to the Purchaser to be
the value of:
4.1.1 the Pro Rated Adjustment; and
4.1.2 any other adjustments to be made pursuant to the
Property Conditions Schedule.
4.2 Such payment shall be made in Pounds Sterling by CHAPS and/or other
electronic means giving immediate value to the Vendor or such other person as
the Vendor shall direct or in such other manner as may be agreed between the
payer and payee.
4.3 Any money which shall be sent by wire transfer or CHAPS shall be deemed to
have been paid at such time as the receiving bank shall have received it
provided that if the day of receipt shall not be a Business Day then the day of
receipt shall be deemed to be the next Business Day.
5. CONDITIONS PRECEDENT
5.1 Completion is conditional on the following conditions being satisfied on or
before the Completion Date:
5.1.1 the grant of landlords' licences to assign (or consents
to assignation, where appropriate) in accordance with
the Property Conditions Schedules;
5.1.2 the grant of the landlord's licence to sub-let
the Maidenhead office referred to in Paragraph 17 of
Schedule 7;
5.1.3 the assignment by the Vendor to the Purchaser of all
Assignable Key Permits and the grant to the Purchaser
by the relevant issuing authority of all Non-Assignable
Key Permits, in each case in order that the Vendor is
able to deliver to the Purchaser at Completion the
documents referred to in Clause 6.1.6(f) (in the case
of such documents described as being the Vendor's
letter, in a form approved by the Purchaser);
5.1.4 the assignment by the Vendor to the Purchaser of the
Key Customer Contracts (including the attainment of any
third party consents thereto if applicable) and the
execution of novation agreements for any Key Customer
Contracts not capable of assignment;
5.1.5 the Warranties being true and accurate in all material
respects immediately prior to Completion as though then
made, and as though the Completion Date was substituted
for the date hereof through the Warranties;
5.1.6 the performance or compliance by the Vendor in all
material respects, with all covenants, agreements, and
conditions contained in this Agreement to be performed
or complied by the Vendor prior to or as of the
Completion Date without regard to any exceptions set
forth in the certificate provided pursuant to Clause
6.1.6(I); and
5.1.7 except as permitted or contemplated by, or disclosed
in, this Agreement or the Disclosure letter, there has
been no event or circumstance or series of events or
circumstances which individually or in the aggregate
would have a material adverse effect on the operations
of the Terminals since the date of this Agreement.
5.2
5.2.1 The Purchaser shall use all reasonable endeavours to
satisfy the Conditions Precedent in Clause 5.1.3 (with
respect to Non-Assignable Key Permits) and the
Purchaser shall use all reasonable endeavours to assist
the Vendor to satisfy the Conditions Precedent in
Clauses 5.1.1 to 5.1.2, 5.1.3 (with respect to
Assignable Key Permits) and 5.1.4 .
5.2.2 Without prejudice to the generality of sub-clause
5.2.1, in order to procure the grant of the landlords'
licences to assign referred to in Clause 5.1.1:
(a) Kaneb shall offer, by deed, to guarantee the
performance of the lessee's covenants and
obligations contained in the relevant Lease (as
amended or varied by any other document) on
terms reasonably acceptable to the landlord but
not more onerous than those existing for the
Vendor's Group; and
(b) the Purchaser shall offer to enter into a direct
covenant with the landlord to observe and
perform the lessee's or grantee's covenants and
obligations contained in the relevant Lease (as
amended or varied by any other document) in the
form reasonably required by the landlord but not
under terms more onerous than those existing for
the Vendor's Group.
5.3
5.3.1 The Vendor shall use all reasonable endeavours to
fulfil the Conditions Precedent in Clauses 5.1.1 to
5.1.2, 5.1.3 (with respect to Assignable Key Permits),
and 5.1.4 and the Vendor shall use all reasonable
endeavours to assist the Purchaser to satisfy the
Conditions Precedent in Clauses 5.1.1 and 5.1.3 (with
respect to Non-Assignable Key Permits).
5.3.2 Without prejudice to the generality of sub-clause
5.3.1, the Vendor agrees to make all applications and
submissions of information to Regulatory Authorities as
required or expected of a going concern in order to
seek to procure the assignment of the Assignable Key
Permits to the Purchaser.
5.4 If at any time either party becomes aware of a matter that might prevent a
Condition Precedent being satisfied, it shall immediately inform the other
party, and the other party may then seek to satisfy such condition.
5.5 At any time, the Purchaser may without prejudice to any rights it may have
under this Agreement (but subject to Clause 5.7) waive a Condition Precedent by
notice in writing to the Vendor, on any terms it decides.
5.6 Subject to Clause 5.7, if a Condition Precedent has not been waived by the
Purchaser and has not been satisfied on or before the Completion Date, the
Purchaser may on that date by notice in writing to the Vendor:
5.6.1 waive the Condition Precedent; or
5.6.2 postpone the Completion Date by not more than 10
Business Days (but the Purchaser may not postpone
Completion more than once without the Vendor's written
consent); or
5.6.3 terminate this Agreement.
5.7 In the event that the Vendor's certificate to be furnished pursuant to
Clause 6.1.6(i) states any exceptions to the Warranties being true and accurate
in all material respects at and as of the Completion Date (other than the
exceptions in the Disclosure Letter), Completion shall at the written request of
the Vendor be postponed for a period of thirty days from the date that the
Vendor tenders such certificate to allow the Vendor an opportunity to cure any
such matter identified in such certificate. If the Vendor is unable to cure or
in the exercise of its commercial judgment cannot economically justify curing
such exception and therefore chooses not to do so, then the Purchaser may either
terminate this Agreement by written notice to the Vendor (in which case this
Agreement shall be deemed to have been terminated without liability on the part
of any party hereto save for any reimbursement due pursuant to Clause 5.8) or
may elect to proceed to Completion in which event it shall be deemed to have
waived such material exception.
5.8 In the event that Completion is postponed or this Agreement is terminated
pursuant to Clause 5.7 then the Vendor shall reimburse to the Purchaser the
Purchaser's cost of borrowing such sum as is provided for in Clause 4.1 during
the period of postponement (being either the period until the actual Completion
Date or until the date of termination of this Agreement or for a period of 30
days, whichever is the shorter). The Purchaser's "cost of borrowing" for this
purpose shall be the cost which the Purchaser shall reasonably and properly
incur to its bankers in drawing down the relevant amount from its borrowing
facility, less the amount of any interest or other financial benefit which
accrues to the Purchaser on the redeployment of such monies. The Purchaser shall
use its reasonable endeavours to mitigate its cost of borrowing. The Purchaser's
cost of borrowing and benefit of redeployment shall be certified by the
Purchaser and verified by such supporting evidence as the Vendor may reasonably
require.
5.9 If the Purchaser postpones the Completion Date in accordance with clause
5.6.2, the provisions of this Agreement apply as if that other date is the date
set for Completion in clause 6.1.
5.10 If the Purchaser terminates this Agreement pursuant to clause 5.6.3, each
party's further rights and obligations cease immediately on termination, but
termination does not affect a party's accrued rights and obligations at the date
of termination.
6. COMPLETION
6.1 Subject to Clause 5, Completion shall take place at the offices of the
Vendor's Solicitors by not later than 12 noon on the Completion Date when all
(unless the parties otherwise agree) of the following business shall be
transacted:
6.1.1 the Vendor shall complete the sale of the Terminals
(upon the terms of the Property Conditions Schedules)
and the Business and the Assets;
6.1.2 the Purchaser shall pay to the Vendor such sum as is
provided for in Clause 4.1;
6.1.3 the Vendor shall pay the Escrow Amount into the Escrow
Account (and the Escrow Terms shall then apply thereto)
for the repair of tanks 1 and 3 at the Runcorn
terminal;
6.1.4 the Vendor shall give possession to the Purchaser of
the Terminals and the Assets hereby agreed to be sold;
6.1.5 the Vendor and the Purchaser shall complete the
sub-lease of 0xx xxxxx, Xxxxxxxxx Xxxxx, Xxxxxxxxx'x
Xxxx, Xxxxxxxxxx; and
6.1.6 the Vendor shall deliver or make available to the
Purchaser:
(a) the Books and Records;
(b) such of the Assets as are capable of transfer by
delivery (it being agreed that such delivery
shall take place at the place where they are
situated);
(c) the software licences or registered user
agreements for those I.T. Systems where the
licences or agreements are equipment specific,
together with assignments of such licences or
agreements for those IT Systems which are
subject to assignable licences or agreements,
and notices to the licensors for those licences
identified as "equipment specific" (in each case
as identified on the Schedule of Software
Applications in Schedule 18);
(d) duly executed assignments and/or novations of
the Key Customer Contracts (and of such other
Customer Contracts as may then be available) and
consents thereto in the agreed form;
(e) duly executed assignments and/or novations of
such of the Supplier Contracts as may then be
available;
(f) the documents relating to the Permits described
in Column 5 (under the heading "Completion
Document") in Schedule 10;
(g) a certified copy of Board resolutions passed at
a meeting of the Vendor's board of directors at
which its directors shall have approved the
Vendor entering into this Agreement and the
agreements and arrangements contemplated under
this Agreement;
(h) releases under seal of any Encumbrance to which
any of the Assets are subject duly executed by
those entitled to the benefit thereof, provided
that for the purposes of this clause 6.1.6(h)
only the expression "Assets" shall not include
any Assets in respect of which the provisions of
the Property Conditions Schedules apply; and
(i) a certificate signed by a duly authorised
officer on behalf of the Vendor stating that,
subject to the exceptions in the Disclosure
Letter, the Warranties are true and accurate in
all material respects as at the Completion Date
as though then made and as though the Completion
Date was substituted for the date hereof
throughout the Warranties,
whereupon the title thereto shall pass to the Purchaser by such delivery.
