EXHIBIT 2.3
TERMINAL PURCHASE AND SALES AGREEMENT
BETWEEN
EXXONMOBIL OIL CORPORATION,
SELLER
AND
BUCKEYE TERMINALS, LLC,
BUYER
--------------
BUFFALO, NEW YORK TERMINAL
JANUARY 21, 2005
ARTICLE I DEFINITIONS.............................................................................................1
ARTICLE II TERMINAL..............................................................................................12
2.1 TERMINAL..................................................................................................12
2.2 EXCLUSIONS................................................................................................13
2.3 DISCLAIMER................................................................................................14
2.4 INVENTORIES...............................................................................................15
ARTICLE III PURCHASE PRICE.......................................................................................18
3.1 PURCHASE PRICE............................................................................................18
3.2 PAYMENT OF PURCHASE PRICE.................................................................................18
3.3 ALLOCATION OF PURCHASE PRICE..............................................................................18
3.4 LIKE-KIND EXCHANGE........................................................................................18
3.5 RIGHT OF FIRST REFUSAL....................................................................................19
ARTICLE IV THE CLOSING...........................................................................................20
4.1 TIME AND PLACE; ESCROW AGENT..............................................................................20
4.2 SELLER'S DELIVERIES.......................................................................................21
4.3 BUYER'S DELIVERIES........................................................................................22
4.4 AGREEMENTS................................................................................................23
4.5 EFFECTIVENESS OF AGREEMENTS...............................................................................23
ARTICLE V REPRESENTATIONS AND WARRANTIES OF SELLER...............................................................23
5.1 ORGANIZATION..............................................................................................23
5.2 DUE AUTHORIZATION.........................................................................................23
5.3 NO VIOLATION..............................................................................................24
5.4 TITLE TO PROPERTIES.......................................................................................24
5.5 LITIGATION................................................................................................25
5.6 CONDEMNATION AND ZONING...................................................................................25
5.7 PERMITS...................................................................................................25
5.8 CONDITION OF TERMINAL.....................................................................................26
5.9 MATERIAL CONTRACTS........................................................................................26
5.10 COMPLIANCE WITH LAWS.....................................................................................26
5.11 CONSENTS.................................................................................................26
5.12 TAXES....................................................................................................26
5.13 FOREIGN PERSON...........................................................................................27
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF BUYER...............................................................27
6.1 ORGANIZATION..............................................................................................27
-i-
6.2 DUE AUTHORIZATION.........................................................................................27
6.3 NO VIOLATION..............................................................................................28
ARTICLE VII ENVIRONMENTAL........................................................................................28
7.1 FEASIBILITY STUDY PERIOD..................................................................................28
7.2 BASELINE CONDITION........................................................................................28
7.3 DURATION OF SELLER'S REMEDIATION OBLIGATIONS..............................................................29
7.4 REMEDIATION OF BASELINE CONDITION.........................................................................30
7.5 RELEASE FROM REMEDIATION OBLIGATIONS ASSOCIATED WITH THE BASELINE CONDITION; EFFECT OF CLOSURE DATE.......34
7.6 SELLER'S LIMITED ENVIRONMENTAL OBLIGATIONS................................................................35
7.7 BUYER'S RELEASE OF SELLER FOR ENVIRONMENTAL LIABILITIES...................................................35
7.8 SELLER'S ENVIRONMENTAL INDEMNITIES........................................................................35
7.9 BUYER'S ENVIRONMENTAL INDEMNITIES.........................................................................39
7.10 POST-CLOSING CONTAMINATION...............................................................................41
7.11 OTHER ENVIRONMENTAL ISSUES...............................................................................45
7.12 ARBITRATION PROCEDURES...................................................................................50
7.13 ENVIRONMENTAL NOTICES....................................................................................51
ARTICLE VIII CONDITIONS PRECEDENT TO CLOSING.....................................................................53
8.1 OBLIGATION OF BUYER TO CLOSE..............................................................................53
8.2 OBLIGATION OF SELLER TO CLOSE.............................................................................54
ARTICLE IX INDEMNIFICATION.......................................................................................56
9.1 DEFINITIONS...............................................................................................56
9.2 INDEMNIFICATION BY SELLER.................................................................................56
9.3 INDEMNIFICATION BY BUYER..................................................................................57
9.4 CONFLICT..................................................................................................57
9.5 PROCEDURES................................................................................................58
ARTICLE X SURVIVAL...............................................................................................59
10.1 REPRESENTATIONS AND WARRANTIES...........................................................................59
10.2 COVENANTS................................................................................................59
ARTICLE XI TITLE COMMITMENT; SURVEY; RISK OF LOSS................................................................60
11.1 TITLE INSURANCE..........................................................................................60
11.2 SURVEY...................................................................................................60
11.3 TITLE OBJECTIONS.........................................................................................60
11.4 RISK OF LOSS.............................................................................................61
-ii-
ARTICLE XII FURTHER ASSURANCE....................................................................................62
ARTICLE XIII COSTS AND EXPENSES..................................................................................62
13.1 BROKERAGE COMMISSIONS....................................................................................62
13.2 CLOSING ADJUSTMENTS......................................................................................62
13.3 TIMING OF ADJUSTMENTS....................................................................................64
ARTICLE XIV CASUALTY AND CONDEMNATION............................................................................64
14.1 NOTICE OF FIRE CASUALTY OR CONDEMNATION..................................................................64
14.2 BUYERS ELECTION..........................................................................................65
14.3 EXCLUSIVE REMEDY.........................................................................................65
ARTICLE XV GENERAL; ADDITIONAL COVENANTS.........................................................................65
15.1 TERMINATION..............................................................................................65
15.2 SPECIFIC PERFORMANCE.....................................................................................66
15.3 ENTIRE AGREEMENT.........................................................................................66
15.4 HEADINGS.................................................................................................66
15.5 NOTICES..................................................................................................66
15.6 EXHIBITS AND SCHEDULES...................................................................................67
15.7 SEVERABILITY.............................................................................................67
15.8 WAIVER...................................................................................................68
15.9 ASSIGNMENT...............................................................................................68
15.10 PARTIES IN INTEREST; NO THIRD PARTY BENEFICIARY.........................................................68
15.11 GOVERNING LAW...........................................................................................68
15.12 CHOICE OF FORUM.........................................................................................68
15.13 WAIVER OF JURY TRIAL....................................................................................69
15.14 COMMERCIALLY REASONABLE EFFORTS: TIME OF ESSENCE........................................................69
15.15 AMENDMENTS..............................................................................................69
15.16 COUNTERPARTS............................................................................................69
15.17 PUBLIC ANNOUNCEMENTS....................................................................................69
15.18 TRANSITION ASSISTANCE...................................................................................70
15.19 TAXES...................................................................................................70
15.20 CONFIDENTIALITY.........................................................................................70
15.21 NO PRESUMPTION AGAINST DRAFTER..........................................................................71
-iii-
EXHIBITS AND SCHEDULES
Exhibit A Real Property
Exhibit B Improvements
Exhibit C List of Items Excluded From Personal Property
Exhibit D Books and Records
Exhibit E Material Contracts
Exhibit F Permits
Exhibit G Improvements, Equipment and Goods Located at Terminal and
Not Owned by Seller
Exhibit H Form of Special Warranty Deed
Exhibit I Form of Xxxx of Sale for Improvements and Personal Property
Exhibit J Form of Indemnity Letter to Title Company
Exhibit K Form of Seller's FIRPTA Certification
Exhibit L Form of Parent Guaranty
Exhibit M Intentionally Left Blank
Exhibit N Form of Assignment and Assumption of Permits and Contracts
Exhibit O Form of Throughput Agreement
Exhibit P Form of Fleet Lease Agreement
Exhibit Q Form of Joint Letter Transferring Responsibility for
Remediation Activities
Exhibit R Environmental Permits
Exhibit S Form of Release
Exhibit T Revenue-Generating Contracts
Schedule 3.3 Allocation of Purchase Price
Schedule 4.4(d) Fleet Requirements
Schedule 5.4 Exceptions to Title
Schedule 5.5 Litigation
Schedule 5.10 Compliance With Laws
Schedule 5.11 Required Consents
Schedule 7.2 Environmental Documents
-i-
TERMINAL PURCHASE AND SALES AGREEMENT
This
Terminal Purchase and Sales Agreement ("Agreement") is made as of
this 21st day of January, 2005 ("Effective Date"), by and between EXXONMOBIL OIL
CORPORATION, a
New York corporation ("Seller"), and BUCKEYE TERMINALS, LLC, a
Delaware limited liability company ("Buyer"). In this Agreement, Buyer and
Seller are sometimes individually referred to as a "Party" and collectively as
the "Parties."
PREMISES
WHEREAS, Seller owns an active petroleum products terminal in Buffalo,
New York, which Seller desires to sell and Buyer desires to purchase and operate
as a petroleum products storage and handling terminal.
NOW, THEREFORE, in consideration of the Premises and of the mutual
covenants contained in this Agreement, Seller and Buyer hereby agree as follows:
ARTICLE I
DEFINITIONS
The following terms shall have the meanings set forth below for all purposes of
this Agreement:
1.1 "Affiliate" means, with respect to a Party, any individual or
legal business entity that, directly or indirectly, controls,
is controlled by, or is under common control with, such Party.
The term "control" (including the terms "controlled by" and
"under common control with") as used in the preceding sentence
means the possession, directly or indirectly, of the power to
direct or cause the direction of management and policies.
-1-
1.2 "Authorized Representative" means any employee, agent,
representative, consultant, contractor, or subcontractor.
1.3 "Baseline Condition" of the Terminal has the meaning specified
in Section 7.2.
1.4 "Books and Records" has the meaning specified in Section
2.1(e).
1.5 "Bottoms" has the meaning specified in Section 2.4(a).
1.6 "BS&W" means bottom sediment and water.
1.7 "Buyer" means Buckeye Terminals, LLC, a Delaware limited
liability company.
1.8 "Casualty" has the meaning specified in Section 14.1(a).
1.9 "CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. ss.9601 et seq.).
1.10 "Closing" has the meaning specified in Section 4.1.
1.11 "Closing Date" has the meaning specified in Section 4.1.
1.12 "Closure Date" has the meaning specified in Section 7.3(a).
1.13 "Code" means the Internal Revenue Code of 1986, as amended.
1.14 "Condemnation" has the meaning specified in Section 14.1(b).
1.15 "Consultant" has the meaning specified in Section 7.10(c).
1.16 "Covered Environmental Condition" means an Environmental
Condition that (i) was caused by Seller's operations at the
Terminal prior to the Closing Date, (ii) is shown in the
Environmental Documents, and (iii) is required to be
remediated by an appropriate Governmental Authority under
applicable Environmental Laws in effect at the time of such
requirement.
1.17 "Damages" means any and all obligations, liabilities, damages
(including, without limitation, physical damage to real or
personal property or natural resources), fines, liens,
penalties, deficiencies, losses, judgments,
-2-
settlements, personal injuries (including, without limitation,
injuries or death arising from exposure to Regulated
Substances), costs and expenses (including, without
limitation, Environmental Costs, accountants' fees, attorneys'
fees, fees of engineers, health, safety, environmental and
other outside consultants and investigators, and reasonable
court costs, appellate costs, and bonding fees), whether based
in tort, contract or any local, state or federal law, common
law, statute, ordinance or regulation, whether legal or
equitable, past, present or future, ascertained or
unascertained, known or unknown, suspected or unsuspected,
absolute or contingent, liquidated or unliquidated, xxxxxx or
inchoate or otherwise.
1.18 "Defaulting Party" has the meaning specified in Section 15.1.
1.19 "Early Termination Event" has the meaning specified in Section
7.3(b).
1.20 "Effective Date" has the meaning specified in the preamble of
this Agreement.
1.21 "Environmental Condition" means the existence of Regulated
Substances in or on the soil, surface water, groundwater at,
on or under the Terminal, or migrating from the Terminal to a
contiguous property or properties to the extent the levels of
any such Regulated Substances exceed naturally occurring
background levels in such areas.
1.22 "Environmental Costs" means those costs and expenses that are
actual out-of-pocket costs or expenses (including, but not
limited to, reasonable and appropriate fees and disbursements
for outside attorneys, engineers, health, safety,
environmental and other outside consultants and investigators)
incurred with respect to or as a result of any of the
following: (i) Third Party Environmental Claim; (ii)
Governmental Environmental Enforcement Action; or (iii)
Remediation Activities; provided, however, Environmental Costs
shall not include costs or expenses for services by
-3-
Buyer's or Seller's or their respective Affiliates' employees.
With respect to Remediation Activities, Environmental Costs
shall include, but not be limited to, (a) those expenditures
reasonably necessary to implement the Remediation Activities,
and (b) any fees paid to any Governmental Authority having
jurisdiction and oversight responsibility over the Remediation
Activities pursuant to applicable Environmental Law as in
effect at the time of the Remediation Activities and reflected
in a written invoice by such a Governmental Authority
therefor. For purposes of this Agreement, Environmental Costs
shall be incurred when the relevant services are performed as
to Remediation Activities or claims asserted as to
Governmental Environmental Enforcement Actions and Third Party
Environmental Claims.
1.23 "Environmental Documents" means those documents that are in
Seller's possession and that are, (1) to the best of Seller's
Knowledge, material with respect to Environmental Conditions
at the Terminal and (2) listed on Schedule 7.2.
1.24 "Environmental Law" or "Environmental Laws" means any and all
applicable common law, statutes and regulations, of the United
States, the State of
New York, and local and county areas
concerning the environment, preservation or reclamation of
natural resources, natural resource damages, human health and
safety, prevention or control of spills or pollution, or to
the management (including, without limitation, generation,
treatment, storage, transportation, arrangement for transport,
disposal, arrangement for disposal, or other handling),
Release or threatened Release of Regulated Substances,
including without limitation, CERCLA, the Hazardous Material
Transportation Authorization Act of 1994 (49 U.S.C.ss.5101 et
seq.), the Solid Waste Disposal Act (42 U.S.C.
-4-
ss.6901 et seq.) (including the Resource Conservation and
Recovery Act of 1976, as amended), the Clean Water Act (33
U.S.C.ss.1251 et seq.), the Oil Pollution Act of 1990 (33
U.S.C.ss.2701 et seq.), the Clean Air Act (42 U.S.C.ss.7401 et
seq.), the Toxic Substances Control Act (15 U.S.C.ss.2601 et
seq.), the Safe Drinking Water Act (42 U.S.C.ss.300(f) et
seq.), the Emergency Planning and Right-To-Know Act of 1986
(42 U.S.C.ss.11101 et seq.), the Endangered Species Act of
1973 (16 U.S.C.ss.1531 et seq.), the Lead-Based Paint Exposure
Reduction Act (15 U.S.C.ss.2681 et seq.), and the National
Environmental Policy Act of 1969 (42 U.S.C.ss.4321 et seq.),
and all State of
New York county and local laws of a similar
nature to federal law, and the rules and regulations
promulgated thereunder, each as amended and, unless otherwise
provided in this Agreement, in effect as of the Closing Date.
1.25 "Environmental Liabilities" means any Damages or Proceedings
(whether incurred, existing or first occurring on, before or
after the Closing Date) relating to or arising out of
ownership or operation of the Terminal (whether on, before or
after the Closing Date) pursuant to any applicable
Environmental Laws as in effect at any time, including without
limitation: (i) any Third Party Environmental Claim; (ii) any
Governmental Environmental Enforcement Action; or (iii) any
Remediation Activities.
