EXHIBIT 10(f)
FACILITIES SALE AGREEMENT
BY AND BETWEEN
TRANSMONTAIGNE INC.
AS SELLER
AND
XXXXXXXX TERMINALS HOLDINGS, L.P.
AS BUYER
DATED JUNE 30, 2001
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INDEX
SECTION 1. DEFINITIONS
1.1. Specific Definitions................................................6
1.2. Other Terms........................................................11
1.3. Other Definitional Provisions......................................11
SECTION 2. PURCHASE AND SALE OF ASSETS
2.1. Purchase and Sale of Assets........................................11
2.2. Retained Assets....................................................12
2.3. Title and Risk of Loss.............................................12
SECTION 3. PURCHASE PRICE
3.1. Purchase Price.....................................................12
SECTION 4. CERTAIN CONTRACTUAL OBLIGATIONS
4.1. Certain Contractual Obligations....................................13
4.2. Retained Liabilities...............................................13
SECTION 5. REPRESENTATIONS AND WARRANTIES OF SELLER
5.1. Organization and Good Standing.....................................13
5.2. Authority; Authorization of Agreement..............................13
5.3. No Violation.......................................................14
5.4. Compliance with Laws; Taxes; Permits...............................14
5.5. Contracts and Rights-of-Way........................................15
5.6. Assets.............................................................15
5.7. Title to Assets....................................................15
5.8. Operation of Facilities............................................15
5.9. Environmental Compliance...........................................15
5.10. Books and Records..................................................16
5.11. Litigation.........................................................16
5.12. No Broker..........................................................16
5.13. Credit Facility Release............................................16
5.14. Governmental Approval..............................................16
5.15. Public Utility Holding Company Act.................................17
5.16 Seller Not a Foreign Corporation...................................17
5.17 Improvements and Personal Property.................................17
5.18. Additives, Dyes and Butanes........................................17
5.19 No Other Representations and Warranties............................17
SECTION 6. REPRESENTATIONS AND WARRANTIES OF BUYER
6.1. Organization and Good Standing.....................................17
6.2. Authority; Authorization of Agreement..............................18
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6.3. No Violation......................................................18
6.4. No Broker.........................................................18
6.5. Government Approval...............................................18
6.6. Public Utility....................................................18
6.7. Knowledgeable Investor............................................19
6.8. No Other Representations and Warranties...........................19
SECTION 7. CONDUCT AND PRE-CLOSING COVENANTS OF THE PARTIES
7.1. Access and Information; Due Diligence.............................19
7.2. Continued Operation...............................................19
7.3. Title Insurance, Survey of and Title to Real Property.............20
7.4. Damage or Condemnation............................................21
7.5. Press Releases/Announcements......................................21
7.6. Environmental/Operations Audit....................................22
7.7. Contract Notices..................................................22
7.8. Consents..........................................................23
7.9. Completion of Due Diligence.......................................23
7.10 Establishing Product Inventory....................................23
7.11. Employees.........................................................24
SECTION 8. CERTAIN POST-CLOSING COVENANTS
8.1. Payment of Liabilities............................................25
8.2. Baseline Audit and Baseline Audit Report..........................25
8.3. Revenues and Remittance of Monies.................................26
8.4. Confidentiality...................................................26
8.5. Contingency Payments..............................................26
8.6. Use of Terminal Automation System.................................27
8.7. Audited Financials................................................27
SECTION 9. CONDITIONS TO OBLIGATIONS OF BUYER AT CLOSING
9.1. Compliance; Accuracy of Representations...........................27
9.2. Buyer's Board Approval............................................27
9.3. Officers' Certificates............................................27
9.4. No Orders or Lawsuits.............................................28
9.5. Third Person Consents.............................................28
9.6. Absence of Certain Changes........................................28
9.7. Conveyance Documents..............................................28
9.8. Due Diligence.....................................................28
9.9. Title Insurance Policy............................................29
9.10 Transition Services...............................................29
9.11 Terminal Use and Access Agreement.................................29
9.12 Letter of Credit..................................................29
9.13 Butane Blending Software..........................................29
9.14 TEPPCO Line Space Agreement.......................................29
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SECTION 10. CONDITIONS TO OBLIGATIONS SELLER AT CLOSING
10.1. Compliance; Accuracy of Representations...........................29
10.2. Seller's Board Approval ..........................................30
10.3. Officers' Certificates............................................30
10.4. No Orders or Lawsuits.............................................30
10.5. Third Person Consents.............................................30
10.6. Purchase Price....................................................30
10.7. Exchange Agreement................................................30
SECTION 11. CLOSING...........................................................30
SECTION 12. TAX MATTERS
12.1. Taxes and Recording Fees..........................................31
12.2. Allocation of Property Taxes......................................31
SECTION 13. INDEMNIFICATION
13.1. Environmental Indemnification.....................................31
13.2. Other Indemnification by Seller...................................32
13.3. Indemnification by Buyer..........................................32
13.4. Termination of Indemnification....................................32
13.5. Procedures Related to Indemnification.............................34
13.6. Other Claims......................................................35
13.7. Mitigation........................................................36
13.8. Tax Treatment.....................................................36
13.9 Survival of Representations.......................................36
13.10 Exclusive Remedy..................................................36
SECTION 14. NOTICE OF DEFAULT AND TERMINATION
14.1. Notice of Default by Seller.......................................36
14.2. Notice of Default by Buyer........................................37
14.3. Breach of Representation or Warranty..............................37
14.4. Termination Prior to Closing......................................37
14.5. Effect of Termination.............................................37
SECTION 15. GENERAL PROVISIONS
15.1. Further Assurances................................................37
15.2. Expenses..........................................................38
15.3. Notices...........................................................38
15.4. Governing Law.....................................................39
15.5. Entire Agreement..................................................39
15.6. No Assignment; Successors.........................................39
15.7. Amendments; Waiver................................................39
15.8. Convenient Reference..............................................39
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15.9. Counterparts......................................................40
15.10. No Third Person Beneficiaries.....................................40
15.11 Attorney Fees.....................................................40
15.12 Limitation on Liability...........................................40
EXECUTION.............................................................................41
EXHIBITS
Exhibit 1.1 Map of Facilities
Exhibit 9.7 Forms of Deed, Xxxx of Sale, Assignment
and Assumption of Contracts and
Assignment and Assumption of Permits
Exhibit 9.10 Form of Transition Services Agreement
Exhibit 9.11 Form of Terminal Use and Access Agreement
Exhibit 9.13 Form of Software License Agreement
Exhibit 9.14 Form of TEPPCO Line Space Agreement
Exhibit 13.1(b) Form of Access and Indemnity Agreement
SCHEDULES
Schedule 2.1(a) Real Property and Rights-of-Way
Schedule 2.1 (b) and (c) Personal Property and Improvements
Schedule 2.1(e) Assigned Contracts
Schedule 2.1(g) Permits
Schedule 5.4 Exceptions to Compliance with Laws
Schedule 5.7 Permitted Encumbrances
Schedule 5.8 Exceptions to Operation of Facilities
According to Standards
Schedule 5.9 Environmental Non-Compliance
Schedule 5.11 Litigation
Schedule 8.2(b) Baseline Audit Report
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FACILITIES SALE AGREEMENT
THIS
FACILITIES SALE AGREEMENT dated June 30, 2001, is by and between
TRANSMONTAIGNE INC., a Delaware corporation, together with its wholly owned
subsidiary, TransMontaigne Terminaling Inc., an
Arkansas corporation
(hereinafter referred to as "Seller") and XXXXXXXX TERMINALS HOLDINGS, L.P., a
Delaware limited partnership (hereinafter referred to as "Buyer", with Seller
and Buyer being individually referred to as "Party" and collectively referred to
as the "Parties").
RECITALS:
A. Seller presently owns a 100% interest in and operates two petroleum
products storage terminals known as the Little Rock Terminal Complex, together
with certain butane storage and pipeline facilities associated therewith located
in North Little Rock,
Arkansas.
B. Seller desires to sell and transfer and Buyer desires to purchase
and acquire all rights, properties, and assets associated with the foregoing
described properties, including certain obligations as specified in this
Agreement, on the terms and conditions described herein;
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
SECTION 1. DEFINITIONS
1.1. Specific Definitions. As used herein the following terms shall
have the meanings defined below:
Additives and Dyes has the meaning set forth in Section 3.
Affiliated Company means with respect to any individual or legal
business entity, any Person, which directly or indirectly controls, is
controlled by, or is under a common control with such individual or legal
business entity. 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 of a Person.
Agreement means this
Facilities Sale Agreement, including the
Exhibits and Schedules attached hereto, as amended, modified and supplemented
from time to time.
Assets has the meaning set forth in Section 2.1.
Assigned Contracts means those Contracts listed in Schedule 2.1(e)
that are a part of the Assets as the same have been amended in accordance with
this Agreement prior to the Closing and are assignable by Seller.
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Baseline Audit Report has the meaning set forth in Section 8.2.
Books and Records means physical and/or electronic copies of all
non-privileged and existing engineering, operating, accounting, local property
tax, legal (related to the title to the Assets or any matter reflected on any
exhibit or schedule attached to this Agreement), business, marketing, land and
other data, files, documents, instruments, notes, papers and books and records
relating to the Assets and Facilities (but not other corporate financial, tax
and legal files and records) in the custody or control of Seller, including
without limitation, journals, deeds, property records, title policies, drawings,
records, maps, charts, surveys, prints, customer lists, computer software and
files, source and retrieval programs (including related documentation), and
environmental operating records, studies, audits, plans and reports of spills or
leaks, whether or not prepared internally by Seller or by unaffiliated parties.
Butane has the meaning set forth in Section 3.
Butane Blending Software has the meaning set forth in Section
2.1(c).
Buyer Indemnified Parties has the meaning set forth in Section
13.1.
Claims means any demand, Proceeding, charge, loss, cost, expense
(including reasonable attorney's fees and expert fees and expenses), damage,
fine, penalty, interest, judgment, or liability of any nature whatsoever.
Closing means the closing of the purchase and sale of the Assets
as contemplated by this Agreement.
Closing Date means the date set for the Closing in accordance with
Section 11.
Closing Year means the calendar year in which the Closing occurs.
Code means the Internal Revenue Code of 1986, as amended.
Contracts means any written agreement, contract, commitment, lease
or instrument, including all amendments, modifications and supplements thereto,
affecting the Assets.
Conveyance Documents means all deeds, bills of sale, assignments
and other good and sufficient instruments of transfer, conveyance and
assignment, in such form and substance as Buyer may reasonably request, to
effect or evidence the sale, conveyance, assignment, transfer, and delivery of
the Assets to Buyer and to vest in Buyer title to the Assets in accordance with
this Agreement.
Credit Facility Liens has the meaning set forth in Section 5.13.
Dollar and $ means lawful currency of the United States of
America.
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Effective Date means 11:59 p.m., Central Daylight Time, June 30,
2001.
Environmental Arbitrator has the meaning set forth in Section
13.1(c).
Environmental Claims means Claims involving or relating to
Polluting Substances, Releases, environmental conditions, situations,
circumstances, events, or incidents on, at or concerning, originating at or
relating to the Facilities or the Assets, or arising out of acts or omissions
occurring in connection with the ownership or operation of any of the Facilities
or Assets and arising either (i) from or related to a violation of, or remedial
requirement under, any Environmental Laws or (ii) based upon any common law
cause of action, including, without limitation, nuisance, trespass, negligence,
strict liability or public trust doctrine, whether such Environmental Claim
arises before or after the Effective Date and whether arising on or off of the
Facilities, including, without limitation, all Claims in connection with (a)
bringing the Assets and Facilities into compliance with Environmental Laws and
(b) the investigation or remediation of Polluting Substances contamination at
the Facilities.
Environmental Laws means all Laws relating to public health, or to
pollution or protection of the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata),
including, without limitation, the Clean Air Act, as amended, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
("CERCLA"), the Resource Conservation and Recovery Act of 1976, as amended
("RCRA"), the Toxic Substances Control Act ("TSCA"), the Federal Water Pollution
Control Act, as amended, the Occupational Safety and Health Act of 1970, as
amended, the Safe Drinking Water Act, as amended, the Hazardous Materials
Transportation Act, as amended, the Oil Pollution Act of 1990 ("OPA"), any
regulations or state laws or regulations implementing the foregoing federal
laws, and all other Laws or regulations relating to (a) emissions, discharges,
releases, or cleanup of pollutants, contaminants, chemicals, polychlorinated
biphenyls (PCB's), solid wastes, or toxic or hazardous substances or wastes
(collectively, "Polluting Substances"), (b) the generation, processing,
distribution, use, treatment, handling, storage, disposal or transportation of
Polluting Substances (c) the use, maintenance, and closure of any portion of the
Facilities, or (d) environmental conservation or protection. For purposes of the
definition of Environmental Laws, the following terms have the following
meanings: "hazardous substance" means those substances listed in 49 CFR
ss.172.101 and 40 CFR Part 302, petroleum and requested substances as defined in
Subtitle I to RCRA, and radiation; "release" has the meaning specified in
Section 101(22) of CERCLA; and "disposal" has the meaning specified in RCRA;
provided, however, that to the extent the laws of the state in which the
property is located establish a meaning for "hazardous substance," "release," or
"disposal" or comparable terms that is broader than that specified above, such
broader meaning shall apply.
Facilities means the two petroleum storage terminals known as the
Little Rock Terminal Complex, situated at 0000 Xxxxxxx Xxxxxxx Xxxx, Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000 ("North Terminal") and 0000 Xxxxxxx Xxxxxxx Xxxx,
Xxxxx Xxxxxx Xxxx, Xxxxxxxx 00000 ("South Terminal"), including (a) the two
petroleum product pipelines, butane pipeline, and a fiber optic service line
that connect the North Terminal and the South Terminal (b) all butane storage
facilities and equipment located on or adjacent to the North Terminal and (c)
two petroleum product pipelines
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approximately sixteen inches (16") in diameter, one from the North Terminal and
one from the South Terminal, both of which connect to a delivery point with
TEPPCO, all as more fully depicted on the map attached hereto as Exhibit 1.1 as
operated by Seller on the date hereof, and identified in Schedule 2.1.
Governmental Authority means any federal, state, local, foreign or
other governmental or administrative authority, agency, court or tribunal having
jurisdiction.
Improvements has the meaning set forth in Section 2.1(b).
Indemnified Party has the meaning set forth in Section 13.6(a).
Indemnifying Party has the meaning set forth in Section 13.6(a).
Inspection has the meaning set forth in Section 7.6.
Inspection Period has the meaning set forth in Section 7.6.
Law means all applicable local, state, federal and foreign laws
and rules, regulations, codes, and ordinances promulgated thereunder, judgments,
orders, consent orders, or decrees, excluding, however, any Environmental Laws.
Lien means any lien, charge, mortgage, pledge, security interest,
right of first refusal, option, judgment, restrictive covenant or condition or
encumbrance in respect of or affecting the Assets, except the Credit Facility
Lien.
Party and Parties has the meaning set forth in the preamble.
Permit means any license, permit, franchise, authority, consent or
approval of a Governmental Authority applicable to the ownership or operation of
the Assets.
Permitted Encumbrances means (a) the Liens described in Schedule
5.7, and (b) Liens for current Taxes which are not yet due and payable, or which
Seller is contesting in good faith and which are specifically described in
Schedule 5.7, including, without limitation, any easement, signage lease or
other similar burdens that encumber the Real Property.
Person means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization or
government (or agency or political subdivision thereof).
Personal Property has the meaning set forth in Section 2.1(c).
Polluting Substances has the meaning set forth in the definition
of Environmental Laws.
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Prior Year means the calendar year immediately preceding the
Closing Year.
Proceeding means any action, suit, claim, investigation, review or
other proceeding, at law or in equity, before any federal, state, municipal or
other governmental court, department, commission, board, bureau, agency or other
instrumentality or any arbitrator, board of arbitration or similar entity.
Product means refined petroleum products, Additives and Dyes,
butane and blending materials.
Product Inventory means the Products that are stored in the
Facilities.
Purchase Price has the meaning set forth in Section 3.
Real Property has the meaning set forth in Section 2.1(a).
Release has the meaning set forth in the definition of
Environmental Law.
Remedial Action has the meaning set forth in Section 13.1(b).
Retained Environmental Claims means any Environmental Claim that
relates to (a) an environmental condition, situation, circumstance, event, or
incident identified in the Baseline Audit Report and any Environmental Claim
pertaining to Seller's transportation or disposal of Polluting Substances
off-site of the Assets and Facilities.
Retained Liabilities has the meaning set forth in Section 4.2.
Right-of-Way means any right-of-way, easement, access agreement,
lease, license, permit or prescriptive right that is a part of the Assets.
Schedules means the exhibits, appendices and schedules to this
Agreement.
Seller Indemnified Parties has the meaning set forth in Section
13.3.