6.2 If either the Purchaser or the Vendor does not comply in any respect with
its obligations under sub-Clause 6.1 then the party not in default:
6.2.1 may agree that Completion shall take place notwith-
standing any such failure; or
6.2.2 shall be entitled (in addition and without prejudice to
any other rights available to it) to give notice
prescribing a new date for Completion (such date being
a date that is not less than 7 days and not more than
28 days after the original agreed date of Completion)
in which case the provisions of Clause 6 (other than
this sub-clause 6.2) shall apply to Completion as so
deferred; or
6.2.3 if, following an adjournment of Completion pursuant to
Clause 6.2.2, Completion does not take place on the new
date then in addition to the remedies in Clause 6.2 the
non-defaulting party shall terminate the Agreement with
effect from the new date set for Completion and neither
party shall have any claim against the other under it,
except for any claim arising from breach of the
undertakings in Clauses 29 and 30 and as provided in
Clause 6.3 hereof.
6.3 In the event that either party ("the Defaulting Party") does not comply with
its obligations under Clause 6.1, then the other party ("the Non-Defaulting
Party") shall be entitled (in addition and without prejudice to any other rights
or remedies available to it) to terminate this Agreement, but in the event that
the Non-Defaulting Party elects to proceed pursuant to Clause 6.2.2. but
Completion is thereby delayed the Defaulting Party shall pay interest on the
amount payable pursuant to Clauses 6.1.2 and 6.1.3 hereof at the base rate of
the Royal Bank of Scotland from time to time for the period from and including
the Completion Date until and including the day prior to the date of Completion
or the date of termination of the Agreement (as the case may be), which interest
shall be deemed to be payable to the Non-Defaulting Party notwithstanding
termination of the Agreement.
7. COMPLETION STATEMENT
7.1 As soon as possible after the Completion Date the Vendor shall prepare and
the Vendor and the Purchaser shall jointly instruct the Vendor's Accountants to
certify a statement (the "Completion Statement") for the purposes of calculating
and certifying the net amount payable on the Final Payment Date on the basis of
such calculation. The parties will respectively endeavour to procure that any
information reasonably required by the Vendor's Accountants will be made
available to enable the said certification to be completed.
7.2 For the purpose of calculating the net amount payable described in
sub-Clause 7.1, the Completion Statement shall be prepared in accordance with
the principles set out in Schedule 3 and the Vendor's Accountants shall issue a
certificate with respect thereto jointly addressed to each of the Vendor and the
Purchaser. The Vendor and the Purchaser shall each afford every assistance and
use all reasonable endeavours to ensure that the Completion Statement shall be
prepared and delivered to the Vendor and the Purchaser as soon as possible after
the Completion Date.
7.3 Subject to Clause 7.4, the certificate of the Vendor's Accountants referred
to in sub-clause 7.1 as to the net amount payable pursuant to the Completion
Statement shall be binding on the parties hereto and the amount due shall be
paid by the relevant party on the Final Payment Date by CHAPS and/or other
electronic means giving immediate value.
7.4 The Purchaser shall notify the Vendor in writing within 14 business days of
receiving the Completion Statement either that it approves the Completion
Statement, or that it does not so approve it together with written details of
the matters relating to the Completion Statement which it disputes.
7.5 Any matter which the Purchaser shall dispute may be referred for final
settlement to a chartered accountant nominated jointly by the Vendor and the
Purchaser or, failing such nomination within 14 days after the request of either
of those parties to the other, nominated at the request of either of those
parties by the President for the time being of the Institute of Chartered
Accountants in England and Wales. The chartered accountant (howsoever appointed)
shall act as an expert and not as an arbitrator and his or her decision as to
the matter in dispute shall (in the absence of manifest error) be final and
binding on the parties. In the event that the amount in dispute is determined by
the expert to vary from the amount certified by the Vendor's Accountants by more
than 5% of the certified amount, then the expert's fees shall be paid by the
Vendor, but shall otherwise be paid by the Purchaser.
7.6 Following settlement of any such matter which the Purchaser shall have
disputed (whether settled pursuant to sub-Clause 7.5 or otherwise by agreement
between the Vendor and the Purchaser), the Completion Statement shall be
finalised in accordance with that settlement and payment shall then be made in
accordance with sub-clause 7.3.
7.7 The Completion Statement is subject to correction and adjustment by either
party for a period of 3 months following it being finalised to take into account
any matter that would have affected the calculation of the Completion Statement
in accordance with this Clause 7 but not included at the time it was calculated,
or to rectify any miscalculation not identified at the time the Completion
Statement was calculated in accordance with Clause 7, and such correction and
adjustment shall be agreed by the parties in accordance with the provisions set
out in Clauses 7.2 to 7.6 inclusive.
8. ACTION PENDING THE COMPLETION DATE
8.1 The Vendor undertakes that prior to the Completion Date except at the
written request or with the consent of the Purchaser (such consent not to be
unreasonably withheld or delayed) or otherwise as provided in the Property
Conditions Schedules:
8.1.1 that all reasonable measures are taken to protect and
preserve the Business and Assets and that the Business
will be carried on as a going concern in the ordinary
course of business as if this Agreement had not been
entered into and, for the avoidance of doubt, the
Vendor will not voluntarily cease to carry on any such
business at any of the Terminals nor seek to transfer
all or any part of any such business away from any of
the Terminals to another terminal;
8.1.2 the Purchaser and its approved agents will be given
such access to the Terminals (at the Purchaser's own
risk and subject to the Purchaser indemnifying the
Vendor against any loss or damage suffered or incurred
by the Vendor arising out of or in connection with the
acts, omissions or defaults of the Purchaser or its
agents whilst at any of the Terminals) and shall be
provided with such information about the Books and
Records as the Purchaser may reasonably request and, in
the case of information, as is readily available to the
Vendor; provided that the obligations of the Vendor
under this sub-clause 8.1.2 shall not extend to
allowing access or providing information which would in
the reasonable opinion of the Vendor interfere with the
normal operations and employee relationships of the
Business or where such information is regarded by the
Vendor as confidential to the activities of the Vendor
otherwise than in connection with the Business;
8.1.3 it shall conduct the Business in accordance with and
will use all reasonable endeavours to maintain all
Permits which have been obtained for the carrying on of
the Business;
8.1.4 it shall not terminate any of the Customer Contracts
without the prior written consent of the Purchaser;
8.1.5 it shall keep the Purchaser fully informed as soon as
is reasonably practicable of all on-going negotiations,
communications and discussions (including in the case
of correspondence and any other written documentation,
providing the Purchaser with copies thereof) with any
trade union or other such organisation, or with the
Employees occurring from the date hereof up until
Completion pursuant to the Employment Rights Xxx 0000
and the Trade Union and Labour Relations
(Consolidation) Xxx 0000 and Regulation 10 of the
Transfer Regulations;
8.1.6 it shall not:
(a) dispose of or remove all or any part of the
Assets from any of the Terminals without
replacing the same with items of similar
quantity and quality approved by the Purchaser;
(b) enter into, amend or terminate any contract or
commitment or submit any new tender involving an
amount greater than (pound)10,000, or committing
the Vendor for a period longer than one calendar
year;
(c) enter into any leasing, hire purchase or other
agreement or arrangement for payment on deferred
terms in excess of (pound)5,000; or
(d) create or extend any Encumbrance (excluding any
supplier's retention of title provision in the
ordinary course of business) over any of the
Assets;
(e) take any action which makes any policy of
insurance void or voidable or permit any
insurance to lapse;
(f) increase compensation or benefits paid, or to
become payable, to any of the Employees, or
agree to do the same, except for scheduled
increases in the ordinary course of business;
(g) appoint any new employee or make any material
variation in the terms of employment of any
Employee whose annual remuneration exceeds
(pound)17,500;
(h) make or propose a material change to any benefit
of any kind which is payable on a person's
retirement, death or disability to or in respect
of any of the Employees or to any pension scheme
(other than any change required by law) or,
without limiting the foregoing, carry out any
action in relation to any such scheme other than
in the ordinary course of operating such
schemes;
(i) make any material change in the nature or
organisation of the Business;
(j) enter into or vary in any material respects any
transaction in respect of the Business otherwise
than in the ordinary course of business and on
arms' length terms;
(k) compromise or settle any litigation, arbitration
or mediation proceedings which would have an
adverse effect on the Business after Completion
or which would otherwise be binding upon the
Purchaser, save for (i) debt collection
conducted in the ordinary course of business or
(ii) proceedings where the amount claimed does
not exceed (pound)20,000;
8.1.7 it shall immediately notify the Purchaser in writing of
any fact or circumstance which the Vendor appreciates
is likely to cause any of the Warranties (whether as
given on the date hereof, or when repeated immediately
prior to Completion) to be untrue or misleading, or of
any material adverse change which the Vendor
appreciates is likely to occur in relation to the
Business, its customers or suppliers, or the Employees.
9. TITLE AND RISK
9.1 Subject to the Conditions Precedent, title to the Assets and risk of loss or
damage to the Assets shall pass to the Purchaser on the Completion Date.