1.26 "Environmental Permits" shall mean those permits,
authorizations, approvals, registrations, certificates,
orders, waivers, variances or other approvals and licenses
issued by or required to be filed with any Governmental
Authority under any applicable Environmental Law that are in
the name of Seller, related solely to the Terminal, and shown
on Exhibit R.
1.27 "Excluded Work" has the meaning specified in Section 7.9(i).
-5-
1.28 "Feasibility Study Period" has the meaning specified in
Section 7.1.
1.29 "Governmental Authority" or "Governmental Authorities" means
any federal, state or local governmental authority,
administrative agency, regulatory body, board, commission,
judicial body or other body having jurisdiction over the
matter.
1.30 "Governmental Environmental Enforcement Action" means any
order, settlement agreement, consent decree, directive, notice
of violation, notice of enforcement, letter of notice, notice
of noncompliance, corrective action, or similar type of legal
requirement or instrument that is issued by, entered into
with, or otherwise required by a Governmental Authority with
respect to an actual or alleged noncompliance under applicable
Environmental Laws.
1.31 "Improvements" has the meaning specified in Section 2.1(b).
1.32 "Incremental Costs" has the meaning specified in Section
7.10(a)(i).
1.33 "Indemnitee" has the meaning specified in Section 9.5(a).
1.34 "Indemnitor" has the meaning specified in Section 9.5(a).
1.35 "Linefill" has the meaning specified in Section 2.4(a).
1.36 "Material Contracts" means all material contracts to which
Seller or one of its Affiliates is a party relating solely to
the Terminal, which contracts are described in Exhibit E. The
term "Material Contracts" does not include any Revenue
Generating Contracts.
1.37 "MPLCO" means Mobil Pipe Line Company, a Delaware corporation.
1.38 "Non-Defaulting Party" has the meaning specified in Section
15.1.
1.39 "Off-Site" means those areas contiguous to the Real Property
to be conveyed under this Agreement and not considered
On-Site.
1.40 "Off-Site Disposal Activities" means any off-site
transportation, storage, disposal, or treatment, or any
arrangement for off-site transportation,
-6-
storage, disposal, or treatment of any Regulated Substance;
provided however, that the term "Off-Site Disposal Activities"
shall not include (i) the Off-Site portion of an Environmental
Condition that has migrated from the Terminal, (ii)
Environmental Conditions on Off-Site contiguous property under
terminal dock lines and dock facilities, if any, and (iii)
Environmental Conditions of waterways extending beyond the
Terminal's shoreline, if any.
1.41 "Off-Site Remediation Activities" means any Remediation
Activities with respect to the Terminal that relate to
Off-Site Disposal Activities.
1.42 "On-Site" means the Real Property to be conveyed under this
Agreement.
1.43 "Order" means any current judgment, order, settlement
agreement, writ, injunction or decree of any Governmental
Authority having jurisdiction over the matter and still in
effect as of the Closing Date.
1.44 "Permits" has the meaning specified in Section 2.1(g).
1.45 "Permitted Title Exceptions" has the meaning specified in
Section 5.4.
1.46 "Personal Property" has the meaning specified in Section
2.1(d).
1.47 "Proceedings" means any actions, causes of action, written
demands, written claims, suits, investigations, and any
appeals therefrom.
1.48 "Products" has the meaning specified in Section 2.4(a).
1.49 "Purchase Price" has the meaning specified in Section 3.1.
1.50 "Qualified Intermediary" has the meaning specified in Section
3.4.
1.51 "Real Property" has the meaning specified in Section 2.1(a).
1.52 "Reasonable Written Notification" means written notice
provided within thirty (30) days of any notice of an alleged
claim being received from a third party in writing by the
party seeking indemnity, but in any event prior to the date
any formal response to such claim is required. Such written
notice shall describe in reasonable detail the nature of the
Damages and
-7-
Proceedings for which indemnification and defense is sought.
Notice of any Third Party Environmental Claim or Governmental
Environmental Enforcement Action shall include, at a minimum,
a copy of the notice received from the Third Party or the
Governmental Authority, respectively. Furthermore, if a Party
receives notice from a Governmental Authority relating to a
matter that may ultimately lead to a settlement agreement,
consent decree, or supplemental environmental project, then
Reasonable Written Notification shall be provided on the basis
of such first notice, and not delayed until receipt of the
ultimate settlement agreement, consent decree or supplemental
environmental project.
1.53 "Regulated Substance" means any (a) chemical, substance,
material, or waste that is designated, classified, or
regulated as "industrial waste," "hazardous waste," "hazardous
material," "hazardous substance," "toxic substance," or words
of similar import, under any applicable Environmental Law; (b)
petroleum, petroleum hydrocarbons, petroleum products,
petroleum substances, crude oil, and components, fractions,
derivatives, or by-products thereof; (c) asbestos or
asbestos-containing material (regardless of whether in a
friable or non-friable condition), or polychlorinated
biphenyls; and (d) substance that, whether by its nature or
its use, is subject to regulation under any applicable
Environmental Law in effect at that time or for which a
Governmental Authority requires Remediation Activities with
respect to the Terminal.
1.54 "Release" shall have the meaning specified in CERCLA;
provided, however, that, to the extent the Environmental Laws
in effect at any time after the Closing Date establish a
meaning for "Release" that is broader than that specified in
CERCLA, such broader meaning shall apply to any "Release"
occurring after Closing.
-8-
1.55 "Related Purchase Agreement" means any of the following
agreements: (i) the
Terminal Purchase and Sales Agreement
between Seller and Buyer of even date herewith for the
petroleum products terminals located in Malvern, Pennsylvania,
Binghamton,
New York and Rochester,
New York, and (ii) the
Purchase and Sale Agreement between MPLCO and Buckeye Pipe
Line Transportation LLC of even date herewith for the
Paulsboro pipeline system, the petroleum products terminal in
Syracuse,
New York and other related assets.
1.56 "Remediation Activities" means any investigation, study,
assessment, testing, monitoring, containment, removal,
disposal, closure, corrective action, remediation (regardless
of whether active or passive), natural attenuation,
bioremediation, response, cleanup or abatement, whether
On-Site or Off-Site, of a Covered Environmental Condition to
standards required by applicable Environmental Laws in effect
at such time or as required by an appropriate Governmental
Authority for property used for continued bulk petroleum
storage and distribution.
It is expressly understood, however, that taking no action
other than monitoring and sampling may constitute Remediation
Activities if, after investigation, taking no action other
than monitoring and sampling is determined to be consistent
with or allowed under applicable Environmental Laws in effect
at that time. If taking no action other than monitoring and
sampling is not consistent with or allowed under applicable
Environmental Laws in effect at that time, the alternative to
taking no action other than monitoring and sampling, such as
(i) a risk-based closure that may or may not require
institutional controls including, without limitation,
structure and land use restrictions, well restrictions,
declarations of environmental restriction or other forms of
deed notice regarding the
-9-
presence of contamination, and establishment of groundwater
classification exception areas, or (ii) the installation of
engineering controls to contain or stabilize Regulated
Substances including, without limitation, caps, covers, dikes,
trenches, leachate collection systems, signs, fences and
access controls may constitute Remediation Activities,
provided that any such alternative is consistent with or
otherwise allowed under applicable Environmental Laws in
effect at the time of performance.
1.57 "Remediation Costs" means all costs incurred in the
implementation of Remediation Activities including, but not
limited to: capital, operating and maintenance costs; the cost
of professional services allocable to the Covered
Environmental Condition in connection with any remedy
selection, design, investigation or monitoring of a Covered
Environmental Condition; any installation, operation,
monitoring and maintenance of monitoring xxxxx, recovery xxxxx
and/or systems; injection xxxxx and/or systems; assessment,
investigation, remediation or treatment equipment or any
response, cleanup remediation or removal required because of
the presence of a Covered Environmental Condition, together
with all response costs, oversight costs, fines, penalties and
assessments levied in accordance with Environmental Laws.
1.58 "Revenue Generating Contracts" means all contracts to which
Seller or one of its Affiliates is a party relating to any of
the Terminals and pursuant to which Seller generates income or
revenue from a third party, including, without limitation,
terminaling or throughput agreements and exchange agreements,
more particularly described in Exhibit T.
1.59 "Seller" means ExxonMobil Oil Corporation, a
New York
corporation.
1.60 "Seller's Estimated Future Remediation Costs" has the meaning
specified in Section 7.10(a)(ii).
-10-
1.61 "Seller's Knowledge" means the knowledge of Seller's current
supervisory employees who, in the normal scope of their
employment would have knowledge of the matter.
1.62 "Sunset Date" has the meaning specified in Section 7.5.
1.63 "Survey" means an ALTA land title survey.
1.64 "Taxes" means all taxes and similar governmental charges,
imposts, levies, fees and assessments, however denominated,
including interest, penalties or additions to any such tax
that may become payable with respect thereto, whether disputed
or not.
1.65 "Terminal" has the meaning specified in Section 2.1.
1.66 "Terminal Inventory" has the meaning specified in Section
2.4(a).
1.67 "Third Party" means any individual or legal business entity
other than: (i) a Party; (ii) a Party's Affiliates; (iii) a
Party's Authorized Representatives; (iv) employees, officers,
directors, agents and representatives and all successors of a
Party and its Affiliates; and, (v) a Party's permitted
assigns.
1.68 "Third Party Environmental Claim" means a Proceeding by any
Third Party alleging Damages relating to or arising out of
exposure to, or Off-Site migration of, a Regulated Substance
(including, without limitation, Damages for Proceedings
arising under applicable Environmental Laws in connection with
a Covered Environmental Condition and Damages for Remediation
Activities undertaken by a Third Party at its property).
Notwithstanding anything to the contrary in this Agreement, to
the extent that Remediation Activities are required by
Governmental Entities as a result of a Third Party
Environmental Claim, such Remediation Activities shall be
governed by the provisions under this Agreement dealing with
Remediation Activities.
-11-
1.69 "Title Commitment" has the meaning specified in Section 11.1.
1.70 "Title Company" means First American Title Insurance Company
or any other nationally recognized title insurance company
selected by Buyer and reasonably approved by Seller.
1.71 "Title Cure Period" has the meaning specified in Section 11.3.
1.72 "Title Objections" means any liens, encumbrances, claims or
exceptions that, in Buyer's reasonable judgement are
unacceptable.
ARTICLE II
TERMINAL
2.1 TERMINAL. On the terms and subject to the conditions of this
Agreement and for the consideration stated in this Agreement, at the Closing,
Buyer shall purchase and receive from Seller, and Seller shall sell, convey and
deliver to Buyer, free and clear of any and all liens (including, but not
limited to, federal, state and local tax liens), pledges and other encumbrances
except for Permitted Title Exceptions, all of Seller's right, title and interest
in and to the following, which taken together constitutes the "Terminal:"
(a) The real property described in Exhibit A (the "Real Property");
(b) The improvements located on the Real Property, including, but
not limited to, above-ground and underground piping, buildings, underground and
above-ground storage tanks, generic additive system, fixtures, facilities and
appurtenances described on Exhibit B (the "Improvements"), but excluding the
improvements described in Section 2.2 and in Exhibits C and G;
(c) All transferable appurtenances, rights, privileges, easements,
and licenses benefiting or pertaining to the Real Property;
-12-
(d) All supplies, spare parts, tools, drawings, plats, files,
equipment, furniture, and other property used solely in connection with the
Terminal, except for: (i) any of Seller's equipment that Seller requires to
conduct Remediation Activities after Closing, including but not limited to
monitoring xxxxx, and (ii) those items listed on Exhibit C (the "Personal
Property");
(e) The historical books and records relating to the Terminal's
operations that are specified in Exhibit D (the "Books and Records"), including,
but not limited to, manuals, and any documents on Exhibit D that are stored or
maintained in electronic storage format, such as computer disks or tapes;
(f) All Material Contracts (and all of Seller's rights and
obligations thereunder) to the extent such contracts are assignable, to the
extent assigned and assumed under the Assignment and Assumption of Permits and
Contracts to be executed by the Parties at Closing (the form of which is
attached as Exhibit N); and
(g) The Environmental Permits and all other permits, licenses,
registrations, certificates, consents, orders, notices, approvals or similar
rights from any Government Authority that are necessary to the operation or
ownership of the Terminal, as described on Exhibit F (the "Permits"), to the
extent any of the above are assignable or transferable as indicated on Exhibit
F.
2.2 EXCLUSIONS. The transactions covered by this Agreement consist only
of the sale of assets, and not the sale of a business. The Terminal excludes the
following assets:
(a) Intercompany accounts and contracts of Seller or its
Affiliates;
(b) Cash or bank accounts of Seller or its Affiliates;
(c) Defenses and claims that Seller or its Affiliates could assert
against third parties (except to the extent that such defenses and claims relate
to liabilities that Buyer is assuming);
(d) Accounts and notes receivable;
-13-
(e) Accounts payable;
(f) Trademarks, service marks, logos, insignia, imprints, brand
identifications, advertising and trade names of Seller or its Affiliates;
(g) The items listed on Exhibit C;
(h) Monitoring xxxxx and remediation equipment;
(i) The improvements, equipment or goods located at the Terminal
that are not owned by Seller, which are listed on Exhibit G;
(j) Any insurance coverage under any insurance policies that relate
to the Terminal , or any part of the Terminal, and any rights under such
insurance policies, whether such policies benefit Seller, or any Affiliate of
Seller, or any other person or entity, and whether such insurance policies are
underwritten by one or more of Seller's Affiliates, or an unaffiliated third
party. Any and all such policies that, but for the Closing, would have insured
the Terminal, or any part of the Terminal, are deemed to be terminated, commuted
and cancelled as of the moment of Closing;
(k) Any books and records other than those listed on Exhibit D;
(l) Anything else that is stated in this Agreement as remaining the
property or responsibility of Seller, its Affiliates or any third party;
(m) Any other property that is owned by Seller or its Affiliates
and not used in connection with the Terminal;
(n) Seller's liabilities, if any, under the litigation described on
Schedule 5.5; and
(o) Any labor, employment, or collective bargaining agreements
between Seller and its employees, or between an Affiliate of Seller and such
Affiliate's employees, or any employee benefit plans of Seller or its
Affiliates.
2.3 DISCLAIMER. Buyer acknowledges that it has examined the Terminal,
independently and personally. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT,
THE TERMINAL SHALL BE SOLD BY SELLER AND ACCEPTED BY
-14-
BUYER "AS IS, WHERE IS," WITH ALL FAULTS KNOWN AND UNKNOWN, WITH NO
REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONDITION, DESIGN, OPERATION,
CAPACITY OR OTHERWISE. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT, SELLER
MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT OR RELATED TO BUYER'S
INTENDED OR ACTUAL USE OF THE TERMINAL AFTER CLOSING. IN ADDITION, AND NOT BY
WAY OF LIMITATION, SELLER MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO
THE QUALITY, ACCURACY OR COMPLETENESS OF ANY OPERATING MANUALS COVERED AS PART
OF THE TERMINAL'S BOOKS AND RECORDS. BUYER'S SUBSEQUENT USE OF SUCH MANUALS WILL
BE AT BUYER'S OWN RISK AND BUYER RELEASES SELLER FROM ANY LOSS, LIABILITY, OR
DAMAGE ARISING FROM, ASSOCIATED WITH, OR RELATED TO BUYER'S USE OF SUCH MANUALS.
