EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "AGREEMENT") is made and entered
into as of the 25th day of September, 2008 (the "EXECUTION DATE"), by and
between NUSTAR TERMINALS OPERATIONS PARTNERSHIP L.P., a Delaware limited
partnership ("SELLER"), and BLACKWATER NEW ORLEANS, L.L.C., a Louisiana limited
liability company ("PURCHASER"). Seller and Purchaser are sometimes referred to
herein individually as a "party" and collectively as the "parties." Capitalized
terms not otherwise defined herein shall have the meanings specified or referred
to in EXHIBIT A hereto.
PRELIMINARY STATEMENT
Seller owns a terminal facility accommodating chemicals and liquid
fertilizer at or near Westwego, Louisiana.
Seller is willing to sell, and Purchaser is willing to purchase, the
Assets (as defined below) in accordance with the terms of this Agreement.
NOW THEREFORE, in consideration of the matters set forth in the
Preliminary Statement, the mutual promises and covenants herein set forth, and
subject to the terms and conditions hereof, the parties hereby agree as follows:
PURCHASE AND SALE OF ASSETS
1.1 SALE OF ASSETS. On the terms and subject to the conditions of this
Agreement and for the consideration stated herein, at the Closing,
Purchaser shall purchase and receive from Seller, and Seller shall sell
and deliver to Purchaser subject to the Permitted Liens, all of
Seller's right, title and interest in and to the following assets
(collectively, the "ASSETS"):
1.1.1. The Land described on SCHEDULE 1.1.1 hereto;
1.1.2. The improvements located on the Land, including buildings,
facilities, fixtures, storage tanks, piping and related
on-site facilities and appurtenances (the "IMPROVEMENTS," and
together with the Land, the "REAL PROPERTY");
1.1.3. All equipment and fixtures appurtenant to the Facility and
used by Seller as of the date of this Agreement primarily in
its operation of the Facility, together with any and all
licenses or other rights to use real property held in
connection with same (such licenses and rights being the
"LICENSES," and together with said equipment and fixtures, the
"APPURTENANT EQUIPMENT");
1.1.4. All supplies, spare parts, tools, drawings, plats, equipment
manuals, books, furniture, machines, equipment, computers, and
records located at or relating to the Facility and all other
personal property located at the Facility, other than the
Excluded Personal Property set forth on SCHEDULE 1.2.6 hereto
(the "PERSONAL PROPERTY");
1.1.5. All of Seller's rights, interests and obligations arising or
accruing after the Closing Date under written contracts,
purchase orders, sales orders, licenses, leases and other
agreements, arrangements and understandings and set forth on
SCHEDULE 1.1.5 hereto ("CONTRACTS");
1.1.6. To the extent transferable and relating to the Facility, all
of Seller's rights, interests and obligations arising or
accruing after the Closing Date under all permits and similar
authorizations from any Governmental Authority set forth on
SCHEDULE 1.1.6 hereto ("PERMITS");
1.1.7. To the extent transferable, all manufacturer and seller
warranties of, or other claims directly related to, any goods
or services provided to Seller regarding the Assets; and
1.1.8. All books, records, files or other embodiments of information
wherever located, hard copy or electronic format, whether
relating to past or current operations, in Seller's possession
and relating directly to the Facility (the "RECORDS").
1.2 EXCLUDED PROPERTY. Notwithstanding anything else in this Agreement, the
Assets exclude the following (collectively, the "EXCLUDED PROPERTY"):
1.2.1. All Product Inventory;
1.2.2. Intra-company accounts and contracts of Seller including any
accounts and contracts between Seller and any of its
Affiliates;
1.2.3. Cash or bank accounts of Seller;
1.2.4. Accounts receivable, notes receivable and employee
receivables;
1.2.5. Proprietary trade names, trademarks, service marks, logos,
trade dress, insignia, and imprints of Seller and all signs
whose purpose is to display any of the foregoing and all forms
and documents which incorporate any of the foregoing;
1.2.6. The items of personal property that are listed on SCHEDULE
1.2.6 (collectively, the "EXCLUDED PERSONAL PROPERTY");
1.2.7. All Intellectual Property;
1.2.8. All rights to any of Seller's claims (whether or not filed)
for any federal, state, local, or foreign Income Tax or Tax
refunds or carrybacks;
1.2.9. The following documents: (A) all minute books, tax returns,
partnership documents of Seller or any of its Affiliates as
well as other business records or related documents of Seller
or any of its Affiliates that are not related to the Assets;
and (B) all Records that (i) are proprietary in nature, (ii)
are covered by the attorney-client privilege or work product
doctrine (other than Records which relate to any Assumed
Liability), (iii) are not readily severable from Seller's
general records through diligent efforts, (iv) relate to
employment matters for any person other than employees of
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Seller employed in connection with the Assets within 30 days
prior to the date of this Agreement, or (v) are required by
applicable Law to be retained by Seller or any of Seller's
Affiliates in its care, custody, or control; provided,
however, to the extent the documents described in (v)
constitute Records, copies of such Records shall be delivered
to Purchaser;
1.2.10. All rights in connection with and assets of any employee
benefit or similar plans;
1.2.11. All insurance policies and rights thereunder;
1.2.12. The capital stock of any Affiliate of Seller;
1.2.13. All Claims of Seller and other rights to recover monies
against Third Parties, whether xxxxxx or inchoate, known or
unknown, contingent or non-contingent, arising prior to, on or
after the Closing Date that Seller or any of its Affiliates
may have and relating to or in connection with Seller's
ownership of the Assets prior to the Closing Date, including
without limitation Claims related to the cleaning and removal
of tank bottoms.
1.2.14. Any other properties or assets of Seller not specifically
described herein as being part of the "Assets."
1.3 AS-IS SALE. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT,
ALL ASSETS TO BE CONVEYED HEREUNDER WILL BE CONVEYED ON AN "AS IS",
"WHERE IS", AND "WITH ALL FAULTS" BASIS AT THE CLOSING, INCLUDING ANY
ENVIRONMENTAL CONDITION, AND SELLER MAKES NO, AND HEREBY DISCLAIMS ALL
OTHER, REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, CONCERNING THE PHYSICAL CONDITION, UTILITY OR OPERABILITY OF
ANY OF THE ASSETS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF
MERCHANTABILITY OR OF FITNESS FOR PARTICULAR OR ORDINARY USES OR
PURPOSES.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER HAS
INSPECTED, OR WAIVED (AND UPON CLOSING SHALL BE DEEMED TO HAVE WAIVED)
ITS RIGHT TO INSPECT, THE ASSETS FOR ALL PURPOSES AND SATISFIED ITSELF
AS TO THEIR PHYSICAL AND ENVIRONMENTAL CONDITION, BOTH SURFACE AND
SUBSURFACE, INCLUDING, BUT NOT LIMITED TO, CONDITIONS SPECIFICALLY
RELATED TO THE PRESENCE, RELEASE, OR DISPOSAL OF HAZARDOUS MATERIALS
IN, ON, OR UNDER THE ASSETS. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, PURCHASER IS RELYING SOLELY UPON ITS OWN INSPECTION OF THE
ASSETS. WITHOUT LIMITATION OF THE FOREGOING, SELLER MAKES NO, AND
HEREBY DISCLAIMS ANY, WARRANTY OR REPRESENTATION, EXPRESS, IMPLIED,
STATUTORY, OR OTHERWISE, AS TO THE ACCURACY OR COMPLETENESS OF ANY
DATA, REPORTS, RECORDS, PROJECTIONS, INFORMATION, OR MATERIALS NOW,
HERETOFORE, OR HEREAFTER FURNISHED OR MADE AVAILABLE TO PURCHASER IN
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CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
ANY AND ALL SUCH DATA, RECORDS, REPORTS, PROJECTIONS, INFORMATION, AND
OTHER MATERIALS (WRITTEN OR ORAL) FURNISHED BY SELLER OR OTHERWISE MADE
AVAILABLE OR DISCLOSED TO PURCHASER ARE PROVIDED TO PURCHASER AS A
CONVENIENCE AND SHALL NOT CREATE OR GIVE RISE TO ANY LIABILITY OF OR
AGAINST SELLER, AND ANY RELIANCE ON OR USE OF THE SAME SHALL BE AT
PURCHASER'S SOLE RISK TO THE MAXIMUM EXTENT PERMITTED BY LAW.
1.4 USE OF NAMES. Prior to Closing, Seller shall remove or cause to have
removed the names and marks used by Seller and Seller's Affiliates
(including replacement of Seller's and their Affiliates name and number
with Purchaser's name and designated number on any applicable pipeline
markers located upon the Land) and all variations and derivations
thereof and logos relating thereto from the Assets. Purchaser shall not
make any use whatsoever of those names, marks, and logos.