9.2 Without prejudice to the rights of the Purchaser under sub-Clause 9.4, in
the event that there is physical destruction of or physical damage to any of the
physical assets at any of the Terminals (or if any such physical assets are
condemned or threatened to be condemned) between the date hereof and Completion
which is quantified at more than (pound)2,400,000 in the aggregate (or, if not
capable of quantification at the Completion Date, reasonably estimated by the
Vendor or the Purchaser to exceed (pound)2,400,000) then either party may by
notice to the other party rescind this Agreement. In the event that both parties
elect to proceed to Completion then the Consideration shall be reduced by the
value of such loss or damage as determined by an independent valuer to be
jointly appointed by the Vendor and the Purchaser and whose assessment shall (in
the absence of manifest error) be final and binding on the parties, but such
reduction in the value of the Consideration shall be the sole remedy of the
Purchaser in relation to any such loss or damage. In the event that there is
physical destruction of or physical damage to any of the physical assets at any
of the Terminals (or if any such physical assets are condemned or threatened to
be condemned) between the date hereof and Completion which is quantified at more
than (pound)10,000 but equal to or less than (pound)2,400,000 then the
Consideration shall be reduced by the value of such loss or damage as determined
by an independent valuer to be jointly appointed by the Vendor and the Purchaser
and whose assessment shall (in the absence of manifest error) be final and
binding on the parties, but such reduction in the value of the Consideration
shall be the sole remedy of the Purchaser in relation to any such loss or damage
9.3 If such loss, destruction, condemnation or threat of condemnation as is
referred to in Clause 9.2 occurs within a ten (10) day period prior to the
Completion Date, Completion shall be postponed to the date ten (10) days after
the Vendor provides notice thereof to the Purchaser (or the first Business Day
after such 10 day period) to enable the applicable elections to be made by the
Purchaser under Clause 9.2.
9.4 In the event of any breach of this Agreement (including the breach or
non-fulfilment of any of the Warranties) by the Vendor prior to the Completion
Date in relation to which the amount of damages claimed by the Purchaser is less
than (pound)2,400,000, the Purchaser shall have no right to rescind the
Agreement but shall only be entitled to claim damages. In the event of any
breach of this Agreement (including the breach or non-fulfilment of any of the
Warranties) by the Vendor prior to the Completion Date in relation to which the
amount of damages reasonably claimed by the Purchaser exceeds (pound)2,400,000
the Purchaser shall be entitled to rescind this Agreement. For the avoidance of
doubt, in no event may the Purchaser rescind this Agreement after the Completion
Date.
9.5 Title to the Terminals has been deduced by the Vendor to the Purchaser or
the Purchaser's Solicitors in accordance with the Property Conditions Schedules
prior to the date of this Agreement and the Purchaser shall not raise any
requisition or objection in relation to the title.
10. PERMITS
10.1 The Purchaser shall use all reasonable endeavours at its own cost to
procure the benefit of any non-assignable Permits and the Vendor shall
co-operate at its own cost with the Purchaser's reasonable requests in procuring
any non-assignable Permits required by the Purchaser as a result of the transfer
of the Business under this Agreement. The Vendor shall use all reasonable
endeavours at its own cost to procure the assignment of any assignable Key
Permits required by the Purchaser as a result of the transfer of the Business
under this Agreement.
11. CONTRACTS
11.1 The Vendor shall take all reasonable steps and co-operate with the
Purchaser (each party bearing its own costs) in order to procure the assignment
of the Contracts to the Purchaser (and this obligation shall continue
notwithstanding the Completion of this Agreement) and without prejudice to the
generality of the foregoing the Vendor shall execute and deliver to the
Purchaser at Completion an assignment of the Contracts in the form annexed as
Appendix B. 11.2 To the extent that any of the Contracts are not assignable
without the consent of another party or without a novation agreement, this
Agreement shall not constitute an assignment or an attempt at assignment if such
assignment or attempted assignment would constitute a breach of the relevant
Contract. In the event that such consent or novation is required for any such
assignment, the Vendor will use all reasonable endeavours to obtain the consent
of the other party to such assignment or to procure that the other party enters
into such novation to the Purchaser, if so requested by the Purchaser.
11.3 Unless and until such consent or novation is obtained, the Vendor will
co-operate with the Purchaser in any reasonable arrangements proposed by the
Purchaser designed to provide for the Purchaser the benefits under any of the
Contracts, including enforcement at the cost and for the account of the
Purchaser of any and all rights of the Vendor against the other party thereto
whether arising out of the cancellation by such other party or otherwise, and
the Purchaser shall perform all of the obligations and meet all of the
liabilities of the Vendor under any such Contracts. Prior to any such
arrangements the Vendor shall be deemed to hold the benefit of each such
Contract on trust for the Purchaser and shall fully account to and be
indemnified by the Purchaser accordingly.
If and to the extent that any such arrangements cannot be made in
respect of any such Contract within 6 months of the Completion
Date, then, provided that the third party thereto has not given
notice to terminate that Contract (other than upon the expiry of
its term), the Vendor shall sub-contract such Contract to the
Purchaser in the terms of the sub-contract annexed as Appendix C
and in such event the Purchaser shall accept such sub-contract and
the Purchaser shall then continue to perform the obligations and
meet the liabilities of the Vendor under that Contract upon the
terms and conditions of that Contract with effect on and from the
Completion Date and at no cost to the Vendor.
In these circumstances, the Vendor shall at all times in its name
and at the request and upon receipt of a satisfactory costs
indemnity from the Purchaser take such steps (including legal
proceedings) as the Purchaser may reasonably require in order to
enforce any debts, obligations and liabilities of the relevant
customer arising under the Contract for the benefit of the
Purchaser. The Purchaser shall indemnify the Vendor and keep it
indemnified in respect of any debts, obligations, liabilities,
losses, damages, costs, charges and expenses suffered or incurred
by the Vendor arising under the Contract.
If and to the extent that any such arrangements cannot be made in
respect of any such Contract and the third party thereto has given
notice to terminate that Contract (other than upon the expiry of
its term) then upon such termination neither the Vendor nor the
Purchaser shall have any further obligation to each other relating
thereto, and any further liability in relation to such Contract
shall rest with the Vendor, provided that the Vendor has done (by
commission or omission) nothing to increase the liabilities under
such applicable Contract then the amount or extent of the liability
of the Vendor in respect thereof shall be no greater than the
liability to which the Vendor would have been subject had the
relevant Contract been terminated by the Vendor as at the
Completion Date. Any such further liability shall rest with the
Purchaser and from that time onwards such contract shall no longer
be held to be a Contract for the purposes of the Agreement.
11.4 Subject to Clause 11.3, with effect from the Completion Date, the Purchaser
shall be entitled to the benefit of the Contracts and shall fully indemnify the
Vendor against all losses, liabilities, costs, charges, expenses, actions,
proceedings, claims and demands brought or made against or incurred by the
Vendor in respect of such Contract by reason of or in connection with the
non-performance or the negligent or defective performance by the Purchaser to
the extent that such Contract has not been carried out or completed in the
ordinary course in a proper and workmanlike manner and in accordance with its
terms (excluding from such indemnity the effects of any previous failure in
performance by or on behalf of the Vendor prior to the Completion Date) or any
defect in or error of any kind arising from goods sold or services provided
after the Completion Date and in particular (but without prejudice to the
generality of the foregoing) any claim under any warranty or under the Sale of
Goods Xxx 0000 or the Supply of Goods and Services Xxx 0000.
12. TANK AUDIT
12.1 The Purchaser and the Vendor shall conduct a reconciliation of the Vendor's
customers' product stored at the Terminals (whether contained in storage or
utilised as line-fill) on the Completion Date no more than seventy two (72)
hours prior to Completion ("the Cut Off Time"). At that time, an independent
inspector, whose selection shall be mutually agreed upon by the Vendor and
Purchaser ("the Inspector") shall conduct a physical audit of the amount, type
and quality of product contained in each storage tank and line at the Terminals.
The Purchaser and the Vendor shall each designate a single representative for
each Terminal to accompany the Inspector during the course of the audit. The
Inspector shall conduct the tests described in the Inspection Schedule attached
hereto as Appendix D. The fees and expenses of the Inspector will be shared
equally by the Purchaser and the Vendor. During the audit, the storage tanks and
lines are to be gauged in accord with standard industry practice. The results of
such audit ("Reconciliation Audit") will be provided to the Purchaser and the
Vendor promptly following the Completion Date.
12.2 The Vendor shall produce a book inventory of customer product at the
Terminals as of the Cut Off Time. The Vendor, with the participation of the
Purchaser, will reconcile "book to physical" for each customer, and communicate
the results thereof by letter in a form to be agreed to by the Vendor and the
Purchaser with each customer regarding the results of the Reconciliation Audit
as it pertains to such customer. The Vendor will keep a true and correct record
of any changes in the customer inventory from the Cut Off Time to the Completion
Date ("Final Monitoring"). Any changes in the Final Monitoring will be confirmed
with the relevant customers in the letter referred to above.
12.3 If the Reconciliation Audit and Final Monitoring determine that the
quantity of product as described in the books and records of the Vendor as of
the Completion Date is either greater or less than the quantity of product as
determined by the Inspector in the course of the physical audit, any shortfall
or overage in the amount of product will be entirely for the account of the
Vendor, and the Vendor shall settle any disputes or differences with its
customers resulting from such shortfalls or overages. The Vendor will use its
best endeavours to reach any such settlement within 30 days after the Completion
Date and will keep the Purchaser apprised of the status of such efforts.