Within ninety (90) days after Closing, Buyer shall convert the Terminal's OPA 90
Plan, Marine Operator Manual, and SPCC Plan to its company name, and shall make
any operational changes to such plans as Buyer in its discretion deems necessary
or desirable. Seller will not be responsible for cleaning tanks or removing tank
bottoms, including water, sludge, and sediment for tanks that are in service or
idle as of the Closing Date, or prior to or after the Closing Date. At Closing,
Seller shall execute a xxxx of sale in favor of Buyer, in substantially the form
set forth on Exhibit I conveying any improvements, fixtures, equipment and
personal property included in the Terminal, which xxxx of sale shall contain
special warranties of title and the "AS IS, WHERE IS" provision contained in
this Section 2.3.
2.4 INVENTORIES.
(a) Seller shall close or cause to be closed the Terminal to all
receipts and deliveries of product at 12:00 midnight on the Closing Date.
Beginning at 12:01 a.m. on the Closing Date, the Parties, or their Authorized
Representatives, shall identify,
-15-
calculate or measure all contents located (i) in above-ground Terminal storage
tanks, and (ii) in the Terminal linefill, all of which contents are hereinafter
called the "Terminal Inventory." The calculation of the Terminal Inventory shall
be recorded using the following categories of items: (A) all volumes of BS&W as
measured by hand gauge lines; (B) as measured by hand gauge lines, all volumes
of petroleum products in above-ground storage tanks minus those products
calculated as Bottoms in accordance with subsection 2.4(a)(C) ("Products"); (C)
as determined by minimum tank operating levels established by the Terminal using
certified tank strapping charts, all volumes of products below one of the
following two points, whichever is physically higher ("Bottoms"): (i) that point
where loading rack or critical transfer pumps lose suction, or (ii) if so
equipped, that point of the tank where the support legs, at low setting, of an
internal floating pan are just clear of striking the tank bottom; (D) all
volumes of products in pipelines and other piping at the Terminal ("Linefill");
and (e) all volumes of generic additives. The volumes of petroleum products
measured shall be adjusted to 60 degrees Fahrenheit and, as indicated by the
separate measurement of BS&W, shall exclude any water. Buyer, or Buyer's
Authorized Representatives, shall have the right to observe and agree to the
identification, calculation and measurement of the Terminal Inventory.
(b) At Closing, Seller shall transfer or cause to be transferred
custody of the Products and Bottoms to Buyer and shall transfer or cause to be
transferred title to and custody of the Terminal's BS&W, Linefill and generic
additive to Buyer.
(c) At Closing, title to all Products and Bottoms shall remain with
Seller, its Affiliates or a Third Party or Parties identified by Seller.
(d) At Closing, Seller shall apportion the Product and Bottoms
among Seller, its Affiliates and the Third Parties which carry inventory at the
Terminal. The amounts of Products and Bottoms so apportioned to any party shall
be carried as such party's opening balance of Products under the Throughput
Agreement (for Seller's
-16-
Products), dated as of the Closing Date, the form of which is attached as
Exhibit O to this Agreement, or such other agreement as Buyer may determine, in
the case of any Third Party. Seller shall indemnify, discharge and hold Buyer
harmless from any claim by any such Third Party that it has an inventory balance
in excess of the amount of Product apportioned to that Third Party, or any claim
by any other person that such person has title to any Product at the Terminal as
of the Closing.
(e) At Closing, in addition to the Purchase Price, Buyer shall
purchase from Seller:
(i) the Linefill for a price based on the monthly average (for
the calendar month preceding the month of the Closing
Date, excluding weekends and holidays) as reported in
Platts Oilgram Price Report for Xxxxx'x
New York Harbor
Spot Barge Mid for the applicable product grade, plus the
value related to the following items:
o Sun/Atlantic Pipe Line tariff from Pt. Breeze, PA to
terminal destination ;
o Line loss allowance of 4.62 cents per barrel; and
o New York State Spill Tax;
and Seller shall transfer or cause to be transferred
custody thereof and title thereto to Buyer.
(ii) all volumes of generic additive owned by Seller as of the
Closing for a price of $4.80 per gallon and Seller shall
transfer or cause to be transferred custody thereof and
title thereto to Buyer.
Within two business days after Closing, Seller shall invoice Buyer for the
Linefill and generic additive as determined by the pricing formula set forth in
this Section 2.4(e). Buyer shall pay such invoice within ten (10) business days
after receiving such invoice.
(f) At Closing, title to any party's proprietary additives, if any,
shall remain with such party, although custody thereof will transfer to Buyer at
Closing.
-17-
ARTICLE III
PURCHASE PRICE
3.1 PURCHASE PRICE. The total monetary consideration to be paid by
Buyer to Seller for the Terminal shall be Three Million Two Hundred Three
Thousand U.S. Dollars ($3,203,000) (the "Purchase Price"), plus all taxes and
fees applicable to bulk sales of petroleum products.
3.2 PAYMENT OF PURCHASE PRICE. Subject to adjustment, if any, under
Section 14.1, at Closing, Buyer shall pay to Seller the Purchase Price in U.S.
Dollars in immediately available federal funds via bank wire-transfer to a bank
account designated by Seller, which designation shall be given to Buyer in
writing at least three (3) business days prior to the Closing Date.
3.3 ALLOCATION OF PURCHASE PRICE. The Purchase Price shall be allocated
for tax accounting purposes in accordance with Schedule 3.3 attached hereto.
Buyer and Seller agree that they will not take (and will not permit any
Affiliate to take), for income tax purposes, any position inconsistent with the
allocation on Schedule 3.3.
3.4 LIKE-KIND EXCHANGE. Each Party shall accommodate the other Party,
pursuant to Section 1031 of the Code, to effect a tax-deferred exchange or
like-kind property with respect to the Terminal. To effect such an exchange,
Seller may require Buyer, among other things, to pay the Purchase Price for the
Terminal to a trust or intermediary party ("Qualified Intermediary") designated
by Seller, and Buyer may require Seller, among other things, to transfer title
to the Terminal to a Qualified Intermediary. Such election shall be made, if at
all, by notice to the other Party no later than ten (10) days after the signing
of this Agreement. The Parties agree to execute such agreements and other
documents as may be necessary to complete and otherwise effectuate a
tax-deferred exchange in respect of the Terminal, provided that
-18-
(a) neither Party's obligations hereunder will be increased; (b) such documents
shall not modify either Party's representations, warranties or obligations
hereunder; (c) the Purchase Price paid by Buyer shall not be different from that
which Buyer would have paid pursuant to Section 3.1; (d) neither Party s hall
incur any additional cost, expense or liability as a result of its cooperation
in such exchange; and (e) the Party requesting the like-kind exchange shall
indemnify and hold harmless the other Party for any additional expenses,
including, but not limited to, taxes and closing costs, and any cost or expense
(including reasonable counsel fees) that such Party may suffer, sustain or
become subject to as a result of: (i) the Purchase Price being paid to a
Qualified Intermediary rather than Seller; (ii) the Terminal title being
transferred to a Qualified Intermediary rather than to Buyer; and (iii) the
Qualified Intermediary's subsequent use of the Purchase Price or the Terminal.
3.5 RIGHT OF FIRST REFUSAL.
(a) As part of the consideration for this Agreement, Buyer grants
Seller for a period of thirty (30) years from the Closing Date the following
right of first refusal: Buyer shall not (or shall not agree to) sell, convey,
lease, grant options in respect to, or otherwise dispose of all or any part of
the Real Property or any real property that includes the Real Property without
first promptly notifying Seller in writing of all the terms and conditions of
any bona fide offer received by and acceptable to Buyer. Buyer shall submit,
with the notice to Seller, a full and accurate copy of such bona fide offer,
certified to Buyer as being complete and acceptable to Buyer. Upon Buyer giving
Seller notice, Seller has a 60-day period within which to exercise its right of
first refusal, by giving Buyer notice, to purchase, lease, or otherwise acquire
the Real Property, on the same terms and conditions as those on which Buyer is
willing to make the sale, lease or other disposition to such other party.
(b) If Seller exercises its right of first refusal, the closing
will take place at the offices of Seller's title company, 60 days following
Seller's exercise of its right of first refusal. At the closing, Buyer shall, if
a fee interest is to be conveyed, deliver to Seller a valid Special Warranty
Deed, in recordable form, and a xxxx of sale for any
-19-
personal property of Buyer, both conveying good and marketable title, free and
clear of all liens and encumbrances, except for any easements and restrictions
set forth in the Permitted Title Exceptions to the extent applicable, on payment
of the purchase price. In the case of any lease or other disposition of the Real
Property or any real property including the Real Property, Buyer shall deliver
to Seller an instrument in form and substance satisfactory to Seller and
sufficient to transfer to Seller the interest proposed to be conveyed, free and
clear of all liens and encumbrances, except for any easements and restrictions
set forth in the Permitted Title Exceptions to the extent applicable, on payment
of the purchase price. Failure by Seller to exercise this right of first refusal
on one or more occasions will not affect the right of Seller to exercise its
right of first refusal on any other occasion arising during the term of this
right of first refusal.
(c) The terms of this Section 3.5 shall survive the Closing and
will be included in the Special Warranty Deed conveying the Real Property to
Buyer, will be a covenant running with the land and will bind the successors and
assigns of Buyer.
ARTICLE IV
THE CLOSING
4.1 TIME AND PLACE; ESCROW AGENT. Subject to any extensions of the
Closing Date under Section 11.3 and to satisfaction of the conditions set forth
in Article VIII, the closing of the transaction contemplated hereby (the
"Closing") shall be held at the offices of First American Title Insurance
Company of New York on or before thirty (30) days after the satisfaction or
waiver of the conditions set forth in Sections 8.1 (e), (j) and (k) and 8.2(d),
(e) and (f) (the "Closing Date"), or at such other time or place or in such
other manner, including by mail, as Seller and Buyer may mutually agree in
writing. Except as may be permitted by Section 11.3 and Article VIII of this
Agreement, if Buyer fails to close on or before the Closing Date for any reason
not permitted by this Agreement, Seller shall be entitled, in its discretion to:
(a) seek specific performance of this Agreement, or (b) terminate this Agreement
and except as set forth in Section 15.1,
-20-
neither Party will have any further right or obligation under this Agreement. In
the event the conditions set forth in Sections 8.1 (e), (j) and (k) and 8.2 (d),
(e) and (f) have not been satisfied or waived and Closing has not occurred by
June 30, 2005, then either Party may terminate this Agreement upon ten (10)
days' written notice to the other Party. The Parties reserve the right to close
through an escrow agent, mutually acceptable to both Parties. The costs of the
escrow agent, if any, will be shared equally by both Parties.
4.2 SELLER'S DELIVERIES. At the Closing, Seller shall deliver to Buyer
the following:
(a) Special Warranty Deed, or other document of title as may be
required under applicable law, for the Real Property, in the form attached as
Exhibit H, executed and acknowledged by Seller;
(b) Xxxx of Sale for the Improvements and the Personal Property, in
the form attached as Exhibit I, executed by Seller;
(c) Possession of the Terminal;
(d) Counterparts executed by Seller of those agreements required by
the provisions of Section 4.4;
(e) Certified copies of appropriate corporate action by Seller
authorizing the transactions contemplated by this Agreement and authorizing the
person(s) executing the documents listed in this Section 4.2 and Section 4.4 to
enter into this Agreement and such other documents on behalf of Seller;
(f) A copy of the executed Indemnity Letter to the Title Company ,
in the form attached as Exhibit J, if Seller elects under Section 5.4 to deliver
such letter to the Title Company;
(g) Such affidavits and certificates as the Title Company may
reasonably require, including certificates necessary to delete standard title
insurance
-21-
exceptions and to protect Buyer against claims that may give rise to any
mechanic's, materialman's or other liens against the Real Property related to
Seller;
(h) A certificate or affidavit certifying that the representations
and warranties made by Seller in this Agreement are true and correct in all
material respects as of the Closing Date;
(i) A Non-Foreign (FIRPTA)Certification, in the form attached as
Exhibit K, executed by Seller;
(j) All consents or waivers received by Seller from Third Parties;
and
(k) Such other instruments and documents of conveyance and
transfer, in form reasonably satisfactory to Buyer and its counsel, as shall be
necessary and effective to transfer to and assign to Buyer all of Seller's
right, title and interest in and to the Terminals in accordance with Section
2.1.
4.3 BUYER'S DELIVERIES. At the Closing, Buyer shall deliver to Seller,
or effect the delivery to Seller of, the following:
(a) The Purchase Price, in accordance with Sections 3.1 and 3.2;
(b) Counterparts executed by Buyer of all those agreements required
by the provisions of Section 4.4;
(c) Certified copies of appropriate corporate action by Buyer
authorizing the transactions contemplated by this Agreement and authorizing the
person(s) executing the documents listed in this Section 4.3 and Section 4.4 to
enter into this Agreement and such other documents on behalf of Buyer;
(d) a Guaranty from Buckeye Partners, LP, in the form attached as
Exhibit L;
(e) A certificate or affidavit certifying that the representations
and warranties made by Buyer in this Agreement are true and correct in all
material respects as of the Closing Date; and
-22-
(f) Such other instruments and documents, in form reasonably
satisfactory to Seller and its counsel, as shall be necessary and effective to
transfer to and assign to Buyer all of Seller's right, title and interest in and
to the Terminal in accordance with Section 2.
4.4 AGREEMENTS. The following agreements shall be entered into between
Seller and Buyer on the Closing Date:
(a) Assignment and Assumption of Permits (Including Environmental
Permits) and Contracts in the form of Exhibit N;
(b) Throughput Agreement in the form of Exhibit O; and
(c) Fleet Lease Agreements for the Terminal granting Seller access
to and use of portions of the Terminal for Seller's fleet as described in
Schedule 4.4(d), in the form of Exhibit P.
4.5 EFFECTIVENESS OF AGREEMENTS. No agreement described in Section 4.4
shall be effective prior to Closing.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
5.1 ORGANIZATION. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of New York, is duly
authorized to do business in, and is in good standing in the state where the
Terminal is located, and has all requisite corporate power and authority to
execute, deliver and perform this Agreement and each agreement and instrument to
be executed and delivered by Seller pursuant hereto.
5.2 DUE AUTHORIZATION. The execution, delivery and performance by
Seller of this Agreement and each agreement and instrument to be executed and
delivered by
-23-
Seller pursuant hereto, and the taking by Seller of the actions
contemplated hereby and thereby, have been duly authorized by all necessary
corporate action on the part of Seller. This Agreement is, and each agreement
and instrument to be executed and delivered by Seller pursuant hereto will be,
when so executed and delivered, a valid and binding obligation of Seller
enforceable in accordance with its terms, except as such enforcement may be
limited by applicable bankruptcy, insolvency, moratorium or similar laws
affecting the rights of creditors generally and by general principles of equity.
5.3 NO VIOLATION. The execution, delivery and performance by Seller of
this Agreement and each instrument and agreement to be executed and delivered by
Seller pursuant hereto and the consummation of the transactions contemplated
hereby and thereby do not and will not (a) conflict with or violate any
provision of Seller's Articles of Incorporation or Bylaws, (b) to Seller's
Knowledge, conflict with or result in a breach or default of any agreement
(other than a Material Contract) or other instrument to which Seller is a party
or by which it is bound, the adverse consequences of which, either individually
or in the aggregate, would materially impair Buyer's ownership, use or operation
of the Terminal from and after Closing, (c) violate or breach any Order
applicable to Seller, (d) result in a breach, default, termination or
acceleration of performance of any Material Contract, or (e) result in the
imposition of an encumbrance, except for Permitted Title Exceptions, on the
Terminal under any Material Contract.