Tax means, as relating to any of the Assets, a federal, state or
local income tax, assessment, duty, fee, levy or other governmental charge,
together with and including without limitation, any and all interest, fines,
penalties, assessments and additions to tax resulting from, relating to, or
incurred in connection with any such tax or any contest or dispute thereof.
Third Person means any Person other than Seller or Buyer, or
Affiliated Companies.
Third Person Claim has the meaning set forth in Section 13.6(a).
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TPSI has the meaning set forth in Section 8.7
TPSI Product means that portion of the Product Inventory located
in the Facilities or in transit to the Facilities that is owned by TPSI.
Transition Services Agreement has the meaning set forth in Section
9.11.
1.2. Other Terms. Other terms may be defined elsewhere in the text of
this Agreement and shall have the meaning indicated throughout this Agreement.
1.3. Other Definitional Provisions.
(a) The words "hereof", "herein", and "hereunder" and words of
similar import, when used in this Agreement, shall refer to this Agreement as a
whole and not to any particular provision of this Agreement.
(b) The terms defined in the singular have a comparable meaning
when used in the plural, and vice versa.
(c) Each and every exhibit or schedule to this Agreement is
included in it and attached for all purposes by the reference in this Agreement
to the specific exhibit or schedule.
(d) Whenever the Parties have agreed that any approval or consent
will not be "unreasonably withheld", such phrase will also include the Parties
agreement that the approval or consent will not be unreasonably delayed or
conditioned.
(e) Whenever a statement is qualified by the term "knowledge,"
"best knowledge" or similar term or phrase, it is intended to indicate actual
knowledge, or the possession of information, data or documents that would give
actual knowledge, on the part of the officers, directors of a Person or current
Facility management employees at a level of terminal manager or higher who,
after due inquiry, and in the normal scope of their employment would have such
actual knowledge.
SECTION 2. PURCHASE AND SALE OF ASSETS
2.1. Purchase and Sale of Assets. At Closing, but effective as of the
Effective Date, Seller shall sell, transfer, assign, convey, set over and
deliver to Buyer, and Buyer shall purchase and acquire from Seller, all of the
properties, privileges, rights, interests and claims for interests, tangible and
intangible, of, relating primarily to, or used primarily in connection with any
portion of the Facilities, including, without limitation, the following (the
"Assets"):
(a) Real Property. All those certain tracts or parcels of real
property wholly or partly owned in fee simple by Seller or its Affiliated
Companies upon which the Improvements are located and all Rights-of-Way, and
other rights and interests in and to real property and
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appurtenances thereto relating to or used in connection with any portion of the
Facilities, all as more particularly described in Schedule 2.1(a) ("Real
Property");
(b) Improvements. All of the buildings, structures, fixtures,
facilities and other improvements relating to or used in connection with any
portion of the Facilities, including, without limitation, aboveground bulk or
other storage tanks, aboveground and underground refined product and natural gas
liquids pipelines, loading racks, pipe-racks, docks, utility fixtures, sheds,
pads, parking areas, walkways, storage areas, and roadways, as more particularly
described on Schedule 2.1(b) and (c) ("Improvements");
(c) Personal Property. All field vehicles and leases thereto,
computer equipment and such related third party computer programs, applications
and software systems that Seller has the right to transfer, spare parts and
materials inventory, machinery, equipment, pumps, piping, engines, compressors,
heaters, electronic instrumentation, valves, meters, tools, office furniture,
fire equipment and, parts, supplies and other moveable equipment and tangible
personal property relating to or used in connection with any portion of the
Facilities as more particularly described in Schedule 2.1(b) and (c) ("Personal
Property") but excluding Seller's proprietary butane blending operation program
and codes (source or object) and all related written explanations of the use of
such program ("Butane Blending Software");
(d) Additives and Dyes. The Additives and Dyes;
(e) Contract Rights. All Assigned Contracts, as more particularly
described in Schedule 2.1(e);
(f) Books and Records. Copies of all Books and Records; and
(g) Permits. All Permits relating to or used in connection with
any portion of the Facilities, as more particularly described on Schedule
2.1(g).
2.2. Retained Assets. Except for the Assets, as described in Section
2.1, Seller shall, at Closing, retain all right, title, interest and obligation
to and with respect to all of its assets and liabilities.
2.3. Title and Risk of Loss. Title and risk of loss with respect to the
Assets shall pass to Buyer at the Effective Date.
SECTION 3. PURCHASE PRICE
The purchase price for all of the Assets and Facilities shall be
$29,000,000.00 (the "Purchase Price"). The Purchase Price will be adjusted as
follows: (a) It will be increased after Closing by an additional sum for
additives and dyes owned by Seller ("Additives and Dyes") based upon Seller's
cost, with quantities to be measured by Parties as of the Effective Date, (b) it
will be adjusted after Closing by an additional sum for butane owned by Seller
("Butane") based upon the "OPIS" Xxxxxx
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low posted price for normal butane as of June 29, 2001, plus 7.8 cents per
gallon, and will be purchased by an Affiliated Company of Buyer, with quantities
of Butane to be measured by the Parties as of the Effective Date and (c) it will
be adjusted at and after Closing in accordance with Section 12 and the other
applicable provisions of this Agreement. Buyer shall arrange to have the
Purchase Price delivered to Seller On July 2, 2001 by wire transfer in
immediately available funds to an account previously designated by Seller.
SECTION 4. CERTAIN CONTRACTUAL OBLIGATIONS
4.1. Certain Contractual Obligations. In connection with the sale of
the Assets hereunder, upon the Effective Date, Buyer shall perform and satisfy
the obligations arising under the Assigned Contracts, the Permits and the
Rights-of-Way on and after the Effective Date.
4.2. Retained Liabilities. Except for the express assumption by Buyer
of those certain obligations relating to the Assets, as specified in Section
4.1, and arising on and after the Effective Date or as expressly set forth in
this Agreement with respect to Environmental Claims that are not Retained
Environmental Claims, Buyer shall not assume or be bound or obligated by, and
Seller hereby acknowledges the retention of, any and all duties,
responsibilities, obligations or liabilities, whether fixed, absolute, accrued,
known or unknown, contingent or otherwise, of Seller of any kind whatsoever,
whether or not related to the Assets, whether or not such duties,
responsibilities, obligations or liabilities are disclosed on any Schedules
attached hereto (the "Retained Liabilities" provided that the term "Retained
Liabilities" shall not include any Retained Environmental Claim the
indemnification for which is governed by Section 13). Nothing contained in the
Schedules hereto shall increase, decrease or modify in any way whatsoever
Buyer's obligations under Section 4.1, nor result in Buyer's becoming
responsible for any liabilities, duties and obligations of Seller.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
5.1. Organization and Good Standing. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, having all necessary power and authority to carry on its respective
business as presently conducted and to own, lease, and operate all properties
and assets now owned, leased or operated by it qualified to do business as a
foreign corporation and in good standing in the State of
Arkansas.
5.2. Authority; Authorization of Agreement. Upon receipt of the
approval of its Board of Directors, which board has not yet reviewed this
Agreement or the transaction contemplated hereby, Seller will have all requisite
corporate power and authority to execute and deliver this Agreement, to
consummate the transactions contemplated hereby and to perform all the terms and
conditions hereof to be performed by it. The execution and delivery of this
Agreement by Seller and the consummation of the transactions contemplated hereby
have been duly authorized and approved by all requisite corporate action on the
part of Seller. This Agreement has been duly executed and delivered by
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Seller and constitutes the legal, valid and binding obligation of Seller,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency or other similar Laws relating to or affecting the
enforcement of creditor's rights generally and to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
5.3. No Violation. This Agreement and the execution and delivery hereof
by Seller does not, and the fulfillment and compliance with the terms and
conditions hereof, and the consummation of the transactions contemplated hereby
will not:
(a) violate or conflict with any provision of Seller's corporate
charter or other organizational or governance documents of
Seller;
(b) violate or conflict with any provision of any Law or
Environmental Law or any judicial, administrative or
arbitration order, award, judgment, writ, injunction or
decree applicable to or binding upon Seller or the Assets;
(c) conflict with or result in a breach of, constitute a default
under (whether with notice or lapse of time or both), or
accelerate or permit the acceleration of performance
required by, or require any consent or approval under any
instrument, contract or other agreement to which Seller is a
party or by which it is bound or to which any of its Assets
are subject ; or
(d) result in the creation of or imposition of any Lien upon any
of the Assets.
5.4. Compliance with Laws; Taxes; Permits.
(a) Except as set forth in Schedule 5.4, Seller is not in
violation of or in default under any Law, governmental determination, court or
other order, governmental certification requirement or other public limitation;
and
(b) Except as set forth in Schedule 5.4, Seller has filed in a
timely manner all reports, returns and forms as may have been required under
applicable Laws for and paid all amounts for all required Taxes or similar
assessments (except amounts for Taxes being diligently contested in good faith
by appropriate procedures and disclosed in Schedule 5.4) including any interest,
penalties or additions attributable thereto shown as due on all such filings. No
Proceedings or other actions that are pending, or to Seller's knowledge, that
are threatened seek the assessment or collection of the additional Taxes of any
kind from Seller specifically relating to any portion of the Facilities or the
Assets, and no other examination by the Internal Revenue Service or any other
taxing authority affecting any portion of the Facilities or the Assets is now
pending. Taxes which Seller was required by Law to withhold or collect in
respect to the Facilities or the Assets have been withheld or collected and have
been paid over to the proper governmental authorities or are properly held by
Seller for such payment when due and payable.
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(c) Except as disclosed in Schedule 5.4, (i) Seller has all
Permits necessary for the operation of the Facilities and the Assets as
currently conducted, (ii) each such Permit is in full force and effect, and
(iii) is in compliance with all its obligations with respect thereto, and no
event has occurred which permits, or upon the giving of notice or the passage of
time or both would permit, the revocation or termination of any thereof.
5.5. Contracts and Rights-of-Way. Seller is not in, nor has it received
written notice of, default under any Contract or Right-of-Way to which it is a
party, or by which it or its properties is bound. All Assigned Contracts and
Rights-of-Way represent valid, binding and enforceable agreements of the parties
thereto subject to applicable bankruptcy, insolvency, or other similar Laws
relating to or affecting the enforcement of creditors' rights generally and to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law). Seller has made available to Buyer true,
correct and complete copies of all Assigned Contracts and Rights-of-Way
affecting the Assets and Facilities, as currently operated.
5.6. Assets. The Assets constitute all of the properties and assets
necessary for the operation of, relating to or used in connection with the
Facilities.
5.7. Title to Assets. Seller has good, valid, and marketable title to
100% interest in the Assets, free and clear of all Liens, but subject to (i) all
easements, restrictions and encumbrances that are a matter of public record and
(ii) the Outdoor Advertising Leases in favor of Bestco Sign Company dated April
1, 1994, as described in Schedule 5.7. Seller warrants and will defend the
aforesaid title to the Assets to Buyer and its successors and assigns forever
against the lawful claims and demands of all persons claiming by, through or
under Seller, with the right to full substitution and subrogation of Buyer in
and to all covenants and warranties by others given or made in respect of all or
part of the Assets before the Effective Date, and to which Seller has succeeded.
5.8. Operation of Facilities. Except as disclosed on Schedule 5.8, the
Facilities and Improvements, taken as a whole, have been maintained and operated
in accordance with Seller's normal operating standards and practices and are in
good operating condition, repair and maintenance, subject only to ordinary wear
and tear.
5.9. Environmental Compliance.
(a) Except as disclosed in Schedule 5.9, the Facilities and the
Assets are in compliance with applicable Environmental Laws.
(b) Seller has furnished or made available to Buyer all Books and
Records relating to environmental liabilities and reasonably requested by Buyer
to be made available to it under Section 7.1.
(c) Except as disclosed in Schedule 5.9, there are no past or
present or, to the best of Seller's knowledge, future events, conditions,
circumstances, activities, practices, incidents, actions or plans, which will
prevent continued substantial compliance with applicable Environmental Laws and
the terms and conditions of any Permits.
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(d) Except as set forth in Schedule 5.9, Seller has not received
any written notice from any Governmental Authority of any actual or potential
non-compliance with the terms and conditions of any Permits with respect to the
any portion of the Facilities or the Assets.
(e) Except as set forth in Schedule 5.9, Seller has not received
any written notice of any civil, criminal or administrative Proceeding involving
the Facilities that arise under any applicable Environmental Laws.
5.10. Books and Records. The Books and Records have been maintained in
accordance with good business practices and all financials relating to or
depicting the past and current operations of the Facilities have been prepared
in accordance with generally accepted accounting principles and fairly and
accurately present the financial condition of the Assets, except where
projections have been made, in which case the assumptions upon which the
projections have been based are noted therein.
5.11. Litigation. Except as set forth in Schedule 5.11, there is no
pending, or to Seller's knowledge threatened, Proceeding involving Seller, any
of the Facilities or any of the Assets at law or in equity, by or before any
Governmental Authority or any arbitrator or mediator. Except as set forth in
Schedule 5.11, there are no orders, writs, judgments, stipulations, injunctions,
decrees, determinations, awards or other decisions of any Governmental
Authority, or any arbitrator or mediator, outstanding against Seller, any
portion of the Facilities or any of the Assets.
5.12. No Broker. Seller has not retained or employed any broker,
finder, or similar agent, or otherwise taken any action in connection with the
negotiations relating to this Agreement and the transactions contemplated hereby
in a manner so as to give rise to any claims against any of the Parties for any
brokerage commission, finder's fee or other similar payment.
5.13. Credit Facility Release. All of the Assets have previously been
pledged by Seller as security to Fleet National Bank N.A., as agent for Fleet
National Bank and other secured lenders pursuant to the Security Agreement dated
January 13, 2000 in connection with that certain Fourth Amended and Restated
Credit Agreement dated as of February 11, 2000, by and between Seller and Fleet
National Bank, N.A., as amended and that certain Amended and Restated Master
Shelf Agreement dated February 11, 2000 by and between Seller and Prudential
Insurance Company, as amended (collectively, the "Credit Facility Liens").
Except with respect to the necessity to obtain a release of the Credit Facility
lien upon the Assets before the Effective Date and taking such steps as are
required in Sections 7.8 and 7.9 to obtain consent to the assignment of Assigned
Contracts, no other Third Person consent, approvals, waiver or authorization of
any Third Person is required to be obtained in connection with the execution and
delivery of this Agreement by Seller, or the consummation by Seller of the
transactions contemplated hereby.
5.14. Governmental Approval. No consent, approval, waiver, order or
authorization of, or registration, declaration or filing with, any Governmental
Authority is required to be obtained or made in connection with the execution
and delivery of this Agreement by Seller or the consummation by Seller of the
transactions contemplated hereby.
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5.15. Public Utility Holding Company Act. Neither Seller nor any of its
Affiliated Companies is a "holding company", or a "subsidiary company" of a
"holding company" or an "affiliate" of a "holding company" within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
5.16. Seller Not a Foreign Corporation. The Seller is not a "Foreign
Corporation" as that term is used in Section 1445 of the Code.
5.17. Improvements and Personal Property. Seller has good and
marketable title to the Personal Property and the Improvements, and such
Improvements and Personal Property are free of Liens. Except as set forth in
this Agreement, the Improvements and Personal Property are being transferred "AS
IS" AND WITH ALL FAULTS AND SELLER MAKES NO WARRANTY WITH RESPECT TO THE
PHYSICAL CONDITION OF THE IMPROVEMENTS AND PERSONAL PROPERTY, OR TO THE
MERCHANTABILITY OF SUCH IMPROVEMENTS AND PERSONAL PROPERTY OR FITNESS OF SUCH
IMPROVEMENTS AND PERSONAL PROPERTY FOR ANY PARTICULAR PURPOSE.
5.18. Additives, Dyes and Butane. Seller has good and marketable title
to the Additives, Dyes and Butanes, and such Additives, Dyes and Butanes are
free of Liens. The Additives, Dyes and Butanes meet all requirements of Laws and
Environmental Laws, including without limitation the regulations of the EPA
governing additives set forth in Part 80 of Title 40 of the Code of Federal
Regulations, as amended, if applicable.
5.19. No Other Representations or Warranties. Except for the
representations and warranties of Seller in this Agreement and the certificates,
documents, instruments and writings delivered to Buyer by or on behalf of Seller
pursuant to this Agreement, neither Seller nor any other Person makes or shall
be deemed to have made any other representations or warranties on behalf of
Seller, express or implied, and Seller hereby disclaims any such representations
and warranties, whether by Seller, any of Seller's employees, agents or
representatives, or any other Person. EXCEPT AS SET FORTH IN THIS AGREEMENT, THE
ASSETS AND THE FACILITIES ARE SOLD TO BUYER "AS IS, WHERE IS" WITH ALL FAULTS.