12.4 At the time of the Reconciliation Audit, the Inspector will take (and
appropriately label) representative samples of product from each of the tanks
and pipelines. The Inspector shall retain such samples for a period of one (1)
year from the Completion Date. The retained samples, together with the tests
described in Appendix D, shall be conclusive as between the parties as to the
quality of the product stored at the Terminals as of the Completion Date, unless
either party is able to adduce evidence to establish that product degradation
occurred between the Cut Off Time and the Completion Date. If the samples and/or
the tests as appropriate reflect any degradation of product quality as of the
Completion Date, any liability associated therewith shall be for the account of
the Vendor, who shall settle any dispute or differences with its customers
related thereto. Any product degradation occurring after the Completion Date
shall be for the account of the Purchaser.
13. MUTUAL INDEMNITY
13.1 Save as otherwise provided in this Agreement (including in respect of the
Assumed Liabilities), the Vendor shall bear and discharge all debts, liabilities
and obligations of the Business and in respect of the Assets accruing or
incurred up to the Completion Date, and shall at all times indemnify the
Purchaser and keep it indemnified in respect of such debts, obligations and
liabilities and in respect of any liability accruing or arising in connection
with the carrying on of the Business prior to the Completion Date (including for
the avoidance of doubt the Contracts).
13.2 Save as otherwise provided in this Agreement, the Purchaser shall with
effect on and from the Completion Date assume and perform the Vendor's
obligations in respect of the Assumed liabilities and the Contracts and bear and
discharge all debts, liabilities and obligations arising by virtue of its
carrying on the Business with effect from the Completion Date, and shall at all
times indemnify the Vendor and keep it indemnified in respect of such debts,
obligations and liabilities and in respect of any liability accruing or arising
in connection with the carrying on of the Business by the Purchaser after the
Completion Date.
14. EMPLOYEES
14.1 The parties accept that this Agreement and the sale of the Business to be
effected by it are governed by the Transfer Regulations and the Completion Date
shall be the "time of transfer" under the Transfer Regulations.
14.2 The Purchaser shall treat the contract or other terms of employment of each
of the Employees as automatically transferred to it with effect from the
Completion Date in accordance with the Transfer Regulations.
14.3 The Purchaser shall on and from the Completion Date assume responsibility
for the performance of all the obligations of the employer in relation to the
Employees in respect of the period after the Completion Date and the Purchaser
shall discharge and hereby undertakes to indemnify the Vendor against all
liabilities, obligations, costs and claims in respect of the Employees arising
from events occurring after Completion (including the performance of all
obligations of the Purchaser as employer of the Employees after Completion).
14.4 All salaries, wages and other compensation, all Taxation (for which an
employer is accountable), and all other normal employment costs in each case in
respect of the Employees shall be borne by the Vendor down to the Completion
Date and thereafter by the Purchaser and shall be apportioned accordingly.
Entitlement to holiday pay shall be apportioned on a time basis over the holiday
year so that the Vendor shall bear as at the Completion Date the cost of untaken
but accrued holiday less the cost of any holiday taken in excess of entitlement.
The cost of accrued holidays for prior years shall be borne by the Vendor.
14.5 The Purchaser shall indemnify and keep indemnified the Vendor against any
costs, claims, liabilities and expenses which the Purchaser may incur in respect
of the period after the Completion Date as a result of any act or omission by
the Purchaser including any failure to discharge the Purchaser's obligations to
any Employee after the Completion Date.
14.6 The Vendor shall indemnify and keep indemnified the Purchaser against any
costs, claims, liabilities and expenses which the Purchaser may incur in respect
of the period prior to the Completion Date as a result of any act or omission by
the Vendor including any failure to discharge its obligations to any employee
including but not limited to any Employees prior to the Completion Date.
14.7 Insofar as the Transfer Regulations are found to apply to any Excluded
Employee the Vendor agrees that:
14.7.1 in consultation with the Purchaser, it will, within
seven days of being so requested by the Purchaser, make
to each such person an offer in writing to employ him
under a new contract of employment to take effect upon
the termination referred to below; and
14.7.2 the offer to be made will be such that the provisions
of the new contract as to the capacity and place in
which the person will be employed and as to the other
terms and conditions of his employment will not differ
from the corresponding provisions of his contract of
employment as existing immediately prior to Completion.
Upon that offer being made (or at any time after the expiry of the
seven days if the offer is not made as requested), the Purchaser
shall terminate the employment of the person concerned and provided
that the Purchaser shall have complied with its obligations under
this Clause 14.7, the Vendor shall indemnify and hold the Purchaser
indemnified against any costs, claims, liabilities and expenses
which the Purchaser may incur in respect of any such person as
aforesaid.
15. ENVIRONMENTAL
15.1 Each of the Purchaser and Kaneb acknowledges that:
15.1.1 the Terminals may have been contaminated prior to the
date of this Agreement in connection with their usage
as oil and chemical storage terminals;
15.1.2 they have had full opportunity to inspect and survey
the Terminals and carry out investigations thereon;
15.1.3 they rely at their own risk on the contents of any
report, plan and/or other written material and/or
information either disclosed to them and/or orally
communicated to them by the Vendor both as to the
condition of the Terminals and as to the nature and
effect of any remedial works which may have been
carried out or which may be required to be carried out
and no warranty is given and/or no representation made
by the Vendor in respect thereof.
It is the intention of both parties that the effect of Clause 15
shall be that pursuant to the provisions of the Contaminated Land
Regime the Purchaser and/or Kaneb shall effectively transfer to
them GTC's and/or the Vendor's liability for remediation of the
Terminals pursuant to the Contaminated Land Regime.
15.2 With regard to pollution or contamination which pre-dates GTC's and/or the
Vendor's ownership and/or occupation of the Terminals the Purchaser and/or Kaneb
may assume any rights which GTC and/or the Vendor may have pursuant to the
Contaminated Land Regime to claim a right of contribution or indemnity from any
third parties (except GTC and/or the Vendor and subject to the exclusions
described in sub-clause 15.2) who may have caused or contributed to the
pollution or contamination giving rise to liabilities arising under the
Contaminated Land Regime.
15.3 Each of the Purchaser and Kaneb hereby covenants to carry out any
Remediation Works necessary at the Terminals and hereby jointly and severally
indemnifies and shall hold the Vendor or GTC indemnified from and against all or
any losses, damages, actions, proceedings, claims, costs, charges, expenses,
obligations and liabilities suffered or incurred by the Vendor or GTC arising
out of or in connection with any Remediation Works necessary as a result of
pollution or contamination at or emanating from the Terminals (whether arising
before or after the Completion Date) including all ancillary costs including
legal costs directly consequent thereon and any other costs necessary to ensure
compliance with Environmental Laws directly consequent thereon (excepting any
matters in respect of which the Vendor and GTC indemnifies the Purchaser and
Kaneb at Clauses 15.4 and 15.5.1 hereunder which shall remain the responsibility
of the Vendor and GTC).
In the event that a demand is made on either the Purchaser or Kaneb
to carry out Remediation Works pursuant to this Clause 15.3, the
Purchaser or Kaneb as the case may be shall have the right to
assume the conduct and benefit of all claims or demands (including
civil claims) for contribution in respect of the subject of
Remediation Works that GTC or the Vendor has or may have against
any third parties (but excluding contractual warranty and/or
insurance claims) and may in their own name and at their sole
expense proceed to enforce such claims for contribution with
respect to the subject of the Remediation Work. In the event that
such claim may only be brought in the name of the Vendor or GTC,
then Kaneb or the Purchaser may demand the Vendor or GTC pursues
such claim for and on behalf of the Purchaser or Kaneb, provided
that such demand is accompanied by:
15.3.1 a written commitment by the Purchaser and/or Kaneb to
pay any and all costs (including legal costs) incurred
by the Vendor or GTC in the prosecution of such claim;
and
15.3.2 a written opinion of an attorney reasonably
satisfactory to the Vendor or GTC that a reasonable
basis exists in law to successfully pursue such claim.
15.4 The Vendor and GTC hereby indemnify and (without limitation in time) shall
hold the Purchaser and Kaneb indemnified from and against any and all fines or
penalties. For purposes of this Clause 15, fines and penalties are all or any
fines or penalties levied by a Regulatory Authority and all ancillary costs
including legal costs directly consequent thereon (a) in connection with any
Remediation Works; or (b) as a result of a breach of Environmental Laws; but in
either case resulting from acts or omissions occurring prior to the Completion
Date.
15.5.1 The Vendor and GTC hereby indemnify and (without limitation in
time) shall hold the Purchaser indemnified from and against any third
party claims and all ancillary costs including legal costs directly
consequent thereon arising out of or in connection with any pollution
or contamination at or emanating from the Terminals caused prior to
the Completion Date. Upon accepting their indemnity obligations
therefor in writing the Vendor and GTC shall then be free to deal with
the said claims as it considers appropriate and neither the Purchaser
nor Kaneb by act or omission shall agree, compromise or settle any
third party claims pursuant to the provisions of this clause. If the
Vendor and GTC have accepted their indemnity obligations hereunder,
the Purchaser and Kaneb will not incur any costs or expenses in
relation to any such claims without the prior written agreement of the
Vendor (such agreement not to be unreasonably withheld).