5.4 TITLE TO PROPERTIES. Except as specified in Schedule 5.4, Seller
has, and on the Closing Date will have, good, marketable and indefeasible title
to all of the Terminal. At Closing, Seller will convey the Terminal to Buyer
free and clear of all mortgages, liens (including federal, state and local tax
liens), claims, judgments, assessments, charges, pledges, security interests and
other encumbrances, subject only to the following items (collectively, the
"Permitted Title Exceptions"):
(a) Those matters specified in Schedule 5.4;
-24-
(b) Any tax, materialmen's and/or mechanic's lien against which
Seller elects to indemnify the Title Company by delivering to Title Company an
Indemnity Letter in the form of Exhibit J at Closing;
(c) Such other matters as do not interfere in any material respect
with the ownership, use, occupancy or operations of Buyer upon the Real Property
as used in the normal course on the Closing Date; and
(d) Any other matters approved in writing by Buyer.
5.5 LITIGATION. Except as set forth in Schedule 5.5, there is no suit,
action, claim, arbitration, administrative or legal or other Proceeding or
governmental investigation pending or, to Seller's Knowledge, threatened against
or related to the Terminal. Except as set forth in Schedule 5.5, there is no
Order in effect relating specifically to the Terminal.
5.6 CONDEMNATION AND ZONING. There is no condemnation or eminent
domain proceeding pending or, to Seller's Knowledge, threatened against the
Terminal by publication or other writing, nor is there any proceeding pending
or, to Seller's Knowledge, threatened by publication or other writing, which
could materially adversely affect the zoning classification of the Terminal in
effect as of the date hereof. Seller is currently in the process of subdividing
from the Terminal certain property used by Seller in connection with a service
station contiguous to the Terminal. Seller makes no representation as to the
zoning classification of such service station property or the effect the
subdivision will have on the future ability to use any portion of the Terminal
as a service station.
5.7 PERMITS. Exhibits F and R list all material Permits and
Environmental Permits in effect with respect to the Terminal on the date of this
Agreement. Except as disclosed on Exhibits F and R, to Seller's Knowledge,
neither Seller nor its Affiliates has received any notice of any claim or
default relating to the Permits or Environmental Permits. To Seller's Knowledge,
all material Permits and Environmental Permits are
-25-
valid and in full force and effect and the permit holder is in compliance in all
material respects therewith.
5.8 CONDITION OF TERMINAL. Seller has continued to maintain and operate
the Terminal in the ordinary course of its business, and will continue to do so
until Closing.
5.9 MATERIAL CONTRACTS. Seller has delivered to Buyer true and correct
copies of all Material Contracts. The Material Contracts have not been modified
except as provided in amendments delivered to Buyer. Neither Seller nor, to
Seller's Knowledge, any other party to the Material Contracts, is in breach or
default thereunder. Except as disclosed in Exhibit E, under the terms of the
Material Contracts, the Material Contracts may be assigned to and assumed by
Buyer without penalty or expense.
5.10 COMPLIANCE WITH LAWS. Except (a) to the extent, if any, disclosed
on Schedule 5.10 or in the Environmental Documents, (b) as to any matter with
respect to which Seller has agreed to be responsible for or indemnify Buyer in
Article VII, and (c) as to any matter relating to, arising out of, or resulting
in Remediation Activities at the Terminal, to Seller's Knowledge, Seller's
ownership, use and operation of the Terminal as of the Closing Date will be in
compliance in all material respects with all applicable federal, state and local
laws, rules, regulations and orders (including but not limited to, all
applicable Environmental Laws) in effect and requiring compliance as of the
Closing Date and Seller has not received notice from any Government Authority
asserting any act of non-compliance.
5.11 CONSENTS. Except as set forth on Schedule 5.11, no consent or
approval from or filing with any Third Party is required in connection with the
execution and performance by Seller of this Agreement , and there are no options
or other preferential purchase rights held by any person or entity not a party
to this Agreement to purchase or acquire any interest in the Terminal.
5.12 TAXES. Seller has paid prior to the Closing Date all Taxes due and
payable on or before the Closing Date assessed against the Terminal or Terminal
-26-
Inventory for all taxable years or taxable periods prior to the Closing Date
(including portions of taxable years or periods with respect to which Taxes are
due and payable on or before the Closing Date).
5.13 FOREIGN PERSON. Seller is not a "foreign person" as defined in
Section 1445 of the Code and the regulations promulgated thereunder. Seller's
U.S. tax identification number is 00-0000000.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
6.1 ORGANIZATION. Buyer is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware,
is duly authorized to do business in and is in good standing in the State of New
York, and has all requisite corporate power and authority to execute, deliver
and perform this Agreement and each agreement and instrument to be executed and
delivered by Buyer pursuant hereto.
6.2 DUE AUTHORIZATION. The execution, delivery and performance by
Buyer of this Agreement and each agreement and instrument to be executed and
delivered by Buyer pursuant hereto, and the taking by Buyer of the actions
contemplated hereby and thereby, have been duly authorized by all necessary
corporate action on the part of Buyer. This Agreement is, and each agreement and
instrument to be executed and delivered by Buyer pursuant hereto will be, when
so executed and delivered, a valid and binding obligation of Buyer enforceable
in accordance with its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, moratorium or similar laws affecting the
rights of creditors generally and general principles of equity.
-27-
6.3 NO VIOLATION. The execution, delivery and performance by Buyer of
this Agreement and each instrument and agreement to be executed and delivered by
Buyer pursuant hereto and the consummation of the transactions contemplated
hereby and thereby do not and will not (a) conflict with or violate any
provision of Buyer's Certificate of Formation or limited liability company
operating agreement, (b) to Buyer's knowledge, conflict with or result in a
breach or default of any agreement or other instrument to which Buyer is a party
or by which it is bound, or (c) violate or breach any Order applicable to Buyer.
ARTICLE VII
ENVIRONMENTAL
7.1 FEASIBILITY STUDY PERIOD. Prior to the date of this Agreement
Seller has made available to Buyer and its Authorized Representatives the
Environmental Documents, Orders, and Environmental Permits. Seller has provided
Buyer with timely, reasonable access to Seller's Authorized Representatives with
knowledge of any relevant facts relating to the Environmental Documents, the
Environmental Conditions, or the Remediation Activities. Seller has provided
Buyer and its Authorized Representatives access to the Real Property prior to
the signing of this document to inspect and to survey the Real Property and
conduct Buyer's due diligence investigations of the Terminal ("Feasibility Study
Period"). Seller has provided Buyer and its Authorized Representatives
reasonable access during normal business hours to the Terminal to conduct such
activities during the Feasibility Study Period, subject to Seller's policies and
regulations regarding safety and security.
7.2 BASELINE CONDITION. In order to establish the Environmental
Condition of the Terminal, Seller, Buyer and Buyer's Authorized Representatives
have reviewed or acknowledged the existence of the Environmental Documents,
which include the results
-28-
of all tests conducted by Buyer and its Authorized Representatives under Section
7.1, if any. Seller and Buyer have agreed that Schedule 7.2 includes or
references all material information, known to exist by either Party, related to,
affecting or concerning the Environmental Condition or status of the Terminal as
of the Closing Date and that such information shall constitute the "Baseline
Condition" of the Terminal. Seller shall not be responsible for any
Environmental Condition not identified as part of the Baseline Condition.
7.3 DURATION OF SELLER'S REMEDIATION OBLIGATIONS. Seller shall
undertake the Remediation Activities set forth in this Article VII and shall be
obligated to perform such Remediation Activities until the first of the
following events (each a "Termination Event") occurs:
(a) The occurrence of the Closure Date, which is defined to be the
earlier to occur of:
(i) Receipt of written notice from the appropriate Governmental
Authority that either no further action as to remediation (excluding
monitoring and any long term institutional or engineering controls, such
as a fence or site security requirement) of the Terminal is required; or
(ii) One (1) year from the date Seller submits a written notice
documenting closure or requests a written no further action determination
from the appropriate Governmental Authority, if (x) during that same one
(1) year period Seller has received no objection from such Governmental
Authority after reasonable efforts by Seller to obtain a response from the
Governmental Authority; and, (y) Seller reasonably determines that the
Baseline Condition has been remediated to the levels required by the
applicable Governmental Authority;
(b) The first occurrence of an Early Termination Event, which is
defined to be:
-29-
(i) any failure by Buyer, after reasonable notice from Seller,
to provide access in any material respect as required in Section
7.4(d);
(ii) any material interference by Buyer or its Authorized
Representatives with Seller's conduct of the Remediation Activities; or
(iii) any change in all or any part of the Terminal to a
residential use, or other change in use of all or any part of the
Terminal that results in a materially adverse change in Seller's risk
exposure hereunder.
7.4 REMEDIATION OF BASELINE CONDITION. Seller will undertake, or shall
ensure that its Affiliates or Authorized Representatives undertake, such
Remediation Activities of the Baseline Condition as may be required by
applicable laws, regulations, or government orders. Seller shall have no
obligation for remediation or investigation beyond that which is required by
applicable laws, regulations, or government orders by the appropriate
Governmental Authorities.
(a) Seller shall in good faith, endeavor to ensure that all
Remediation Activities of the Baseline Condition are conducted as independently
as possible from Buyer's operations of the Terminal, which may include, but is
not limited to obtaining separate permits. Buyer and its Authorized
Representatives shall cooperate in good faith with Seller in obtaining separate
permits in such name as Seller and Buyer agree. Buyer, however, will provide
Seller, or, if applicable, Seller's Affiliates and/or Authorized
Representatives, with access to and use of any utilities, oil/water separators
and/or wastewater treatment systems. Seller shall reimburse Buyer for Seller's
proportionate share of such use.
(b) Seller and Buyer shall exercise good faith efforts to the
extent practicable and consistent with sound remediation practices to cooperate
with each other with respect to (1) the location of Seller's monitoring xxxxx or
remediation equipment at the Terminal and (2) the undertaking of Seller's
Remediation Activities at the Terminal so as to reasonably minimize any
unreasonable interference with Buyer's
-30-
operations at the Terminal. Seller shall exercise, or shall ensure that its
Affiliates or Authorized Representatives exercise, all reasonable efforts to
repair and/or restore the surface of the Real Property to its condition existing
before Seller's Remediation Activities. If Buyer does not agree with the
location of Seller's monitoring xxxxx or remediation equipment, then Seller
shall accommodate Buyer's suggestions so long as the costs associated with
Buyer's suggestions do not increase the estimated costs of the remediation
equipment and its installation or increase the scope or duration of Remediation
Activities. If Seller, in its sole discretion, chooses to accommodate Buyer's
suggestions as to location of Seller's monitoring xxxxx or remediation equipment
in Seller's final proposal and such accommodation results in increased costs,
scope or duration from Seller's original proposal, Buyer will be solely
responsible, and reimburse Seller, for all incremental costs (including
engineering control costs) associated with accommodating Buyer's suggestions.
Except as herein stated, final determination as to location and manner of
installation of remediation, monitoring or testing equipment shall be Seller's.
(c) The following provisions will govern contact by Buyer or its
Authorized Representatives (which for purposes of this Section 7.4(c) shall
include any tenants, customers, invitees, licensees or other users of the
Terminal (other than Seller) after the Closing Date) with any Governmental
Authority during the period beginning with date of this Agreement and ending on
the first occurrence of the Closure Date or an Early Termination Event:
(i) Seller reserves the exclusive right to negotiate with any
third party or Governmental Authority regarding remediation of any
Covered Environmental Condition;
(ii) Seller will give Buyer five (5) days advance written
notice of any negotiations with a Governmental Authority and Buyer and
its Authorized
-31-
Representatives may attend, but not actively participate in, any such
negotiations;
(iii) The Parties acknowledge that Seller shall have the lead
responsibility for setting policy, establishing direction and
conducting negotiations with the Governmental Authority or third party
relating to the remediation of any Covered Environmental Condition.
Buyer shall ensure that neither Buyer nor any of its Authorized
Representatives shall contact nor negotiate with the Governmental
Authority or third party independently of Seller in connection with the
remediation of such Covered Environmental Condition; and
(iv) Buyer shall ensure that neither Buyer nor any of its
Authorized Representatives shall initiate any environmental assessment
of the Terminal or contact any Governmental Authority or third party
for the purpose of providing environmental information to such
Governmental Authority or third party, unless and to the extent
required by law.
If Buyer or any of its Authorized Representatives fail to comply with this
Section 7.4(c) and such failure to comply results in a material increase in
costs, time or difficulty in Seller's Remediation Activities, then, in addition
to any other remedies Seller may have at law or in equity, Buyer shall be solely
responsible and liable for any incremental costs incurred by Seller as a result
of Buyer's breach of this provision.
(d) Buyer shall, at no cost to Seller, permit Seller and its
Affiliates and Authorized Representatives reasonable access to the Terminal.
Seller or its Affiliates or Authorized Representatives will provide forty-eight
(48) hours notice to Buyer for any routine Remediation Activities to be
performed by Seller or its Affiliates or Authorized Representatives. Seller will
provide thirty (30) days notice to Buyer for any Remediation Activities that
Seller believes may result in a material impact to Buyer's operations. Seller
and its Authorized Representatives, however, shall have immediate access to the
Terminal in the event of an emergency or other situation related to its
Remediation
-32-
Activities requiring immediate action. Notice may be provided verbally or in the
form of a schedule. Buyer's and Seller's obligations under this Section 7.4(d)
will be set forth in the deed conveying the Real Property, will be a covenant
running with the land, and will bind the successors, heirs and permitted assigns
of Buyer and Seller.
(e) Seller and Buyer shall provide to the other copies of all
reports, correspondence, notices, and communications sent or received from
Governmental Authorities regarding the Environmental Condition of the Terminal
or any remediation and/or investigation at the Terminal related to the Baseline
Condition or other copies of all reports, correspondence, notices, and
communications sent to or received from third parties concerning conditions that
would obligate (financially or otherwise) Seller.
(f) If any remediation equipment is required to be moved in order
to accommodate Buyer, Buyer shall assume and be responsible for all costs and
expenses (including engineering control costs) of removing, repairing or
replacing any remediation equipment so affected.
(g) Seller shall be responsible for and shall indemnify, defend and
hold harmless Buyer from and against any Damages, including Damages to the
Terminal, arising from Seller's or Seller's Authorized Representatives'
negligence or willful misconduct in the course of Seller's Remediation
Activities at the Terminal. For purposes of this Section 7.4(g), where Buyer is
the indemnified party, the term "Buyer" shall include Buyer and its Affiliates
and the directors, officers, employees, agents and representatives, and all
successors and permitted assigns of the foregoing. If any Damages to the
Terminal are caused by Seller's negligence or willful misconduct relating to
Remediation Activities at the Terminal, Seller shall repair and restore the
affected asset to its former condition as it existed immediately prior to any
such Damages.
(h) Buyer shall be responsible for any cost or expense to repair or
replace any remediation equipment that is stolen or damaged as a result of any
act or
-33-
omission of Buyer or Buyer's Authorized Representatives (which for purposes of
this Section 7.4(c) shall include any tenants, customers, invitees, licensees or
other users of the Terminal (other than Seller) after the Closing Date). Buyer
shall reimburse Seller for such costs within thirty (30) days after written
demand for such costs.
(i) Notwithstanding anything to the contrary in this Article VII,
Seller shall have no obligation to continue to conduct or be responsible for
Remediation Activities subsequent to a change of all or any part of the Terminal
to a residential use, or other change in use of all or any part of the Terminal
that results in a materially adverse change in Seller's risk exposure hereunder.