EXCEPT AS SPECIFICALLY SET FORTH HEREIN, SELLER HEREBY EXPRESSLY DISCLAIMS AND
NEGATES TO BUYER AND ALL THIRD PERSONS ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, DESIGN, PERFORMANCE, CONDITION, CERTIFICATE,
MAINTENANCE, OR SPECIFICATION.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer represents and warrants to Seller as follows:
6.1. Organization and Good Standing. Buyer is a limited partnership
duly organized, validly existing and in good standing under the laws of the
State of Delaware, with all necessary
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power and authority to carry on its business as presently conducted and to own,
lease and operate all properties and assets now owned, leased and operated by
it.
6.2. Authority; Authorization of Agreement. Upon receipt of the
approval of the Board of Directors of its general partner, which board has not
yet reviewed this Agreement or the transaction contemplated hereby, Buyer will
have all requisite power and authority to execute and deliver this Agreement, to
consummate the transactions contemplated hereby and to perform all the terms and
conditions hereof to be performed by it. Subject to Buyer receiving approval
from the Board of Directors of its general partner, this Agreement has been duly
executed and delivered by Buyer and constitutes the legal, valid and binding
obligation of Buyer, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency or other similar Laws relating to
or affecting the enforcement of creditor's rights generally and to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
6.3. No Violation. This Agreement and the execution and delivery hereof
by Buyer do not, and the fulfillment and compliance with the terms and
conditions hereof, and the consummation of the transactions contemplated hereby
will not:
(a) violate or conflict with any provision of the charter or other
organizational or governance documents of Buyer;
(b) violate or conflict with any provision of any Law or Environmental
Law or any judicial, administrative or arbitration order, award,
judgment, writ, injunction or decree applicable to or binding upon
Buyer; or
(c) conflict with or result in a breach of, constitute a default under
(whether with notice or lapse of time or both), or accelerate or
permit the acceleration of performance required by, or require any
consent or approval under any instrument, contract or other
agreement to which Buyer is a party or by which it is bound or to
which any of its properties is subject.
6.4. No Broker. Buyer has not retained or employed any broker, finder,
or similar agent, or otherwise taken any action in connection with the
negotiations relating to this Agreement and the transactions contemplated hereby
in a manner so as to give rise to any claims against any of the Parties for any
brokerage commission, finder's fee or other similar payment.
6.5. Governmental Approval. No consent, approval, waiver, order or
authorization of, or registration, declaration or filing with, any Governmental
Authority is required to be obtained or made in connection with the execution
and delivery of this Agreement by Buyer or the consummation by Buyer of the
transaction contemplated hereby.
6.6. Public Utility. Neither Buyer nor any of its Affiliated Companies
is a "holding company", or a "subsidiary company" of a "holding company" or an
"affiliate" of a "holding company", as such terms are defined in the Public
Utility Holding Company Act of 1935 and related rules and regulations.
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6.7. Knowledgeable Investor. Without limitation of the express
representations, warranties, covenants and agreements of Seller contained in
this Agreement, Buyer acknowledges that it is an experienced and knowledgeable
investor in terminaling, transportation, storage and petroleum exchange business
and the operation of petroleum product storage facilities and that in conducting
the Inspection under Section 7.6 and due diligence as described in Section 9.8
involving the Assets and Facilities, it is relying solely on its independent
investigation and audit of, and appraisal and judgment with respect to, the
Assets and Facilities and Buyer assumes full responsibility for any conclusions
or analysis relating to the Assets and Facilities and any decisions to proceed
with the purchase of the Assets and Facilities based upon such due diligence and
investigation.
6.8. No Other Representations and Warranties. Except for the
representations and warranties of Buyer in this Agreement and the certificates,
documents, instruments and writings delivered to Seller by or on behalf of Buyer
pursuant to this Agreement, neither Buyer nor any other Person makes or shall be
deemed to have made any other representations or warranties on behalf of Buyer,
express or implied, and Buyer hereby disclaims any such representations or
warranties, whether by Buyer, any of Buyer's employees, agents or
representatives, or any other Person.
SECTION 7. PRE-CLOSING CONDUCT AND COVENANTS OF THE PARTIES
7.1. Access and Information; Due Diligence. Subject to Section 7.6,
from and after the date hereof to and including the Closing Date, Seller shall,
upon prior written request, afford to the Buyer and its officers, employees,
agents and authorized representatives of Buyer access during normal business
hours, to the Facilities, the Assets and all Books and Records pertaining
thereto. Seller shall also make available to Buyer, upon prior written request,
personnel knowledgeable with respect thereto at any reasonable time, in order
that Buyer may make such factual, financial, accounting technical or legal due
diligence investigation which Buyer considers desirable, and the officers,
employees and representatives of Seller shall furnish Buyer with such Books and
Records as may be reasonably requested in order that Buyer may complete such due
diligence investigation of the Assets and Facilities to its reasonable
satisfaction.
7.2. Continued Operation.
(a) From and after the date hereof to and including the Effective
Date, Seller shall:
(1) continue to operate and maintain the Facilities and
the Assets (A) in working order, condition, and
repair that are substantially the same as on the date
hereof (normal wear and tear excepted) and consistent
with Seller's past standards and practices, good
industry practices and (B) in such a manner so that
the representations and warranties of Seller
contained herein shall be true and correct as of the
Effective Date as if made on and as of the Effective
Date;
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(2) continue in effect all present insurance coverage on
the Facilities and the Assets;
(3) cooperate with Buyer to effect an orderly transition
in the ownership of the Assets and Facilities; and
(4) protect and preserve the relationships with the
existing customers at the Facilities.
(b) From and after the date hereof to and including the Effective
Date, Seller shall not without the prior written consent of Buyer (which consent
shall not be unreasonably withheld):
(1) grant any easements, rights-of-way, licenses, or
similar rights or enter into, terminate or amend any
Contract which is a part of or affects the Facilities
or the Assets;
(2) abandon or fail to maintain any Right-of-Way or
Permit which is a part of or would have an effect
upon the Facilities or the Assets;
(3) incur any obligation or liability in respect of the
Assets or Facilities or make any expenditure which
individually or in the aggregate exceeds $25,000.00
except for expenditures made in connection with any
emergency or other force majeure event;
(4) sell, assign, transfer, mortgage, pledge, subject to
any Lien or otherwise dispose of or encumber any
Asset (excluding the Credit Facility Liens);
(5) settle any pending Proceeding or Claim applicable to
Seller's interest in the Facilities or the Assets
except for settlements which do not impose any
obligation on the Facilities or the Assets or the
operation of the Facilities or the Assets which
extends beyond the Closing Date;
(6) make any material change in the conduct of the
business or operations of the Facilities; or
(7) commit to any of the foregoing.
7.3. Title Insurance, Survey of and Title to Real Property.
(a) Upon Buyer's written request, Seller will provide to Buyer, at
no cost to Buyer, any Books and Records containing title information relating to
the Facilities. Seller makes no representation as to the accuracy of this
information. Prior to Closing, Buyer will (1) order a title examination and
commitments from Chicago Title Insurance Company, and (2) order ALTA land
surveys from a
Arkansas licensed surveyor for the Real Property associated with
the North Terminal and the South
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Terminal and all other fee-owned real property sites that form a part of the
Assets in anticipation of Buyer's acquisition of extended title insurance from
the title insurance company. The final revised commitments for extended title
insurance based, in part, on the results of the surveys, must be received by
Buyer prior to Closing. Such title commitments shall be deemed to be acceptable
to Buyer if they reflect good, valid and marketable title to the Facilities in
fee simple and free and clear of all Liens and title defects, except Permitted
Encumbrances. Examination of title to the Facilities, title insurance premiums
and surveys, if any, will be at Buyer's cost.
(b) From and after the date hereof to and including the Closing
Date, Buyer shall have the right to inspect and examine title to the Assets. In
the event such examination reveals any defects in title, Buyer shall notify
Seller in writing immediately, but prior to Closing of such defects. Upon
receipt of said notice, Seller shall cure all such defects to title contained in
Buyer's notice at Seller's sole expense. If all such defects of title contained
in Buyer's written notice thereof have not been cured by Seller, or waived by
Buyer on or prior to the Closing Date, Seller and Buyer shall attempt to agree
upon an appropriate adjustment to the Purchase Price to account for such
matters. If within a reasonable period after the commencement of negotiations
relating to such adjustment to the Purchase Price, Buyer and Seller have not
agreed upon an adjustment in the Purchase Price, either Party may terminate this
Agreement by giving notice to Seller. Any notice given by Buyer pursuant to this
Section 7.3, or the failure to give any such notice shall not affect Buyer's
right to seek indemnification under Section 13.1, unless such defect has been
waived by Buyer pursuant to this Section 7.3.
7.4. Damage or Condemnation. If the Facilities or any part thereof is
damaged or condemned or condemnation proceedings affecting any part of the
Facilities are filed or threatened prior to the Closing Date and the cost of the
restoration or repair of such part of the Facilities to its condition
immediately prior to such damage or condemnation, as reasonably estimated by
Seller, exceeds $250,000, then Seller shall promptly give written notice thereof
to Buyer giving the full particulars of such damage or condemnation, the
estimated time for completion of such restoration or repair, and Seller's
estimate of the cost of restoration or repair thereof . In any such notice,
Seller shall also elect to either (a) bear all costs of such repair or
restoration or (b) state its willingness to endeavor to agree with Buyer upon an
appropriate adjustment to the Purchase Price for such matters. Within five (5)
days of the date of receipt by Buyer of such a notice from Seller under (b)
above, Buyer shall attempt to agree with Seller upon an appropriate adjustment
to the Purchase Price, failing which either Party may terminate this Agreement.
In the event Buyer fails to terminate this Agreement with respect to any damage
or condemnation notice, then Seller shall proceed to make the repairs or
restoration specified therein at Seller's sole cost, risk and expense.
7.5 Press Releases/Announcements. Prior to Closing, neither Party shall
make any public announcement or issue any press release regarding this
Agreement, the transactions contemplated hereby or the status of negotiations
between the parties regarding the same without first conferring with the others.
If the Parties are unable to agree as to the text or time of release of any such
announcement, no announcement will be made unless the Party proposing the
announcement is advised by legal counsel that the announcement is legally
required to be made, in which case the other Parties shall be immediately
advised of the text and time of release of the announcement. The Parties
21
further agree to consult with each other on all press releases and announcements
to be issued at Closing concerning the transactions contemplated by this
Agreement. The Buyer and Seller may each continue such communications with
employees, customers, suppliers, lenders, stockholders and other particular
groups as may be legally required and not inconsistent with the best interests
of the other Party or the prompt consummation of the transactions contemplated
by this Agreement.
7.6. Environmental/Operations Audit.
(a) From and after the date of this Agreement to and including the
Closing Date (the "Inspection Period") Buyer will have the (1) right of access
to all Books and Records pertaining to the condition of the Assets and
Facilities reasonably requested by Buyer in writing, and (2) subject to the
execution of a mutually agreeable access agreement, the right of access to the
Assets and the Facilities for the purpose of conducting surveys, inspections,
and such other examinations of the Assets and Facilities as Buyer may desire
subject to Paragraphs (b) and (c) of this Section 7.6 (collectively, (1) and (2)
constitute the "Inspection"). Buyer will use reasonable care in the course of
performing the Inspection. Buyer will defend and indemnify Seller for any claims
or liabilities arising out of the performance of the Inspection, except to the
extent due to Seller's gross negligence or willful misconduct. In the exercise
of its rights under this Paragraph, Buyer will minimize any interference with
Seller's operations on the Facilities, (except for terminal managers in the
presence of a management representative of Seller or employment interviews
conducted with the consent of Seller) will not engage in discussions with any
site personnel and will give Seller reasonable advance written notice of any
Inspection activities. Buyer will pay all expenses associated with the
Inspection, including the disposal of any wastes generated by testing. Seller
may otherwise participate in the testing at its cost. Seller will have the right
to approve and witness all testing activities. Seller will be promptly provided
with all non-privileged written information and reports, raw data and test
results generated by the Inspection. All information pertaining to the Assets
and Facilities shall be subject to the terms of the Nondisclosure Agreement
between Seller and Xxxxxxxx Energy Services LLC dated February 6, 2001.
(b) The Inspection shall include a review of all available
operational records of the Assets, and only those environmental assessment
activities which are part of the ASTM Phase I Environmental Assessment process
(as defined in ASTM Standard E-1527-00, the "Phase I Environmental Assessment"),
which shall include records review, including but not limited to review of
records maintained or on file with appropriate state and federal regulatory
bodies, site reconnaissance and interviews; provided, however, that the Phase I
Environmental Assessment shall also include a review of any relevant,
publicly-available information concerning geologic and/or hydro-geologic
conditions associated with the Assets. The Parties agree that the Phase I
Environmental Assessment shall not involve any testing or sampling activities of
materials such as soil and groundwater associated with any potential
environmental conditions involving the Assets.
7.7 Contract Notices. Subject to Section 7.8, the Parties shall on the
Closing Date execute and deliver notices with regard to each of the Assigned
Contracts, Rights-of-Way and Permits, which are assignable by Seller in form and
substance reasonably acceptable to the Buyer, stating that Seller has assigned
to Buyer its interest therein and Buyer has accepted a delegation of
22
Seller's duties arising thereunder on or after the Effective Date (excluding any
Retained Liabilities).
7.8 Consents. Seller shall secure from any Third Person and prepare and
deliver to Buyer prior to Closing, fully executed, all forms of those consents
or waivers that are necessary and proper to consummate the sale, assignment and
conveyance to Buyer of the Assets. All of such consents and waivers shall be in
form and substance reasonably satisfactory to Buyer. However, if such Third
Person consents to Assigned Contracts, Rights-of-Way or other assignments or
conveyances of the Assets have not been obtained before Closing, the Parties
will negotiate in good faith to arrive upon an appropriate mutually agreeable
adjustment to the Purchase Price. If such an adjustment in the Purchase Price
can not be agreed upon or other provision has not been made therefore and
mutually agreed upon in writing prior to Closing, Buyer may terminate this
Agreement prior to Closing and both Parties will be released from all further
obligations related to this Agreement.
7.9 Completion of Due Diligence. The due diligence review to be
undertaken by Buyer, as referenced in this Section 7 (excluding the Baseline
Audit and Baseline Audit Report, which shall be governed by Section 8.2 and
title defects, which shall be governed by Section 7.3) and Section 9.8 shall be
completed prior to the Closing, unless extended by mutual written agreement.
7.10 Establishing Product Inventory.
(a) The Facilities shall close at 12:00 a.m. on July 1, 2001.
Between that time and 7:00 a.m. on July 1, 2001, an independent third party
inspection company mutually selected by Buyer and Seller (the cost of which will
be shared equally between the Parties) will perform an inventory and measurement
based upon applicable pipeline run tickets or bills of lading or observed
metering, gauging or measurement procedures of all Product Inventory located in
the Facilities' storage tanks and in active pipelines (including line fill in
such pipelines) to determine the volume all Product Inventory located (1) in
above-ground storage tanks at the Facilities and (2) in the line-fill at the
Facilities. All measurements of tanks hereunder shall be made from tank gauges
on 100 percent tank table basis or by positive displacement meters. All
measurements and tests shall be made in accordance with the latest ATM or
ASME-API (Petroleum PD Meter Code) published methods then in effect, whichever
apply. Volume and gravity shall be adjusted to 60(Degree) Fahrenheit for each
barrel (consisting for 42 U.S. gallons) and adjusted for tank shell temperature
correction factors to 60 degrees Fahrenheit. Full deduction for all bottom
sediment and water shall be made according to the ASTM Standard Method then in
effect. The final inventory volume for each type of Product comprising Product
Inventory shall be subject to Buyer's approval, which will not be unreasonably
withheld. Within ten (10) days of the Effective Date, at Buyer's option and upon
written notification, Seller shall be responsible for disposal of any water in
the storage tanks as measured under this Section within ten (10) days of receipt
of said notice.
(b) At the Effective Date, Seller shall transfer custody of the
Product
23
Inventory and title to the tank bottom sediment to Buyer. Buyer shall assume
responsibility for the Product Inventory on behalf of and in accordance with the
direction of the respective customers. Seller will remain responsible and liable
for the exchange contract obligations of TPSI.
7.11 Employees.
(a) In order to assist Buyer in evaluating those employees
performing direct operational and substantial direct support services related to
the Facilities ("Employees"), Seller will as soon as practicable after the
execution of this Agreement by both Parties make available to Buyer a complete
list of the names, dates of hire and annual compensation or hourly rates
(including any currently taxable profit-sharing, bonus or other form of
compensation) of such Employees as of April 30, 2001.
(b) Buyer is not obligated to offer employment to or continue the
employment of any officer, employee, agent, or representative of Seller,
including, without limitation, the Employees. Any successor clause or agreement
in any labor contracts or other labor arrangements, if any currently in effect,
would not be applicable to the sale and purchase of the Property, or otherwise
affect or impose any conditions or obligations on Buyer.