1.5 ACCOUNTS RECEIVABLE; REVENUE; EXPENSES. From and after the Closing,
Purchaser shall provide commercially reasonable assistance to Seller
and its authorized representatives in collecting the amounts due with
respect to the accounts receivable of Seller accruing from use of the
Assets prior to the Closing, which efforts shall include receipt of
funds billed by Seller for such accounts receivable and reasonable
access to customer files and records with respect to such accounts
receivable, but which efforts shall not include any obligation to spend
any money or incur any out-of-pocket expense. Purchaser agrees that it
will pay to Seller within thirty (30) days of receipt by Purchaser (i)
any amounts received by Purchaser with respect to such accounts
receivable, and (ii) any revenues (including throughput fees)
attributable to the Assets prior to Closing to the extent same are paid
to Purchaser. Seller agrees that it will promptly pay to Purchaser
within thirty (30) days of receipt by Seller any amounts received by
Seller with respect to Purchaser's use of the Assets at and subsequent
to the Closing, including revenues and accounts receivable. All amounts
so collected by Purchaser shall be applied to outstanding accounts
receivable on a "first in, first out" basis, unless otherwise directed
by the payor.
ARTICLE II
PURCHASE PRICE
2.1. DEPOSIT. Purchaser shall pay to Seller, by wire transfer or delivery of
other immediately available funds, a non-refundable deposit against the
Purchase Price of the Assets in an amount equal to $150,000 (the
"DEPOSIT"). Seller hereby acknowledges receipt of one-half of the
Deposit upon the signing of the Letter of Interest between the parties
dated July 28, 2008 ("LOI"), and one-half of the Deposit upon Purchaser
and Seller entering into this Agreement on the Execution Date. In the
event the Closing should not occur for any reason (other than due to
Seller's breach of this Agreement), Seller will retain the Deposit as a
break-up fee. Seller and Purchaser hereby acknowledge and agree that
the Deposit constitutes consideration for the exclusivity set forth in
the Letter of Interest between the parties dated July 28, 2008, and in
part reflects a fair and reasonable monetary estimate of the
substantial time, effort and resources Seller will expend in connection
with the negotiation of the acquisition. In the event the Closing
occurs, the Deposit shall be credited against the Purchase Price
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2.2 PURCHASE PRICE; PAYMENT.
2.2.1. The purchase price to be paid by Purchaser for the transfer,
sale and assignment by Seller of the Assets shall be the sum
of Four Million Eight Hundred Thousand and No/100 Dollars
($4,800,000) minus (i) the amount of any Prepaid Storage Fees
as of the Closing minus (ii) Seller's prorated share of the
Expenses minus (iii) the Third Party Inventory Shrinkage (such
net consideration shall hereinafter be referred to as the
"PURCHASE PRICE"), payable at the Closing.
a) For purposes of this Agreement, "PREPAID STORAGE
FEES" means the aggregate amount of all fees and
other amounts paid to Seller prior to the Closing by
Third Parties storing Product Inventory at the
Facility as of the Closing to the extent and for the
period such fees and other payments entitle the payor
to storage or similar services at, or use of some
portion of, the Assets on and subsequent to the
Closing Date prorated for the period such storage or
special services are to be provided subsequent to the
Closing. All Prepaid Storage Fees in Seller's
possession as of the date of this Agreement are
listed in SCHEDULE 2.1.1(A). Seller shall provide
Purchaser with an updated list of Prepaid Storage
Fees at least within two (2) business days prior to
Closing.
b) Seller shall provide to Purchaser an estimate of the
Third Party Inventory Shrinkage at least two (2)
business days prior to Closing, and shall cooperate
with Purchaser's reasonable requests to participate
in the reconciliation process. After such estimate is
delivered, Seller shall not remove additional product
inventory from the Facility without providing
reasonably detailed notice of same to Purchaser. At
Purchaser's option, Purchaser may contact Seller's
customers reflected by such inventory records and
request confirmation of the accuracy of such records.
2.2.2. As soon as reasonably practical, but in no event later than
two (2) business days prior to the Closing Date, Seller shall
in good faith cause to be prepared and delivered to Purchaser
a statement (the "CLOSING STATEMENT") setting forth the
Purchase Price, calculated in conformity with Section 2.1.1
above.
2.2.3. At the Closing, Purchaser shall pay the Purchase Price (as
properly reflected in the Closing Statement) to Seller by wire
transfer of immediately available funds to the account of
Seller, written notice of which account shall have been
provided to Purchaser not less than one (1) business day prior
to the Closing.
2.3 ALLOCATION OF PURCHASE PRICE FOR TAX PURPOSES. Seller and Purchaser
agree that the proper allocation for purposes of IRS Form 8594 of
amounts paid in connection with the transactions contemplated hereunder
is as set forth in SCHEDULE 2.2, and the parties shall file IRS Form
8594 consistently with the terms of same.
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ARTICLE III
RETAINED LIABILITIES; ASSUMED LIABILITIES; PURCHASER'S RELEASE
3.1 SELLER'S RETAINED LIABILITIES. Seller shall retain and shall pay and
discharge when due only the following Liabilities (collectively, the
"RETAINED LIABILITIES"):
3.1.1. any Liability for: (i) salary, wages and benefits for any
current or former employees of Seller pertaining to their
employment by Seller at the Facility prior to the Closing
Date, including any accrued and unused vacation entitlement
for the Employee, or (ii) any violations of law by Seller
relating to the hiring, employment or termination of
employment of any current or former employees of Seller
pertaining to their employment by Seller at the Facility prior
to the Closing Date;
3.1.2. all costs for property furnished or services rendered to or
for the benefit of the Assets prior to the Closing Date;
3.1.3. any (1) Liability of Seller and its Affiliates for Income
Taxes and (2) Liability of Seller for Taxes arising during, or
relating to, any period (or portion thereof), through and
including the Closing Date and which result from Seller's
operation of the Facility or ownership of the Assets prior to
the Closing Date; provided, however, that Purchaser shall
assume responsibility for payment of those Taxes set forth in
Section 4.4.2;
3.1.4. any Liability arising out of or related to the Excluded
Property;
3.1.5. any Liability arising out of or related to Pre-Closing Offsite
Disposal;
3.1.6. any Liability, other than Liability described in Section 3.1.5
above, arising out of or related to any enforcement action
brought by a Governmental Authority that shall have commenced
on or before the two (2) year anniversary of the Closing Date
to the extent the same relate to, result from or arise out of
the Facility's non-compliance with Environmental Laws prior to
the Closing Date;
3.1.7. any Liability arising out of or related to the exposure of any
Employee at any time to any Hazardous Materials to the extent
existing at or released from the Facility prior to the Closing
Date;
3.1.8. any Liability arising under any of the Contracts or Permits to
the extent such Liability has accrued prior to the Closing
Date;
3.1.9. any Liability sounding in tort or any statutory Liability,
other than Liability described in Section 3.1.5, Section 3.1.6
or Section 3.1.7 above, pursuant to a Proceeding brought by a
Third Party that shall have commenced on or before the five
(5) year anniversary of the Closing Date to the extent arising
out of or related to any occurrence or event happening prior
to the Closing Date;
3.1.10. any Liability, other than Liability described in Section
3.1.5, Section 3.1.6 or Section 3.1.7 above, with respect to
litigation pending against Seller as of the Closing Date
related in any manner to the Facility or the Assets or
defending or prosecuting the same.
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3.2 PURCHASER'S ASSUMED LIABILITIES. Upon the Closing, Purchaser, without
any further action by Purchaser or Seller, shall assume and be solely
liable for the following Liabilities (collectively, the "ASSUMED
LIABILITIES"):
3.2.1. any Liability under any and all of the Contracts, Licenses and
Permits arising after the Closing Date (but excluding any
Liability arising out of or relating to any such instrument or
a breach thereof that has accrued prior to the Closing Date);
3.2.2. any Liability under Environmental Law to perform Corrective
Action of any Environmental Condition;
3.2.3. any Liability arising out of or related to any enforcement
action brought by a Governmental Authority that shall have
commenced after the two (2) year anniversary of the Closing
Date to the extent the same relate to, result from or arise
out of the Facility's non-compliance with Environmental Laws
prior to the Closing Date;
3.2.4. any Liability arising out of or related to a Release of
Hazardous Materials pursuant to a Proceeding brought by a
Third Party to the extent the same relate to, result from, or
arise out of Seller's ownership or operation of the Facility
prior to the Closing Date, but excluding any such Liability to
the extent expressly set forth in Section 3.1.5, Section 3.1.6
or Section 3.1.7;
3.2.5. any Liability arising out of or related to the exposure of any
natural person at any time to any Hazardous Material to the
extent existing at or released from the Facility prior to, on
or after the Closing Date, but excluding any such Liability to
the extent expressly set forth in Section 3.1.7;
3.2.6. any Liability arising out of or related to Title Claims;
3.2.7. any Liability arising out of or related to the operation of
the Facility or the ownership of the Assets, whether arising
prior to or after the Closing, including any Liability arising
out of or related to the condition of the Assets prior to or
at the time of Closing, but excluding the Retained
Liabilities.