7.5 RELEASE FROM REMEDIATION OBLIGATIONS ASSOCIATED WITH THE BASELINE
CONDITION; EFFECT OF CLOSURE DATE. On the seventh (7th) anniversary of the
Closing Date ("Sunset Date"), Buyer shall unconditionally, completely and
forever release and discharge Seller, its Affiliates, and employees, officers,
directors, agents and representatives and all successors and assigns of the
foregoing, from all Environmental Liabilities, except (if the Closure Date has
not occurred before the Sunset Date) any obligation by Seller to perform any
Remediation Activities under this Agreement. The foregoing release will not
apply to any obligation to perform Remediation Activities as may be required by
Sections 7.8(a)(i), 7.8(b), and 7.8(c)(i) of this Agreement. On the Closure
Date, Buyer shall unconditionally, completely and forever release and discharge
Seller, its Affiliates, and employees, officers, directors, agents and
representatives and all successors and assigns of the foregoing, from any
obligation by Seller to perform any Remediation Activities under this Agreement.
After Seller's obligation to conduct Remediation Activities are terminated
pursuant to this Section 7.5, Buyer shall be solely responsible and liable for
the cost and performance of any Remediation Activities that may in the future be
required by any Governmental Authority, including, but not limited to,
maintaining any engineering controls to contain or stabilize Regulated
Substances (including, without limitation, caps, covers, dikes,
-34-
trenches, leachate collection systems, signs, fences and access controls). On
each of the Sunset Date and the Closure Date, as applicable, with respect to
obligations for Environmental Liabilities that Buyer is assuming at such point
in time, Buyer shall execute and deliver to Seller the Release Agreement in the
form of Exhibit S. If Buyer does not execute and deliver to Seller the Release
Agreement in the form attached hereto as Exhibit S within thirty (30) days of
Seller's request therefor, then Seller shall be authorized as Buyer's agent and
attorney in fact to execute such Release Agreement in Buyer's name and to bind
Buyer to the terms thereof.
Buyer and Seller acknowledge and agree that the Closure Date referenced
in Section 7.3(b)(i) or (ii) can include a no further action determination
limited to Remediation Activities related to portions of the Terminal, soil only
or groundwater only ("Partial No Further Action"). A Partial No Further Action
will not release Seller of its obligation as to those Remediation Activities not
addressed by the Partial No Further Action except as otherwise provided in
Section 7.3(b).
7.6 SELLER'S LIMITED ENVIRONMENTAL OBLIGATIONS. Except for Seller's
indemnity obligations as set forth in this Article VII and Section 9.2 from and
after Closing, Seller shall have no obligations or liabilities with respect to
Environmental Liabilities.
7.7 BUYER'S RELEASE OF SELLER FOR ENVIRONMENTAL LIABILITIES. Except for
Seller's obligations as set forth in this Article VII and Section 9.2, Buyer, in
consideration of the negotiated amount of the Purchase Price, hereby
unconditionally, completely and forever releases and discharges Seller, its
Affiliates, and employees, officers, directors, agents and representatives and
all successors and assigns of the foregoing, from all Environmental Liabilities.
7.8 SELLER'S ENVIRONMENTAL INDEMNITIES. Notwithstanding anything to the
contrary in this Agreement, this Article VII sets forth Seller's sole and
exclusive obligations to Buyer pursuant to any applicable Environmental Laws or
any
-35-
Environmental Condition, including, without limitation, any Release or
threatened Release of Regulated Substances. For purposes of this Section 7.8,
where Buyer is the indemnified party, the term "Buyer" shall include Buyer and
its Affiliates and the directors, officers, employees, agents and
representatives, and all successors and permitted assigns of the foregoing.
Subject to the further provisions and limitations of this Article VII, from and
after the Closing Date, Seller shall indemnify, hold harmless and defend Buyer
from and against any Damages and Proceedings asserted against or incurred by
Buyer relating to or arising out of:
(a) Any Governmental Environmental Enforcement Action taken against
Buyer and attributable to any failure by Seller to own or operate the Terminal
prior to the Closing Date in compliance with applicable Environmental Laws;
provided, however that:
(i) Seller shall have no indemnification or defense obligation
for any Damages and Proceedings asserted against or incurred by Buyer
relating to or arising out of such Governmental Environmental
Enforcement Action that is (x) issued or required by or entered into
with a Governmental Authority on or after the Sunset Date (except for
Seller's obligation to perform any Remediation Activities that may be
required thereunder) or (y) issued or required by or entered into with
a Governmental Authority after the Closing Date and on or before the
Sunset Date, and for which Seller has not received Reasonable Written
Notification from Buyer;
(ii) Buyer shall make available all relevant existing
information that, based on information and belief formed after
reasonable inquiry, are known by Buyer to be in the possession or
control of Buyer and provide timely, reasonable access to all personnel
of Buyer with knowledge of relevant facts, and shall cooperate in all
reasonable respects with Seller in connection with Seller's defense of
any such Governmental Environmental Enforcement Action.
-36-
Seller shall have no indemnification or defense obligation for any
Damages and Proceedings asserted against or incurred by Buyer relating
to or arising out of such Governmental Environmental Enforcement Action
if Buyer unreasonably denies Seller such access;
(iii) Seller shall have no indemnification or defense
obligation under this Section 7.8(a) for any Damages and Proceedings
asserted against or incurred by Buyer relating to or arising out of
such Governmental Environmental Enforcement Action if those events or
conditions to which the Governmental Environmental Enforcement Action
is attributed occur after the Closing. To the extent any Governmental
Environmental Enforcement Action relates to events or conditions
occurring both prior to and after the Closing, then Seller's
indemnification and defense obligations for such Governmental
Environmental Enforcement Action shall not exceed that portion of
Damages and Proceedings attributable to events or conditions occurring
prior to the Closing and will not include any attorney's fees or
professional fees incurred by Buyer in connection with that part of the
Governmental Environmental Enforcement Action attributable to events or
circumstances occurring after the Closing;
(iv) Seller shall have no liability, indemnity or defense
obligation under this Section 7.8(a) for any Damages or Proceedings
asserted against or incurred by Buyer relating to or arising out of
dredging activities after the Closing; and,
(v) Seller shall have no liability, indemnity or defense
obligation under this Section 7.8(a) for any Damages or Proceedings
asserted against or incurred by Buyer subsequent to a change of all or
any part of the Terminal to a residential use, or other change in use
of all or any part of the Terminal that results in a materially adverse
change in Seller's risk exposure hereunder;
-37-
(b) Off-Site Disposal Activities or Off-Site Remediation Activities
resulting from the ownership or operation of the Terminal by Seller before the
Closing Date; and
(c) Any Third Party Environmental Claim with respect to the
Terminal resulting from any Release occurring before the Closing Date and caused
by Seller's ownership or operation of the Terminal; provided, however, that:
(i) Seller shall have no indemnification or defense obligation
for any Damages and Proceedings asserted against or incurred by Buyer
relating to or arising out of any such Third Party Environmental Claim
that is (x) made by a Third Party on or after the Sunset Date (except
for Seller's obligation to perform any Remediation Activities that may
be required thereunder), or (y) for any Third Party Environmental Claim
that is made by a Third Party on or before the Sunset Date and for
which Seller has not received Reasonable Written Notification from
Buyer;
(ii) Buyer shall make available all relevant existing
information that, based on information and belief formed after
reasonable inquiry, are known by Buyer to be in the possession or
control of Buyer or its Authorized Representatives and provide timely,
reasonable access to all personnel of Buyer with knowledge of any
relevant facts, and shall cooperate in all reasonable respects with
Seller in connection with Seller's defense of any such Third Party
Environmental Claim. Seller shall have no indemnification or defense
obligation for any Damages and Proceedings asserted against or incurred
by Buyer relating to or arising out of such Third Party Environmental
Claim if Buyer unreasonably denies Seller such access;
(iii) Seller shall have no indemnification or defense
obligation under this Section 7.8(c) for any Damages and Proceedings
asserted against or incurred by Buyer relating to or arising out of any
such Third Party Environmental
-38-
Claim if those events or conditions to which the Third Party
Environmental Claim is attributed occur after the Closing. To the
extent any Third Party Environmental Claim relates to events or
conditions occurring both prior to and after the Closing, then Seller's
indemnification and defense obligations for such Third Party
Environmental Claim shall not exceed that portion of Damages and
Proceedings attributable to events or conditions occurring prior to the
Closing and will not include any attorney's fees or professional fees
incurred by Buyer in connection with that part of the Third Party
Environmental Claim attributable to events or circumstances occurring
after the Closing;
(iv) Seller shall have no liability, indemnity or defense
obligation under this Section 7.8(c) for any Damages or Proceedings
asserted against or incurred by Buyer relating to or arising out of
dredging activities after the Closing; and
(v) Seller shall have no liability, indemnity or defense
obligation under this Section 7.8(c) for any Damages or Proceedings
asserted against or incurred by Buyer subsequent to a change of all or
any part of the Terminal to a residential use, or any other change in
use of all or any part of the Terminal that results in a materially
adverse change in Seller's risk exposure hereunder.
7.9 BUYER'S ENVIRONMENTAL INDEMNITIES. For purposes of this Section
7.9, where Seller is the indemnified party, the term "Seller" shall include
Seller and its Affiliates and the directors, officers, employees, agents and
representatives, and all successors and assigns of the foregoing. From and after
the Closing Date, Buyer shall indemnify, hold harmless and defend Seller from
and against any Damages and Proceedings asserted against or incurred by Seller
relating to or arising out of the following items; provided, however, Buyer
shall have no indemnification or defense obligation for any Damages and
Proceedings asserted against or incurred by Seller
-39-
relating to or arising out of such items for which Seller has assumed
responsibility or provided indemnification pursuant to this Article VII:
(a) Any Environmental Liabilities;
(b) Any Release of any Regulated Substance related to operations of
the Terminal occurring on or after the Closing Date;
(c) Any residual Environmental Condition remaining at the Terminal
or any areas Off-Site after the Closure Date; and
(d) Any Third Party Environmental Claim made by a Third Party on or
after the Sunset Date (expressly excluding, however, any obligation to conduct
Remediation Activities that may be required thereunder to the extent such
Remediation Activities relate to Covered Environmental Conditions arising from
Seller's pre-Closing ownership or operation of the Terminal);
(e) Any Governmental Environmental Enforcement Action taken against
Seller or its Affiliates that is issued or required by or entered into with a
Governmental Authority on or after the Sunset Date (expressly excluding,
however, any obligation to conduct Remediation Activities that may be required
thereunder to the extent such Remediation Activities relate to Covered
Environmental Conditions arising from Seller's pre-Closing ownership or
operation of the Terminal);
(f) Any Off-Site Disposal Activities or Off-Site Remediation
Activities resulting from the ownership or operation of the Terminal at or after
the Closing;
(g) Exacerbation of any Covered Environmental Condition (whether
resulting in On-Site or Off-Site impacts) by Buyer or its Authorized
Representatives (which for purposes of this Section 7.9 shall include its
tenants, customers, invitees, licensees, or any users of the Terminal (except
Seller); and
(h) Failure to comply with any Permit or Order, including
transferred or assigned Environmental Permits or Orders identified on Exhibits F
and R by Buyer or its Authorized Representatives.
-40-
(i) The excavation, removal, recycling, remediation or disposal of any
contaminated soil, sediment, groundwater, piping, buried structures or other
substance that Buyer or any of its Authorized Representatives encounters,
excavates, dredges or removes while conducting construction, dredging,
remodeling, or demolish-and-rebuild or any other work at the Terminal not
requested by Seller ("Excluded Work") regardless of whether the soil or
groundwater contains any Covered Environmental Condition. Buyer will be deemed
to be the generator of all Regulated Substances caused by or originating from
any Excluded Work or any other activity associated with operations at the
Terminal after the Closing. Buyer shall report any such Regulated Substances or
Environmental Condition, including contaminated soil, sediment and groundwater
excavated, dredged, removed, recycled or disposed of in connection with Excluded
Work or any other activity associated with operations at the Terminal after the
Closing, to the appropriate Governmental Authorities if required to do so by
applicable laws and regulations. Buyer shall also sign all manifests for
transportation and disposal of any such Regulated Substances and contaminated
soil, sediment or groundwater. Buyer shall pay the cost of clean fill required
for any excavation caused by Excluded Work at the Terminal.
Buyer's indemnity obligations under this Section 7.9 will be set forth
in the deed conveying the Real Property, will be a covenant running with the
land, and will bind the successors, heirs and assigns of Buyer.
7.10 POST-CLOSING CONTAMINATION.
(a) If, after Closing, there is any increase from the Baseline
Condition (including but not limited to, increased liquid phase hydrocarbons or
higher concentrations of dissolved hydrocarbons in monitoring-well samples or
tests), however revealed or discovered, that reflects an Environmental Condition
not previously identified in the Baseline Condition, whether of a qualitative or
quantitative nature, and Seller reasonably determines that such increase from
the Baseline Condition will
-41-
increase the costs, difficulty or duration of Seller's Remediation Activities,
the Parties shall determine and agree upon the following items:
(i) An estimate of the Remediation Cost of additional
Remediation Activities required to be performed because of the increase
("Incremental Costs");
(ii) An estimate of Seller's future Remediation Cost
to complete its Remediation Activities had the increase from the
Baseline Condition not occurred ("Seller's Estimated Future Remediation
Costs");
(iii) Whether Buyer or Seller shall conduct and complete
required Remediation Activities at the Terminal; and
(iv) The allocation between Buyer and Seller of all future
Remediation Costs.
(b) If the Incremental Costs are equal to or greater than the
Seller's Estimated Future Remediation Costs, Seller may, at its option, turn
over conduct of its Remediation Activities to Buyer and Buyer shall conduct and
complete such Remediation Activities. If Buyer conducts Seller's Remediation
Activities under the immediately preceding sentence, Seller shall reimburse
Buyer for approximately that fraction of the actual cost of future Remediation
Activities performed by Buyer equal to:
The fraction produced by dividing the Seller's Estimated Future
Remediation Costs by the sum of the Seller's Estimated Future
Remediation Costs and the Incremental Costs.
Seller's Estimated Future Remediation Costs
---------------------------------------------------------------
Seller's Estimated Future Remediation Costs + Incremental Costs
-42-
Notwithstanding the calculation of the fraction of Remediation Activities costs
owed by Seller to Buyer under the formula above, Seller shall not be required to
reimburse Buyer an amount greater than the Seller's Estimated Future Remediation
Costs. If, on the other hand, Seller decides, despite such circumstances, to
continue to conduct its Remediation Activities, or if the Incremental Costs are
less than Seller's Estimated Future Remediation Activities Costs, then Seller
shall continue to conduct its Remediation Activities obligations under Section
7.4 and shall undertake Remediation Activities caused by the increase to the
Baseline Condition subject to the limitations on Seller's Remediation Activities
responsibilities as outlined in Section 7.4. If Seller undertakes Remediation
Activities of the increase to the Baseline Condition, Buyer shall pay Seller
approximately that fraction of the actual cost of all future Remediation
Activities work performed by Seller determined by the following formula:
One minus the fraction produced by dividing the Seller's Estimated
Future Remediation Costs by the sum of the Seller's Estimated Future
Remediation Costs and the Incremental Costs.