(c) Buyer will evaluate and make hiring decisions with respect to
the Employees in a legal manner and will indemnify Seller with respect to any
claims or causes of action stemming from or related to such hiring decisions.
With respect to any Employees to which Buyer elects to make offers of employment
(which employment would be conditional upon the Closing of all transactions
contemplated under this Agreement and Seller's termination of such affected
Employees' employment with Seller, and would commence on the Effective Date),
and who accept such offers and are hired by Buyer, Buyer will hire such
Employees at wage and salary levels and enroll such Employees in welfare,
pension and other fringe benefit plans, substantially equivalent to those
presently offered to similarly situated employees of Buyer. Unless otherwise
precluded by ERISA or the terms of its existing benefits plans, Buyer will
credit such Employees with the years of service, as shown in Seller's records,
for purposes of eligibility and vesting under Buyer's retirement plans and
determination of benefits under Buyer's paid time off, severance, short-term
disability and service award plans. Buyer will notify Seller four days prior to
the Closing Date as to which of the Employees Buyer has extended or intends to
extend offers of employment, as well as those to whom Buyer has not extended or
will not extend an offer. Immediately prior to the Effective Date, Seller will
terminate the employment of such Employees to whom Buyer extends employment
offers and such employees accept such offers prior to that date. Buyer will
provide Seller with a copy of the terms and conditions of each offer extended,
including without limitation, job title, job duties and responsibilities, annual
wage or salary, and applicable welfare, pension and fringe benefit plans.
(d) Seller will offer severance benefits to those Employees to
whom Buyer does not extend an offer of employment in accordance with paragraph
(c) above and who are subsequently terminated by Seller. If within one (1) year
after Closing, Buyer hires any Employee that has received severance benefits
from Seller, Buyer will reimburse Seller for all severance benefits paid by
Seller to such Employee.
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(e) Seller will fully pay or otherwise satisfy any claims by any
directors, officers, employees, shareholders, agents and representatives of
Seller relating to this Agreement, the performance or consummation thereof, and
any claims by any of them relating to or arising out of (i) their employment by
Seller, (ii) any employment contract involving Seller, (iii) any pension or
other benefit liabilities of Seller, (iv) any law requiring notice of severance
or severance benefit. With respect to any Employees of Seller who are terminated
by Seller, Seller will defend (with counsel reasonably acceptable to Buyer) and
indemnify Buyer from and against all claims, expenses, lawsuits and obligations
with respect to or arising from such termination, and Seller will comply with
all applicable laws in connection therewith, including, without limitation, the
Worker Adjustment and Retraining Notification Act.
SECTION 8. CERTAIN POST-CLOSING COVENANTS
8.1. Payment of Liabilities. Seller shall pay or otherwise satisfy in
the ordinary course all of Seller's trade payables that relate to the period
prior to the Effective Date with respect to the Assets and shall fully pay or
otherwise satisfy all other Retained Liabilities.
8.2. Baseline Audit and Baseline Audit Report.
(a) For six months after the Effective Date, Buyer, at its option
may undertake such Phase II and other assessment as Buyer deems necessary for
Buyer to fully determine the environmental condition and status of compliance
with Environmental Laws of the Assets. Such environmental assessment (the
"Baseline Audit") shall establish the environmental condition and Environmental
Law compliance status of the Assets as of the Effective Date. Buyer will provide
reasonable prior notice to Seller of the commencement of the Baseline Audit and
provide Seller or its authorized representative the opportunity to observe the
audit and take duplicate samples of environmental constituents at Seller's sole
cost and upon the execution of an access agreement containing terms and
provisions mutually acceptable to the Parties. If Seller fails to witness the
Baseline Audit, Buyer may proceed to conduct it without Seller. If within the
aforesaid six-month period Buyer has not completed its work on the Baseline
Audit, Buyer waives its right to assert its environmental indemnification rights
under Section 13.1 against Seller.
(b) Upon conclusion of the Baseline Audit, Buyer shall provide
Seller a copy of the written report thereof (the "Baseline Audit Report") and
for thirty (30) days after Seller's receipt of such report, Seller may make any
reasonable recommendations for changes in the report, including, without
limitation, changes based on test results of samples taken by Seller during the
Baseline Audit or re-testing of samples taken by Buyer during the Baseline
Audit. The Parties will negotiate in good faith to resolve any disputes with
respect to the Baseline Audit Report within sixty (60) days following the end of
the aforesaid thirty-day period and if at the end of such period, they not
resolved such dispute to their mutual satisfaction, they will submit the dispute
to arbitration by an Environmental Arbitrator in accordance with the procedures
described in Section 13.1 (c) and (d). The arbitrator will resolve the dispute
based upon a written opinion containing a reasoned explanation for his or her
decision, which decision will be the exclusive remedy in respect of any such
dispute, final and binding on the Buyer and Seller for all purposes and may be
entered
25
in any court of competent jurisdiction. The provisions of this Section 8.2 will
survive the Effective Date and this Agreement will be amended subsequent to the
Effective Date to include the Baseline Audit Report, mutually acceptable to both
Parties, which shall be attached hereto as Schedule 8.2 (b).
8.3. Revenues and Remittance of Monies. All revenues, costs and
expenses attributable to the Assets prior to the Effective Date shall belong to
Seller, and all revenues, costs and expenses attributable to the Assets from and
after the Effective Date shall belong to Buyer. If a Party receives any monies
from a Third Person that are due to another Party, it shall promptly remit such
monies to such Party.
8.4. Confidentiality. All information provided by one Party to the
other Party up to the Effective Date in connection with and as a result of this
Agreement shall be deemed "Information", as such term is defined in the
Nondisclosure Agreement between Xxxxxxxx Energy Services, LLC and TTI dated
February 6, 2001, and shall be governed by the terms and provisions thereof,
which agreement Buyer and Seller both agreed and ratified as applying to this
transaction under the Letter of Intent between them dated May 17, 2001 and which
they both agree and ratify as applying to them under this Agreement.
8.5 Contingency Payments.
(a) For a period not to exceed five years after the Effective Date,
Seller will pay to Buyer certain amounts ("Contingency Payments") related to a
certain shortfall in Product delivered from the Facilities up to a maximum of
$725,000 per year (with the total of such payments not exceeding $3,625,000 over
the five-year period) based on the following formula:
[(A - B) x D] / C = E
Where:
A = 11,862,500 barrels (32,500 barrels per day);
B = The total volume in barrels of all Products delivered from
the Facilities during the year for which the Contingency
Payment may be due or 7,300,000 barrels (20,000 barrels
per day), whichever is greater;
C = 4,562,500 barrels (12,500 barrels per day);
D = $725,000; and
E = Total Contingency Payment due to Buyer.
For purposes of this Section 8.5, the term "year" is defined as a
period of twelve calendar months following the Effective Date and each
subsequent twelve-month period. Each such Contingency Payment, if any, will be
paid to Buyer within thirty (30) days after the end of each year for which it is
due. As soon as reasonably possible after each month during the period that such
Contingency Payments are due, Buyer will provide Seller with a monthly statement
of the aggregate volume of Products delivered from the Facilities for the prior
month by the 15th of the following month.
26
(b) To secure the payment of such Contingency Payments and unless
otherwise provided in this Section 8.5(b), Seller will obtain each year during
the period said Contingency Payments are due, a letter of credit ("Letter of
Credit") in a form acceptable to Buyer and in the amount equal to the remaining
maximum value of the Contingency Payment. The Letter of Credit may also be drawn
upon with respect to any of the indemnification obligations of Seller under this
Agreement. Buyer will be responsible for and will pay upon receipt of an invoice
from Seller, the first $50,000 of the yearly cost of such Letter of Credit.
Buyer will review in good faith at least annually the need for Seller to obtain
such Letter of Credit and notify Seller at least thirty (30) days prior to the
end of each year whether Seller should renew the Letter of Credit for the
following year.
(c) The Contingency Payments will not be subject to the deductible
amount provided in Section 13.2.
8.6. Use of Terminal Automation System. So long as Seller or its
Affiliated Company is a customer of the Facilities, Buyer will allow Seller or
its Affiliated Company at no cost (except actual third party expenses incurred
by Buyer) to utilize the terminal automation system to allocate Product liftings
of the individual customers of Seller or its Affiliated Company.
8.7 Audited Financials. Seller will supply Buyer with audited
financials by July 31, 2001 in compliance with Regulation SX of the SEC. Buyer
will pay fifty percent of third party expenses incurred by Seller for such
audited financials.
SECTION 9. CONDITIONS TO OBLIGATIONS OF BUYER AT CLOSING
The obligations of Buyer to purchase the Assets and Facilities under
this Agreement are subject to the satisfaction, at or before the Closing, of the
following conditions:
9.1. Compliance; Accuracy of Representations. Seller shall not be in
material breach of any of Seller's covenants, agreements, and conditions
required by this Agreement to be performed, satisfied, or complied with by it on
or before the Closing, and all representations and warranties of Seller in this
Agreement or in any certificate, document, instrument or writing delivered to
Buyer by or on behalf of Seller under this Agreement shall be true and correct
on and as of the Closing Date with the same force and effect as though they had
been made on the Closing Date.
9.2 Buyer's Board Approval. The Board of Directors of the general
partner of Buyer shall have authorized the execution, delivery, and performance
of this Agreement and the consummation of the transactions contemplated herein.
9.3. Officers' Certificates. Buyer shall have received certificates
dated as of the Closing Date, in form and substance reasonably satisfactory to
Buyer,
(a) signed by the President or Vice President of Seller certifying
that (1) all representations and warranties made by Seller in this Agreement or
in any certificate, document, instrument or other writing delivered to Buyer by
or on behalf of Seller under this Agreement are true
27
and correct on and as of the Closing Date as though made on, as of and with
respect to the Closing Date, and (2) all covenants, agreements, and conditions
required by this Agreement to be performed, satisfied or complied with by Seller
on or before the Closing Date have been performed, satisfied and complied with;
(b) signed by Secretary or an Assistant Secretary of Seller
certifying (1) the accuracy and completeness of the copies of, as well as the
current effectiveness of, the resolutions to be attached thereto of the Board of
Directors of Seller authorizing the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated herein, and (2)
the incumbency of the officer executing this Agreement on behalf of Seller and
any documents to be executed and delivered by Seller at the Closing.
9.4. No Orders or Lawsuits. No order, writ, injunction or decree shall
have been entered and be in effect by any court of competent jurisdiction or any
Governmental Authority, and no Law shall have been promulgated or enacted and be
in effect, that restrains, enjoins or invalidates the transactions contemplated
hereby. No Proceeding initiated by any Person shall be pending before any court
or Governmental Authority seeking to restrain or prohibit or declare illegal, or
seeking substantial damages in connection with, the transactions contemplated by
this Agreement.
9.5. Third Person Consents. Seller shall have obtained all Third Person
consents in accordance with Section 7.8 (except for those indicated on Schedule
2.1(e) as immaterial) and lien releases or waivers necessary to consummate the
transactions contemplated by this Agreement, including, without limitation, a
release of the Credit Facility Liens, all of such consents and waivers being in
form and substance reasonably satisfactory to Buyer.
9.6. Absence of Certain Changes. There shall not have occurred with
respect to the Facilities or the Assets any act or omission constituting a
violation of any Law or Environmental Law between the date of this Agreement and
the Closing Date nor any damage or destruction, whether covered by insurance or
not, which could materially adversely affect the utilization and operations of
the Facilities or the Assets.
9.7. Conveyance Documents. Seller shall have duly executed and
delivered to Buyer the Conveyance Documents and all other instruments and
documents required on Seller's part to effectuate this Agreement and the
transactions contemplated hereby in form and substance reasonably satisfactory
to Buyer, including without limitation, the Deed, Xxxx of Sale Assignment and
Assumption of Contracts and Assignment and Assumption of Permits, in the forms
attached hereto as Exhibit 9.7.
9.8. Due Diligence. Buyer shall have completed a due diligence
investigation of the Assets and Facilities to its reasonable satisfaction, with
the results of such investigation also reasonably satisfactory to Buyer. Such
due diligence investigation shall cover the matters described in Section 7 and
shall also include, but not be limited to, Buyer: (i) conducting a Phase I
environmental site assessment of the Assets and Facilities; (ii) conducting a
physical inspection of the Assets and Facilities and review of maintenance
records and verifying that the Assets and Facilities include all equipment
necessary for the efficient operation of the Facilities and that such equipment
is in good
28
repair and operating condition; (iii) verifying the existence and validity of
real property interests necessary for the operation of the Assets and Facilities
and that all documents evidencing such interests are properly executed, recorded
and assignable in their entirety; (iv) verifying that any and all Assigned
Contracts have not been materially breached, are currently in effect, and
assignable and that there are no material unanticipated current or potential
liabilities; and (v) verifying that the Assets and Facilities are in material
compliance with all applicable Laws and Environmental Laws.
9.9. Title Insurance Policy. Chicago Title Insurance Company shall, in
accordance with the title commitment standard specified in Section 7.3(a), have
committed to issue to Buyer at Closing an extended coverage ALTA owner's policy
of title insurance upon payment by Buyer of its regularly scheduled premium,
insuring Buyer's interests in the Real Property associated with the North
Terminal and the South Terminal and all other fee-owned real property sites that
form a part of the Assets in an amount satisfactory to Buyer, subject only to
delivery of satisfactory title from Seller to Buyer.
9.10. Transition Services. At Closing, Seller shall execute and deliver
a Transition Services Agreement in the form attached hereto as Exhibit 9.10.
9.11. Terminal Use and Access Agreement. At Closing, TPSI and Buyer
will executed a Terminal Use and Access Agreement covering the TPSI Product
Inventory in the form attached to this Agreement as Exhibit 9.11.
9.12. Letter of Credit. At Closing, Seller shall provide and deliver a
Letter of Credit as provided in Section 8.5.
9.13. Butane Blending Software. At Closing, Seller and Buyer will
execute a Software License Agreement for the Butane Blending Software in the
form attached to this Agreement as Exhibit 9.13.
9.14. TEPPCO Line Space Agreement. At Closing Seller shall execute and
deliver the TEPPCO Line Space Agreement in the form attached hereto as Exhibit
9.14.
SECTION 10. CONDITIONS TO OBLIGATIONS OF SELLER AT CLOSING
The obligations of Seller to sell and transfer the Assets and
Facilities under this Agreement are subject to the satisfaction, at or before
the Closing, of the following conditions:
10.1. Compliance; Accuracy of Representations. Buyer shall not be in
breach of any of Buyer's covenants, agreements, and conditions required by this
Agreement to be performed, satisfied, or complied with by it on or before the
Closing, and the representations and warranties of Buyer in this Agreement or in
any certificate, document, instrument or writing delivered to Seller by or on
behalf of Buyer under this Agreement shall be true and correct on and as of the
Closing Date with the same force and effect as though they had been made on the
Closing Date.
29
10.2. Seller's Board Approval. The Board of Directors of Seller shall
have authorized the execution, delivery, and performance of this Agreement and
the consummation of the transactions contemplated herein.
10.3. Officers' Certificates. Seller shall have received certificates
dated as of the Closing Date, in form and substance reasonably satisfactory to
Seller,
(a) signed by the President or a Vice President of Buyer
certifying that (1) all representations and warranties made by Buyer in this
Agreement or in any certificate, document, instrument or other writing delivery
to Seller by or on behalf of Buyer under this Agreement are true and correct on
and as of the Closing Date as though made on, as of and with respect to the
Closing Date, and (2) all covenants, agreements, and conditions required by this
Agreement to be performed, satisfied or complied with by Buyer on or before the
Closing Date have been performed, satisfied and complied with; and
(b) signed by Buyer's Secretary or an Assistant Secretary
certifying (1) the accuracy and completeness of the copies of, as well as the
current effectiveness of, the resolutions to be attached thereto of the Board of
Directors of Buyer authorizing the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated herein, and (2)
the incumbency of the officers executing this Agreement on behalf of Buyer and
any documents to be executed and delivered by Buyer at the Closing,.
10.4. No Orders or Lawsuits. No order, writ, injunction or decree shall
have been entered and be in effect by any court of competent jurisdiction or any
Governmental Authority, and no Laws shall have been promulgated or enacted and
be in effect, that restrains, enjoins or invalidates the transactions
contemplated hereby. No Proceeding initiated by any Person shall be pending
before any court or Governmental Authority seeking to restrain or prohibit or
declare illegal, or seeking substantial damages in connection with, the
transactions contemplated by this Agreement.
10.5. Third Person Consents. Buyer shall have obtained all Third Person
consents or waivers that Seller was able to obtain, all of such consents and
waivers being in form and substance reasonably satisfactory to Seller.
10.6. Purchase Price. Buyer shall deliver to Seller on the Closing Date
the Purchase Price in accordance with Section 3.1.
10.7. Exchange Agreement. At Closing Affiliated Companies of Seller and
Buyer shall have entered into an exchange agreement with respect to deliveries
of TPSI Product to the Facilities.