3.3 RELEASE. Upon the terms and subject to the conditions of this
Agreement, without any further action by Purchaser or Seller, (i)
Purchaser agrees from and after the Closing that Purchaser shall pay,
perform and discharge when due, whether based in whole or in part on
violation of Laws, strict liability, contract, willful misconduct,
ordinary or gross negligence of Seller, the Assumed Liabilities; and
(ii) Seller agrees from and after the Closing that Seller shall pay,
perform and discharge when due, whether based in whole or in part on
violation of Laws, strict liability, contract, willful misconduct,
ordinary or gross negligence of Purchaser, the Retained Liabilities.
Effective as of the Closing, Purchaser hereby unconditionally releases
and discharges Seller, Seller's Affiliates, and the partners,
employees, officers and directors of Seller and Seller's Affiliates,
from all of the Assumed Liabilities, and Seller hereby unconditionally
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releases and discharges Purchaser, Purchaser's Affiliates, and the
partners, members, managers, employees, shareholders, officers and
directors of Purchaser and Purchaser's Affiliates, from all of the
Retained Liabilities.
ARTICLE IV
CLOSING
4.1 TIME AND PLACE. The closing of the transaction contemplated hereby (the
"CLOSING") shall be held on October 31, 2008 at the offices of Milling
Xxxxxx Xxxxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx,
Xxxxxxxxx, unless another time, place or date is agreed to in writing
by the parties hereto (the day of the Closing being referred to herein
as the "CLOSING DATE"). If the Closing does not occur by October 31,
2008, a party that is not then in material default under this Agreement
may, by written notice to the other party, terminate this Agreement
without further obligation to the other party in accordance with
Section 15.1 below.
4.2 SELLER'S DELIVERIES. At the Closing, Seller shall deliver to Purchaser
the following:
4.2.1. Deliver to the Title Company a quitclaim deed for Seller's
right, title and interest in and to the Real Property in the
form attached hereto as EXHIBIT B ("DEED"), executed by
Seller;
4.2.2. an assignment and xxxx of sale for the Appurtenant Equipment
and Personal Property substantially in the form attached as
EXHIBIT C ("ASSIGNMENT AND XXXX OF SALE"), executed and
acknowledged by Seller;
4.2.3. an assignment and assumption of Permits and Contracts
substantially in the form attached as EXHIBIT D ("ASSIGNMENT
AND ASSUMPTION OF PERMITS AND CONTRACTS"), executed by Seller;
4.2.4. an assumption and release agreement substantially in the form
attached as EXHIBIT E ("ASSUMPTION AND RELEASE AGREEMENT"),
executed by Seller;
4.2.5. possession of the Assets, subject to the Permitted Liens;
4.2.6. certified copies of appropriate partnership action by Seller
authorizing the transactions contemplated by this Agreement
and authorizing the person(s) executing the documents
referenced in this Section 4.2 to enter into this Agreement
and such other documents on behalf of Seller;
4.2.7. a certificate that the representations and warranties made by
Seller in this Agreement are true and correct in all material
respects as of the Closing Date, as though made at and as of
the Closing Date.
4.3 PURCHASER'S DELIVERIES. At the Closing, Purchaser shall deliver to
Seller the following:
4.3.1. the Purchase Price in immediately available funds in
accordance with Section 2.1, together with the reimbursement
to Seller in immediately available funds for Purchaser's share
of any applicable Transfer Taxes as provided in Section 4.4.2;
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4.3.2. the Assignment and Xxxx of Sale substantially in the form
attached as EXHIBIT C, executed by Purchaser;
4.3.3. the Assignment and Assumption of Permits and Contracts
substantially in the form attached as EXHIBIT D, executed by
Purchaser;
4.3.4. the Assumption and Release Agreement substantially in the form
attached as EXHIBIT E, executed by Purchaser;
4.3.5. the Guaranty substantially in the form attached as EXHIBIT F,
executed by Blackwater Midstream Corp., as guarantor;
4.3.6. certified copies of appropriate corporate action by Purchaser
authorizing the transactions contemplated by this Agreement
and authorizing the person(s) executing the documents
referenced in this Section 4.3 to enter into this Agreement
and such other documents on behalf of Purchaser;
4.3.7. a certificate that the representations and warranties made by
Purchaser in this Agreement are true and correct in all
material respects as of the Closing Date, as though made at
and as of the Closing Date.
4.4 APPORTIONMENT OF TAXES, UTILITIES AND OTHER EXPENSES.
4.4.1. The following items relating to the Assets: (i) general real
estate ad valorem taxes for the then current fiscal year, (ii)
personal property taxes, (iii) charges for utilities or
municipal charges, and (iv) other prepaid expenses related to
the Assets and their operations (collectively, "EXPENSES"),
shall be prorated as of the Closing Date and shall be adjusted
at the Closing. Subject to such pro-ration, Seller shall pay
all Expenses assessed against the Assets for periods on or
before the Closing Date; provided, however, that if any
Expenses are payable in installments, Seller shall be
responsible for paying only that portion of such installments
to the extent applicable to periods prior to the Closing Date.
Subject to such pro-ration, Purchaser shall pay all Expenses
assessed against the Assets for all periods after the Closing
Date. Notwithstanding the foregoing, Seller shall pay all
special assessments levied prior to the Closing, but only to
the extent Seller received notice of same prior to the Closing
and to the extent such assessments are attributable to
pre-Closing ownership and operation of the Facility.
4.4.2. Purchaser shall pay and assume all Liabilities for any
applicable sales tax, documentary or other similar transfer
tax, real property filing fees and any other similar Taxes
(other than Income Taxes) (collectively, "TRANSFER TAXES"),
whether imposed on Seller or Purchaser, and whether paid with
a return or imposed by a Governmental Authority upon audit or
otherwise, arising from the transfer of Assets contemplated by
this Agreement.
4.4.3. If any of the Expenses to be apportioned in Section 4.4.1 are
not readily ascertainable as of the time of Closing, such
apportionments shall, to the extent necessary, be based on the
parties' reasonable estimate thereof. The parties shall
cooperate with each other in making the calculations upon
which any Expenses are to be allocated in favor of Seller or
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Purchaser, as the case may be. Such apportionments made on the
basis of estimates shall be recalculated promptly after the
availability of required information, but in any event within
six (6) months of the Closing Date, and any overpayments or
underpayments due a party shall be adjusted by suitable
payment from the applicable party.
4.4.4. After the Closing Date, if either Purchaser or Seller (as
applicable, the "RECEIVING PARTY") receives a xxxx for
Expenses that covers periods both before and after the Closing
Date, the Receiving Party shall either (a) pay such xxxx in
its entirety and invoice the other party (the "SHARING PARTY")
for the portion of the Expenses payable by such other party in
accordance with the principles of proration set forth in
Section 4.4.1, in which event the Sharing Party shall promptly
reimburse the Receiving Party receiving such invoice, or (b)
if the Sharing Party is primarily responsible for payment as
prorated pursuant to Section 4.4.1, forward a copy of such
xxxx to the Sharing Party within 10 days of receipt and pay
that portion of the Expenses payable by it in accordance with
the principles of proration set forth in Section 4.4.1, in
which event the Sharing Party shall timely pay its portion of
the xxxx directly. After the Closing Date, if a Receiving
Party receives a xxxx for Expenses that covers only a period
for which the Receiving Party is not responsible under the
terms of this Agreement, then the Receiving Party shall
forward the xxxx to the party who is responsible for such
Expenses in accordance with the terms of this Agreement (the
"OBLIGATED PARTY") for payment directly by the Obligated
Party. The Obligated Party shall pay such xxxx in timely
fashion (except to the extent that it is being protested
through proper procedures and the Obligated Party uses
reasonable best efforts to cause the Governmental Authority or
other person issuing such xxxx to correct the name on the
account, and the Obligated Party shall pay any amount found to
be its responsibility).
4.4.5. Any refunds received in respect of Expenses apportioned
pursuant to this Section 4.4 shall be paid to the party to
whom such Expenses are apportioned pursuant to this Section
4.4 if received from the payor by another party.
4.4.6. Seller and Purchaser will provide each other with such
cooperation and information as each may reasonably request of
the other with regard to the preparation and filing of
returns, or the conduct of an audit or other proceeding in
respect of Taxes.
ARTICLE V
CONDITIONS PRECEDENT TO CLOSING
Subject to the terms hereof, the obligations of Seller and Purchaser at
the Closing are subject to the satisfaction or waiver at or prior to the Closing
of each of the respective conditions set forth below.
5.1. CONDITIONS TO PURCHASER'S OBLIGATIONS. The obligations of Purchaser at
the Closing are subject to the satisfaction prior to or at the Closing
of each of the following conditions:
5.1.1. Seller shall have performed (a) in all respects those
covenants required by this Agreement to be performed by it at
or prior to the Closing that are not qualified by materiality,
and (b) in all material respects those covenants required by
this Agreement that are qualified by materiality to be
performed by it at or prior to the Closing;
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5.1.2. Seller shall have delivered, or caused to be delivered, to
Purchaser all agreements, instruments, certificates and
documents required to be so delivered under this Agreement,
including those listed in Section 4.2;
5.1.3. There shall not have been any material adverse change with
respect to the condition of the Assets, and all of Seller's
representations and warranties set forth in Article VI shall
remain true and correct in all material respects as at the
Closing;
5.1.4. There shall not be in effect any Order barring the
consummation of the transactions contemplated by this
Agreement;
5.1.5. Purchaser shall have obtained a firm commitment for the
financing of the Purchase Price, on terms and conditions
reasonably satisfactory to Purchaser; and
5.1.6. There shall not have been issued any notice of violations of
city, county, state, federal, building, land use, fire,
health, safety, environmental, hazardous materials or other
governmental or public agency codes, ordinances, regulations,
or orders with respect to the Facility that are individually
or in the aggregate material to the continued operation of the
Business.