15.5.2 The Purchaser and Kaneb hereby indemnify and (without
limitation in time) shall hold the Vendor and GTC indemnified from and
against any third party claims and all ancillary costs including legal
costs directly consequent thereon arising out of or in connection with
any pollution or contamination at or emanating from the Terminals
caused on or after the Completion Date. Upon accepting their indemnity
obligations therefor in writing the Purchaser and Kaneb shall then be
free to deal with the said claims as they consider appropriate and
neither the Vendor nor GTC by act or omission shall agree, compromise
or settle any third party claims pursuant to the provisions of this
clause. If the Purchaser and Kaneb have accepted their indemnity
obligations hereunder, the Vendor and GTC will not incur any costs or
expenses in relation to any such claims without the prior written
agreement of the Purchaser (such agreement not to be unreasonably
withheld).
15.5.3 Upon receipt of any notification to it of any third
party claims, the Purchaser shall notify the Vendor and
GTC in writing as soon as reasonably practicable
specifying in reasonable detail the nature and extent
of the claims. In such case, the Purchaser and Kaneb
shall ensure that the Vendor receives all material
information held by them in connection with the said
claims as soon as reasonably practicable.
15.6 All Hazardous Waste stored on site including but not limited to that stored
in barrels, tanks and water collection or treatment systems remains the property
of the Vendor and GTC and will be removed from the Terminals before the
Completion Date, but excluding any such waste stored on behalf of a customer
under a Customer Contract or any minor levels of waste stored in slop tanks in
the ordinary course of business.
15.7 Notwithstanding Clause 24.1 the indemnities under this Clause 15 shall be
personal to the parties and shall not be capable of assignment.
16. THE VENDOR'S RECEIVABLES
16.1 The Vendor shall remain entitled to the Vendor's Receivables. At the end of
the calendar month in which Completion occurs the Purchaser shall invoice
customers for monies due to the Vendor up to Completion for the billing period
in which the Completion occurs in accordance with the billing procedures set out
in Schedule 16.
16.2 The Purchaser shall provide reasonable assistance to the Vendor to collect
the Vendor's Receivables, provided that the Purchaser shall in no event be
liable to the Vendor for any uncollected Vendor's Receivables. Subject to Clause
16.3, should the Purchaser receive any monies in respect of the Vendor's
Receivables the Purchaser shall pay all such monies forthwith to the Vendor.
16.3 In the event that the Purchaser shall receive any payment from a third
party from whom monies are due both in respect of the Vendor's Receivables and
in respect of receivables of the Purchaser, where payment has not been allocated
or identified by the payer, then the Purchaser forthwith shall request
confirmations from the payer that such monies are to be applied towards the
payment of the Vendor's Receivables and shall hold the monies on trust until it
has received such confirmation.
16.4 The Vendor shall remain entitled to all payments due to the Vendor for
goods or services to the extent supplied by the Vendor prior to the Completion
Date in the course of carrying on the Business.
16.5 The Vendor shall obtain the Purchaser's consent (not to be unreasonably
withheld or delayed) prior to commencing a bankruptcy action against any person
who is or becomes a customer of the Purchaser at a Terminal pursuant to this
Agreement.
16.6 After the expiration of three months from the Completion Date the
obligations of the Purchaser under this clause 16 shall cease save that if
thereafter any payments are made to the Purchaser in respect of Vendor's
Receivables the Purchaser shall forthwith remit the same to the Vendor.
17. NAMES AND SIGNAGE
17.1 The Purchaser shall not use or carry on business under any of the Names or
words substantially similar to the Names or hold itself out as being part of or
associated with the Vendor or GTC or use in any way whatsoever any trademarks
(whether registered or unregistered) of GTC, including any logos, insignia or
other devices used at the date hereof in the Business. Except as otherwise
expressly agreed in writing between the parties, the Purchaser shall remove all
references to the Names from all Signage as soon as practicable (and in any
event within 6 weeks) after the Completion Date. For the avoidance of doubt the
Purchaser shall not be in breach of this Clause 17.1 during such 6 week period.
17.2 The Purchaser shall procure that as soon as practicable (and in any event
within 6 weeks) after the Completion Date, the Names and the VAT registration
number and company registration number of the Vendor shall be removed or
permanently obliterated from or covered over in all printed matter used in
connection with the Business (including without limitation all business
stationery, invoices, advertising materials and promotional material) and so far
as practicable, and subject to the Reversioner's (as defined in Schedule 7)
licence and consent (where necessary) all Terminals.
18. POST-COMPLETION ACCESS AND SERVICES
18.1 Upon 7 days' prior written notice, where reasonably practicable and during
normal business hours and without prejudice to the provisions of Clauses 19 and
29, and for 12 months following Completion, the Purchaser shall allow
representatives of the Vendor reasonable access (including the right to take
copies where applicable subject to payment of a reasonable charge therefor) to
the Employees, the Terminals, the Maidenhead office and other Assets, and all
books, records and other documents relating exclusively to the Business prior to
the Completion Date as it may reasonably require and as are reasonably
available.
18.2 Upon 7 days' prior written notice, where reasonably practicable, and during
normal business hours, and for 12 months following Completion, the Vendor shall
allow representatives of the Purchaser reasonable access (including the right to
take copies where applicable subject to payment of a reasonable charge therefor)
(the Purchaser bearing its own cost) to all books, records and other documents
relating to the Business prior to the Completion Date as it may reasonably
require and as are reasonably available.
18.3 The Purchaser shall for a period of not less than seven years from
Completion use its reasonable endeavours to preserve all the books, records and
other documents of the Business delivered to it pursuant to the Agreement and,
upon being given reasonable notice by the Vendor or its agents that access
thereto is required the Purchaser shall make those records available to the
Vendor or its agents during normal business hours for inspection and/or for
copying (at the Vendor's expense).
18.4 The provisions of Clause 29 shall apply to any information obtained
under the provisions of this Clause 18.
18.5 The rights of access under this Clause 18 shall not apply to any documents
or records if such access is requested during the course of legal proceedings
between the parties hereto to which such documents or records are relevant, or
during any period when any claim has been intimated by either party pursuant to
the terms of the Agreement and remains unresolved.
18.6 Following Completion the Purchaser shall use its reasonable endeavours to
provide the services set out in Schedule 17 to and/or for the benefit of the
Vendor (and shall grant the Vendor the rights related to the benefit of such
services described in Schedule 17) and the Vendor shall reimburse to the
Purchaser any actual third party costs that the Purchaser may incur in this
respect upon receipt of the relevant third party invoice or similar cost
verification.
19. VAT
19.1 All amounts expressed in this Agreement as being payable by or to the
Purchaser are expressed exclusive of any Value Added Tax which may be chargeable
thereon and the amount of any such Value Added Tax shall be payable in addition
thereto subject as hereinafter provided. 19.2 The parties intend that the
Business shall be transferred as a going concern for the purposes of Section 49
VATA 1994 and Article 5 of the VAT Order and accordingly application shall be
made to H.M. Customs & Excise to obtain a direction that all records referred to
in Section 49 VATA 1994 may be retained by the Vendor. The Vendor undertakes to
preserve those records in such a manner and for such periods as may be required
by law and to give to the Purchaser as from the Completion Date reasonable
access during normal business hours to such records.
19.3 Both the Vendor and the Purchaser shall use all reasonable endeavours to
secure that the sale of the Business is treated under the VAT Order as neither a
supply of goods nor a supply of services and accordingly that no VAT shall be
payable under Clause 19.1, and within 7 days of the date hereof (a) the Vendor
shall write in terms agreed with the Purchaser to H M Customs & Excise seeking
confirmation of that treatment and (b) the Purchaser shall supply to the Vendor
evidence satisfactory to the Vendor of the registration of the Purchaser for VAT
purposes.
19.4 If and to the extent that H.M. Customs & Excise have before the Completion
Date expressly indicated that the sale of the Business cannot be treated in the
manner contemplated by Clause 19.3, or if the Purchaser shall have indicated
that it no longer intends to carry on the Business in the same manner as the
Vendor for the purposes of the VAT Order, the Purchaser shall (against
production of tax invoices in respect thereof and in addition to any amounts
expressed in the Agreement to be payable by the Purchaser) pay on the Completion
Date the amount of any VAT which as a result of that indication may be
chargeable on the sale of the Business under the Agreement. If no such
indication shall have been given before the Completion Date, then no amount in
respect of VAT shall be paid by the Purchaser on the Completion Date, but to the
extent that VAT shall subsequently be determined by H.M. Customs & Excise to be
payable on the sale, the Purchaser shall in addition to any amount expressed in
the Agreement to be payable by the Purchaser pay to the Vendor such VAT and any
penalty or interest incurred by the Vendor for late payment thereof (other than
where incurred due to the fault or negligence of the Vendor), such payment by
the Purchaser to be made forthwith against evidence that the due date for
payment of such tax has fallen due or will fall due within seven days, or if
later against delivery by the Vendor to the Purchaser of the appropriate tax
invoice.
19.5 If requested by the Purchaser, the Vendor shall make any appeal which is
reasonable and necessary against any determination of H.M. Customs & Excise that
the sale is not going to be treated as the transfer of a going concern, at the
sole cost and expense of the Purchaser.