SECTION 11. CLOSING
The Closing shall take place at the offices of Seller, at 000 00xx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx, or such other place mutually agreeable to
the Parties, no later than June 30, 2001, which
30
date may be extended only by mutual written agreement of the Parties. Facsimile
signatures are an acceptable means of indicating that a Party has executed this
Agreement and any other documents required for purposes of Closing, provided
that each Party will be provided with original executed copies of this Agreement
and such documents within a reasonable period of time after receipt of such
facsimile signatures.
SECTION 12. TAX MATTERS
12.1. Taxes and Recording Fees. Except as provided otherwise in Section
12.2, Buyer and Seller shall divide equally all local state and federal sales
taxes and fees incurred in connection with the transaction herein including
without limitation all sales, use and transfer taxes, as well as recording and
documentary fee, if any.
12.2. Allocation of Property Taxes. Each Party shall pay its respective
pro rata portion of all ad valorem or similar Taxes under any property or lease
included in the Assets for the Closing Year. The Purchase Price shall be reduced
by a reasonable estimate of all ad valorem or similar Taxes for the Closing Year
(based on the Taxes for the Prior Year) prorated to the Effective Date; Seller
shall make available to Buyer copies of all statements and assessments
reflecting Taxes for the Prior Year. Buyer shall pay such sums to the
appropriate taxing authorities when due, prior to becoming delinquent. Except as
set forth in this Section 12, Buyer shall have no other liability for Taxes
payable by Seller for the period prior to the Effective Date relating to the
operations or business of Seller or the transactions contemplated hereunder.
SECTION 13. INDEMNIFICATION
13.1. Environmental Indemnification.
(a) Except as otherwise expressly limited in this Section 13.1,
Seller shall indemnify Buyer, and its Affiliated Companies and each of their
respective officers, directors, employees, stockholders, partners and
representatives ("Buyer Indemnified Parties") and hold them harmless from all
Retained Environmental Claims. Seller's environmental indemnity obligations
under this Section 13.1 will be limited under the following circumstances: (1)
Seller will have no indemnity obligations to Buyer for any Retained
Environmental Claim that, under the Environmental Laws in effect as of the
Effective Date, does not require "corrective action" (actions required to
satisfy legal requirements of the applicable Governmental Authority including,
without limitation, no action, monitoring, remediation through attenuation,
confinement or treatment) but subsequently requires corrective action if Seller
reasonably establishes that Buyer contributed to or exacerbated any portion of
the Polluting Substances that required such corrective action; and (2) with
respect to any Retained Environmental Claim for which Seller has initiated
"Remedial Action" (as defined below in subsection (b)), Seller will have no
indemnity obligations for that portion of remediation or corrective action
31
costs which Seller reasonably establishes to be caused by Buyer's contribution
to the condition subject to Remedial Action.
(b) Without limiting the other provisions of this Section 13, if
Buyer has a claim against Seller related to an Retained Environmental Claim,
Seller shall, subject to Buyer's input and approval, which approval will not be
unreasonably withheld, manage any investigation, remediation, corrective action
or other activities required to address the condition(s) giving rise to such
Retained Environmental Claim ("Remedial Action"). Without limiting Buyer's right
to make claims for indemnification under Section 13.1, Buyer shall cooperate
with Seller and shall, if reasonable, avoid taking any action that would have an
adverse effect on Seller's ability to seek reimbursement under any applicable
insurance policy for the benefit of Seller, or on Seller's ability to exercise
any available contractual rights of contribution or indemnification, including,
without limitation, that which may be obtained by Seller in relation to its
participation in any federal, state or local administered restoration,
reimbursement or other environmental liability indemnification program. Seller
shall (1) provide Buyer the opportunity to review in advance such Remedial
Action to be taken or implemented and the form and substance of any plan, report
or submission to be transmitted to any Governmental Entity regarding such
Remedial Action, and (2) provide Buyer periodic written reports regarding the
status of such Remedial Action, including any correspondence with any
Governmental Entity regarding such Remedial Action, and Seller's decisions after
the Effective Date on such matters shall be subject to Buyer's approval, which
approval shall not be unreasonably withheld. For the purpose of conducting such
Remedial Action, Buyer and Seller will enter an Access Agreement in
substantially the form attached hereto as Exhibit 13.1(b).
(c) If a dispute arises hereunder with respect to any Retained
Environmental Claim, then the Buyer and Seller shall select a nationally
recognized environmental consultant to arbitrate such dispute in accordance with
the procedures set forth in subparagraph (d) below. If the Buyer and Seller
cannot agree on one such environmental consultant within thirty (30) days, each
Party shall select its own nationally recognized environmental consultant within
thirty (30) days thereafter, which consultants shall jointly select a third
environmental consultant to arbitrate such dispute. The agreed upon or selected
environmental consultant shall be deemed the "Environmental Arbitrator." The
arbitration provided for in this subparagraph (c) and in subparagraph (d) below
shall be the Parties' exclusive remedy in respect of a dispute concerning
indemnification for environmental matters under this Section 13.1.
(d) In accordance with the then current Expedited Procedures of
the Commercial Arbitration Rules of the American Arbitration Association, Buyer
and Seller shall submit disputes concerning indemnification for environmental
matters under this Section 13.1 and, if applicable, their respective estimates
of the applicable dollar amount of such Retained Environmental Claim to the
Environmental Arbitrator for a final, binding resolution. If the dispute
concerns only a dollar amount, the Environmental Arbitrator shall choose one or
the other of such estimates as the final amount of Retained Environmental Claim.
The arbitration shall be conducted in Dallas, Texas. No transcript or recording
shall be made of any arbitration session. The decision of the Environmental
Arbitrator shall be final and binding on the Buyer and Seller for all purposes
and may be entered in any court of competent jurisdiction. The losing party
shall pay the expenses of the Environmental Arbitrator.
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(e) From and after the Effective Date, Buyer shall provide Seller
with prompt written notice of any releases, leaks or spills of Polluting
Substances occurring on the Assets and Facilities, whether or not reportable to
any Governmental Authority (collectively a "Release"), with full particulars as
to the time, date and location thereof, the substance involved and steps or
methods undertaken with respect to clean-up or remediation thereof.
13.2. Other Indemnification by Seller. Seller shall indemnify the Buyer
Indemnified Parties against and hold them harmless from any Claim suffered or
incurred by any such Buyer Indemnified Party to the extent arising from,
relating to or otherwise in respect of (a) any breach of any representation or
warranty of Seller contained in this Agreement or in any certificate delivered
pursuant hereto, (b) any breach of any covenant of Seller contained in this
Agreement and (c) all Retained Liabilities. In no event shall Seller be
obligated to indemnify Buyer or any other person with respect to any matter to
the extent that Seller has already provided indemnity for such matter pursuant
to this Agreement. Except for (1) Seller's obligation to indemnify Buyer with
respect to Retained Environmental Claims and (2) Seller's obligation to pay
Contingency Payments pursuant to Section 8.5, Seller shall have no liability for
any of the other foregoing Claims and Retained Liabilities unless the aggregate
of all losses, liabilities, costs and expenses relating to such other Claim or
Retained Liability for which Seller would, but for this limitation, be liable
exceeds on a cumulative basis an amount equal to $250,000, in which case Seller
shall be liable for the full amount over this $250,000 deductible.
13.3. Indemnification by Buyer. Buyer shall indemnify Seller, its
Affiliated Companies and each of their respective officers, directors,
employees, stockholders, agents and representatives ("Seller Indemnified
Parties") against and hold them harmless from any Claim suffered or incurred by
any Seller Indemnified Party to the extent arising from (a) any breach of any
representation or warranty of Buyer contained in this Agreement or in any
certificate delivered pursuant hereto, (b) any breach of any covenant of Buyer
contained in this Agreement, (c) all obligations and liabilities related to the
Assets and Facilities, other than Retained Liabilities and other items which
Seller has expressly agreed to pay or perform pursuant to this Agreement or for
which indemnification is provided under Section 13.2, (d) any act or omission of
Buyer, its officers, directors, employees, agents or designated representatives
in connection with Buyer's conduct of the Inspection at Seller's Facilities
pursuant to Section 7.6, except to the extent of Seller's gross negligence or
willful misconduct related to the Inspection, (e) all Environmental Claims other
than Retained Environmental Claims and (f) any environmental matters described
in Subsections 13.1(a)(1) and 13.1(a)(2) with respect to which Seller's
environmental indemnity obligations under Section 13.1 do not apply.
13.4. Termination of Indemnification. The obligations to indemnify and
hold harmless a Party, (a) for Retained Environmental Claims pursuant to Section
13.1, shall not terminate; provided, however, Seller's obligations to indemnify
and hold Buyer harmless for Retained Environmental Claims that involve Remedial
Action shall only continue until Seller receives a written completion or closure
order or other determination or action reasonably acceptable to Buyer finally
resolving that the Remedial Action undertaken by Seller with respect to the
Retained Environmental Claim satisfies the requirements of all applicable
Environmental Laws and has been completed to the satisfaction of
33
the applicable Governmental Authority ; (b) pursuant to Sections 13.2(a) and
13.3(a), shall terminate when the applicable representation, warranty or
covenant terminates pursuant to Section 13.9; provided however, that such
obligations to indemnify and hold harmless shall not terminate with respect to
any item as to which the Indemnified Party shall have, before the expiration of
the applicable period, previously made a Claim by delivering a notice of such
Claim (stating in reasonable detail the basis of such Claim) to the Indemnifying
Party, and (c) pursuant to the other clauses Sections 13.2 and 13.3 shall not
terminate.
13.5 Procedures Relating to Indemnification.
(a) In order for either the Seller Indemnified Parties or the
Buyer Indemnified Parties ("Indemnified Party") to be entitled to any
indemnification by a Party ("Indemnifying Party") provided for under this
Agreement in respect of, arising out of or involving a Claim by a Third Person
("Third Person Claim") against the Indemnified Party, such Indemnified Party
must notify the Indemnifying Party in writing, and in reasonable detail, of the
Third Person Claim within ten (10) business days after receipt by such
Indemnified Party of written notice of the Third Person Claim; provided,
however, that failure to give such notification shall not affect the
indemnification provided hereunder except to the extent the Indemnifying Party
shall have been actually prejudiced as a result of such failure (except that the
Indemnifying Party shall not be liable for any expenses incurred during the
period in which the Indemnified Party failed to give such notice). Thereafter,
the Indemnified Party shall deliver to the Indemnifying Party, within five
business days after the Indemnified Party's receipt thereof, copies of all
notices and document (including court papers) received by the Indemnified Party
relating to the Third Person Claim.
(b) If a Third Person Claim is made against an Indemnified Party,
the Indemnifying Party shall be entitled to participate in the defense thereof
and, if it so chooses and acknowledges its obligation to indemnify the
Indemnified Party for such Third Person Claim, to assume the defense thereof
with counsel selected by the Indemnifying Party; provided that such counsel is
not reasonably objected to by the Indemnified Party. Should the Indemnifying
Party so elect to assume the defense of a Third Person Claim, the Indemnifying
Party shall not be liable to the Indemnified Party for legal expenses
subsequently incurred by the Indemnified Party in connection with the defense
thereof. If the Indemnifying Party assumes such defense, the Indemnified Party
shall have the right to participate in the defense thereof and to employ counsel
(not reasonably objected to by the Indemnifying Party), at its own expense,
separate from the counsel employed by the Indemnifying Party, it being
understood that the Indemnifying Party shall control such defense. The
Indemnifying Party shall be liable for the fees and expenses of counsel employed
by the Indemnified Party for any period during which the Indemnifying Party has
failed to assume the defense thereof (other than during the period prior to the
time the Indemnified Party shall have given notice of the Third Person Claim as
provided above).
(c) If the Indemnifying Party so elects to assume the defense of
any Third Person Claim, all of the indemnified parties shall cooperate with the
Indemnifying Party in the defense or prosecution thereof. Such cooperation shall
include the retention and (upon the Indemnifying Party's request) the provision
to the Indemnifying Party of records and information, which are reasonably
34
relevant to such Third Person Claim, and making employees available on a
mutually convenient basis to provide additional information and explanation of
any material provided hereunder. Whether or not the Indemnifying Party shall
have assumed the defense of a Third Person Claim, the Indemnified Party shall
not admit any liability with respect to, or settle, compromise or discharge,
such Third Person Claim without the Indemnifying Party's prior written consent
(which consent shall not be unreasonably withheld). If the Indemnifying Party
shall have assumed the defense of a Third Person Claim, the Indemnified Party
shall agree to any settlement, compromise or discharge of a Third Person Claim
which the Indemnifying Party may recommend and which by its terms obligates the
Indemnifying Party to pay the full amount of the liability in connection with
such Third Person Claim, which releases the Indemnifying Party completely in
connection with such Third Person Claim and which would not otherwise adversely
affect the Indemnified Party.
(d) Notwithstanding the foregoing, the Indemnifying Party shall
not be entitled to assume the defense of any Third Person Claim (and shall be
liable for the fees and expenses of counsel incurred by the Indemnified Party in
defending such Third Person Claim) if the Third Person Claim seeks an order,
injunction or other equitable relief or relief for other than money damages
against the Indemnified Party which the Indemnified Party reasonably determines,
after conferring with its outside counsel, cannot be separated from any related
claim for money damages. If such equitable relief or other relief portion of the
Third Person Claim can be so separated from that for money damages, the
Indemnifying Party shall be entitled to assume the defense of the portion
relating to money damages. The indemnification required by Sections 13.1, 13.2
and 13.3 shall be made by periodic payments of the amount thereof during the
course of the investigation, remediation or defense, as and when bills are
received or loss, liability, claim, damage or expense is incurred. All claims
under Section 13.1, 13.2, or 13.3 other than Third Person Claims shall be
governed by Section 13.6 below.
13.6. Other Claims. In the event any Indemnified Party should have a
claim against any Indemnifying Party under Section 13.1, 13.2 or 13.3 that does
not involve a Third Person Claim being asserted against or sought to be
collected from such Indemnified Party, the Indemnified Party shall deliver
notice of such Claim with reasonable promptness to the Indemnifying Party. The
failure by any Indemnified Party so to notify the Indemnifying Party shall not
relieve the Indemnifying Party from any liability that it may have to such
Indemnified Party under Section 13.1, 13.2 or 13.3, except to the extent that
the Indemnifying Party demonstrates that it has been materially prejudiced by
such failure. If the Indemnifying Party does not notify the Indemnified Party
within 20 calendar days following its receipt of such notice that the
Indemnifying Party disputes its liability to the Indemnified Party, under
Section 13.1, 13.2 or 13.3, such Claim specified by the Indemnified Party in
such notice shall be conclusively deemed a liability of the Indemnifying Party
under Section 13.1, 13.2 or 13.3 and the Indemnifying Party shall pay the amount
of such liability to the Indemnified Party on demand or, in the case of any
notice in which the amount of the Claim (or any portion thereof) is estimated,
on such later date when the amount of such Claim (or such portion thereof)
becomes finally determined. If the Indemnifying Party has timely disputed its
liability with respect to such Claim, as provided above, the Indemnifying Party,
and the Indemnified Party shall proceed in good faith to negotiate a resolution
of such dispute and, if not resolved through negotiations, such dispute shall be
resolved by litigation in an appropriate court of competent jurisdiction;
provided, however, that if
35
such dispute concerns indemnification for environmental matters under Section
13.1, it shall be submitted to arbitration in accordance with the procedures set
forth in Section 13.1.
13.7. Mitigation. Buyer and Seller shall cooperate with each other with
respect to resolving any Claim with respect to which one Party is obligated to
indemnify the other party hereunder, including by making Reasonable Efforts to
mitigate or resolve any such Claim; provided that such Party shall not be
required to make such efforts if they would be detrimental in any material
respect to such Party. In the event that Buyer or Seller shall fail to make such
Reasonable Effort's to mitigate or resolve any Claim, then (unless the proviso
to the foregoing covenant shall be applicable) notwithstanding anything else to
the contrary contained herein, the other Party shall not be required to
indemnify any person for any Claim that could reasonably be expected to have
been avoided if Buyer or Seller, as the case may be, had made such efforts.
13.8. Tax Treatment. Any payments made pursuant to this Section 13
shall be treated as purchase price adjustments by all Parties for tax purposes
to the extent permitted by Law.
13.9. Survival of Representations, Warranties and Covenants. The
representations and warranties of Seller set forth in Sections 5.1, 5.2, 5.3 and
5.19 shall not terminate. All other representations, warranties and covenants of
Seller and Buyer in this Agreement and in any certificate delivered pursuant to
this Agreement shall survive the Effective Date and, except for the limitation
included in the second sentence of Section 5.17, shall terminate at the close of
business three (3) years following the Effective Date, except that because
specific indemnification rights and obligations are set forth in Section 13.1,
Sellers representations and warranties in Section 5.9 shall not survive the
Effective Date. All of the provisions of Sections 8, 13 and 15.12 will also
survive the Effective Date.