5.2. CONDITIONS TO SELLER'S OBLIGATIONS. The obligations of Seller at the
Closing are subject to the satisfaction prior to or at the Closing of
each of the following conditions:
5.2.1. Purchaser shall have performed (a) in all respects those
covenants required by this Agreement to be performed by it at
or prior to the Closing that are not qualified by materiality,
and (b) in all material respects those covenants required by
this Agreement to be performed by it at or prior to the
Closing that are qualified by materiality;
5.2.2. Purchaser shall have delivered to Seller the Purchase Price
and all agreements, instruments, certificates and documents
required to be so delivered under this Agreement or any
related agreement between the parties, including those listed
in Section 4.3;
5.2.3. Seller and Purchaser shall have entered into one or more
terminal services agreements on terms substantially similar to
the existing Contracts in respect of any such Contract
requiring Third Party consent to assign for which consent has
not been obtained at Closing for the sole purpose of enabling
Seller to provide Purchaser with the benefits of such Contract
until such time as consent has been obtained in accordance
with Article XIV; and
5.2.4. There shall not be in effect any Order barring the
consummation of the transactions contemplated by this
Agreement.
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ARTICLE VI
SELLER'S REPRESENTATIONS AND WARRANTIES
Seller hereby warrants and represents to Purchaser that, except as set
forth on the schedules attached hereto:
6.1 ORGANIZATION. Seller is a limited partnership, duly organized, validly
existing and in good standing under the laws of the state of Delaware.
6.2 AUTHORITY; ENFORCEABILITY. Seller has the power and authority to
execute and deliver this Agreement and each agreement and instrument
delivered or to be delivered by Seller pursuant hereto, and to carry
out its obligations hereunder and thereunder. The execution, delivery
and performance of this Agreement and each agreement and instrument
delivered or to be delivered pursuant hereto by Seller, and the
consummation of the transactions provided for hereby and thereby, have
been duly authorized and approved by all requisite partnership action
of Seller, and no other act or proceeding on the part of Seller or its
Affiliates is necessary to authorize the execution, delivery or
performance of this Agreement or of such other agreements and
instruments, or the transactions contemplated hereby or thereby; and
each of this Agreement and such agreements and instruments is, or upon
its execution and delivery will be, legal, valid, binding and
enforceable against Seller in accordance with its respective terms,
subject to the effects of bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application relating to
creditors' rights and equitable remedies.
6.3 TITLE TO ASSETS. During the Seller Ownership Period, Seller has not
granted any interest in the Real Property to any Third Party. Except as
otherwise provided in Article VIII, Seller has good and marketable
title to the Assets, free and clear of all Liens other than Permitted
Liens.
6.4 NO BREACH. The execution and delivery of this Agreement and each
agreement and instrument delivered or to be delivered pursuant hereto
by Seller, and the consummation of the transactions provided for hereby
and thereby and the compliance by Seller with any of the provisions
hereof or thereof does not and will not violate, or conflict with, or
result in a breach of, any provisions of the constituent documents of
Seller
6.5 CONTRACTS. SCHEDULE 1.1.4 sets forth a list of Contracts in effect on
the date of this Agreement to which Seller is a party or is bound that
relate to the Assets. To Seller's knowledge, neither Seller nor any
other party is in or has given notice of breach of any of the
Contracts. To Seller's knowledge, (i) the Contracts are valid and
enforceable and assignable to Purchaser without the consent of any
other person except as set forth on SCHEDULE 6.5, and (ii) no
circumstance exists that with or without notice or lapse of time would
give rise to a breach of any of the Contracts.
6.6 ACTIONS AND PROCEEDINGS. Except as set forth on SCHEDULE 6.6, there is
no action, suit, investigation, judicial or administrative proceeding,
or arbitration pending, or, to Seller's knowledge, threatened, against
Seller or any of its Affiliates involving any of the Assets that would
reasonably be expected to have a material adverse effect on the Assets.
There is no judgment, decree, injunction, order, determination or award
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of any Governmental Authority outstanding against Seller (other than
general regulatory orders applicable to businesses of the type operated
by Seller) that would reasonably be expected to have a material adverse
effect on the Assets. SCHEDULE 6.6 sets forth a list of all pending or
threatened actions, suits, investigations, judicial or administrative
proceedings, and arbitrations against Seller involving any of the
Assets and known to Seller.
6.7 BROKERS. All negotiations relating to this Agreement, the agreements
and instruments delivered pursuant hereto, and the transactions
contemplated hereby and thereby have been carried on without the
intervention of any person acting on behalf of Seller or its Affiliates
in such manner as to give rise to any valid claim against Purchaser for
any broker's or finder's fee or similar compensation in connection with
the transactions contemplated hereby or thereby.
6.8 COMPLIANCE WITH LAWS AND PERMITS. To Seller's knowledge:
6.8.1 Seller and the Assets are in compliance in all material
respects with all applicable Laws in connection with the
operation of the Assets, except for laws governing Title
Claims, for which Seller makes no representation of any kind
or character.
6.8.2 SCHEDULE 6.8.2 lists all material Permits currently held by
Seller with respect to the Assets.
6.9 EMPLOYEE MATTERS. SCHEDULE 6.9 contains a complete listing of all
employees that are employed by Seller in connection with the Assets,
together with information regarding length of service for each such
employee. Seller is not party to any collective bargaining agreement or
similar agreement with respect to employees of Seller employed at the
Facility. There is no labor strike, slowdown, work stoppage or lockout
in effect or, to Seller's knowledge, threatened against or otherwise
affecting the employees of Seller involved in the operation of the
Assets.
6.10 ERISA. Except as set forth on SCHEDULE 6.10:
6.10.1 Seller has, at all times, complied, and currently complies, in
all material respects with the applicable continuation
requirements for its welfare benefit plans, including (1)
Section 4980B of the Code and Sections 601 through 608,
inclusive, of ERISA which provisions are hereinafter referred
to collectively as "COBRA" and (2) any applicable state
statutes mandating health insurance continuation coverage for
employees.
6.10.2 There is no material or pending proceeding by any Governmental
Entity relating to any Employee Benefit Plan. Neither Seller
nor any fiduciary of any Employee Benefit Plan has engaged in
a transaction with respect to any such plan that could subject
Seller or Purchaser to a tax or penalty imposed by either
Section 4975 of the Code or Section 502(l) of ERISA or a
violation of Section 406 of ERISA.
6.10.3 Except for continuation coverage requirements of COBRA, Seller
has no obligations or potential liability for benefits to
employees, former employees or their respective dependents
following termination of employment or retirement other than
as described in the Employee Benefit Plans.
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6.11 TAXES. All Tax returns, information returns and statements, forms and
reports required by any Governmental Authority to be filed by Seller
and relating to Taxes to which Seller is subject in respect of any Tax
period ending on or before the Closing Date have been or will be
properly filed when due, and all Taxes shown thereon to be due and
payable have been or will be timely paid. There are no Liens for Taxes
upon any of the Assets, except for Liens for Taxes not yet due and
payable.
6.12 SOLVENCY. Seller is not now insolvent, nor will it be rendered
insolvent as a result of the consummation of the transactions
contemplated by this Agreement. There are no bankruptcy,
reorganization, or arrangement proceedings pending against, being
contemplated by, or, to the knowledge of Seller, threatened against
Seller.
6.13 DUE DILIGENCE MATERIALS. To Seller's knowledge, Seller has provided
true, complete and correct copies of all records and documentation in
its possession and relating to the Facility and the Assets that have
been requested by Purchaser.
6.14 BOOKS OF ACCOUNT. The financial books, records and accounts of Seller
with respect to the Assets, to the extent the same have been furnished
to Purchaser, are complete and correct and represent actual, bona fide
transactions and have been maintained in accordance with Seller's
normal business practices. The books, records and accounts of Seller
relating to the Assets and operation of the Facility accurately and
fairly reflect the transactions and the assets and liabilities
associated with the Assets, operation of the Facility and conduct of
Seller's business, and with respect thereto, Seller has not engaged in
any transaction, maintained any bank account or used any of its funds,
except for transactions, bank accounts and funds which have been and
are reflected in the normally maintained books and records of the
Seller.
ARTICLE VII
PURCHASER'S REPRESENTATIONS AND WARRANTIES
Purchaser hereby warrants and represents to Seller that:
7.1 ORGANIZATION. Purchaser is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of
Louisiana.