19.6 If any amount paid by the Purchaser to the Vendor in respect of VAT
pursuant to the Agreement is subsequently found to have been paid in error and,
if it has not yet accounted for such VAT to Customs & Excise, the Vendor shall
promptly repay such amount to the Purchaser. If the Vendor has already so
accounted then it shall at the expense of the Purchaser use all reasonable
endeavours to obtain repayment from H.M. Customs & Excise and forthwith on
receiving repayment from H.M. Customs & Excise shall pay to the Purchaser the
amount repaid together with the amount of any interest payable by H M Customs &
Excise.
19.7 After the Completion Date the Purchaser shall as required by the VAT Order
use the assets of the Business in carrying on the same kind of business, whether
or not as part of any existing business of the Purchaser, as that carried on by
the Vendor, and authorises the Vendor to make this known to H.M. Customs &
Excise in any application (including under Clause 19.3) seeking confirmation
that Article 5 of the VAT Order shall apply to the sale of the Business.
19.8 VAT payable in respect of goods and services supplied, or deemed to be
supplied, by the Vendor prior to the Completion Date and all interest payable
thereon and penalties attributable thereto shall be paid to H.M. Customs &
Excise by the Vendor. The Vendor shall be entitled to receive and retain all
reimbursement or credit from H.M. Customs & Excise for VAT borne by the Vendor
on goods and services supplied to the Vendor prior thereto and any payments
received in respect of VAT overpaid to H.M. Customs & Excise prior thereto.
19.9 Where in relation to any Terminal the Vendor has made an election under
paragraph 2 of Schedule 10 VATA 1994, that fact has been notified by the Vendor
to the Purchaser prior to the date hereof and the Vendor has delivered to the
Purchaser a copy of the acknowledgement by HM Customs & Excise of the
notification of such election, together with a copy of the written permission of
H.M. Customs & Excise to make such election where such written permission is
required by paragraph 3 of Schedule 10 VATA 1994, the Purchaser shall elect to
waive exemption under Paragraph 2 of Schedule 10 VATA 1994 in relation to that
Terminal with effect on or prior to the earliest date on which the Terminal
concerned is to be transferred and shall give written notification to H.M.
Customs & Excise as required by the VAT Order no later than that date. The
Purchaser shall deliver copies of the notification of such election showing
receipt thereof by H.M. Customs & Excise by Completion and in default of
delivery thereof shall, notwithstanding Clause 19.1, in addition to any amounts
expressed in the Agreement to be payable by the Purchaser in respect of the said
Terminal pay to the Vendor at Completion (against delivery by the Vendor of an
appropriate tax invoice for VAT purposes) an additional amount in respect of VAT
thereon.
20. REPRESENTATIONS AND WARRANTIES
20.1 The Vendor hereby warrants and represents to the Purchaser as at the date
hereof in the terms of Schedule 4 and so that the remedies of the Purchaser in
respect of any of the Warranties shall continue to subsist notwithstanding
Completion.
20.2 The said warranties and representations shall be subject to:
20.2.1 any matters fairly and accurately disclosed in or
pursuant to the Disclosure Letter;
20.2.2 any matter provided for under the terms of this
Agreement;
20.2.3 the provisions of the Property Condition Schedules Show
and matters therein subject to which the Terminals
are sold; and
20.2.4 the limitations on the liability of the Vendor set out
in Clause 21.
20.3 The benefit of the representations and warranties given hereunder or
pursuant hereto may not be assigned in whole or in part.
20.4 The Vendor undertakes to notify the Purchaser of any material breach of
Warranty as soon as reasonably practicable after it becomes aware of any such
breach up to the Completion Date.
20.5 Each of the Warranties shall be construed as a separate representation or
warranty (as the case may be) and (save as expressly provided) shall not be
limited by the terms of any other Warranties.
20.6 None of the limitations contained in clause 21 shall apply to any breach of
the Warranties which (or the delay in discovery of which) is the consequence of
fraud, wilful misconduct or wilful concealment by the Vendor or any officer or
employee of the Vendor or any member of the Vendor's Group.
20.7 The Vendor acknowledges that the Purchaser has entered into this Agreement
in reliance upon the Warranties and the representations and warranties contained
in Clause 2.2 of this Agreement.
20.8 The Purchaser acknowledges that it does not rely on and has not been
induced to enter into this Agreement on the basis of any warranties,
representations, covenants, undertakings, indemnities or other statements
(including any forecast or expression of opinion) whatsoever including, without
prejudice to the generality of the foregoing, any statement, forecast or
expression of opinion contained in any of the documents listed on the Data Room
Index, other than the Warranties and the Replies to Pre-Contract Property
Enquiries and further acknowledges that neither the Vendor nor any of its
servants, agents, officers or employees have given any such other warranties,
representations, covenants, undertakings or indemnities. The Purchaser further
acknowledges and agrees that the Executive Summary does not form part, or any
basis, of this or any other agreement between the Vendor and the Purchaser.
20.9 Without prejudice to the provisions of Clause 9.3 in respect of the period
prior to Completion, notwithstanding that the Purchaser becomes aware at any
time that there has been any breach of the Warranties or any other term of this
Agreement, the Purchaser shall not be entitled at any time after Completion to
treat this Agreement as terminated or to rescind this Agreement but shall be
entitled to claim damages or exercise any other right, power or remedy under
this Agreement.
20.10 Where any of the Warranties are expressed as being "so far as the Vendor
is aware" or otherwise qualified by any similar expression, such reference shall
be deemed to be a reference to the actual and constructive state of knowledge or
awareness of the Vendor's and GTC's directors and officers (including directors
and officers at the Maidenhead office) and the Vendor's Terminal Managers on the
date hereof who shall for the purposes of constructive knowledge in respect of
each Warranty so expressed each be deemed to have carried out such due and
diligent enquiry into the relevant matter as may be described in the relevant
Warranty.
20.11 Any information supplied by any Employee to the Vendor or its agents or
accountants, solicitors or other advisers in connection with the Warranties, the
Disclosure Letter or otherwise in relation to the Business and Assets shall not
constitute a representation or warranty or guarantee as to the accuracy thereof
by such Employee and the Vendor hereby waives any and all claims which it might
otherwise have against such Employee in respect thereof.
20.12 No information relating to the Business or the Assets of which the
Purchaser has knowledge (actual or constructive) other than that contained in or
referred to in this Agreement and the Disclosure Letter and no investigation by
or on behalf of the Purchaser shall prejudice any claim by the Purchaser under
the Warranties or operate to reduce any amount recoverable thereunder.
21. LIMITATIONS ON LIABILITY
21.1 The liability of the Vendor in respect of or arising out of any breach of
the provisions of Clause 20 and/or the Warranties (the liability of the Vendor
being referred to herein as `Liability') shall be limited as set out in Clause
20 and in this Clause 21.
21.2 No Liability shall in any event arise unless and until the aggregate amount
of loss sustained in respect of any claims permitted to be made under this
Clause 21.2 shall equal or exceed (pound)720,000 but once the figure is exceeded
the Purchaser shall be entitled to recover the whole of such amount and not just
the excess. Thereafter, no liability shall arise unless the amount of the loss
sustained in respect of each individual claim shall equal or exceed (pound)5,000
in which event the liability shall be in respect of the whole amount and not
merely the excess.
21.3 The aggregate Liability shall not exceed the Consideration (as adjusted by
the net amount payable pursuant to the Completion Statement under Clause 7.1
and/or any reduction in accordance with Clauses 9 or 11.3).
21.4 No claim in respect of any Liability shall be brought by the Purchaser
against the Vendor unless notice in writing of any such claim (specifying in
reasonable detail the nature of the breach and so far as practicable the amount
claimed in respect thereof) has been given to the Vendor by no later than the
Final Claim Date.
21.5 Unless proceedings in respect thereof shall have been commenced against the
Vendor and/or GTC, any claim which has been made or shall be made before the
Final Claim Date shall if it has not been previously satisfied settled or
withdrawn be deemed to have been withdrawn and shall become fully barred and
unenforceable on the expiry of the period of six months commencing on the Final
Claim Date. For this purpose, proceedings shall not be deemed to have been
commenced unless they shall have been issued and served upon the Vendor or GTC
or, as the case may be, the Vendor's or GTC's Solicitors.
21.6 The Purchaser shall reimburse to the Vendor any sum paid to the Purchaser
by the Vendor in respect of any Liability which is subsequently recovered by or
paid to the Purchaser from any third party together (if the Vendor shall not
have already recovered back from the Purchaser the full amount paid by the
Vendor) with any repayment supplement under Section 825 of ICTA or other
interest (less any taxation thereon) in respect thereof.
21.7 No Liability shall arise and the Purchaser shall have no claim whatsoever
against the Vendor in respect thereof:
21.7.1 if and to the extent that allowance, provision or
reserve has been made in the Completion Statement in
respect of the matter to which such claim relates or
such matter was taken into account in computing the
amount of any such allowance, provision or reserve;
21.7.2 if and to the extent that such claim would not have
arisen but for any claim, election, surrender or
disclaimer made or notice or consent given or any other
thing done after Completion by the Purchaser or any
person connected with the Purchaser or the failure or
omission of the Purchaser or any person connected with
the Purchaser to make any such claim, election,
surrender or disclaimer or give such notice or consent
or do any other thing under the provisions of any
enactment or regulation relating to Taxation;
21.7.3 if and to the extent that the Purchaser has an
indemnity for or will recover the loss or damage
suffered by the Purchaser arising out of such breach or
claim under the terms of any insurance policy of the
Purchaser or from any third party provided that the
Vendor shall indemnify the Purchaser for any costs
incurred in connection with the Purchaser obtaining
such indemnity or recovery (providing that such
indemnity does not entail any greater liability or
obligation of the Vendor than it would have incurred as
a liability for breach of Warranty); or
21.7.4 if and to the extent that such claim relates to a claim
or liability for Taxation and would not have arisen but
for any winding up or cessation after Completion of the
Business or any trade or business carried on by the
Purchaser.