1 - Seller's Estimated Future Remediation Costs
---------------------------------------------------------------
Seller's Estimated Future Remediation Costs + Incremental Costs
Seller, at its sole discretion, may elect a buy out of Seller's
Estimated Future Remediation Costs based on a lump sum payment of the net
present value of Seller's Estimated Future Remediation Costs. In calculating the
net present value of Seller's Estimated Future Remediation Costs, the discount
rate to be used is the Corporate 1-10 year Medium Quality (A-BBB/Baa) bond index
as published in the Wall Street Journal three (3) business days prior to
Seller's payment to Buyer under this Section 7.10. At the time of Seller's buy
out under this Section 7.10(b), Buyer shall execute and deliver
-43-
to Seller the Release Agreement in the form of Exhibit S. If Buyer does not
execute and deliver to Seller the Release Agreement in the form attached hereto
as Exhibit S within thirty (30) days of Seller's buy out, then Seller shall be
authorized as Buyer's agent and attorney in fact to execute such Release
Agreement in Buyer's name and to bind Buyer to the terms thereof.
(c) If Seller and Buyer do not agree within one hundred twenty
(120) days after Seller's notice to Buyer of the post-Closing increase in the
Baseline Condition upon any or all of the items in 7.10(a) or (b), either Party
shall have the right, but not the obligation, to request in writing that a
consultant experienced in petroleum site assessments and Remediation Activities
acceptable to both Seller and Buyer (the "Consultant") be engaged to decide such
unsettled items. If the Parties do not agree on one Consultant within thirty
(30) days after a Party's request that a Consultant be engaged, each Party shall
promptly engage its own Consultant at that Party's sole cost. The two
Consultants will then mutually select, within the next fifteen (15) days, a
third Consultant to make such determinations. Each Party shall cooperate with
the one Consultant making such determinations (whether selected directly by the
Parties or the two Consultants). Such cooperation shall include, but not be
limited to, providing such Consultant with monitoring data and providing access
to the Terminal so that the Consultant may take his or her own samples. The
deciding Consultant shall make his or her determinations within sixty (60) days
of selection. The Parties shall share equally the cost of such Consultant. The
determinations of the Consultant shall be final.
(d) For the purposes of paragraphs (a) through (e) of this
Section 7.10 only, the previously-defined term "Remediation Activities" shall be
deemed to include Remediation Activities of the increase in the Baseline
Condition or presence of a condition not in the Baseline Condition. Buyer or
Seller (as the case may be in accordance with the foregoing subsections) will
reimburse the other Party for its proportionate share of the actual cost to
perform such Remediation Activities, within
-44-
thirty (30) days, based on the Consultant's determination of its proportionate
share and upon receipt of properly documented invoices. No invoices shall be
submitted, and no payments made, based on estimates of future costs; all
invoices and payments will be based only on actual costs.
(e) The provisions of Section 7.4 regarding completion of
Seller's Remediation Activities and termination of Seller's obligation to
perform Remediation Activities shall apply (with necessary changes in points of
detail but not to time of termination) to Seller's performance of Remediation
Activities under this Section 7.10.
(f) The arbitration procedures set forth in Section 7.12 do
not apply to disputes arising out of this Section 7.10; provided however, that
Section 7.12 does apply if there is a dispute concerning compliance with the
procedures set forth herein.
7.11 OTHER ENVIRONMENTAL ISSUES.
(a) Buyer acknowledges that the Terminal has been used for the
storage, disposal, sale, and transfer of petroleum products or derivatives and
Seller hereby advises Buyer that (i) releases of such products into the soil
have occurred from time to time in the past; and (ii) the Terminal has
contaminated subsurface conditions. Any warranty, covenant or provision in the
Deed from Seller to Buyer with respect to the Terminal does not, nor will it be
deemed to, extend or apply to any release or presence of petroleum products,
derivatives, or any other type of contaminant on, in, under, or about the
Terminal including, but not limited to, the surface area, size, and location of
such substances and/or the description of the types of contaminants contained
therein. As part of the consideration for the sale of the Terminal, Buyer for
itself, its successors and permitted assigns, covenants and agrees that neither
the Real Property, nor any part thereof shall at any time be used for any of the
following specifically listed facilities or uses, or any similar facility or
use: residential, child care, nursery school, preschool, or any other
educational facility, place of worship, playground, hotel, motel, inn, bed and
breakfast or rooming house, nursing home, rehabilitation center, hospital or
community
-45-
center and that the installation of any water xxxxx for drinking or irrigation
purposes along with the construction of basements is prohibited; that these
covenants and agreements shall survive the Closing; that these covenants and
agreements are to run with the Real Property; that these restrictive measures
will be inserted in the Special Warranty Deed to be delivered at the Closing and
that similar restrictive covenants shall be inserted in any deed, lease or other
instrument conveying or demising the Real Property or any part thereof.
Furthermore, Buyer for itself, its successors and permitted assigns agrees to
execute any documents required by any Governmental Authority having jurisdiction
over the Terminal that are consistent with the above use restrictions.
(b) The terms and provisions of this Agreement, and all test
information, reports and other materials concerning the environmental or other
condition of the Terminal shall be maintained by Buyer and its Authorized
Representatives as confidential, other than any such information (i) that is in
the public domain through a source other than Buyer, or (ii) that is compelled
in any judicial, administrative, regulatory or arbitration proceeding or
otherwise required by law or by a governmental authority. Buyer may, however,
share environmental information under a comparable confidentiality agreement
with any affiliated companies, potential subsequent purchasers of the Terminal
or a potential joint venture owner of the Terminal.
(c) If Closing does not occur within the time required by this
Agreement, or upon earlier termination of this Agreement, upon Seller's request,
Buyer shall promptly deliver to Seller all originals and copies (whether written
or electronic) that are in Buyer's or its Authorized Representatives' possession
of the information, reports, or materials including specifically those
concerning the environmental or other condition of the Terminal together with
all information, reports, or material furnished to Buyer by Seller, and Buyer
shall promptly cause third parties to deliver to Seller such materials that are
in their possession.
-46-
(d) The Environmental Documents, including those generated by
Buyer, may be used by Seller to prepare and file reports, where applicable, with
the appropriate Governmental Authorities.
(e) Seller's remediation and other responsibilities in this
Article VII shall inure to the benefit of Buyer solely and do not transfer to
Buyer's heirs and assigns. In the event Seller agrees to the transfer and
assignment of Seller's remediation and other responsibilities in this Article
VII, which agreement shall only be effective if provided in writing by Seller,
Buyer's obligations under this Article VII shall be incorporated into any lease
or subsequent sales agreement for the Terminal and any tenant or subsequent
buyer shall be required to fulfill all obligations of Buyer set forth in this
Article VII. In no event shall Buyer's obligations under this Article VII
terminate upon the lease or sale of the Terminal. Any attempt to assign Seller's
remediation and other responsibilities in this Article VII without the express
prior written approval of Seller as set forth above shall be void and of no
effect.
(f) Buyer shall assign to Seller any and all right of claim or
interest that Buyer or the Terminal may have to payment or reimbursement from a
third party or any Governmental Authority in connection with Seller's
remediation of the Baseline Condition.
(g) Buyer and Seller shall cooperate with each other in all
reasonable respects as to the transfer or assignment of the Environmental
Permits or Orders that can be transferred or assigned under applicable
Environmental Laws and the making of any filings or notifications or obtaining
any authorizations required under applicable Environmental Laws in connection
with the transfer of the Terminal to Buyer. Seller shall take the lead on all
initial notifications to applicable Governmental Authorities requesting such
transfer or assignment of any Environmental Permits or Orders. Buyer, however,
shall be solely responsible for all subsequent communications and filings needed
to follow through and complete the timely transfer or assignment of such
-47-
Environmental Permits or Orders. If the assignment of any Environmental Permit
is denied by the applicable Governmental Authority, Exhibit R of this Agreement
will be deemed automatically amended, and Buyer shall apply for the issuance of
a new Environmental Permit as soon as reasonably possible. With respect to any
Environmental Permits or Orders issued under applicable Environmental Laws prior
to the Closing Date and any obligations for Remediation Activities that Buyer
assumes responsibility for under this Agreement and that are to be transferred
to Buyer on the first occurrence of a Termination Date, Seller and Buyer, within
ten (10) calendar days after the Closing Date, or the first occurrence of a
Termination Date, as applicable, shall submit a joint letter to each applicable
Governmental Authority acknowledging that Buyer is assuming the obligations of
Seller under such Order and/or Remediation Activities, such letter to be in the
form of Exhibit Q. Along with the joint letter and with respect to obligations
for Remediation Activities set forth in such joint letter that Buyer is assuming
at such point in time, Buyer shall also execute and deliver to Seller the
Release Agreement for remediation liability for all Covered Environmental
Conditions in the form of Exhibit S. In the event that Buyer does not execute
and deliver to Seller the Release Agreement in the form attached hereto as
Exhibit S within 30 days of Seller's request therefor, then Seller shall be
authorized as Buyer's agent and attorney in fact to execute such Release
Agreement in Buyer's name and to bind Buyer to the terms thereof.
(h) As between Buyer and Seller, Buyer and Seller shall share
equally in all filing costs and administrative expenses associated with such
transfer or assignment of any Environmental Permits or Orders pursuant to this
Agreement. Buyer, however, shall be solely responsible for all costs and
expenses relating to or arising out of any change in terms or conditions of such
Environmental Permits or Orders resulting from any transfer, assignment or
reissuance of such Environmental Permits or Orders to Buyer, except for any such
costs and expenses related to or arising out of Seller's non-
-48-
compliance with such Environmental Permits or Orders. With respect to those
Environmental Permits or Orders that cannot be transferred or assigned under
applicable Environmental Laws, Buyer will use reasonable efforts at Buyer's cost
and expense to obtain new permits or orders.
(i) After the Closing Date, Buyer shall be solely responsible
for the filing of any post-Closing reports or notices required by any
Governmental Authority regardless of whether the reporting period began or
occurred prior to the Closing Date (as long as the required submission deadline
for such reports or notices is not prior to the Closing Date). Such reports may
include, but are not limited to, Annual Air Emissions Report, Air Permit reports
(excluding Title V semi-annual and annual certifications, which are addressed
below), XXXX 313 Form R Reports, annual hazardous waste reports, gasoline
maximum achievable control technology (GMACT) certifications and ground water
monitoring reports required under state above ground storage tank regulations.
At least 10 days prior to the Closing Date, Seller will provide Buyer with a
listing of all such material reports and notices required to be filed with any
Governmental Authority that are due within sixty (60) days after the Closing
Date. Within thirty (30) days after the Closing Date, Seller shall provide to
Buyer records relating to operation of the Terminal through the Closing Date
needed to complete all such material reports. During the period of Seller's
obligation to perform Remediation Activities under Section 7.3, Buyer shall
provide to Seller copies of all material reports, correspondence, notices and
communications sent to or received from Governmental Authorities regarding
ground water monitoring reporting under this Section 7.11(i). As to any
information that must be provided to any Governmental Authority as part of a
routine report submitted in relation to a Title V semi-annual or annual
certification, if the Closing Date occurs during the required reporting period,
each Party agrees to be responsible and liable for the collection, compilation
and submission of such certification with respect to that portion of the
reporting period falling under such Party's ownership.
-49-
Each Party shall cooperate fully with the other and shall provide the other
Party with reasonable access to its employees and files to the extent necessary
or appropriate to assist the other Party in preparing its report. In the event
that the Closing Date occurs on or after the end of the required reporting
period but before such report is due, Seller will be responsible and liable for
the collection, compilation and submission of such report as it concerns
Seller's operation of the Terminal. In that instance, Buyer shall cooperate
fully with Seller and shall provide Seller with reasonable access to Buyer's
employees and files to the extent necessary or appropriate to assist Seller in
preparing the report. Buyer shall be solely responsible and liable for all
subsequently submitted reports.
7.12 ARBITRATION PROCEDURES. Except as otherwise provided herein, any
dispute between the Parties under this Article VII shall be resolved by
arbitration in Fairfax, Virginia in accordance with the rules of the American
Arbitration Association and subject to the provisions of this Section 7.12.
(a) If good faith efforts to resolve any such dispute fail,
either Party may commence arbitration after thirty (30) days written notice of
that Party's intent to commence arbitration. Seller shall appoint one arbitrator
and Buyer shall appoint one arbitrator. The two arbitrators so appointed shall
select a third arbitrator. All arbitrators for non-engineering disputes must be
licensed attorneys. If either Seller or Buyer fails to appoint an arbitrator
within twenty (20) days after a request for such an appointment is made by the
other Party in writing, or if the arbitrators so appointed fail within twenty
(20) days after the appointment of the second of them to agree on a third
arbitrator, the arbitrator or arbitrators necessary to complete a panel of three
arbitrators shall be appointed by the American Arbitration Association upon
application thereto by either Party.
(b) The panel so constituted shall fix a reasonable time and
place for a hearing of the dispute. Each of the Parties shall submit to the
panel of arbitrators at the
-50-
hearing such party's proposed resolution of the dispute, together with such
supporting evidence as such Party may desire to present to the panel of
arbitrators. The panel of arbitrators shall consider only the proposed
resolutions and evidence as presented by the Parties.
(c) Within thirty (30) days of such hearing, the panel of
arbitrators shall select the proposed resolution presented by a Party that most
closely achieves the intention of the parties as expressed in this Article VII.
The Panel must choose either the resolution of the dispute proposed by Buyer or
the resolution of the dispute proposed by Seller. The panel of arbitrators is
not empowered to select a compromise of any kind between either proposal. If
more than one dispute is between the arbitrators at any one time, the
arbitrators shall resolve each such dispute independently of the other dispute.
(d) The action of a majority of the members of the panel of
arbitrators shall govern and their decision in writing shall be final and
binding on the Parties.
(e) All arbitrators appointed under this procedure shall be
disinterested individuals who are not and never have been officers, directors,
employees, consultants, or attorneys of Seller or of Buyer or of any of Seller's
or Buyer's Affiliates. Such individuals must be experienced in the environmental
aspects of the petroleum and chemical industries and competent to pass judgment
on the issues in dispute. The losing Party shall bear all reasonable and
customary fees and expenses (Seller's and Buyer's) of the entire arbitration
process.
7.13 ENVIRONMENTAL NOTICES. Except as otherwise stated in this Article
VII, all notices or correspondence required or permitted to be given under this
Article VII shall be in writing. Notices may be given in person, or may be sent
by nationally-recognized overnight courier, registered or certified mail
(postage prepaid and return receipt requested) or facsimile with written
confirmation to the party to be notified at the following address:
-51-
If to Seller: ExxonMobil Oil Corporation
c/o Exxon Mobil Corporation
Global Remediation
Attn: Xxxxxx X. Xxxxx
Technical Consultant - Acquisitions/Trades/Sales
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
703/000-0000 Telephone
703/846-5257 Facsimile
If to Buyer:
Buckeye Terminals, LLC
Attn:Xxxxxxx X. Xxxxxx
5 Radnor Corporate Center, Xxxxx 000
0 Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxx 00000
610/000-0000 Telephone
610/254-4625 Facsimile
Either Party may change its address or facsimile number by providing written
notice to the other at least ten (10) days prior to the effective date of such
change. Notices given in accordance with this Article VII shall concern only
those matters governed by this Article VII. Notices given in accordance with
this Section 7.13 shall be deemed to have been given: (a) at the time of
delivery when delivered personally; (b) upon receipt when sent by
nationally-recognized overnight courier, registered or certified mail (postage
prepaid and return receipt requested); or (c) upon completion of successful
transmission when sent by facsimile (unless transmission is completed outside
recipient's normal working hours, in which case such notice shall be deemed
given at the start of recipient's next business day). Any notice required or
permitted to be given under any other Article of this Agreement shall be
separated from Article VII notices, and shall be given in accordance with
Section 15.5 of this Agreement.