7.2 AUTHORITY; ENFORCEABILITY. Purchaser has the power and authority to
execute and deliver this Agreement and each agreement and instrument
delivered or to be delivered by Purchaser pursuant hereto, and to carry
out its obligations hereunder and thereunder. The execution, delivery
and performance of this Agreement and each agreement and instrument
delivered or to be delivered pursuant hereto by Purchaser, and the
consummation of the transactions provided for hereby and thereby, have
been duly authorized and approved by all requisite partnership action
of Purchaser, and no other act or proceeding on the part of Purchaser
or its Affiliates is necessary to authorize the execution, delivery or
performance of this Agreement or of such other agreements and
instruments, or of the transactions contemplated hereby or thereby; and
each of this Agreement and such agreements and instruments is, or upon
its execution and delivery will be, legal, valid, binding and
enforceable against Purchaser in accordance with its respective terms,
subject to the effects of bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application relating to
creditor's rights and equitable remedies.
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7.3 NO BREACH. The execution and delivery of this Agreement and each
agreement and instrument delivered or to be delivered pursuant hereto
by Purchaser, and the consummation of the transactions provided for
hereby and thereby and the compliance by Purchaser with any of the
provisions hereof or thereof does not and will not violate, or conflict
with, or result in a breach of, any provisions of the constituent
documents of Purchaser.
7.4 BROKERS. All negotiations relating to this Agreement, the agreements
and instruments delivered pursuant hereto, and the transactions
contemplated hereby and thereby have been carried on without the
intervention of any person acting on behalf of Purchaser or its
Affiliates in such manner as to give rise to any valid claim against
Seller for any broker's or finder's fee or similar compensation in
connection with the transactions contemplated hereby or thereby.
ARTICLE VIII
TITLE MATTERS
PURCHASER'S TITLE DILIGENCE. As of the date of this Agreement, Purchaser has
received a copy of a commitment for title insurance and a survey covering the
Real Property, the cost and expense for which (determined as of the date of this
Agreement) shall be borne and paid one-half each by Seller and Purchaser at the
Closing. Purchaser has been afforded ample opportunity to investigate the state
of title to the Real Property and is willing to accept Seller's title to same,
such as it may be, on an "as is, where is" basis. Purchaser acknowledges that
Seller may not currently hold good title to all of the Real Property or the
improvements located thereon. At the Closing (assuming such occurs), Seller
shall transfer its rights in and to the Real Property to Purchaser without
representation or warranty of any kind, and SELLER HEREBY EXPRESSLY DISCLAIMS
ANY AND ALL WARRANTIES, REPRESENTATIONS AND COVENANTS OF TITLE TO THE REAL
PROPERTY OF ANY KIND OR CHARACTER, WHETHER IMPLIED, EXPRESS OR STATUTORY, EXCEPT
AS TO SELLER'S OWN ACTS; provided, however, that any legal rights to the Real
Property that may have accrued to Seller during its possession of the Assets are
intended to pass to Purchaser upon Purchaser's possession of the Real Property.
ARTICLE IX
INDEMNIFICATION
9.1 INDEMNIFICATION OBLIGATIONS. Seller and Purchaser (each, as the case
may be, an "INDEMNITOR") each shall release, defend, indemnify and hold
harmless the other and its respective Affiliates, as well as the
partners, officers, directors, members, managers, agents and employees
of any of them (each, as the case may be, an "INDEMNITEE"), from and
against each and every Loss, which results from, arises out of or is
attributable in any way to any of the following:
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9.1.1 Liability expressly assumed or retained by the
Indemnitor pursuant to this Agreement;
9.1.2 any inaccuracy or breach of a representation or
warranty made by the Indemnitor in this Agreement or
in
9.1.3 any non-fulfillment or breach of the obligations,
covenants or agreements made by the Indemnitor in
this Agreement or in documents delivered by the
Indemnitor at the Closing.
9.2 PROCEDURES.
9.2.1 In the event that any officer or registered agent of
Indemnitee receives CLAIM") giving rise to a right of
indemnification of such Indemnitee hereunder, the Indemnitee
shall, within sixty (60) days after receipt of such notice,
give written notice thereof to 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 the Loss is 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 the Loss is not
attributable to such failure.
9.2.2 The Indemnitor shall be solely responsible for selecting 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. 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, the Indemnitor
reimbursing the Indemnitee with respect to the cost of any
such access. The Indemnitee shall have the right, but not the
duty, to participate with attorneys of its own choosing, at
its own expense, in the defense of any Loss for which the
Indemnitor is obligated to defend and indemnify it, and to
approve any settlement that may give rise to a Loss on the
part of Indemnitee, without relieving the Indemnitor of any
obligations hereunder.
9.3 CERTAIN LIMITATIONS. Notwithstanding anything to the contrary in this
Article IX or elsewhere in this Agreement, the Indemnitor shall not
have any obligation with respect to Losses subject to indemnification
by the Indemnitor hereunder as a result of a breach(es) of
representations or warranties unless the cumulative, aggregate amount
of all such Losses exceeds or is reasonably expected to exceed $50,000
(the "BASKET AMOUNT"), in which case only the excess shall be subject
to indemnification under this Article IX. In no event shall either
party's indemnification obligation exceed $750,000, except as to Seller
for Losses arising from Retained Liabilities and as to Purchaser for
Losses arising from the Assumed Liabilities, for which such party's
indemnification obligation shall not be limited in amount or subject to
the Basket Amount. To the extent Losses are incurred as a result of
claims of a Third Party and such Third Party is determined to be
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entitled to consequential, special, punitive or indirect damages, the
Indemnitee shall be entitled to indemnification against such damages
notwithstanding the exclusion of such damages generally from the
definition of "Losses." Notwithstanding anything to the contrary in
this Article IX or elsewhere in this Agreement, Seller will not have
any Liability under this Article IX for Losses resulting from a breach
of any representation or warranty made in this Agreement or any
certificate or document delivered by Seller pursuant to this Agreement
if Purchaser had knowledge that such representation or warranty was not
true in any material respect and failed to disclose such knowledge
prior to Closing.
9.4 EXCLUSIVE REMEDY. Except as otherwise provided in Article XVI, the
indemnification provided for in this Article IX shall be the exclusive
remedy in any action seeking damages or any other form of monetary
relief brought by any party to this Agreement against another party to
this Agreement with respect to any provision of this Agreement, the
transactions contemplated by this Agreement and/or any document,
agreement or instrument delivered in connection with or pursuant to
this Agreement; provided, however, that nothing herein shall be
construed to limit the right of a party, in a proper case, to seek
injunctive relief for a breach of this Agreement or any such other
document or instrument. Each party hereby waives, to the fullest extent
permitted under applicable law, any and all other rights, claims and
causes of action, known or unknown, it or any indemnified person may
have against the other party relating to this Agreement or the
transactions pursuant to this Agreement. Any indemnity payment under
this Article IX shall be treated as an adjustment to the Purchase Price
for tax purposes unless a final determination (which shall include the
execution of a Form 870-AD or successor form) with respect to the
indemnified party or any of its Affiliates causes any such payment not
to be treated as an adjustment to the Purchase Price for U.S. Federal
income tax purposes.
9.5 DIRECT CLAIMS. In any case in which an Indemnitee seeks indemnification
hereunder and no Third Party Claim is involved, the Indemnitee shall
notify the Indemnitor in writing of any Losses which such Indemnitee
claims is subject to indemnification pursuant to this Article IX. The
notice shall describe the indemnification sought in reasonable detail
to the extent known and shall indicate the amount (estimated, if
necessary, and if then estimable) of the Losses that have been or may
be suffered. Subject to the limitations otherwise set forth in this
Article IX, the failure of the Indemnitee to exercise reasonable
diligence in providing such notification shall not amount to a waiver
of such claim except to the extent the resulting delay materially
prejudices the position of the Indemnitor with respect to such claim.
ARTICLE X
RECORDS & ACCESS
10.1 SELLER'S RIGHTS TO RECORDS. From and after the Closing Date, Purchaser
will afford to Seller and its authorized representatives reasonable
access during normal business hours to any records related to the
Facility or the Assets in the possession of Purchaser, and, if
requested, will furnish to Seller such additional information and
cooperate with Seller in such other respects, including the making of
employees available to Seller (at Seller's expense) as witnesses or
deponents, as Seller may reasonably request for purposes of (a)
financial reporting, (b) tax or similar purposes, (c) investigating
Claims or conducting Litigation, or (d) in connection with the Retained
Liabilities.
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10.2 PRESERVATION OF RECORDS. Purchaser and Seller shall not destroy or
otherwise dispose of any records acquired, removed, or retained
hereunder for a period of seven (7) years following the Closing Date or
such longer period as required by applicable regulations, laws,
statutes, or court orders, except upon 30 days prior written notice to
the other party (upon receipt of such notice, the other party (the
"RECEIVING PARTY") may elect that such records be transferred to the
Receiving Party at the sole cost and expense of the Receiving Party).
During such seven year period, Seller and Purchaser shall make such
records available to the other party or its authorized representatives
(at such other party's sole expense) upon reasonable request for any
business, legal or technical need in a manner which does not
unreasonably interfere with the record holder's business operations.