21.8 All amounts available for set-off or otherwise liable to be deducted
pursuant to Clause 21.7 above shall not be deducted for the purpose of
determining the amount of loss sustained in connection with the de minimis
limits referred to in Clause 21.2 above.
21.9 The Purchaser shall not be entitled to recover damages from the Vendor in
respect of any Liability to the extent that the Purchaser has already received
reimbursement or restitution in respect of the same Liability.
21.10 If any claim by any third party comes to the notice of the Purchaser by
reason or in consequence of which any Liability may arise the Purchaser shall:
21.10.1 as soon as reasonably practicable (and if possible
within such a period as will afford the Vendor
reasonable opportunity to lodge a timely appeal against
such claim) give written notice thereof to the Vendor;
and
21.10.2 not make any admission of liability, agreement or
compromise with any person body or authority in
relation thereto without the prior agreement of the
Vendor (not to be unreasonably withheld or delayed).
21.11 Provided that the Vendor acknowledges its obligation to indemnify the
Purchaser in accordance with Clause 21.12, without prejudice to Clause 21.10
above and Clause 21.12 below, if the Purchaser considers that it will or may
make a claim against the Vendor for any Liability, it shall as soon as
practicable so notify the Vendor pursuant to Clause 21.4, and for a period of 60
days after such notification shall grant the Vendor the opportunity to take
steps to remedy or avert such Liability.
21.12 The Purchaser shall take such action as the Vendor may reasonably request
(provided that such action would not harm or be to the detriment of the Business
or any part thereof as carried on by the Purchaser after the Completion Date) to
avoid, dispute, resist, appeal, compromise or defend or mitigate any claim which
would give rise to any Liability on the basis that the Purchaser shall be
indemnified by the Vendor as to all reasonable costs and expenses which it may
reasonably incur by reason of such action.
21.13 In assessing any damage or other amounts recoverable in respect of any
Liability there shall be taken into account the value of any immediate financial
benefit obtained by the Purchaser in consequence of the event or breach giving
rise thereto.
21.14 For the avoidance of doubt nothing in this Clause 21 shall in any way
restrict or limit the general obligation at law of the Purchaser to mitigate any
loss or damage which it may suffer in consequence of any Liability.
21.15 Any amount paid by the Vendor pursuant to the provisions of the Agreement
in respect of a breach of any of the Warranties or other provisions of the
Agreement shall be treated as a reduction in the Consideration paid by the
Purchaser.
22. GUARANTEES AND INDEMNITIES
22.1 In consideration of the Purchaser entering into this Agreement at the
request of GTC, GTC hereby undertakes to the Purchaser that the Vendor shall
perform its obligations and meet its liabilities under the provisions of this
Agreement.
22.2 If the Vendor shall fail in any respect to perform any such obligations or
meet any such liabilities under this Agreement or breach any of the Warranties
then GTC shall forthwith perform or take any steps necessary or desirable to
achieve the due and faithful performance of the obligations or satisfaction of
the liabilities of the Vendor and GTC shall indemnify and hold indemnified the
Purchaser against any losses, damages, costs, charges and expenses for which the
Vendor would have been liable arising out of or in connection with the said
failure or breach.
22.3 In consideration of the Vendor entering into this Agreement at the request
of Kaneb and STOP, each of Kaneb and STOP hereby jointly and severally undertake
to the Vendor and to GTC that the Purchaser shall perform its obligations and
meet its liabilities under the provisions of this Agreement.
22.4 If the Purchaser shall fail in any respect to perform any such obligations
or meet any such liabilities under this Agreement then Kaneb and STOP shall
forthwith perform or take any steps necessary or desirable to achieve the due
and faithful performance of the obligations or satisfaction of the liabilities
of the Purchaser and Kaneb and STOP shall each indemnify and hold indemnified
the Vendor against any losses, damages, costs, charges and expenses for which
the Purchaser would have been liable arising out of or in connection with the
said failure or breach.
22.5 In consideration for GTC guaranteeing the obligations and Warranties of the
Vendor to the Purchaser under sub-clauses 22.1 and 22.2 above at the request of
the Purchaser and Kaneb, the Purchaser shall use all reasonable endeavours to
procure that GTC is released and discharged from the GTC Guarantees, and without
prejudice to the generality of the foregoing, Kaneb shall provide such guarantee
(or other suitable guarantee from within the Kaneb group of companies) as may be
required for that purpose, provided that such guarantee is no more onerous than
the current GTC Guarantee. Pending such release and discharge each of the
Purchaser and Kaneb hereby jointly and severally indemnifies and shall hold GTC
fully indemnified from and against any and all actions, proceedings, losses,
damages, liabilities, obligations, costs, claims, charges and expenses suffered
or incurred by GTC of whatsoever nature arising out of or in connection with all
or any GTC Guarantees ("the GTC Indemnified Claims") to the extent that such GTC
Indemnified Claims relate to periods after the Completion Date.
23. KANEB, STOP AND PURCHASER'S WARRANTIES
23.1 Each of Kaneb, STOP and the Purchaser hereby warrants and represents to the
Vendor that:
23.1.1 it has full power and authority to enter into and
perform the Agreement and the Agreement when executed
will constitute a legal, valid and binding obligation
on it in accordance with its terms;
23.1.2 the execution and delivery of, and the performance by
it of its obligations under, the Agreement will not:
(a) result in a breach of or conflict with any
provision of its memorandum or articles of asso-
ciation (or other constitutional document); or
(b) result in a breach of or conflict with any
order, judgment or decree of any court or
governmental agency or any ordinance, regulation
or agreement to which it is a party or by which
it or its assets are bound; or
(c) require the consent of its partners and/or
shareholders (as the case may be) or any other
person, except to the extent such consent has
been obtained;
23.1.3 it acts as principal for the purposes of this Agreement
and not as broker or agent for another person or in
concert with another person and has not at the date of
the Agreement any arrangement in place; and
23.1.4 it and its employees or advisers have no actual
knowledge of any event, act or circumstances which it
appreciates at the date hereof constitutes a breach of
the Warranties.
23.2 On Completion, each of Kaneb and STOP shall deliver to the Vendor's
solicitors opinions of Kaneb's corporate counsel addressed to the Vendor (upon
terms to be agreed) relating to the execution of this Agreement by each of Kaneb
and STOP and their respective capacities to enter into the guarantees,
indemnities and other provisions herein contained.
24. ASSIGNMENT
24.1 This Agreement shall be binding on and shall enure for the benefit of each
party, its successors and permitted assigns provided that, save as set out in
clauses 24.2 and 24.3, neither party shall be entitled to assign all or any of
their respective rights and obligations hereunder without prior written consent
of the other.
24.2 Any party's rights under this Agreement ("Rights") may be assigned by it to
any associated company, and by such associated company to any other company
which is associated with both the original party to this Agreement and the
assignor, provided that:
24.2.1 if such company to which Rights are assigned ceases to
be so associated, it shall assign the Rights to an
associated company and, until such assignment becomes
effective, the Rights shall cease to be enforceable;
and
24.2.2 in each case such assignee undertakes in writing to the
assignor, for itself and on behalf of the other parties
hereto, to be bound by and (where applicable) to
perform all the relevant obligations and limitations of
the assignor under this agreement in relation to the
rights assigned.
For the purposes of this Clause 24.2 "associated company" means any
holding company of the relevant party and any subsidiary of such
holding company.
24.3 Obligations under this Agreement shall not be assignable.
25. WAIVER
25.1 No waiver by either party of any of the requirements hereof or any of the
rights hereunder shall release the other from full performance of its remaining
obligations as herein stated.
25.2 No breach of any provision of this Agreement shall be waived or discharged
except with the express written consent of the relevant party.
26. NATURE OF AGREEMENT
26.1 The parties acknowledge that the Agreement shall constitute and form the
entire agreement between them relating to the sale and purchase of the Business
and the Assets to the exclusion of any antecedent statement or representation
whether oral written or implied or whether contained in any advertisement
particulars or other matters issued (including without prejudice to the
generality of the foregoing the Executive Summary) or in any correspondence
entered into by the Vendor or any of its employees, servants or agents and the
Purchaser hereby acknowledges that the Purchaser has not entered into the
Agreement in reliance upon any such statement or representation.
26.2 If at any time any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect under the law of any jurisdiction, that
shall not affect or impair:
26.2.1 the legality, validity or enforceability in that juris-
diction of any other provisions of this Agreement; or
26.2.2 the legality, validity or enforceability under the law
of any other jurisdiction of that or any other
provision of this Agreement.
26.3 All provisions of the Agreement so far as they are capable of being
performed or observed and all representations and warranties herein contained
shall continue in full force and effect notwithstanding Completion except in
respect of those matters then already performed.
26.4 The Agreement shall remain in full force and effect in so far as
unimplemented notwithstanding Completion.