-52-
ARTICLE VIII
CONDITIONS PRECEDENT TO CLOSING
8.1 OBLIGATION OF BUYER TO CLOSE. The obligation of Buyer to consummate
the purchase of the Terminal on the Closing Date is subject to: (i) the
satisfaction of the following conditions on or prior to the Closing Date and/or
(ii) Buyer's written waiver of any such conditions as remain unsatisfied as of
the Closing Date:
(a) ACCURACY OF REPRESENTATIONS. All representations and
warranties made by Seller in this Agreement shall be true and correct in all
material respects as of the date hereof and as of the Closing Date;
(b) NO DEFAULT. Seller shall have complied in all material
respects with each covenant and agreement to be performed by Seller under this
Agreement by or on the Closing Date;
(c) DISCLOSURE. Buyer shall have received from Seller all
Environmental Documents received or generated by Seller or its Affiliates after
the date of this Agreement and prior to the Closing Date;
(d) AGREEMENTS. Seller has executed, or is prepared to execute
or cause the execution of simultaneously with Closing, all documents and
agreements provided for in this Agreement, including the documents and
agreements listed in Sections 4.2 and 4.4;
(e) REQUIRED CONSENTS. All consents from Governmental
Authorities shall have been obtained, shall be in full force and effect on the
Closing Date, and shall not impose any material adverse conditions on Buyer or
its Affiliates. All waiting periods under the Xxxx-Xxxxx-Xxxxxx Act shall have
expired or have been properly terminated or any required consents in connection
therewith shall have been obtained and such consents shall not impose any
material adverse conditions on Buyer or its Affiliates. In
-53-
addition, the Parties shall have obtained the consent (if required) of any
applicable Government Authority to the assignment to and the assumption by Buyer
of any assignable Permit and Environmental Permit, and the novation of all
Material Contracts, under which Buyer assumes Seller's rights and obligations
and Seller is released from any and all such obligations;
(f) TRANSFER OF DOCUMENTS. Seller has delivered, or is
prepared to simultaneously deliver to Buyer at Closing, all Books and Records,
as stated in Section 2.1(d) of this Agreement;
(g) DEFECTS IN TITLE. Any Title Objections shall be resolved
in accordance with the provisions of Section 11.3, and Buyer shall not have
terminated this Agreement under Section 11.3;
(h) TITLE COMMITMENT. Buyer shall have received the Title
Commitment described in Section 11.1;
(i) NO TERMINATION. Buyer shall not have terminated this
Agreement to the extent permitted to do so under the terms and provisions of
this Agreement;
(j) NO ORDER OR PROCEEDING. No Order by any Government
Authority, threat by any Government Authority which is evidenced in writing, or
Proceeding which in all reasonable likelihood might prohibit or render illegal
Buyer's consummation of the transactions contemplated hereby shall be in effect;
and
(k) RELATED PURCHASE AGREEMENTS. The Parties or their
respective Affiliates shall have satisfied all conditions for closing set forth
in the Related Purchase Agreements on or prior to the Closing Date and/or the
Parties or their respective Affiliates have agreed in writing to the waiver of
any such conditions as may remain unsatisfied as of the Closing Date.
8.2 OBLIGATION OF SELLER TO CLOSE. The obligation of Seller to
consummate the sale of the Terminal on the Closing Date shall be subject to: (i)
the satisfaction of
-54-
the following conditions on or prior to the Closing Date and/or (ii) Seller's
written waiver of any such conditions as remain unsatisfied as of the Closing
Date:
(a) ACCURACY OF REPRESENTATIONS. All representations and
warranties made by Buyer in this Agreement shall be true and correct in all
material respects as of the date hereof and as of the Closing Date;
(b) NO DEFAULT. Buyer shall have complied in all material
respects with each covenant and agreement to be performed by Buyer under this
Agreement by or on the Closing Date;
(c) AGREEMENTS. Buyer has executed, or is prepared to execute
simultaneously with Closing, all documents and agreements provided for in this
Agreement to be signed by Buyer, including the documents and agreements listed
in Sections 4.3 and 4.4;
(d) REQUIRED CONSENTS. All consents from Governmental
Authorities shall have been obtained, shall be in full force and effect on the
Closing Date, and shall not impose any material adverse conditions on Buyer or
its Affiliates. All waiting periods under the Xxxx-Xxxxx-Xxxxxx Act shall have
expired or have been properly terminated or any required consents in connection
therewith shall have been obtained and such consents shall not impose any
material adverse conditions on Buyer or its Affiliates. In addition, the Parties
shall have obtained the consent (if required) of any applicable Government
Authority to the assignment to and the assumption by Buyer of any assignable
Permit and Environmental Permit, and the novation of all Material Contracts,
under which Buyer assumes Seller's rights and obligations and Seller is released
from any and all such obligations;
(e) NO ORDER OR PROCEEDING. No Order by any Government
Authority, threat by any Government Authority which is evidenced in writing, or
Proceeding which in all reasonable likelihood might prohibit or render illegal
Buyer's consummation of the transactions contemplated hereby shall be in effect;
-55-
(f) RELATED PURCHASE AGREEMENTS. The Parties or their
respective Affiliates shall have satisfied all conditions for closing set forth
in the Related Purchase Agreements on or prior to the Closing Date and/or the
Parties or their respective Affiliates have agreed in writing to the waiver of
any such conditions as may remain unsatisfied as of the Closing Date; and
(g) NO TERMINATION. Seller shall not have terminated this
Agreement to the extent permitted to do so under the terms and provisions of
this Agreement.
ARTICLE IX
INDEMNIFICATION
9.1 DEFINITIONS. As used in this Article IX, "LOSS" shall mean any
claim, liability, obligation, expense, cost or other damage or loss (including
without limitation, reasonable attorneys' and consultants' fees), fine or
penalty. "Loss" shall also include in each instance, but shall not be limited
to, all reasonable costs and expenses of investigating and defending any claim
or any order, directive, final judgment, compromise, settlement, fine, penalty,
court costs or proceeding arising at any time under or from any Government
Authority, including all reasonable costs and expenses and court costs incurred
in the enforcement of rights under this Article IX. "Loss" shall not include any
special, consequential, indirect or loss of profit damages or any Loss for which
one Party has assumed responsibility or agreed to indemnify the other Party
under Article VII of this Agreement.
9.2 INDEMNIFICATION BY SELLER. From the Closing Date, in addition to
all other obligations of Seller to Buyer set forth in this Agreement, Seller
shall indemnify, defend and hold harmless Buyer, Buyer's Affiliates and their
respective directors, officers, employees, representatives, successors and
assigns from and against any Loss resulting from, related to, or arising out of
the breach by Seller (or any shareholder,
-56-
officer, director, employee of Seller) of any representation, warranty or
covenant contained in this Agreement, in any Exhibit or Schedule to this
Agreement, or in any document, instrument, agreement or certificate delivered
under this Agreement; provided that Seller shall have no indemnification
obligation for any such Loss if Seller has not received a claim from Buyer
(specifying in reasonable detail the basis for such Loss) within one year
following the Closing Date.
9.3 INDEMNIFICATION BY BUYER. From and after the Closing Date, in
addition to all other obligations of Buyer to Seller set forth in this
Agreement, Buyer shall indemnify, defend and hold harmless Seller, Seller's
Affiliates and their respective directors, officers, employees, representatives,
successors and assigns from and against any Loss resulting from, related to, or
arising out of:
(a) Buyer's ownership or operation of all or any part of the
Terminal after Closing, except for any Loss for which Seller has assumed
responsibility or agreed to indemnify Buyer under Article VII, Article IX or
elsewhere in this Agreement; or
(b) The breach by Buyer or any Affiliate of Buyer (or any
shareholder, officer, director, employee of Buyer or such Affiliate) of any
representation, warranty or covenant contained in this Agreement, in any Exhibit
or Schedule to this Agreement, or in any document, instrument, agreement or
certificate delivered under this Agreement; provided that Buyer shall have no
indemnification obligation for any such Loss arising from a breach of any
representation, warranty or covenant as set forth in this clause (b) if Buyer
has not received a claim from Seller (specifying in reasonable detail the basis
for such Loss) within one year following the Closing Date.
9.4 CONFLICT. In the event of any conflict or ambiguity in the language
of this Article IX, or any other portion of this Agreement, with the language of
Article VII, the Parties agree that Article VII language shall be controlling.
-57-
9.5 PROCEDURES.
(a) NOTICE AND TENDER. In the event that any officer or
registered agent of either Party hereto receives actual notice of any written
claim by a third person giving rise to a right of indemnification of such Party
under this Article IX (the "Indemnitee"), such Indemnitee shall, within sixty
(60) days after receipt of such notice, give written notice thereof to the other
Party hereto responsible for such indemnification (the "Indemnitor") setting
forth the facts and circumstances giving rise to such claim for indemnification
and shall tender the defense of such claim to the Indemnitor. If the Indemnitee
fails to give such notice and tender such defense within such 60-day period, the
Indemnitee shall be solely responsible for any Loss with respect to such claim
to the extent they are attributable to such failure; but failure to give such
notice and tender such defense within such 60-day period shall not result in a
forfeiture or waiver of any rights to indemnification for any Loss with respect
to such claim to the extent they are not attributable to such failure.
(b) DEFENSE OF CLAIMS. The Indemnitor shall select (subject to
the Indemnitee's reasonable approval) the attorneys to defend any matter subject
to indemnification and/or taking all actions necessary or appropriate to
resolve, defend, and/or settle such matters, and shall be entitled to contest,
on its own behalf and on the Indemnitee's behalf, the existence or amount of any
obligation, cost, expense, debt or liability giving rise to such claim. Nothing
in this Section 9.5(b) should be construed as prohibiting the Indemnitee from
participating in the defense (which may include hiring its own counsel) in any
matter subject to indemnification, as long as the Indemnitee does so at its own
expense. The Indemnitor shall keep the Indemnitee fully and timely informed as
to actions taken on such matters. The Indemnitee shall cooperate fully with the
Indemnitor and its counsel and shall provide them reasonable access to the
Indemnitee's employees, consultants, agents, attorneys, accountants, and files
to the extent necessary or appropriate to defend or resolve the matter, with the
Indemnitor
-58-
reimbursing the Indemnitee with respect to the cost of any such access. With
respect to any matter for which a Party has an indemnification and/or defense
obligation under this Agreement, the Parties shall maintain a joint defense
privilege, where applicable, in connection with such matters for the Party's
post-Closing communications and those of their respective Affiliates and
Authorized Representatives, which post-Closing communications concern the
matters subject to such indemnification and/or defense obligation.
(c) ALLOCATION OF INDEMNIFICATION LIABILITY. When any Loss for
which indemnification is provided under this Article IX results from, relates
to, or arises out of the conduct of both Seller and Buyer, the Parties shall
indemnify each other in proportion to their respective share of such Loss.
ARTICLE X
SURVIVAL
10.1 REPRESENTATIONS AND WARRANTIES. All representations and warranties
made in this Agreement, in any Exhibit or Schedule to this Agreement, or in any
document, instrument, agreement or certificate delivered under this Agreement
will survive until one year after Closing. At the end of such survival period
set forth above, such representations and warranties shall terminate and have no
further force and effect.
10.2 COVENANTS. Unless otherwise specified in this Agreement, the
Parties obligations under the following sections and articles will survive the
Closing of this transaction and delivery of the deed: Articles I, VII, IX, X,
XII, XIII and XV, Sections 2.4 (d) and (e), 3.3 and 11.3.
-59-
ARTICLE XI
TITLE COMMITMENT; SURVEY; RISK OF LOSS
11.1 TITLE INSURANCE. Buyer will furnish and pay the premium for a
standard title insurance policy issued by the Title Company in an amount equal
to the portion of the Purchase Price that is allocated to the Real Property and
Improvements, naming Buyer as the proposed insured. Subject to Permitted Title
Exceptions, Seller shall deliver to Buyer at the Closing title insurable by the
Title Company at standard rates without special exceptions or conditions. Any
abstracting, title certification, and charges for title examination will be at
Buyer's expense. Buyer shall cause the Title Company to deliver to Buyer, with a
copy to Seller, a title commitment setting forth the status of title to the
Property on or before the thirtieth (30th) day following the Effective Date (the
"Title Commitment").
11.2 SURVEY. Seller shall cause to be prepared at its expense a current
ALTA land title survey of the Property ("Survey"), by a duly licensed land
surveyor and professional engineer satisfactory to the Title Company. The Survey
shall be completed within thirty (30) days after the Effective Date. Upon
completion of the Survey, Seller shall deliver promptly three (3) prints thereof
to Buyer and at least one (1) print to the Title Company. The Survey will (i)
show the location of all streets, roads, railroads, creeks or other water
courses, fences, easements, rights-of-way and other encumbrances or
encroachments on or adjacent to the Property, including all of the title matters
shown on the Title Commitment and (ii) set forth a certified legal description
of the Property.
11.3 TITLE OBJECTIONS. Within fifteen (15) days after
receiving the later of the Title Commitment or the Survey, Buyer shall notify
Seller if the Title Commitment or Survey reveals Title Objections. If Seller is
unable or unwilling to cure any Title
-60-
Objections, Seller will provide written notice thereof to Buyer within fifteen
(15) days following receipt of notice of Title Objections from Buyer and Buyer
shall have the right, at its option, by written notice to Seller within fifteen
(15) days following receipt of Seller's written notice, either (i) to terminate
this Agreement, whereafter both Parties shall be relieved and discharged of any
rights, liabilities or obligations hereunder, or (ii) to waive such defect and
proceed to Closing. Buyer's failure to exercise the right to terminate within
the said fifteen (15) day period shall constitute a waiver of Buyer's right to
terminate with respect to such title matters. However, if Seller elects to cure
the Title Objections (although Seller will have no such obligation to do so),
Seller shall provide Buyer with notice of its intention to cure same within the
fifteen (15) days aforesaid and Seller shall have an opportunity, at its
expense, to remove such Title Objections within sixty (60) days following
receipt of written notice from Buyer identifying the Title Objections (the
"Title Cure Period"). In no event shall Seller have any obligation to commence
litigation or to incur costs in excess of One Thousand Dollars ($1,000.00) to
cure or remove any Title Objections. If Seller is unable to cure any Title
Objections within the Title Cure Period that, in the reasonable opinion of the
Title Company or Buyer, must be cured in order to deliver good and marketable
title, Buyer may, as its sole and exclusive remedy, and upon written notice to
Seller within fifteen (15) days after expiration of the Title Cure Period, elect
either to (i) terminate this Agreement, whereafter both Parties shall be
relieved and discharged of any rights, liabilities or obligations hereunder, or
(ii) to waive such defect and any other obligation under this Agreement of
Seller to deliver good and marketable title with respect to such defect and
proceed to Closing.
11.4 RISK OF LOSS. Risk of loss with respect to the Terminal shall be
borne by Seller until Closing. The risk of loss of the Terminal shall pass to
the Buyer at Closing.
-61-
ARTICLE XII
FURTHER ASSURANCE
From time to time after Closing, Seller and Buyer shall, upon request
of the other and without further consideration, execute, acknowledge and deliver
such further instruments of transfer, conveyance or assumption and such other
documents as Seller or Buyer may reasonably request more effectively to vest in
Buyer the right and title to, interest in and enjoyment of, the Terminal or to
carry out the transactions and agreements contemplated by this Agreement.