13.10 Exclusive Remedy. The indemnification rights as set forth in this
Section 13 shall be the exclusive remedy available to the Parties for any
misrepresentation, breach of warranty, or breach of covenant under this
Agreement.
SECTION 14. NOTICE OF DEFAULT AND TERMINATION
14.1. Notice of Default by Seller. Seller shall give written notice to
Buyer promptly after Seller obtains knowledge of or receives any notice claiming
or alleging the occurrence of:
(a) Any breach or default, or event which notice or the passage
of time or both might constitute a breach or default, with respect to any
Assigned Contracts, Permits, or Rights-of-Way or similar rights relating to any
portion of the Facilities;
(b) Any damage or losses reasonably estimated to exceed in the
aggregate of $100,000 with respect to the Assets;
(c) Any circumstance, event or omission which would result in (i)
any of Seller's representations or warranties contained in this Agreement being
or becoming inaccurate or misleading, or (ii) the creation of any Lien on any of
the Assets except for any Permitted Encumbrance; or
36
(d) Any breach by Seller of this Agreement.
14.2. Notice of Default by Buyer. Buyer shall give written notice to
Seller promptly after Buyer obtains knowledge of or receives any notice claiming
or alleging the occurrence of:
(a) Any circumstance, event or omission which would result in any
of Buyer's representations or warranties contained in this Agreement being or
becoming inaccurate or misleading; or
(b) Any breach by Buyer of this Agreement.
14.3. Breach of Representation or Warranty. If prior to Closing either
Seller or Buyer learns that any representation or warranty contained in Sections
5 or 6 is or has become untrue in any material respect, and the breaching Party
fails to cure the untrue representation and warranty within fifteen (15) days of
the notice (in which case the Closing Date will be extended to the extent
necessary to assure that such remedial action has been completed in such
manner), the non-breaching Party will have the right to terminate this Agreement
in addition to any other remedies to which it is entitled.
14.4. Termination Prior to Closing.
(a) Either Party may terminate this Agreement prior to Closing
upon written notice to the other Party:
(i) in accordance with Sections 7.3, 7.4, 7.8 or 14.3; or
(ii) if the Closing shall not have occurred on or before
June 30, 2001, other than due to the breach of this
Agreement by the Party giving such notice; or
(iii) there shall be any failure by the other Party to fully
perform one or more of its other obligations under
this Agreement which are performable on or prior to
the Closing Date.
14.5 Effect of Termination. Any termination pursuant to this Section 14
shall be without liability of or to any Party to this Agreement; provided,
however, that any such termination shall not relieve any Party from any
liability for such Party's breach of the provisions of this Agreement prior to
the date of termination.
SECTION 15. GENERAL PROVISIONS
15.1. Further Assurances. At any time or from time to time at and after
the Closing, each of the Parties shall, at the request of the other, execute and
deliver or cause to be executed and delivered
37
all such assignments, consents, documents and instruments, and take or cause to
be taken all such other reasonable actions as may be necessary or desirable in
order to more fully and effectively carry out the intents and purposes of this
Agreement.
15.2. Expenses.
(a) Each Party shall pay and discharge all liabilities and
expenses incurred by or on behalf of it in connection with the preparation,
authorization, execution and performance of this Agreement and the transactions
contemplated herein, including but not limited to (i) all fees and expenses of
agents, representatives, counsel and accountants, and (ii) all amounts payable
with respect to any claim for brokerage or finder's fees or other commissions in
respect of the transactions contemplated by this Agreement based in any way on
any agreement, arrangement or understanding made by or on behalf of such Party.
(b) Except as otherwise provided in Section 15.11, all other
legal expenses incurred by either Party after the date of this Agreement shall
be the responsibility of the Party incurring such expenses.
15.3. Notices. All notices, requests, demands and other communications
required or permitted to be given under this Agreement shall be deemed to have
been duly given if in writing and delivered personally or received via
first-class, postage prepaid, registered or certified mail, by private overnight
courier service, or by facsimile addressed as follows:
If to Seller:
TransMontaigne Terminaling Inc.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: President and General Counsel
If to Buyer:
Xxxxxxxx Terminals Holdings, L.P.
Xxx Xxxxxxxx Xxxxxx, Xxxx Xxxx-000X
Xxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Vice President
38
15.4. Governing Law. EXCEPT WITH REGARD TO ANY REAL PROPERTY LAW
ISSUES, THIS AGREEMENT AND THE PERFORMANCE OF THE TRANSACTIONS CONTEMPLATED
HEREBY SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF COLORADO, WITHOUT REGARD TO ANY CONFLICT-OF-LAWS PROVISION
THEREOF THAT WOULD OTHERWISE REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER
JURISDICTION. WITH REGARD TO ANY REAL PROPERTY LAW ISSUES, THIS AGREEMENT AND
THE PERFORMANCE OF THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
ARKANSAS,
WITHOUT REGARD TO ANY CONFLICT-OF-LAW PROVISION THEREOF THAT WOULD OTHERWISE
REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.
15.5. Entire Agreement. This Agreement together with the certificates,
documents, instruments and writings that are delivered pursuant hereto sets
forth the entire agreement and understanding of the Parties with respect of the
transaction contemplated hereby and supersedes all prior agreements,
arrangements and understandings relating to the subject matter hereof,
including, without limitation, the Letter of Intent dated May 17, 2001 between
the Parties. No representation, promise, inducement or statement of intention
with respect to the subject matter of this Agreement has been made by either
Party which is not embodied in this Agreement together with the certificates,
documents, instruments and writings that are delivered pursuant hereto, and
neither of the Parties shall be bound by or liable for any alleged
representation, promise, inducement or statement of intention not so set forth.
15.6. No Assignment; Successors.All of the terms, covenants,
representations, warranties and conditions of this Agreement shall be binding
upon, and inure to the benefit of an be enforceable by, the Parties hereto and
their respective successors, but neither this Agreement nor the rights and
obligations of either of the Parties hereunder shall be assigned or otherwise
transferred to any Person without the prior written consent of the other Party,
which consent shall not be unreasonably withheld. Any assignment made without
obtaining such consent will be void.
15.7. Amendments; Waiver. This Agreement may be amended, superseded or
canceled, and any of the terms hereof may be waived, only by a written
instrument specifically stating that it amends, supersedes or cancels this
Agreement or waives any of the terms herein, executed by both Parties or, in the
case of a waiver, by the Party waiving compliance. The failure of either Party
at any time to require performance of any provision herein shall in no manner
affect the right at a later time to enforce the same. No waiver by either Party
of any condition, or of any breach of any term, covenant, representation or
warranty, shall be deemed or constitute a waiver of any other condition, or
breach of any other term, covenant, representation or warranty, nor shall such
waiver constitute a continuing waiver unless otherwise expressly provided.
15.8. Convenient Reference. Section headings contained in this
Agreement are for convenient reference only, and shall not in any way affect the
meaning or interpretation of this Agreement.
39
15.9. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
15.10. No Third Person Beneficiaries. Nothing in this Agreement,
whether express or implied, is intended to confer any rights or remedies under
or by reason of this Agreement on any Person other than the Parties and their
respective permitted successors and assigns.
15.11 Attorney Fees. A Party in breach of this Agreement shall, on
demand, indemnify and hold harmless the other Party for and against all
reasonable out-of-pocket expenses, including legal fees, incurred by such Party
by reason of the enforcement and protection of its rights under this Agreement
after entry of a final non-appealable order.
15.12. Limitation on Liability. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER HEREUNDER FOR
EXEMPLARY, PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF
ANY KIND, ARISING DIRECTLY OR INDIRECTLY FROM, INCIDENT TO, OR CONNECTED WITH
THE ASSETS OR THE SALE THEREOF, REGARDLESS OF SOLE OR CONCURRENT NEGLIGENCE,
STRICT LIABILITY, OR DEFECT IN PREMISES, EQUIPMENT OR MATERIAL, AND REGARDLESS
OF WHETHER PRE-EXISTING THIS SALE. This Section 15.12 shall in no way limit or
qualify (a) the Parties' indemnification obligations under Section 13 with
respect to Claims made against either or both of the Parties by a Third Person
or (b) the Buyer's right to be fully indemnified and held harmless from and
against all consequential damages sustained or incurred by Buyer as the result
of pipeline Right-of-Way Claims asserted by Buyer no later than October 31,
2001.
40
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of
the date first set forth above.
TRANSMONTAIGNE INC.
By: /s/ Xxxx X. Xxxx
----------------------------------------
Xxxx X. Xxxx, Vice President
XXXXXXXX TERMINALS HOLDINGS, L.P.
By: Xxxxxxxx NGL, LLC, its General Partner
By: /s/ Xxx X. Xxxxx
----------------------------------------
Xxx X. Xxxxx, Vice President
41
SCHEDULE 2.1(a) - DESCRIPTION OF REAL PROPERTY AND RIGHTS OF WAY
ATTACHED TO AND MADE A PART OF THAT CERTAIN
FACILITIES SALE AGREEMENT DATED JUNE
30, 2001 BETWEEN XXXXXXXX TERMINALS HOLDINGS, L.P. AND TRANSMONTAIGNE INC.
(A) Real Property
(1) South Terminal Facility
A part of the northwest quarter of the northwest quarter (NW
1/4 NW 1/4) of Section 27 and a part of the northeast quarter of the
northeast quarter (NE 1/4 NE 1/4) of Section 28, all in Township 2
North, Range 11 West, Pulaski County,
Arkansas, being more particularly
described as follows:
Commencing at the SE Corner of said NW 1/4 of the NW 1/4,
Section 27, thence N 89 degrees 14 minutes 00 seconds W, along the
South line of said NW 1/4 of the NW 1/4, 81.29 feet to the west Right
of Way of Xxxxxxxxxx 00 Xxxxxxxx Xxxx (Airport Road) for the Point of
Beginning. Thence continue N 89 degrees, 14 minutes, 00 seconds W,
along said South line, 1233.63 feet to the SW Corner of said NW 1/4 of
the NW 1/4; thence N 89 degrees 44 minutes, 09 seconds W, along the
south line of said NE 1/4 of the NE 1/4, Section 28, 157.82 feet to the
high bank of a slough; thence N 23 degrees 08 minutes 28 seconds W
along said high bank of a slough, 484.37 feet to the south Right of Way
line of Interstate 40; thence N 81 degrees, 31 minutes, 00 seconds E,
along said south Right of Way, 1434.06 feet to the west Right of Way
line of Overpass Road (Airport Road); thence S 14 degrees, 10 minutes,
24 seconds E, along said west Right of Way line, 625.14 feet; thence
continue along said west Right of Way line S 08 degrees, 34 minutes, 07
seconds E, 68.84 feet to the Point of Beginning. Containing 18.48
(804.852 Sq. Ft.) more of less, and also described as Lot 1,
Transmontaigne Addition in the Xxxx of Assurance dated November 10,
1998, Instrument No. 98-90649 and on Plat No. F-387, both filed of
record on November 16, 1998 with the Circuit County Recorder in the
County of Pulaski, State of
Arkansas, which Lot 1, "Transmontaigne
Addition", also includes Xxxx 0 xxx 0, "Xxxxxxx Xxxx Addition", as
described in the Plat and Xxxx of Assurance of Xxx 0 xxx 0, Xxxxxxx
Xxxx Addition, dated April 8, 1994 and filed in the records of Pulaski
County as Instrument No. 94-26809 on April 12, 1994.
(2) North Terminal Facility
Beginning at a 3/4-inch pipe at the Southeast corner of the SW
1/4 of Section 00, Xxxxxxxx 0 Xxxxx, Xxxxx 00 Xxxx, Xxxxxxx xxxxxx,
Xxxxxxxx; thence South 00 degrees 48 minutes West along the East line
of the NW 1/4 of Section 27 for 41.16 feet
to the North right-of-way line of interstate highway #40; thence
South 81 degrees 31 minutes West along said right-of-way for 1419.56
feet to a 3/4-inch pipe at the intersection of the North right-of-way
line of interstate highway #40 and the East right-of-way line of an
access road to the North; thence North 13 degrees 15 minutes West along
the said East right-of-way line of the access road to the North and its
extension for 774.82 feet to a boat spike; thence East for 1583.68 feet
to a 3/4-inch pipe on the East line of the SW 1/2 of Section 22; thence
South 00 degrees 10 minutes West along said East line for 503.64 feet
to the point of beginning. The foregoing tract is situated in the SW
1/4 of Section 22 and the NW 1/4 of Section 27, Township 2 North, Range
11 West, Pulaski County,
Arkansas and does contain 22.487 acres, more
or less.
(B) Together with the following Rights-of-Way and Easements:
(1) All rights and privileges and appurtenances thereto, including the
following as conveyed to Shell Oil Company in that Deed by Texas
Eastern Transmission Corporation dated November 10, 1978, recorded as
Instrument No. 78-46309 in the Office of the Recorder of Pulaski
County,
Arkansas; (1) a 16-inch underground pipeline located within the
premises hereinabove conveyed and within the easement granted to
Grantor in said Deed, (2) a 2-inch water line, (3) the right to receive
water through a 4-inch line and (4) the right to use the access road
from U.S. Highway 70; but subject however to the covenants and
conditions as set forth in the aforesaid Deed, and as all of the
aforesaid were conveyed by Shell Oil Company to continental Ozark, Inc.
in Warranty Deed dated November 10, 1978, recorded as Instrument No.
78-46310 in the records of Pulaski County,
Arkansas;
(2) The right of ingress and egress as set forth in Easement and
Right-of-Way from TE Products Pipeline Company to COZ Terminaling,
Inc., recorded September 26, 1996 as Instrument No. 96-67609;
(3) The right of access between controlled access highway and
contiguous land, contained in Warranty Deed executed February 26, 1959,
by Texas Eastern Transmission Corporation, recorded in Deed Book 689 at
page 477 in records of Pulaski County, Arkansas; and
(4) The Pipe Line Easement dated June 24, 1960, granted by Texas
Eastern Transmission Corporation to Gulf Oil Corporation, recorded in
Book 737 at page 443 in the records of Pulaski County, Arkansas, which
easement was conveyed to North Little Rock Terminaling Com.
(predecessor in interest to TransMontaigne Terminaling Inc.) by Chevron
U.S.A. Products Company, a Division of Chevron U.S.A. Inc., by Special
Warranty Deed dated May 7, 1993, recorded May 13, 1993 as document
93-30319, as an appurtenance to the aforesaid South Terminal Facility
Real Property.
SCHEDULE 2.1(b) AND (c) - PERSONAL PROPERTY AND IMPROVEMENTS
ATTACHED TO AND MADE A PART OF THAT CERTAIN
FACILITIES SALE AGREEMENT DATED
JUNE 30, 2001 BETWEEN XXXXXXXX TERMINALS HOLDINGS, L.P. AND
TRANSMONTAIGNE INC.