ARTICLE XI
SELLER'S INTERIM OPERATIONS; CASUALTY; CONDEMNATION
11.1 INTERIM OPERATIONS. From and after the date of this Agreement and until
the Closing, Seller shall conduct its business related to the Assets in
all material respects in the ordinary course of business and shall use
commercially reasonable efforts to:
11.1.1 preserve intact its operations, including but not limited to
its books and records and business relationships with
customers, suppliers and others with whom it has business
relationships and keep available its key employees involved in
the operation of the Assets;
11.1.2 maintain in effect all Permits, including all Permits that are
required for Seller to carry on the operations of the Assets;
11.1.3 maintain and repair all of the material Assets in a manner
consistent with past practices; and
11.1.4 maintain employee wages, compensation and benefits in a manner
consistent with past practices.
11.2 NO ADDITIONAL RIGHTS GRANTED. From and after the date of this Agreement
and until the Closing, Seller shall not grant any rights in any of the
Real Property to any Third Person.
11.3 CASUALTY OR CONDEMNATION.
11.3.1 Seller shall give Purchaser prompt notice of (i) any fire or
other casualty substantially affecting a material portion of
the Assets (a "CASUALTY") between the date of this Agreement
and the Closing Date and (ii) any actual, pending or proposed
condemnation of any portion of the Assets, as to which Seller
have received written notice from the condemning authority
("TAKING").
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11.3.2 In the event the Assets suffer a Casualty subsequent to the
date of this Agreement, but prior to the Closing Date,
Purchaser's obligation to close hereunder shall not be
affected except as provided below in this Section 11.3.2, and
Seller shall elect to either (i) prior to Closing, repair
fully or make adequate provision for the full repair of such
Assets to at least their prior condition, (ii) terminate this
Agreement in accordance with Article XVI below without further
Liability between the parties, or (iii) to provide Purchaser
with a credit against the Purchase Price in an amount agreed
upon by Seller and Purchaser to represent the reduction in the
value of the Assets by reason of the Casualty, taking into
account any repairs actually made by Seller to such Assets
prior to the Closing Date. However, if Seller shall have
elected to provide Purchaser with a credit against the
Purchase Price as provided in clause (iii) above, Purchaser
may terminate this Agreement prior to the Closing by notice to
Seller if the amount of the reduction in the Purchase Price
caused by the Casualty exceeds $250,000. In the event Seller
exercises its option under clause (i) above, Closing may be
delayed until November 28, 2008 to allow for the necessary
repairs, at which point, if said repairs have not been
completed, Seller shall be deemed to have exercised its option
under (iii) above, and the Closing shall occur on such date.
11.3.3 In the event of a Taking, Purchaser's obligation to close
hereunder shall not be affected unless the amount of the
reduction in the value of the Assets by reason of the Taking
exceeds $150,000. In the event of any Taking that does not
result in a termination of this Agreement, all sums of money
(or other consideration) awarded as damages or otherwise
received on account of such Taking shall be applied as a
credit to Purchaser to the Purchase Price, and all claims for
any such award shall be assigned to Purchaser.
ARTICLE XII
PUBLICITY
At all times prior to the Closing, no party will make any press release
or other public statement concerning this Agreement or the transactions
contemplated hereby, except upon mutual agreement, or as required by law. No
public statement or third-party disclosure will be made without advance notice
to and prior approval of the other party. No such approval will be unreasonably
withheld or delayed.
ARTICLE XIII
EMPLOYEE MATTERS
SELLER'S EMPLOYEES. Purchaser agrees (i) to offer employment to Seller's present
full-time employees at the Facility ("TRANSFERRED EMPLOYEES") on terms and
conditions equivalent to those applied to Purchaser's current employees who are
similarly situated; and (ii) to recognize all periods of prior service of such
Transferred Employees with the Seller for purposes of vesting and eligibility in
respect of any employee benefit plan or arrangement and any other severance,
vacation or other employee benefit. Purchaser further agrees that it will take
no employment action, including any plant closing, mass layoff, change of
conditions of employment, or employment loss within the meaning of the WARN Act,
for a period of at least ninety (90) days after Closing, which causes Losses to
Seller under the Worker Adjustment Retraining Notification Act, 29 U.S.C. Sec.
2101 et. seq. Purchaser shall employ the Transferred Employees for a period of
at least 12 months beginning on the Closing Date, except to the extent any such
Transferred Employee is earlier terminated for cause.
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ARTICLE XIV
TRANSFER OF PERMITS AND ASSIGNMENT OF CONTRACTS
Seller and Purchaser agree to use their commercially reasonable efforts to
satisfy, prior to Closing, any preconditions to the transfer of the Permits,
Licenses, and Contracts from Seller to Purchaser. If there are prohibitions
against, or conditions to, the conveyance of any Permits, Licenses, or Contracts
without the prior written consent of Third Parties either as a result of the
provisions thereof or the requirements of applicable Law, and such written
consents are not obtained at or prior to the Closing, then (i) any provision
contained in this Agreement to the contrary notwithstanding, the transfer of
title to, or interest in, such Licenses, Permits, or Contracts pursuant to this
Agreement shall not become effective unless and until such consent requirement
is satisfied, waived or no longer applies, (ii) until such consent requirement
is satisfied, waived or no longer applies, Seller shall (without infringing the
legal rights of any third party, breaching any such License, Permit, or Contract
or violating any Law) provide Purchaser with the equivalent benefits of the
Permit, License, or Contract by subcontract, sublease or otherwise, on the
condition that Purchaser shall cooperate and assist in such efforts and provide
such services or perform such acts as may be reasonably required to enable
Seller to provide Purchaser with such equivalent benefits, and Purchaser shall
bear all economic burdens and other Liabilities of Seller regarding this
post-Closing period under the Permit, License, or Contract, notwithstanding the
fact that the same has not been transferred to Purchaser, and (iii) Closing
shall not be delayed pending satisfaction, waiver or expiration of such consent
requirement. When and if such consent requirement is so satisfied, waived or no
longer applies, to the extent permitted by applicable Law, the assignment of
such Permits, Licenses, and Contracts shall become effective automatically as of
the Closing Date, without further action on the part of Seller or Purchaser and
without payment of further consideration. After Closing, Seller shall reasonably
cooperate with Purchaser, at Purchaser's request and expense, to procure the
transfer of any Permits, Licenses and Contracts not transferred to Purchaser
prior to Closing.
ARTICLE XV
COVENANTS
15.1 COOPERATION. Each of the parties shall assist and cooperate with one
another in all due diligence efforts and shall further assist and
cooperate with one another to effect promptly and shall give any
notices to make any filings with, and use its respective reasonable
best efforts to obtain all consents, approvals, and authorizations of
or any exemptions by, all Governmental Authorities in connection with
the transactions contemplated by this Agreement.
15.2 AGREEMENTS. In the event any Contract's express term expires pursuant
to its express provisions prior to the Closing, Seller shall provide
immediate notice thereof to Purchaser, Seller shall not renew that
Contract for a fixed contract term, and shall use commercially
reasonable efforts to continue such Contract on a month-to-month basis,
unless otherwise directed in writing by Purchaser.
15.3 TRANSITION. To the extent consistent with applicable Laws, each of the
parties shall reasonably cooperate with each other and shall cause its
officers, employees, agents and representatives to reasonably cooperate
with each other for a period of thirty (30) days after Closing, or such
longer period as Purchaser may reasonably require, to ensure the
orderly transition of the Assets and the Assumed Liabilities to
Purchaser and to minimize the disruption to the respective businesses
of the parties hereto (including the parties' relationships with
customers and suppliers) resulting from the transactions contemplated
hereby.
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ARTICLE XVI
TERMINATION
16.1 TERMINATION. This Agreement may, by notice given prior to or at the
Closing, be terminated as follows:
a) by the mutual written agreement of Purchaser and Seller;
b) by Seller upon notice to Purchaser, if any of the conditions
in Section 5.2 shall have not been fulfilled by the time
required or shall have become incapable of fulfillment on or
prior to the Termination Date; provided, that Seller has
fulfilled its obligations, if any, under such condition;
c) by Purchaser upon notice to Seller, if any of the conditions
in Section 5.1 shall have not been fulfilled by the time
required or shall have become incapable of fulfillment on or
prior to the Termination Date;
d) by either Purchaser or Seller if the Closing shall not have
occurred (other than through the failure of any party seeking
to terminate this Agreement to comply fully with its
obligations under this Agreement) on or before October 31,
2008 (the "TERMINATION DATE"), or such later date as the
parties may agree upon in writing.
16.2 EFFECT OF TERMINATION. If this Agreement is terminated pursuant to
Section 16.1, the provisions contained in Article IX shall survive the
termination of this Agreement. If the Closing does not occur because of
a breach by a party, then the breaching party shall be liable to the
non-breaching party for all Losses suffered by the non-breaching party
arising from such breach.
16.3 SURVIVAL. The representations and warranties set forth herein shall
survive the Closing. The parties express covenants herein shall survive
the Closing to the extent necessary for the applicable party to perform
its post-Closing obligations hereunder.