27. COSTS
Subject to any express provisions in the Agreement to the contrary,
each Party shall bear its own costs and expenses incurred by it in
connection with the Agreement and the transactions contemplated
hereby.
28. ANNOUNCEMENTS
28.1 Subject to sub-clause 28.2, no announcement concerning the subject matter
of the Agreement or any ancillary matter shall be made by either party without
the prior written approval of the other, such approval not to be unreasonably
withheld or delayed.
28.2 Either party may make an announcement concerning the subject matter of the
Agreement or any ancillary matter if required by:
28.2.1 the law of any relevant jurisdiction; or
28.2.2 any securities exchange or regulatory or governmental
body to which that party is subject or submits,
wherever situated, including (without limitation) The
London Stock Exchange, whether or not the requirement
has the force of law,
in which case the party concerned shall take all such steps as may
be reasonable and practicable in the circumstances to agree the
contents of such announcement with the other party before making
such announcement provided that, in any event, any such
announcement shall be made only after notice to the other party.
29. CONFIDENTIALITY
29.1 Subject to sub-clause 29.2, each party shall treat as strictly confidential
all information received or obtained as a result of entering into or performing
the Agreement which relates to:
29.1.1 the provisions of the Agreement;
29.1.2 the negotiations relating to the Agreement;
29.1.3 the subject matter of the Agreement; or
29.1.4 the other party.
29.2 Either party may disclose information which would otherwise be confidential
if and to the extent:
29.2.1 required by the law of any relevant jurisdiction;
29.2.2 required by any securities exchange or regulatory or
governmental body to which either party is subject or
submits, wherever situated, including (without
limitation) The London Stock Exchange, whether or not
the requirement for information has the force of law;
29.2.3 required to vest the full benefit of the Agreement in
either party;
29.2.4 that such information is only disclosed to the profes-
sional advisers, auditors and bankers of each party;
29.2.5 the information has come into the public domain through
no fault of that party; or
29.2.6 the other party has given its prior written approval to
the disclosure, such approval not to be unreasonably
withheld or delayed,
provided that any such information disclosed pursuant to
sub-clauses 29.2.1 to 29.2.2 shall be disclosed only after notice
to the other party, provided that nothing in this Agreement shall
preclude the Purchaser from giving notice to the Reversioner (as
defined in Schedule 7) in accordance with the requirements of the
Leases following Completion.
30. FURTHER ASSURANCE
30.1 Following the Completion Date, the Vendor shall, from time to time
immediately upon request from the Purchaser, at the Vendor's expense, do or
procure the doing of all acts and/or execute or procure the execution of all
such documents in a form satisfactory to the Purchaser to give the Purchaser
full legal and beneficial title to the Assets.
30.2 Each party agrees to execute and deliver to the other or do as appropriate
all such other documents, assurances and acts as may be reasonably necessary to
fulfil the provisions of the Agreement or to carry into effect the intentions of
the parties as expressed herein.
31. LAW AND JURISDICTION
31.1 This Agreement, save for the Scottish Leasehold Schedule and the N.I.
Leasehold Schedule (and any documents entered into pursuant to either of those
Schedules), is governed by and shall be construed in accordance with English law
and the parties hereby irrevocably submit to the exclusive jurisdiction of the
English Courts in respect of any dispute arising herefrom or any other
contractual relationship between the parties hereto (save to the extent that any
such disputes relate to the Scottish Leasehold Schedule or the Scottish Leases
or the N.I. Leasehold Schedule or the N.I. Lease).
31.2 This Agreement and such documents, to the extent that they relate to the
Scottish Leasehold Schedule or the Scottish Leases, shall be governed by and
construed in accordance with Scots law and the Courts of Scotland shall have
exclusive jurisdiction in relation to disputes arising therefrom.
31.3 This Agreement and such documents, to the extent that they relate to the
N.I. Leasehold Schedule or the N.I. Lease, shall be governed by and construed in
accordance with the laws of Northern Ireland and the Courts of Northern Ireland
shall have exclusive jurisdiction in relation to disputes arising therefrom.
32. NOTICES
32.1 Any notice or other communication given or made under or in connection with
the matters contemplated by the Agreement shall be in writing (other than
writing on the screen of a visual display unit or other similar device which
shall not be treated as writing for the purposes of this Clause).
32.2 Any such notice or other communication shall be addressed as provided in
sub-Clause 32.3 and, if so addressed, shall be deemed to have been duly given or
made as follows:
32.2.1 if sent by personal delivery, upon delivery at the
address of the relevant party;
32.2.2 if sent by first class post, when received;
32.2.3 if sent by telex, when despatched but only if the
recipient's answerback appears correctly at the start
and end of the sender's telex; and
32.2.4 if sent by facsimile, when despatched (provided that
it is received between the hours of 9 a.m. to 5 p.m. on
a Business Day otherwise it will be deemed received by
10 a.m. on the next following Business Day)
provided that if, in accordance with the above provisions, any such
notice or other communication would otherwise be deemed to be given
or made outside working hours, such notice or other communication
shall be deemed to be given or made at the start of working hours
on the next Business Day.
32.3 The relevant addressee, address and facsimile number of each party for the
purposes of the Agreement, subject to sub-Clause 32.4 are:
Name of Party Addr Facsimile No.
The Vendor: .................... c/o GATX Terminals Corporation 0013126216647
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000, XXX
For the attention of:
X.X. Xxxxxxx .................... As above As above
Legal Department
And
Copied to:
Xxxxxxxx Xxxxx ................. 190 Strand 0171 379 6854
Xxxxxxxx Xxxxxx ................ Xxxxxx XX0X 0XX
The Purchaser, KANEB or STOP: .. Kaneb Pipe Line Company 0019726991894
For the attention of: ........... 2435 N Central Expressway
Xxxxxx X Xxxxxxx ................ Suite 700
Kaneb Pipe Line Company ......... Xxxxxxxxxx, Xxxxx 00000-0000
Copied to: ...................... Ashurst Xxxxxx Xxxxx 0171 972 7990
Xxxxx Xxxxxxx ................... Broadwalk House
Ashurst Xxxxxx Xxxxx ............ 0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Copied to: ..................... Support Terminals Operating 001 972 931 6526
Xxxx X. Xxxxxxx ................ Partnership, L.P.
Support Terminals Operating 00000 Xxxxxxx Xxxx
Partnership, L.P................ Xxxxx 0000
Xxxxxx, Xxxxx 00000
GTC: ........................... 000 Xxxx Xxxxxx Xxxxxx 001 312 621 6647
Xxxxxxx, Xxxxxxxx 00000, XXX
for the attention of:
Xxxxxxx X. Xxxxxxxxxxx
President
Copied to: X X Xxxxxxx
Legal Department
Copied to:
Xxxxxxxx Xxxxx 190 Strand 0171 379 6854
Xxxxxxxx Xxxxxx ................... Xxxxxx XX0X 0XX
32.4 Either party may notify the other party to the Agreement of a change to its
name, relevant addressee, address, telex number or facsimile number for the
purposes of sub-Clause 32.3 provided that such notification shall only be
effective on:
32.4.1 the date specified in the notification as the date
on which the change is to take place; or
32.4.2 if no date is specified or the date specified is less
than the five clear business days after the date on
which notice is given, the date falling five clear
business days after notice of any such change has been
given.
33. VARIATIONS
This Agreement may not be released, discharged, supplemented,
amended, varied or modified except by an instrument in writing
signed by a duly authorised representative of each of the parties
hereto.
34. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
the different parties in different counterparts each of which when
executed and delivered is an original. Any party may enter into
this Agreement by executing a counterpart and this Agreement shall
not take effect until it has been executed by all the parties but
all such counterparts shall be deemed to constitute one and the
same instrument.
AS WITNESS the hands of the parties or their duly authorised representatives the
day and year first before written.
Executed and delivered as a deed )
by GATX TERMINALS LIMITED )
pursuant to a resolution of the )
Board of Directors )
acting by )
X. X. XXXXXX Director
X. XXXXXX Director/Secretary
Executed and delivered as a deed )
by ST SERVICES LTD. )
pursuant to a resolution of the )
Board of Directors )
acting by )
XX XXXXXXX Director
XXXXXX XXXXXXXX Director/Secretary
Executed and delivered as a deed )
by ST EASTHAM LTD. )
pursuant to a Resolution of the )
Board of Directors )
acting by )
XX XXXXXXX Director
XXXXXX XXXXXXXX Director/Secretary
Executed and delivered as a deed )
by GATX TERMINALS CORPORATION )
pursuant to a resolution of the )
Board of Directors )
acting by )
XXXXXXX X. XXXXXXXXX Vice President
XXXXXX XXXXXXXXX Assistant Secretary
Executed and delivered as a deed )
by KANEB PIPE LINE PARTNERS L.P. )
pursuant to a resolution of the )
Board of Directors of Kaneb Pipe Line )
Company as the General Partner )
acting by )
XXXXXX XXXXXXXX Xx. Vice President
XXXXXXX XXXXXX Assistant Secretary
Executed and delivered as a deed )
by SUPPORT TERMINALS )
OPERATING PARTNERSHIP, L.P. )
pursuant to a resolution of the )
Board of Directors of Support Terminal )
Services Inc. as the General Partner )
acting by )
XXXXXX XXXXXXXX Xx. Vice President
XXXXXXX XXXXXX Assistant Secretary