INVENTORY LIST
TRANSMONTAIGNE TERMINALING - NORTH TERMINAL
TANKAGE
101 - HSD 109 - TEXACO SYSTEM 3 GAS ADDITIVE (TEXACO OWNS)
102 - LSD ALL ASSOCIATED PIPING AND INJECTORS
103 - LSD 110 - GENERIC ADDITIVE - 8000 GALLON TANK
104 - PREMIUM 93 111 - TRANSMIX
105 - NOLEAD 112 - RED DYE ADDITIVE 2 - 500 GALLON TANKS
1 - 6 BUTANE DROP OUT TANK FOR VCU
7 - PROPANE PROPANE TANK FOR VCU (AMERIGAS OWNS)
EQUIPMENT
XXXX XXXX FLARE
MCGILL VAPOR RECOVERY UNIT - NOT OPERABLE
OIL-WATER SEPARATOR
XXXXXXX FLASH TESTER
SOLARTRON
XXXXXXX RVP TESTER
2 WHEELED FIRE EXTINGUISHERS
PORTABLE FIRE EXTINGUISHERS
GUARDIAN 2 AUTOMATION SYSTEM COMPUTER 16" LINE FROM TEPPCO TO RECEIVING MANIFOLD
5 - 12" TWIN SEAL MANIFOLD VALVES 5 - 4" TWIN SEAL VALVES (MANUAL VALVES)
2 - 6" GAS AND DSL TRANSFER LINES THAT CONNECT XXX XXXXX XXX XXXXX XXXXXXXXX
0 - 0" XXXXXX LINE THAT CONNECTS THE NORTH AND SOUTH TERMINALS
1 - 75 HP TRANSFER PUMP AND MOTOR
BUILDINGS
STORAGE BUILDING 5 X 5
CUT SHACK 10 X 8
OFFIC/WAREHOUSE 30 X 96
2 BAY LOADING RACK
SUPPLIES
CLEANING SUPPLIES AND TOILETRIES
VARIOUS OFFICE SUPPLIES
INVENTORY LIST
TRANSMONTAIGNE TERMINALING - SOUTH TERMINAL
TANKAGE
501 - LSD 509 - TEXACO SYSTEM 3 GAS ADDITIVE (TEXACO OWNS)
502 - NOLEAD ALL ASSOCIATED PIPING AND INJECTORS
503 - HSD 510 - GENERIC ADDITIVE 10,000 GALLON TANK
504 - LSD 511 - TEXACO PREM. DSL ADDITIVE (TEXACO OWNS)
505 - TRANSMIX ALL ASSOCIATED PIPING AND INJECTORS
506 - PREMIUM 93 513 - RED DYE ADDITIVE
507 - TRANSMIX 010 - CHEVRON ENVIRONMENTAL RECOVERY (CHEVRON OWNS)
508 - NOLEAD PROPANE TANK FOR VCU (AMERIGAS OWNS)
DROP OUT TANK FOR VCU
EQUIPMENT TOOLS
16" LINE FROM TEPPCO TO RECEIVING MANIFOLD STOCK SUPPLY - NUTS, BOLTS, WASHERS AND FITTINGS
L2900 KUBOTA TRACTOR ASSORTED SIZES OF WRENCHES AND PIPE WRENCHES
LAND PRIDE FINISH MOWER VARIOUS SPARE PARTS
BUSHWACKER XXXX HOG VARIOUS SHOVELS, XXXXX AND BROOMS
2 HOMELITE WEEDEATERS
TSURUMI AC GENERATOR SUPPLIES
SMALL PORTABLE PRESSURE WASHER
MUD PUMP CLEANING SUPPLIES AND TOILETRIES
BATTERY CHARGER VARIOUS OFFICE SUPPLIES
XXXXXXXX HAUSFELD PORTABLE AIR COMPRESSOR
HEAVY DUTY DRILL PRESS BUILDINGS
XXXXXXXX-XXXX GRINDER
XXXXX CHOPPER 72" CUT WAREHOUSE 30 X 60
2 COMPRESSOR UNIT MODEL# 30 CAV1OV WAREHOUSE, OFFICE WITH LOADING DOCK 60 X 120
XXXXXX-XXXXXXX FLASH TESTER WAREHOUSE/DRIVER BUILDING 32 X 16
VAPOR FREE SAMPLER STORAGE SHED 10 X 8
XXXXXXX RVP TESTER CUT SHACK 10 X 8 WITH VAPOR FREE SAMPLER
VARIOUS 2" - 8" PIPING 2 BAY LOADING RACK
4 WHEELED FIRE EXTINGUISHERS
32 PORTABLE FIRE EXTINGUISHERS
3 LONG TABLES AND CHAIRS
BUILT IN DESKS AND CABINETRY
1 DESK
1 CUBICLE
GUARDIAN 2 AUTOMATION SYSTEM COMPUTER
GUARDIAN 1 COMPUTER FOR LION INVENTORY AND METER READINGS
1 TANGET COMPUTER
1 CBT COMPUTER
MCGILL VRU - NOT IN SERVICE
XXXX XXXX VCU
1 - 50 HP TRANSFER PUMP AND MOTOR
XXXXX XXXXXXXX
XXXXX XXXXXX XXXX, XX
EQUIPMENT LIST
=====================================================================================================================
EQUIPMENT VENDOR EQUIPMENT DESCRIPTION MODEL NAME MODEL #
=====================================================================================================================
Diamond Guardian/2 System G2
---------------------------------------------------------------------------------------------------------------------
Xxxxx/Prime N-87 Meter Prime
---------------------------------------------------------------------------------------------------------------------
Xxxxx/Prime 89,91,93 Orem/Blend Meter N/A
---------------------------------------------------------------------------------------------------------------------
Xxxxx/Prime N-87 Meter N/A
---------------------------------------------------------------------------------------------------------------------
Xxxxx/Prime LSD/RED Meter N/A
---------------------------------------------------------------------------------------------------------------------
Xxxxx/Prime LSD Meter N/A
---------------------------------------------------------------------------------------------------------------------
Xxxxx/PD HSD Meter F4
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
Xxxxx N-87 Preset Electronic Accuload-RBM
---------------------------------------------------------------------------------------------------------------------
Xxxxx 89,91,93 Orem/Blend Preset Electronic Accuload-RBM
---------------------------------------------------------------------------------------------------------------------
Xxxxx N-87 Preset Electronic Accuload-RBM
---------------------------------------------------------------------------------------------------------------------
Xxxxx LSD/RED Preset Electronic Accuload-RBM
---------------------------------------------------------------------------------------------------------------------
Xxxxx LSD Preset Electronic Accuload-RBM
---------------------------------------------------------------------------------------------------------------------
Xxxxx HSD Preset Electronic Accuload-RBM
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
Temp. Probe N-87 Temp. Probe 100 OHMS
---------------------------------------------------------------------------------------------------------------------
Temp. Probe 89,91,93 Orem/Blend Temp. Probe 100 OHMS
---------------------------------------------------------------------------------------------------------------------
Temp. Probe N-87 Temp. Probe 100 OHMS
---------------------------------------------------------------------------------------------------------------------
Temp. Probe LSD/RED Temp. Probe 100 OHMS
---------------------------------------------------------------------------------------------------------------------
Temp. Probe LSD Temp. Probe 100 OHMS
---------------------------------------------------------------------------------------------------------------------
Temp. Probe HSD Temp. Probe 100 OHMS
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
Xxxxx/Prime N-87 Meter Prime
---------------------------------------------------------------------------------------------------------------------
Xxxxx/Prime 89,91,93 Orem/Blend Meter N/A
---------------------------------------------------------------------------------------------------------------------
Xxxxx/Prime N-87 Meter N/A
---------------------------------------------------------------------------------------------------------------------
Xxxxx/Prime LSD/RED Meter N/A
---------------------------------------------------------------------------------------------------------------------
====================================================================================
EQUIPMENT VENDOR VERSION # SPECIFIC LOCATION
====================================================================================
Diamond 3.01 0000 Xxxxxxx Xxxxxxx X. Xxxxxx Xxxx, XX
00000
------------------------------------------------------------------------------------
Xxxxx/Prime size 4 Lane 1, Meter 1
------------------------------------------------------------------------------------
Xxxxx/Prime size 4 Lane 1, Meter 2
------------------------------------------------------------------------------------
Xxxxx/Prime size 4 Lane 1, Meter 3
------------------------------------------------------------------------------------
Xxxxx/Prime size 4 Lane 1, Meter 4
------------------------------------------------------------------------------------
Xxxxx/Prime size 4 Lane 1, Meter 5
------------------------------------------------------------------------------------
Xxxxx/PD size 4 Lane 1, Meter 6
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
Xxxxx Xxxx 1, Meter 1
------------------------------------------------------------------------------------
Xxxxx Xxxx 1, Meter 2
------------------------------------------------------------------------------------
Xxxxx Xxxx 1, Meter 3
------------------------------------------------------------------------------------
Xxxxx Xxxx 1, Meter 4
------------------------------------------------------------------------------------
Xxxxx Xxxx 1, Meter 5
------------------------------------------------------------------------------------
Xxxxx Xxxx 1, Meter 6
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
Temp. Probe Lane 1, Meter 1, Meter
------------------------------------------------------------------------------------
Temp. Probe Lane 1, Meter 2, Meter
------------------------------------------------------------------------------------
Temp. Probe Lane 1, Meter 3, Meter
------------------------------------------------------------------------------------
Temp. Probe Lane 1, Meter 4, Meter
------------------------------------------------------------------------------------
Temp. Probe Lane 1, Meter 5, Meter
------------------------------------------------------------------------------------
Temp. Probe Lane 1, Meter 6, Meter
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
Xxxxx/Prime size 4 Lane 2, Meter 1
------------------------------------------------------------------------------------
Xxxxx/Prime size 4 Lane 2, Meter 2
------------------------------------------------------------------------------------
Xxxxx/Prime size 4 Lane 2, Meter 3
------------------------------------------------------------------------------------
Xxxxx/Prime size 4 Lane 2, Meter 4
------------------------------------------------------------------------------------
Xxxxx Xxxxxxxx
XXXXX XXXXXX XXXX, XX
EQUIPMENT LIST
=========================================================================================================================
EQUIPMENT VENDOR EQUIPMENT DESCRIPTION MODEL NAME MODEL #
=========================================================================================================================
Xxxxx/Prime LSD Meter N/A
-------------------------------------------------------------------------------------------------------------------------
Xxxxx/PD HSD Meter F4
-------------------------------------------------------------------------------------------------------------------------
Xxxxx N-87 Preset Electronic Accuload-RBM
-------------------------------------------------------------------------------------------------------------------------
Xxxxx 89,91,93 Orem/Blend Preset Electronic Accuload-RBM
-------------------------------------------------------------------------------------------------------------------------
Xxxxx N-87 Preset Electronic Accuload-RBM
-------------------------------------------------------------------------------------------------------------------------
Xxxxx LSD/RED Preset Electronic Accuload-RBM
-------------------------------------------------------------------------------------------------------------------------
Xxxxx LSD Preset Electronic Accuload-RBM
-------------------------------------------------------------------------------------------------------------------------
Xxxxx HSD Preset Electronic Accuload-RBM
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
Temp. Probe N-87 Temp. Probe 100 OHMS
-------------------------------------------------------------------------------------------------------------------------
Temp. Probe 89,91,93 Orem/Blend Temp. Probe 100 OHMS
-------------------------------------------------------------------------------------------------------------------------
Temp. Probe N-87 Temp. Probe 100 OHMS
-------------------------------------------------------------------------------------------------------------------------
Temp. Probe LSD/RED Temp. Probe 100 OHMS
-------------------------------------------------------------------------------------------------------------------------
Temp. Probe LSD Temp. Probe 100 OHMS
-------------------------------------------------------------------------------------------------------------------------
Temp. Probe HSD Temp. Probe 100 OHMS
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
ICM Additive Injector Texaco System 3 3110
-------------------------------------------------------------------------------------------------------------------------
ICM Additive Injector Chevron - OGA 402 3110
-------------------------------------------------------------------------------------------------------------------------
ICM Additive Injector Xxxxxx Red BD50 3110
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
M&J Level Transmitter Automatic Tank Gauge Butane Only
-------------------------------------------------------------------------------------------------------------------------
=========================================================================================================================
======================================================================
EQUIPMENT VENDOR VERSION # SPECIFIC LOCATION
======================================================================
Xxxxx/Prime size 4 Lane 2, Meter 5
----------------------------------------------------------------------
Xxxxx/PD size 4 Lane 2, Meter 6
----------------------------------------------------------------------
Xxxxx Xxxx 2, Meter 1
----------------------------------------------------------------------
Xxxxx Xxxx 2, Meter 2
----------------------------------------------------------------------
Xxxxx Xxxx 2, Meter 3
----------------------------------------------------------------------
Xxxxx Xxxx 2, Meter 4
----------------------------------------------------------------------
Xxxxx Xxxx 2, Meter 5
----------------------------------------------------------------------
Xxxxx Xxxx 2, Meter 6
----------------------------------------------------------------------
----------------------------------------------------------------------
Temp. Probe Lane 2, Meter 1, Meter
----------------------------------------------------------------------
Temp. Probe Lane 2, Meter 2, Meter
----------------------------------------------------------------------
Temp. Probe Lane 2, Meter 3, Meter
----------------------------------------------------------------------
Temp. Probe Lane 2, Meter 4, Meter
----------------------------------------------------------------------
Temp. Probe Lane 2, Meter 5, Meter
----------------------------------------------------------------------
Temp. Probe Lane 2, Meter 6, Meter
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
ICM
----------------------------------------------------------------------
ICM
----------------------------------------------------------------------
ICM
----------------------------------------------------------------------
----------------------------------------------------------------------
M&J Level Transmitter
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxxx Xxxxxxxx
XXXXX XXXXXX XXXX, XX
EQUIPMENT LIST
===========================================================================================================================
EQUIPMENT VENDOR Equipment Description MODEL NAME MODEL #
===========================================================================================================================
Tank Valves Motor Operated: None
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
N/A Tank 101 Rack Pump Motor, HSD 25 hp
---------------------------------------------------------------------------------------------------------------------------
Siemens Tank 102 Rack Pump Motor, LSD 50 hp
---------------------------------------------------------------------------------------------------------------------------
Siemens Tank 103 Rack Pump Motor, LSD 50 hp
---------------------------------------------------------------------------------------------------------------------------
Siemens Tank 104 Rack Pump Motor, 93 50 hp
---------------------------------------------------------------------------------------------------------------------------
US Electric Tank 105 Rack Pump Motor, 87 40 hp
---------------------------------------------------------------------------------------------------------------------------
Baldor Tank 109 Rack Pump Motor, Tex Add 2 hp
---------------------------------------------------------------------------------------------------------------------------
Baldor Tank 110 Rack Pump Motor, Gen Add 2 hp
---------------------------------------------------------------------------------------------------------------------------
Baldor Tank 112 Rack Pump Motor, Red Dye 2 hp
---------------------------------------------------------------------------------------------------------------------------
Siemens Tank 1 Rack Pump Motor, Butane 30 hp
---------------------------------------------------------------------------------------------------------------------------
Siemens Tank 2 Rack Pump Motor, Butane 20 hp
---------------------------------------------------------------------------------------------------------------------------
N/A Tank 3 Rack Pump Motor, Butane
---------------------------------------------------------------------------------------------------------------------------
N/A Tank 4 Rack Pump Motor, Butane
---------------------------------------------------------------------------------------------------------------------------
N/A Tank 5 Rack Pump Motor, Butane
---------------------------------------------------------------------------------------------------------------------------
N/A Tank 6 Rack Pump Motor, Butane
---------------------------------------------------------------------------------------------------------------------------
N/A Tank 7 Rack Pump Motor, Butane
---------------------------------------------------------------------------------------------------------------------------
N/A Tank 111 Rack Pump Motor, T-Mix
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
N/A Tank 101 Rack Pump , HSD
---------------------------------------------------------------------------------------------------------------------------
Xxxxxx-Xxxx Tank 102 Rack Pump , LSD Impeller Dia. 13 1/4
---------------------------------------------------------------------------------------------------------------------------
Xxxxx- Xxxxxxxx Tank 103 Rack Pump , LSD Impeller Dia. 13
---------------------------------------------------------------------------------------------------------------------------
Xxxxxx-Xxxx Tank 104 Rack Pump , 93 Impeller Dia. 13 1/4
---------------------------------------------------------------------------------------------------------------------------
Goulds Tank 105 Rack Pump , 87 Impeller Dia. 13
---------------------------------------------------------------------------------------------------------------------------
ASI AF483-T Tank 109 Rack Pump , Tex Add Impeller Dia. Mag Drive
---------------------------------------------------------------------------------------------------------------------------
ASI AF483-T Tank 110 Rack Pump , Gen Add Impeller Dia. Mag Drive
===========================================================================================================================
North Terminal
---------------------------------------------------------------------------------------------------------------------------
NORTH LITTLE ROCK, AR
---------------------------------------------------------------------------------------------------------------------------
EQUIPMENT LIST
---------------------------------------------------------------------------------------------------------------------------
====================================================================
EQUIPMENT VENDOR VERSION# Specific Location
====================================================================
Tank Valves Motor Operated:
--------------------------------------------------------------------
--------------------------------------------------------------------
N/A Tank 101
--------------------------------------------------------------------
Siemens Tank 102
--------------------------------------------------------------------
Siemens Tank 103
--------------------------------------------------------------------
Siemens Tank 104
--------------------------------------------------------------------
US Electric Tank 105
--------------------------------------------------------------------
Baldor Tank 109
--------------------------------------------------------------------
Baldor Tank 110
--------------------------------------------------------------------
Baldor Tank 112
--------------------------------------------------------------------
Siemens Tank 1
--------------------------------------------------------------------
Siemens Tank 2
--------------------------------------------------------------------
N/A Tank 3
--------------------------------------------------------------------
N/A Tank 4
--------------------------------------------------------------------
N/A Tank 5
--------------------------------------------------------------------
N/A Tank 6
--------------------------------------------------------------------
N/A Tank 7
--------------------------------------------------------------------
N/A Tank 111
--------------------------------------------------------------------
--------------------------------------------------------------------
N/A Tank 101
--------------------------------------------------------------------
Xxxxxx-Xxxx Tank 102
--------------------------------------------------------------------
Xxxxx- Xxxxxxxx Tank 103
--------------------------------------------------------------------
Xxxxxx-Xxxx Tank 104
--------------------------------------------------------------------
Goulds Tank 105
--------------------------------------------------------------------
ASI AF483-T Tank 109
--------------------------------------------------------------------
ASI AF483-T Tank 110
====================================================================
North Terminal
--------------------------------------------------------------------
NORTH LITTLE ROCK, AR
--------------------------------------------------------------------
EQUIPMENT LIST
--------------------------------------------------------------------
=========================================================================================================================
EQUIPMENT VENDOR Equipment Description MODEL NAME MODEL #
=========================================================================================================================
ASI AF483-T Tank 112 Rack Pump , Red Dye Impeller Dia. Mag Drive
=========================================================================================================================
N/A Tank 5 Rack Pump , Butane
-------------------------------------------------------------------------------------------------------------------------
N/A Tank 6 Rack Pump , Butane
-------------------------------------------------------------------------------------------------------------------------
N/A Tank 7 Rack Pump , Butane
-------------------------------------------------------------------------------------------------------------------------
N/A Tank 111 Rack Pump , T-Mix