ARTICLE XIII
COSTS AND EXPENSES
13.1 BROKERAGE COMMISSIONS. Neither of the Parties nor, where
applicable, any of their respective shareholders, officers, directors, or
employees, has employed or will employ any broker, agent, finder or consultant
or has incurred or will incur any liability for any brokerage fees, commissions,
finders' fees or other fees in connection with the negotiation or consummation
of the transactions contemplated by this Agreement.
13.2 CLOSING ADJUSTMENTS. The following items shall be paid, prorated,
or adjusted as of the Closing Date in the manner hereinafter set forth:
(a) All real estate Taxes, as well as Taxes assessed on
Terminal Inventory, due and owing on or before the Closing Date, all penalties
and interest thereon, and all special assessments affecting the Terminal,
whether payable in installments or not, shall be paid in full by Seller.
(b) Current real estate Taxes, assessments and charges shall
be prorated as of the Closing Date upon the tax year of the applicable taxing
authority,
-62-
without regard to when said Taxes are payable, so that the portion of current
Taxes allocable to the period from the beginning of such year to the Closing
Date shall be the responsibility of Seller and the portion of the current Taxes
allocable to the portion of such year from the Closing Date to the end of such
year shall be the responsibility of Buyer. These Taxes will be prorated based on
the current assessed value for 2004. A post-closing adjustment will be made to
reflect accurately Seller's responsibility for that portion of real estate Taxes
attributable to the period prior to the Closing Date, and Buyer's responsibility
for that portion of real estate Taxes attributable to the period following the
Closing Date. The post-closing adjustment will be made upon receipt by Buyer of
the relevant tax xxxx from the appropriate Governmental Authorities, but no
later than one year following the Closing Date. Any post-closing adjustment
proposed by Buyer will be supported by copies of said tax bills along with other
reasonable documentation to be provided to Seller.
(c) Seller shall be responsible for the cost of Terminal
utilities up to Closing and Buyer shall be responsible for such costs
thereafter.
(d) Buyer shall bear and pay all title insurance premiums and
charges.
(e) Buyer shall bear and pay all realty transfer fees,
recording costs and Taxes associated with the conveyance of the Real Property,
the Improvements and the Personal Property.
(f) Seller and Buyer shall each pay their own respective legal
fees and expenses and the cost of performance of their respective obligations
hereunder.
(g) All amounts due Seller under any assignable
Revenue-Generating Contract shall be prorated as of the Closing Date upon the
payment cycle established under such Revenue-Generating Contract so that the
portion the amounts due Seller from the beginning of such payment cycle to the
Closing Date will be credited to Seller at Closing.
-63-
(h) The Parties shall make all other adjustments necessary to
effectuate the intent of the Parties as set forth in this Agreement.
13.3 TIMING OF ADJUSTMENTS. All monetary adjustments necessary to
achieve the allocations specified in Section 13.2, to the extent reasonably
practicable, shall be made at the Closing. To the extent any such adjustments
cannot be made at the Closing, the same shall be made after the Closing as and
when complete information becomes available. Seller and Buyer agree to cooperate
and to use their best efforts to complete such adjustments no later than thirty
(30) days after the Closing Date.
ARTICLE XIV
CASUALTY AND CONDEMNATION
14.1 NOTICE OF FIRE CASUALTY OR CONDEMNATION. In the event that after
the date of this Agreement and prior to the Closing:
(a) Any material portion of the Terminal shall be damaged or
destroyed by fire or other casualty (a "Casualty"), or
(b) Seller receives written notice of any action, suit or
proceeding, or threatened or contemplated action, suit or proceeding, to condemn
or take all or any material part of the Terminal by eminent domain (a
"Condemnation"), Seller shall immediately notify Buyer of the Casualty or
Condemnation. In the event of a Casualty, Buyer must (i) retain an insurance
adjuster mutually satisfactory to Buyer and Seller within fifteen (15) days
after Buyer's receipt of Seller's notice to determine the extent of the
Casualty, and (ii) initiate negotiations with Seller to discuss an adjusted
Purchase Price for the Terminal if Buyer contemplates making the election in
Section 14.2(a) below. If Buyer initiates such negotiations, Buyer and Seller
shall negotiate in good faith to try to agree upon an adjusted Purchase Price.
-64-
14.2 BUYER'S ELECTION. Buyer must elect one of the following options
and give written notice to Seller of such election within (i) fifteen (15) days
after the insurance adjuster's written determination in the case of a Casualty,
or (ii) thirty (30) days after Buyer's receipt of Seller's notice of
Condemnation in the case of a Condemnation:
(a) Purchase the Terminal in accordance with Article IV of
this Agreement at an adjusted Purchase Price agreed upon by Buyer and Seller
before Buyer makes this election; or
(b) Terminate this Agreement.
14.3 EXCLUSIVE REMEDY. Notwithstanding any provision to the contrary
contained herein, the remedies provided to Buyer under Section 14.2(a) and (b)
constitute Buyer's exclusive remedies in connection with the circumstances
described therein.
ARTICLE XV
GENERAL; ADDITIONAL COVENANTS
15.1 TERMINATION. If this Agreement is terminated by Seller or by Buyer
as a matter of right or as permitted under this Agreement, such termination
shall be without liability of either Party to the other, or to any of their
shareholders, affiliates, directors, officers, employees, agents, consultants or
representatives except that Seller's obligation under Section 9.2 and Buyer's
obligation under Section 9.3(b) shall remain in full force and effect. If either
Party or either Party's Affiliates (the "Non-Defaulting Party") terminates this
Agreement because the other Party or the other Party's Affiliates (the
"Defaulting Party") fails to perform any covenant, obligation or agreement
contained in this Agreement or any Related Purchase Agreement, the Defaulting
Party shall be fully liable for any and all damages, costs and expenses
(including, but not limited to, reasonable attorneys' fees) sustained or
incurred by the Non-Defaulting Party in connection with this Agreement and the
Related Purchase Agreements; provided,
-65-
however, neither Party shall be liable to the other for punitive, indirect,
consequential or special damages. A failure by any Party or its Affiliate to
perform any covenant, obligation or agreement contained in a Related Purchase
Agreement shall be deemed a failure to perform under this Agreement.
15.2 SPECIFIC PERFORMANCE. The Parties agree that a Party would be
irreparably injured if the other Party breaches any of its obligations under
this Agreement. Accordingly, the non-breaching Party and its Affiliates who are
party to a Related Purchase Agreement are entitled to an injunction and specific
enforcement of this Agreement and the Related Purchase Agreements, in addition
to any other remedy available at law or in equity.
15.3 ENTIRE AGREEMENT. This Agreement, including all of the Exhibits
and Schedules hereto, constitutes the entire understanding between the Parties
with respect to the subject matter contained herein and supersedes any prior
understandings, negotiations or agreements, whether written or oral, between
them respecting such subject matter.
15.4 HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not affect its interpretation.
15.5 NOTICES. Except for notices required under Article VII of this
Agreement, all notices or other correspondence required or permitted to be given
under this Agreement shall be in writing and addressed to the Party to be
notified at the address listed in this Section 15.5. Notice shall be given in
person, or shall be sent by nationally-recognized overnight courier, registered
or certified mail (postage prepaid and return receipt requested) or facsimile
with written communication to the Party to be notified at the following address:
-66-
Seller Buyer
Mail: ExxonMobil Oil Corporation Mail: Buckeye Terminals, LLC
0000 Xxxxxxx Xxxx Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000 000 Xxxxxxxxxxx Xxxx
Attn: Global Logistics Business Xxxxxx, Xxxxxxxxxxxx 00000
Development Manager Attn: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: 000-000-0000 Facsimile: 000-000-0000
Phone: 000-000-0000 Phone: 000-000-0000
If to Seller, with a copy to:
Mail: ExxonMobil Oil Corporation
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Facsimile: 000-000-0000
Phone: 000-000-0000
Either Party may change its address or facsimile number by providing written
notice to the other at least ten (10) days prior to the effective date of such
change. Notices given in accordance with this Section 15.5 shall be deemed to
have been given: (a) at the time of delivery when delivered personally; (b) upon
receipt when sent by nationally-recognized overnight courier, registered or
certified mail (postage prepaid and return receipt requested); or (c) upon
completion of successful transmission when sent by facsimile (unless
transmission is completed outside recipient's normal working hours, in which
case such notice shall be deemed given at the start of recipient's next business
day). Notices given in accordance with this Section 15.5 shall concern only
those matters not governed by Article VII and shall be separated from Article
VII notices, which are governed by Section 7.12 of this Agreement.
15.6 EXHIBITS AND SCHEDULES. Each Exhibit and Schedule referred to
herein is incorporated into this Agreement by such reference.
15.7 SEVERABILITY. If any provision of this Agreement is held illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability will
not affect any other provision hereof. This Agreement shall in such
circumstances be deemed modified to the extent necessary to render enforceable
the provisions hereof.
-67-
15.8 WAIVER. The failure of any Party to insist upon strict performance
of any of the terms or conditions of this Agreement will not constitute a waiver
of any of its rights hereunder.
15.9 ASSIGNMENT. Except for the assignment rights specified in Section
3.4 and in this Section 15.9, neither Party may assign this Agreement without
the prior written consent of the other Party, which consent shall not be
unreasonably withheld. Either Buyer or Seller may assign this Agreement to an
affiliate or any entity into which it is merged or combined. Any assignment of
this Agreement, by operation of law or otherwise, shall not relieve the assignor
of any obligations hereunder. Any assignment made in violation of this Section
15.9 shall be void.
15.10 PARTIES IN INTEREST; NO THIRD PARTY BENEFICIARY. This Agreement
shall inure to the benefit of and be binding upon Buyer and Seller and their
respective successors and permitted assigns. Except as otherwise provided
herein, nothing in this Agreement will be construed as conferring upon any
person or entity other than Buyer and Seller, and their respective successors in
interest and permitted assigns, any right, remedy or claim under or by reason of
this Agreement.
15.11 GOVERNING LAW. This Agreement and the rights and obligations of
the parties hereunder shall be governed by, and shall be construed and enforced
in accordance with, the internal law of the state of New York (including without
limitation section 5-1401 of the General Obligations Law of the State of New
York), without regard to conflicts of laws principles thereof that would result
in application of substantive laws of any other state.
15.12 CHOICE OF FORUM. Where Federal subject matter or diversity
jurisdiction exists with respect to a dispute which the Parties cannot
themselves amicably resolve, the Parties designate the United States District
Court for the Southern District of New York, as the exclusive forum for the
resolution of that dispute and submit themselves and the dispute to the
jurisdiction of that Court. Where Federal subject matter or
-68-
diversity jurisdiction in respect of such dispute does not exist, the Parties
designate the Supreme Court of the State of New York, County of New York, as the
exclusive forum for the resolution of that dispute and submit themselves and the
dispute to the jurisdiction of that Court.
15.13 WAIVER OF JURY TRIAL. EACH PARTY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED ON THIS AGREEMENT, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS AGREEMENT OR ANY OTHER OPERATIVE DOCUMENT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE
OTHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER
INTO THIS AGREEMENT.
15.14 COMMERCIALLY REASONABLE EFFORTS; TIME OF ESSENCE. Except as
otherwise specifically provided herein, Buyer and Seller shall each use
commercially reasonable efforts to satisfy the conditions to Closing and
otherwise consummate the transactions contemplated by this Agreement as promptly
as practical. Time is of the essence with respect to the Closing of this
Agreement.
15.15 AMENDMENTS. This Agreement may be amended only by a written
instrument that is duly executed by both Parties.
15.16 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and any Party hereto may execute any such counterpart, each of
which when executed by both Parties and delivered shall be deemed to be an
original. It shall not be necessary in making proof of this Agreement or any
counterparts hereof to produce or account for any of the other counterparts.
15.17 PUBLIC ANNOUNCEMENTS. The Parties agree that there shall be no
press releases or other announcements prior to Closing without the prior written
consent of the other Party, which consent shall not be unreasonably withheld,
except to the extent
-69-
required by applicable laws, rules, or regulations. If either Party determines
that a press release is required or desired, they will so notify the other in
writing and shall consult with each other with regard to the same. The Parties
further agree to consult with each other on all press releases and announcements
issued at or after Closing concerning the transactions contemplated by this
Agreement.
15.18 TRANSITION ASSISTANCE. For a period of ninety (90) days after
Closing, at Buyer's reasonable request, Seller shall assist, at no charge, Buyer
in connection with a reasonably orderly transition of the operation of the
Terminal.
15.19 TAXES. After the Closing Date, if Buyer receives a xxxx for Taxes
assessed against the Terminal or Terminal Inventory that includes Taxes for
taxable years or taxable periods on or before the Closing Date (including Taxes
assessed for portions of taxable years or periods on or before the Closing
Date), Buyer shall pay the xxxx and invoice Seller for all such Taxes relating
to periods prior to the Closing Date. Seller shall promptly reimburse Buyer upon
receipt of such invoice. After the Closing Date, if Seller receives a xxxx for
Taxes assessed against the Terminal or Terminal Inventory that includes Taxes
for taxable years or taxable periods after the Closing Date (including Taxes
assessed for portions of taxable years or taxable periods after the Closing
Date), Seller shall forward the xxxx to Buyer for payment.
15.20 CONFIDENTIALITY. The Parties acknowledge that they are bound by
the terms of the Confidentiality Agreement dated March 18, 1994 between Seller
and Buyer and hereby extend the term of such Confidentiality Agreement so that
it will expire three years after the Closing Date. In addition, Seller and Buyer
agree that they will keep confidential and not disclose to any non-Affiliated
third party any of the terms or provisions of this Agreement for a period of
three years after the Closing Date, except for disclosure of information that:
(a) is or becomes publicly available by other than
unauthorized disclosure;
-70-
(b) is made pursuant to the requirement or request of a
Government Authority of competent jurisdiction to the extent such disclosure is
required by an applicable law or Order, and sufficient notice is given by the
disclosing Party to the other Party to permit the other Party to seek an
appropriate protective order or exemption from such requirement or request, if
it so desires. If such protective order or other remedy is not obtained, or if
the other Party waives compliance with the provisions of this Section 15.20 for
this purpose, the disclosing Party shall furnish only that portion of the
information that is legally required and will exercise its best efforts to
obtain reliable assurance that confidential treatment will be accorded the
information by the Government Authority.
15.21 NO PRESUMPTION AGAINST DRAFTER. Buyer and Seller have each fully
participated in the negotiation and drafting of this Agreement. If an ambiguity,
question of intent or question of interpretation arises, this Agreement must be
construed as if drafted jointly, and there must not be any presumption,
inference or conclusion drawn against either Party by virtue of the fact that
its representative has authored this Agreement or any of the terms of it.
[SIGNATURE PAGE FOLLOWS.]
-71-
IN WITNESS WHEREOF, the Parties have executed this
Terminal Purchase and Sales
Agreement as of the date first above written.
EXXONMOBIL OIL CORPORATION
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
--------------------------------
Title: Global Logistics Business
Development Manager
--------------------------------
BUCKEYE TERMINALS, LLC
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------
Title: VP Marketing
--------------------------------
SCHEDULES AND EXHIBITS TO AGREEMENT
In accordance with Item 601(b)(2) of Regulation S-K, the foregoing
schedules and exhibits have been omitted. Buckeye Partners, L.P. agrees to
supplementally furnish a copy of any omitted schedule or exhibits to the SEC
upon request.
-72-