ARTICLE XVII
BULK SALES
Seller shall pay or otherwise satisfy in the ordinary course of business any
Liability in respect of trade creditors of Seller's business with respect to the
Assets that have accrued prior to the Closing Date. Subject to the foregoing
warranty, Seller and Purchaser hereby waive compliance with any applicable bulk
sales or similar laws.
ARTICLE XVIII
ASSIGNMENT
This Agreement may not be assigned by any party, in whole or in part without the
prior written consent of the other party, which consent shall not be
unreasonably withheld; PROVIDED, HOWEVER, that Seller's consent is hereby given
for Purchaser to assign this Agreement to an Affiliate prior to the Closing.
This Agreement shall inure to the benefit of, and be binding upon, the parties
hereto and their respective heirs, legal representatives, successors and
permitted assigns. This Agreement is not intended to, and does not create, any
rights in any third parties.
21
ARTICLE XIX
PAYMENTS
19.1 TERMS OF PAYMENT. Unless otherwise specified herein, any payment to be
made hereunder shall be made in U.S. dollars by wire transfer of
immediately available funds, without discount or deduction, or by such
other means as the parties may agree.
19.2 INTEREST. Any amount not paid by any party when due hereunder shall
bear interest from the date upon which payment was due through the date
of payment at a rate equal to two percent (2%) above the prime rate of
interest as announced by Chase Manhattan Bank N.A. in New York City
from time to time.
ARTICLE XX
NOTICES
All notices or other communications required hereunder shall be in writing,
shall be addressed as specified below and shall be deemed to have been given:
(a) at the time of delivery when delivered personally; (b) upon receipt when
sent by Federal Express, or similar recognized overnight service; or (c) upon
completion of successful transmission (with electronic confirmation of receipt)
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), immediately followed by U.S. posting,
postage prepaid.
Seller:
NUSTAR TERMINALS OPERATIONS PARTNERSHIP L.P.
c/o NuStar Energy L.P.
0000 X. Xxxx 0000 X.
Xxx Xxxxxxx, Xxxxx 00000
Attn: Winson Low, Vice President
Phone: (000) 000-0000
Fax: (000) 000-0000
Purchaser:
BLACKWATER NEW ORLEANS, L.L.C.
0000 Xxxxxxx 00
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxx Xxxxxxxx, Chief Commercial Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
22
WITH A COPY TO:
MILLING XXXXXX XXXXXXXX L.L.P.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Any party may change its address or facsimile number by providing written notice
to the other party in accordance with the foregoing.
ARTICLE XXI
GENERAL; ADDITIONAL COVENANTS
21.1 ENTIRE AGREEMENT. This Agreement, including all of the Schedules,
Exhibits and attachments 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.
21.2 CONSTRUCTION. Words of any gender used in this Agreement shall be
construed to include any other gender, and words in the singular number
shall include the plural, and vice versa, unless the context requires
otherwise. The use of the phrase "including," or phrases of similar
import, shall be deemed to include the phrase "without limitation".
21.3 CAPTIONS. The captions used in connection with the Articles and
Sections of this Agreement are for convenience only and shall not be
deemed to enlarge, limit or otherwise modify the meaning or
interpretation of the language of this Agreement. Any references to
"Articles", "Sections", "Schedules", "Exhibits", and "Schedules" are to
Articles, Sections, Schedules, Exhibits, and Schedules of this
Agreement. Each Schedule, Exhibit, and Schedule referred to herein is
incorporated into this Agreement by such reference; provided that to
the extent of any conflict or inconsistency between any of the
Schedules, Exhibits or Schedules and this Agreement, this Agreement
will prevail.
21.4 SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or
public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is
not affected in any manner adverse to any party. Upon such
determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original intent of
the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the extent
possible.
21.5 NO 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.
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21.6 PARTIES IN INTEREST; NO THIRD PARTY BENEFICIARY. This Agreement shall
inure to the benefit of and be binding upon Purchaser and Seller and
their respective successors and assigns. Except as otherwise provided
herein, nothing in this Agreement will be construed as conferring upon
any person or entity other than Purchaser and Seller, and their
respective successors in interest, any right, remedy or claim under or
by reason of this Agreement.
21.7 GOVERNING LAW; CHOICE OF FORUM. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas. Any claims
arising from or related to this Agreement (whether in contract, tort or
otherwise) shall be governed by the laws of the State of Texas. If any
dispute shall arise between the parties concerning the construction of
this Agreement or their respective rights and obligations hereunder,
the dispute shall be settled by final and binding arbitration in
accordance with the terms of this Section 21.7. The arbitration shall
be conducted in accordance with the rules then prevailing of the
American Arbitration Association, except as otherwise provided herein
(the "Rules"). The arbitration shall be conducted in Houston, Texas.
The arbitration proceedings shall be conducted by a single arbitrator
selected in accordance with the Rules. The decision rendered by the
arbitrator shall be final and binding and conclusive on all parties
concerned and free of challenge or review in any court. The decision so
rendered by the arbitrator shall be enforceable by any court of
competent jurisdiction. The party or parties requesting such
arbitration, on the one hand, and the adverse party or parties, on the
other hand, shall bear equally the cost of the arbitration. Any court
costs and other expenses, including reasonable attorneys' fees incurred
by a party petitioning a court of competent jurisdiction to enforce the
decision rendered by the arbitrator, shall be paid by the party or
parties against whom the arbitrator's decision is being enforced.
21.8 BEST EFFORTS; TIME OF ESSENCE. Except as otherwise specifically
provided herein, Purchaser and Seller shall each use its best 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.
21.9 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.
21.10 EXTENSIONS OF TIME; WAIVER. It is agreed that any party to this
Agreement may extend time for performance by any other party hereto or
waive the performance of any obligation of any other party hereto or
waive any inaccuracies in the representations and warranties of any
other party, but any such waiver shall be in writing, and shall not
constitute or be construed as a waiver of any other obligation,
condition, representation or warranty under this Agreement.
21.11 FURTHER ASSURANCES. Purchaser and Seller shall take such additional
action, and shall cooperate with one another, as may be reasonably
necessary to effectuate the terms of this Agreement and any agreement
or instrument delivered pursuant hereto.
21.12 NO PRESUMPTION AGAINST DRAFTER. Purchaser 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 any party
by virtue of the fact that its representative has authored this
Agreement or any of its terms.
24
21.13 AMENDMENTS. This Agreement cannot be altered, amended, changed or
modified in any respect or particular unless each such alteration,
amendment, change or modification shall have been agreed to by each of
the parties hereto and reduced to writing in its entirety and signed
and delivered by each party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
25
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed as of the date first set forth above.
SELLER:
NUSTAR TERMINALS OPERATIONS PARTNERSHIP L.P.,
a Delaware limited partnership
By:
------------------------------------------
Winson Low, Vice President
PURCHASER:
BLACKWATER NEW ORLEANS, L.L.C., a
Louisiana limited liability company
By: Blackwater Midstream Corp., its Manager
By:
------------------------------------------
Xxxx X. Xxxxxxxxxx, Chief Operating Officer
26
EXHIBITS
Exhibit A Definitions
Exhibit B QuitClaim Deed
Exhibit C Assignment and Xxxx of Sale
Exhibit D Assignment of Permits and Contracts
Exhibit E Assumption and Release Agreement
Exhibit F Guaranty
SCHEDULES
Schedule 1.1.1 Land Description
Schedule 1.1.5 Contracts
Schedule 1.1.6 Permits
Schedule 1.2.6 Excluded Personal Property
Schedule 2.1.1(a) Prepaid Storage Fees
Schedule 2.2 Allocation of Purchase Price for Tax Purposes
Schedule 6.5 Third Party Consents
Schedule 6.6 Litigation
Schedule 6.9 Seller's Employees
Schedule 6.11 ERISA
27
EXHIBIT A
DEFINITIONS
The following terms shall have the meanings set forth below for all
purposes of this Agreement:
"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 term
"controlled by") 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.
"AGREEMENT" means this Purchase and Sale Agreement.
"APPURTENANT EQUIPMENT" has the meaning specified in Section 1.1.3.
"ASSETS" has the meaning specified in Section 1.1.
"ASSIGNMENT AND XXXX OF SALE" has the meaning specified in Section
4.2.2.
"ASSIGNMENT OF PERMITS AND CONTRACTS" has the meaning specified in
Section 4.2.3.
"ASSUMED LIABILITIES" has the meaning specified in Section 3.2.
"CASUALTY" has the meaning specified in Section 11.3.1.
"CLAIMS" means any demand, claim, grievance or Litigation, made or
pending for any Damages, specific performance, injunctive relief, remediation or
other equitable relief, whether or not ultimately determined to be valid.
"CLOSING" has the meaning specified in Section 4.1.
"CLOSING DATE" has the meaning specified in Section 4.1.
"CLOSING STATEMENT" has the meaning specified in Section 2.1.2.
"COBRA" shall mean Part 6 of Subtitle B of Title I of ERISA, Code
ss.4980B and any similar state Law.
"CONTRACTS" has the meaning specified in Section 1.1.4.