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
Alarm Tank 1 Butane
-------------------------------------------------------------------------------------------------------------------------
Alarm Tank 2 Butane
-------------------------------------------------------------------------------------------------------------------------
Alarm Tank 3 Butane
-------------------------------------------------------------------------------------------------------------------------
Alarm Tank 4 Butane
-------------------------------------------------------------------------------------------------------------------------
Alarm Tank 5 Butane
-------------------------------------------------------------------------------------------------------------------------
Alarm Tank 6 Butane
-------------------------------------------------------------------------------------------------------------------------
Alarm Tank 7 Butane
-------------------------------------------------------------------------------------------------------------------------
Canon Copier NP6016 NDF-13893
Canon Fax Machine CFX-L4000
CCTV 4 Channel, color w/VHS recorder
Goulds North-to South Transfer pump 3X4X10
Seimens North-to-South Transfer pump motor 75hp
Xxxxx Xxxxxxx SLC 5/03; 13 slot rack 1747 L532
Xxxxx Xxxxxxx SLC 5/04; 10 slot rack 1747 L541
Xxxxx Xxxxxxx SCL 5/03; 13 slot rack 1747 L532
3Com Superstack II data hub 3C250L
=========================================================================================================================
======================================================================
EQUIPMENT VENDOR VERSION# Specific Location
======================================================================
ASI AF483-T Tank 112
======================================================================
N/A Tank 5
----------------------------------------------------------------------
N/A Tank 6
----------------------------------------------------------------------
N/A Tank 7
----------------------------------------------------------------------
N/A Tank 111
----------------------------------------------------------------------
----------------------------------------------------------------------
Alarm High Level Alarm Tank 1
----------------------------------------------------------------------
Alarm High Level Alarm Tank 2
----------------------------------------------------------------------
Alarm High Level Alarm Tank 3
----------------------------------------------------------------------
Alarm High Level Alarm Tank 4
----------------------------------------------------------------------
Alarm High Level Alarm Tank 5
----------------------------------------------------------------------
Alarm High Level Alarm Tank 6
----------------------------------------------------------------------
Alarm High Level Alarm Tank 7
----------------------------------------------------------------------
Canon
Canon
CCTV
Goulds
Seimens
Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
3Com
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXX XXXXXXXX
XXXXX XXXXXX XXXX, XX
EQUIPMENT LIST
====================================================================================================
EQUIPMENT VENDOR EQUIPMENT DESCRIPTION MODEL NAME MODEL #
----------------------------------------------------------------------------------------------------
Diamond Guardian/2 System G2
----------------------------------------------------------------------------------------------------
Xxxxxx N87 Meter Turbine
----------------------------------------------------------------------------------------------------
Xxxxxx N89,91,93 Prem/Blend Meter Turbine
----------------------------------------------------------------------------------------------------
Xxxxxx N-87 Meter Turbine
----------------------------------------------------------------------------------------------------
Xxxxxx LSD Meter Turbine
----------------------------------------------------------------------------------------------------
Xxxxxx LSD Meter Turbine
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
Xxxxxx N87 Preset IMS
----------------------------------------------------------------------------------------------------
Xxxxxx N89,91,93 Prem/Blend Preset IMS
----------------------------------------------------------------------------------------------------
Xxxxxx N-87 Preset IMS
----------------------------------------------------------------------------------------------------
Xxxxxx LSD Preset IMS
----------------------------------------------------------------------------------------------------
Xxxxxx LSD Preset IMS
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
Temp. Probe N87 Temp. Probe RTD in Ohms
----------------------------------------------------------------------------------------------------
Temp. Probe N89,91,93 Prem/Blend Temp. Probe RTD in Ohms
----------------------------------------------------------------------------------------------------
Temp. Probe N87 Temp. Probe RTD in Ohms
----------------------------------------------------------------------------------------------------
Temp. Probe LSD Temp. Probe RTD in Ohms
----------------------------------------------------------------------------------------------------
Temp. Probe LSD Temp. Probe RTD in Ohms
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
Xxxxxx N87 Meter Turbine
----------------------------------------------------------------------------------------------------
Xxxxxx N89,91,93 Orem/Blend Meter Turbine
----------------------------------------------------------------------------------------------------
Xxxxxx N87 Meter Turbine
----------------------------------------------------------------------------------------------------
Xxxxxx LSD/RED Meter Turbine
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
Xxxxxx N87 Preset IMS
----------------------------------------------------------------------------------------------------
Xxxxxx N89,91,93 Orem/Blend Preset IMS
----------------------------------------------------------------------------------------------------
Xxxxxx N87 Preset IMS
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXX XXXXXXXX
----------------------------------------------------------------------------------------------------
XXXXX XXXXXX XXXX, XX
----------------------------------------------------------------------------------------------------
EQUIPMENT LIST
====================================================================================================
===============================================================================
EQUIPMENT VENDOR VERSION # SPECIFIC LOCATION
-------------------------------------------------------------------------------
Diamond 3.01 0000 Xxxxxxx Xxxxxxx X. Xxxxxx Xxxx, XX
00000
-------------------------------------------------------------------------------
Xxxxxx size 4 Lane 1, Meter 1
-------------------------------------------------------------------------------
Xxxxxx size 4 Lane 1, Meter 2
-------------------------------------------------------------------------------
Xxxxxx size 4 Lane 1, Meter 3
-------------------------------------------------------------------------------
Xxxxxx size 4 Lane 1, Meter 4
-------------------------------------------------------------------------------
Xxxxxx size 4 Lane 1, Meter 5
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Xxxxxx Xxxx 1, Meter 1
-------------------------------------------------------------------------------
Xxxxxx Xxxx 1, Meter 2
-------------------------------------------------------------------------------
Xxxxxx Xxxx 1, Meter 3
-------------------------------------------------------------------------------
Xxxxxx Xxxx 1, Meter 4
-------------------------------------------------------------------------------
Xxxxxx Xxxx 1, Meter 5
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Temp. Probe Lane 1, Meter 1, Meter
-------------------------------------------------------------------------------
Temp. Probe Lane 1, Meter 2, Meter
-------------------------------------------------------------------------------
Temp. Probe Lane 1, Meter 3, Meter
-------------------------------------------------------------------------------
Temp. Probe Lane 1, Meter 4, Meter
-------------------------------------------------------------------------------
Temp. Probe Lane 1, Meter 5, Meter
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Xxxxxx size 4 Lane 2, Meter 1
-------------------------------------------------------------------------------
Xxxxxx size 4 Lane 2, Meter 2
-------------------------------------------------------------------------------
Xxxxxx size 4 Lane 2, Meter 3
-------------------------------------------------------------------------------
Xxxxxx size 4 Lane 2, Meter 4
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Xxxxxx Xxxx 2, Meter 1
-------------------------------------------------------------------------------
Xxxxxx Xxxx 2, Meter 2
-------------------------------------------------------------------------------
Xxxxxx Xxxx 2, Meter 3
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXX XXXXXXXX
-------------------------------------------------------------------------------
XXXXX XXXXXX XXXX, XX
-------------------------------------------------------------------------------
EQUIPMENT LIST
===============================================================================
=======================================================================================================
EQUIPMENT VENDOR EQUIPMENT DESCRIPTION MODEL NAME MODEL #
=======================================================================================================
Xxxxxx LSD/RED Preset IMS
-------------------------------------------------------------------------------------------------------
Temp. Probe N87 Temp. Probe RTD in Ohms
-------------------------------------------------------------------------------------------------------
Temp. Probe N89,91,93 Orem/Blend Temp. Probe RTD in Ohms
-------------------------------------------------------------------------------------------------------
Temp. Probe N87 Temp. Probe RTD in Ohms
-------------------------------------------------------------------------------------------------------
Temp. Probe LSD/RED Temp. Probe RTD in Ohms
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
Mini Pak Additive Injector Texaco System 3 Gate City
-------------------------------------------------------------------------------------------------------
Gatepak Additive Injector Chevron - OGA 402 Gate City EI2007-1
-------------------------------------------------------------------------------------------------------
Gatepak Additive Injector Xxxxxx Xxx Xxx Xxxx Xxxx XX0000-0
-------------------------------------------------------------------------------------------------------
Blend-Pak Additive Injector Xxxxxx Red Xxx XX-50 Gate City
=======================================================================================================
===============================================================================
EQUIPMENT VENDOR VERSION # SPECIFIC LOCATION
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxxxx Xxxx 2, Meter 4
-------------------------------------------------------------------------------
Temp. Probe Lane 2, Meter 1, Meter
-------------------------------------------------------------------------------
Temp. Probe Lane 2, Meter 2, Meter
-------------------------------------------------------------------------------
Temp. Probe Lane 2, Meter 3, Meter
-------------------------------------------------------------------------------
Temp. Probe Lane 2, Meter 4, Meter
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Mini Pak
-------------------------------------------------------------------------------
Gatepak
-------------------------------------------------------------------------------
Gatepak
-------------------------------------------------------------------------------
Blend-Pak
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXX XXXXXXXX
XXXXX XXXXXX XXXX, XX
EQUIPMENT LIST CONT.
==================================================================================================
EQUIPMENT VENDOR EQUIPMENT DESCRIPTION MODEL NAME MODEL #
==================================================================================================
Automatic Tank Gauge: No
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Tank Valves Motor Tanks 501-506: Receipt
Operated:
--------------------------------------------------------------------------------------------------
Tanks 507, 509, 510, 512, 513: none
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
GE Tank 501 Rack Pump Motor, N87 50 hp
--------------------------------------------------------------------------------------------------
GE Tank 502 Rack Pump Motor, N87 50 hp
--------------------------------------------------------------------------------------------------
Century Tank 503 Rack Pump Motor, LSD 40 hp
--------------------------------------------------------------------------------------------------
Tank 504 Rack Pump Motor, LSD
--------------------------------------------------------------------------------------------------
Tank 505 Rack Pump Motor, T-Mix
--------------------------------------------------------------------------------------------------
Siemens Tank 506 Rack Pump Motor, 93 40 hp
--------------------------------------------------------------------------------------------------
Tank 507 Rack Pump Motor, Offspec
--------------------------------------------------------------------------------------------------
Baldor Tank 509 Rack Pump Motor, Tex Add 2 hp
--------------------------------------------------------------------------------------------------
Baldor Tank 510 Rack Pump Motor, Gen Add 2 hp
--------------------------------------------------------------------------------------------------
Baldor Tank 512 Rack Pump Motor, Tex Red 2 hp
--------------------------------------------------------------------------------------------------
Baldor Tank 513 Rack Pump Motor, Red Dye 2 hp
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Goulds Tank 501 Rack Pump , N87 Impeller Dia. 13
--------------------------------------------------------------------------------------------------
Goulds Tank 502 Rack Pump , N87 Impeller Dia. 13
--------------------------------------------------------------------------------------------------
Goulds Tank 503 Rack Pump , LSD Impeller Dia. 13
--------------------------------------------------------------------------------------------------
Tank 504 Rack Pump , LSD
--------------------------------------------------------------------------------------------------
Tank 505 Rack Pump , T-Mix
--------------------------------------------------------------------------------------------------
Goulds Tank 506 Rack Pump , 93 Impeller Dia. 13
--------------------------------------------------------------------------------------------------
Tank 507 Rack Pump , Offspec
--------------------------------------------------------------------------------------------------
ASI A483-T Tank 509 Rack Pump , Tex Add
--------------------------------------------------------------------------------------------------
ASI A483-T Tank 510 Rack Pump , Gen Add
--------------------------------------------------------------------------------------------------
=================================================================================
EQUIPMENT VENDOR VERSION # SPECIFIC LOCATION
=================================================================================
Automatic Tank Gauge:
---------------------------------------------------------------------------------
---------------------------------------------------------------------------------
Tank Valves Motor
Operated:
---------------------------------------------------------------------------------
---------------------------------------------------------------------------------
---------------------------------------------------------------------------------
GE Tank 501
---------------------------------------------------------------------------------
GE Tank 502
---------------------------------------------------------------------------------
Century Tank 503
---------------------------------------------------------------------------------
Tank 504
---------------------------------------------------------------------------------
Tank 505
---------------------------------------------------------------------------------
Siemens Tank 506
---------------------------------------------------------------------------------
Tank 507
---------------------------------------------------------------------------------
Baldor Tank 509
---------------------------------------------------------------------------------
Baldor Tank 510
---------------------------------------------------------------------------------
Baldor Tank 512
---------------------------------------------------------------------------------
Baldor Tank 513
---------------------------------------------------------------------------------
---------------------------------------------------------------------------------
Goulds Tank 501
---------------------------------------------------------------------------------
Goulds Tank 502
---------------------------------------------------------------------------------
Goulds Tank 503
---------------------------------------------------------------------------------
Tank 504
---------------------------------------------------------------------------------
Tank 505
---------------------------------------------------------------------------------
Goulds Tank 506
---------------------------------------------------------------------------------
Tank 507
---------------------------------------------------------------------------------
ASI A483-T Tank 509
---------------------------------------------------------------------------------
ASI A483-T Tank 510
---------------------------------------------------------------------------------
XXXXX XXXXXXXX
XXXXX XXXXXX XXXX, XX
EQUIPMENT LIST
====================================================================================================
EQUIPMENT VENDOR EQUIPMENT DESCRIPTION MODEL NAME MODEL #
----------------------------------------------------------------------------------------------------
ASI A483-T Tank 512 Rack Pump , Tex Red
----------------------------------------------------------------------------------------------------
ASI A483-T Tank 513 Rack Pump , Red Dye
----------------------------------------------------------------------------------------------------
Canon Copier NP2120
----------------------------------------------------------------------------------------------------
Canon Fax Machine CFX-L4000
----------------------------------------------------------------------------------------------------
Tangent CPU Pentium Based
----------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxx SLC 5/03: 7 Slot rack 1747 L532
----------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxx PanelView 600 2711-K6C3L1
----------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxx PanelView 900 2711-L9A3
----------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxx SLC 5/01;7 slot rack
----------------------------------------------------------------------------------------------------
3Com Superstack ll data hub 3C250L
----------------------------------------------------------------------------------------------------
Xerox Copier PA-1
----------------------------------------------------------------------------------------------------
Hewlet Packard CPU Vectra; 486
----------------------------------------------------------------------------------------------------
CCTV 4 channel, color w/VHS recorder
----------------------------------------------------------------------------------------------------
Goulds Tank 508E Rack pump 4X6X13
----------------------------------------------------------------------------------------------------
Goulds Tank 508W Rack pump 4X6X13
----------------------------------------------------------------------------------------------------
U.S. Electric Motors Tank 508W Rack pump motor 60 hp
----------------------------------------------------------------------------------------------------
U.S. Electric Motors Tank 508E Rack pump motor 60 hp
----------------------------------------------------------------------------------------------------
Goulds South-to-North transfer pump 4X6X13
----------------------------------------------------------------------------------------------------
G.E. South-to-North transfer pump motor 60 hp
Hi Tech Electronic Sign WO1511
====================================================================================================
=================================================================================
EQUIPMENT VENDOR VERSION # SPECIFIC LOCATION
---------------------------------------------------------------------------------
ASI A483-T Tank 512
---------------------------------------------------------------------------------
ASI A483-T Tank 513
---------------------------------------------------------------------------------
Canon
---------------------------------------------------------------------------------
Canon
---------------------------------------------------------------------------------
Tangent
---------------------------------------------------------------------------------
Xxxxx Xxxxxxx
---------------------------------------------------------------------------------
Xxxxx Xxxxxxx
---------------------------------------------------------------------------------
Xxxxx Xxxxxxx
---------------------------------------------------------------------------------
Xxxxx Xxxxxxx
---------------------------------------------------------------------------------
3Com
---------------------------------------------------------------------------------
Xerox
---------------------------------------------------------------------------------
Hewlet Packard
---------------------------------------------------------------------------------
CCTV
---------------------------------------------------------------------------------
Goulds
---------------------------------------------------------------------------------
Goulds
---------------------------------------------------------------------------------
U.S. Electric Motors
---------------------------------------------------------------------------------
U.S. Electric Motors
---------------------------------------------------------------------------------
Goulds
---------------------------------------------------------------------------------
G.E.
Hi Tech
=================================================================================