"CORRECTIVE ACTION" means any investigation, sampling, analysis,
monitoring, abatement, demolition, dismantlement, removal, decontamination,
remediation, cleanup, treatment, storage, disposal or other action that is
required to comply with Environmental Law.
"DAMAGES" means all damages, dues, penalties, fines, costs, amounts
paid in settlement, liabilities, losses, assessments, judgments, awards,
arbitration awards, demands, claims, orders, expenses and fees, including costs
of investigation, court costs, costs of defense and reasonable attorneys' fees
and expenses.
1
"DEPOSIT" has the meaning given such term in Section 2.1.
"EFFECTIVE TIME" means 12:01 a.m. on the Closing Date.
"EMPLOYEES" has the meaning specified in Article XIII.
"EMPLOYEE BENEFIT PLANS" shall mean any "employee benefit plan" within
the meaning of Section 3(3) of ERISA and any bonus, deferred compensation,
incentive compensation, stock ownership, stock purchase, stock option, phantom
stock, vacation, severance, disability, death benefit, hospitalization or
insurance plan providing benefits to any present or former employee or
contractor of Seller or any member of the ERISA Group maintained by any such
entity or as to which any such entity has any Liability.
"ENVIRONMENTAL CONDITION" means the existence of Hazardous Materials
at the Facility, or originating at the Facility and migrating to adjacent
properties, including in or on the soil, surface water, or groundwater at, on or
under the Facility or such adjacent properties, in each case to the extent the
levels of any such Hazardous Materials exceed naturally occurring background
levels in such area.
"ENVIRONMENTAL LAWS" shall mean all applicable federal, state, and
local Laws, common law, standards, prohibitions, restrictions, directives,
interpretations, Orders, guidelines, permits, licenses, approvals and
entitlements that relate to safety, the protection of human health and/or the
environment or create rights or obligations in connection with the presence or
release of Hazardous Materials.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"EXCLUDED PERSONAL PROPERTY" has the meaning specified in Section
1.2.6.
"EXCLUDED PROPERTY" has the meaning specified in Section 1.2.
"EXECUTION DATE" has the meaning given such term in the preamble of
this Agreement.
"EXPENSES" has the meaning specified in Section 4.4.1.
"FACILITY" means Seller's terminal facility accommodating chemicals and
liquid fertilizer at or near Westwego, Louisiana, as well as all of the
facilities, equipment and other improvements associated therewith.
"GOVERNMENTAL AUTHORITY" means any federal, state or local governmental
authority, regulatory or administrative agency, board, commission, judicial body
or other body having jurisdiction over the matter.
"HAZARDOUS MATERIALS" means any substance which is listed, regulated or
defined as a hazardous substance, hazardous material, toxic substance, hazardous
waste, hazardous chemical, hazardous air pollutant, contaminant or pollutant
under any Environmental Laws, including (i) radioactive substances, (ii)
asbestos, (iii) radon, (iv) mercury, (v) lead-based paint, (vi) polychlorinated
biphenyls ("PCBs") and (vii) liquid and gaseous hydrocarbons, crude oil and
other petroleum products, and any fraction or by-product thereof.
2
"IMPROVEMENTS" has the meaning specified in Section 1.1.2.
"INCOME TAXES" means any individual or corporate income or franchise
tax based on net income.
"INDEMNITEE(S)" has the meaning specified in Section 9.1.
"INDEMNITOR(S)" has the meaning specified in Section 9.1.
"INTELLECTUAL PROPERTY" means all patents, patent rights, trademarks,
service marks, trade names, and copyrights, and all applications for the
foregoing, and all trade secrets, know-how, inventions, research records,
confidential information, product designs, engineering specifications and
drawings, technical information and other intellectual property rights.
"LAWS" means all laws, rules, regulations, statutes, ordinances, codes,
plans, Orders, decrees, rulings and charges of any Governmental Authority,
including Environmental Laws.
"LIABILITY" means any and all duties, liabilities and obligations,
whether accrued, fixed, contingent, mature or inchoate, direct or indirect,
known or unknown, and whether contractual, statutory or otherwise.
"LICENSE" has the meaning specified in Section 1.1.3.
"LIEN" means any encumbrance, lien, pledge, mortgage, deed of trust,
security interest, claim, lease, charge, option, right of first refusal,
easement, and servitude or transfer restriction.
"LITIGATION" means any action, case, suit, arbitration, hearing,
investigation, charge, claim (including any claim of a violation of Law),
litigation or other proceeding pending, commenced, brought, conducted or
prosecuted before, or otherwise involving, any Governmental Authority or
arbitrator.
"LOSS" or "LOSSES" means any loss, charge, assessment, settlements,
award, obligation, judgment, decree, lien, fine, penalty, Tax, damages
(excluding consequential, indirect or loss of profit damages, except as
otherwise provided herein), expense, cost and fee, including reasonable fees and
expenses of attorneys, consultants and experts.
"OBLIGATED PARTY" has the meaning specified in Section 4.4.4.
"ORDER" means any judgment, order, writ, injunction or decree of any
Governmental Authority having jurisdiction over the matter.
"PERMITS" means the permits, licenses, registrations, and certificates
from any Governmental Authority required to own or operate, and relating
exclusively to the operation or ownership of the Assets.
3
"PERMITTED LIENS" means the following: (a) liens for Taxes, assessments
or governmental charges or levies not yet due or delinquent; (b) statutory liens
of carriers, warehousemen, mechanics, materialmans', workers', repairers' and
other similar liens arising or incurred in the ordinary course of business for
amounts which are not due and payable; (c) easements, restrictive covenants,
rights of way and other similar restrictions of records that do not materially
adversely affect the use of the property subject thereto; (d) zoning, building
and other similar restrictions; and (e) minor imperfections of title (whether or
not of record) that do not materially adversely affect the value or use of the
property subject thereto.
"PERSONAL PROPERTY" has the meaning specified in Section 1.1.4.
"PREPAID STORAGE FEES" has the meaning specified in Section 2.1.1(a).
"PRE-CLOSING OFF-SITE DISPOSAL" means the transportation, storage,
treatment or disposal of a Hazardous Material at any location other than the
Facility prior to the Closing Date; provided, however, such disposal expressly
excludes the Release of Hazardous Materials.
"PROCEEDING" means any action, arbitration, hearing, charge, claim
(including any claim of a violation of Law), litigation or suit commenced,
conducted or prosecuted before, or otherwise involving, any Governmental
Authority or arbitrator.
"PRODUCT INVENTORY" means all chemicals, refined petroleum products and
other products and substances derived there from that are located at the
Facility as of the Effective Time and are stored by Seller pursuant to Contracts
between Seller and Third Parties.
"PURCHASE PRICE" has the meaning specified in Section 2.1.1.
"PURCHASER" has the meaning specified in the introductory paragraph.
"REAL PROPERTY" has the meaning specified in Section 1.1.2.
"RECORDS" has the meaning specified in Section 1.1.8.
"RECEIVING PARTY" has the meaning specified in Section 4.4.4.
"RELEASE OF HAZARDOUS MATERIALS" means any release, emission, or
discharge of Hazardous Materials arising out of or in connection with the
ownership or operation of the Facility, including: (1) any release, emission, or
discharge of Hazardous Materials on the surface, in the soil, in the
groundwater, or in the air at the Facility; and (2) any migration of Hazardous
Materials released, emitted, or discharged at the Facility onto or into the
surface, soil, groundwater, or air of any other real property.
"RETAINED LIABILITIES" has the meaning specified in Section 3.1.
"SELLER" has the meaning specified in the introductory paragraph.
"SELLER OWNERSHIP PERIOD" means the period of time from July 1, 2005 to
the Closing Date.
4
"SHARING PARTY" has the meaning specified in Section 4.4.4.
"TAX" or "TAXES" means any and all federal, state, local and foreign
taxes, charges, fees, levies, imposts, assessments, withholdings, impositions,
or other similar governmental charges and any interest, liens, additions to tax
or penalties thereon.
"TAKING" has the meaning specified in Section 11.3.1.
"TERMINATION DATE" has the meaning specified in Section 16.1(c).
"THIRD PARTY" means any person, group or entity (including any
corporation, partnership or other business entity) other than an Indemnitee.
"THIRD PARTY CLAIM" has the meaning specified in Section 9.2.1.
"THIRD PARTY INVENTORY SHRINKAGE" means the monetary value (as
reasonably estimated by the parties based on current fair market value) of that
volume of Third Party products stored at the Facility pursuant to one or more of
the Contracts, for which there is a discrepancy between the amount actually
present at the Facility as of the Closing Date and the amount reflected by
Seller's inventory records as being stored at the Facility as of the Closing
Date.
"TITLE CLAIMS" means any and all Liabilities arising from, related to
or based upon the state of title to the Assets (including Liabilities based upon
trespass or similar legal theories), but excluding Liabilities based upon the
state of title to the Real Property resulting from Seller's acts during the
Seller Ownership Period.
"TITLE COMPANY" means Xxxxxxxxx Title Agency, L.L.C.
"TRANSFER TAXES" has the meaning specified in Section 4.4.2.
5
