Exhibit 2
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ASSET TRANSFER
AND
LIABILITY ASSUMPTION AGREEMENT
among
STAR ENTERPRISE,
SAUDI REFINING, INC.,
TEXACO REFINING AND MARKETING (EAST) INC.,
SHELL OIL COMPANY,
SHELL NORCO REFINING COMPANY,
AND
MOTIVA ENTERPRISES LLC
dated as of
July 1, 1998
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ASSET TRANSFER AGREEMENT
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND USAGE..................................................................... 1
SECTION 1.1. Defined Terms................................................................. 1
ARTICLE II CONTRIBUTIONS TO THE COMPANY............................................................. 2
SECTION 2.1. Contribution of Assets........................................................ 2
SECTION 2.2. Transfer Subject to Permitted Exceptions and Agreement Terms.................. 2
SECTION 2.3. Excluded Assets............................................................... 2
SECTION 2.4. Assignment of Contracts and Rights; Equitable Ownership....................... 2
ARTICLE III ASSUMPTION OF LIABILITIES............................................................... 4
SECTION 3.1. Assumed Liabilities and Obligations; Exclusions............................... 4
ARTICLE IV INSTRUMENTS OF TRANSFER.................................................................. 4
SECTION 4.1. Shell Instruments of Transfer................................................. 4
SECTION 4.2. Star Instruments of Transfer.................................................. 5
ARTICLE V CERTAIN POST-CLOSING MATTERS.............................................................. 6
SECTION 5.1. Post-Closing Recordings....................................................... 6
SECTION 5.2. Access to and Retention of Records............................................ 7
SECTION 5.3. Availability of Personnel..................................................... 8
SECTION 5.4. Mail; Payments................................................................ 8
SECTION 5.5. Existing Insurance Coverage................................................... 9
ARTICLE VI REPRESENTATIONS AND WARRANTIES........................................................... 10
SECTION 6.1. Representations and Warranties of Shell and Shell Norco....................... 10
(i)
ASSET TRANSFER AGREEMENT
(a) Good, Indefeasible or Marketable Title.................................... 10
(b) Pro Forma Financial Information........................................... 11
(c) Shell Contributed Assets.................................................. 11
SECTION 6.2. Representations and Warranties Regarding Star................................. 11
(a) Good, Indefeasible or Marketable Title.................................... 12
(b) Financial Information..................................................... 12
(c) Star Contributed Assets................................................... 12
ARTICLE VII MISCELLANEOUS........................................................................... 13
SECTION 7.1. Further Assurance............................................................. 13
SECTION 7.2. Effectiveness................................................................. 13
SECTION 7.3. Exclusivity................................................................... 13
SCHEDULES
Schedule A Usage and Definitions
Schedule B Procedural Conventions and Dispute Resolution
Schedule C Shell Shared Assets
Schedule D Shell Common Contracts
Schedule 2.1A Shell Asset List
Schedule 2.1B Star Asset List
Schedule 2.3A Shell Excluded Assets
Schedule 2.3B Star Excluded Assets
Schedule 3.1A Shell Assumed Liabilities
Schedule 3.1B Star Assumed Liabilities
(ii)
ASSET TRANSFER AGREEMENT
EXHIBITS
--------
Exhibit A-1 Shell Contributed Asset Master Xxxx of Sale
Exhibit A-2 Star Contributed Asset Master Xxxx of Sale
Exhibit B-1 Shell Contributed Asset Master Assignment
and Assumption of Contracts
Exhibit B-2 Star Contributed Asset Master Assignment
and Assumption of Contracts
Exhibit C-1 Shell Contributed Asset Master Assignment
and Assumption of Leases
Exhibit C-2 Star Contributed Asset Master Assignment
and Assumption of Leases
Exhibit D-1 Shell Contributed Asset Master Deed
Exhibit D-2 Star Contributed Asset Master Deed
Exhibit E-1 Shell Contributed Asset Master Assignment of Permits
Exhibit E-2 Star Contributed Asset Master Assignment of Permits
Exhibit F-1 Shell Contributed Asset Master Subleases
and Assignment and Assumption of Sublessor's
Interest in User Subleases (Financing Leases)
Exhibit F-2 Shell Contributed Asset Master Subleases
and Assumption of Sublessor's Interest
in User Subleases (Operating Leases)
Exhibit F-3 Star Contributed Asset Master Subleases
and Assumption of Sublessor's Interest
in User Subleases (Financing Leases)
Exhibit F-4 Star Contributed Asset Master Subleases
and Assumption of Sublessor's Interest
in User Subleases (Operating Leases)
Exhibit G-1 Shell Deed
Exhibit G-2 Star Deed
Exhibit H-1 Shell Assignment and Assumption of Leases
Exhibit H-2 Star Assignment and Assumption of Leases
Exhibit Y-1 Description of Norco Refinery
Exhibit Y-2 Description of Delaware City Refinery
Exhibit Y-3 Description of Convent Refinery
Exhibit Y-4 Description of Port Xxxxxx Refinery
(iii)
ASSET TRANSFER AGREEMENT
ASSET TRANSFER AND LIABILITY ASSUMPTION AGREEMENT (the "Asset Transfer
Agreement"), dated as of July 1, 1998, among Star Enterprise, a New York general
partnership ("Star"), Saudi Refining, Inc., a Delaware corporation ("SRI"),
Texaco Refining and Marketing (East) Inc., a Delaware corporation ("TRMI
(East)"), Shell Oil Company, a Delaware corporation ("Shell"), Shell Norco
Refining Company, a Delaware corporation ("Shell Norco") and Motiva Enterprises
LLC, a Delaware limited liability company (the "Company").
R E C I T A L S :
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WHEREAS, Texaco, Shell and SRI have entered into a Master Agreement,
dated as of June 22, 1998, whereby they have agreed, inter alia, to enter into,
and to cause the Company, Star and Shell Norco to enter into this Asset Transfer
Agreement and certain other Motiva Joint Venture Documents for the purpose of
organizing and operating the Company.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, and for other good and valuable
consideration, the receipt and adequacy of which are acknowledged by each of the
parties hereto, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
SECTION 1.1. Defined Terms. Unless the context shall otherwise require,
terms used and not defined herein shall have the meanings assigned thereto in
Schedule A hereto and all rules as to usage set forth therein shall apply
hereto. Schedule B hereto contains provisions regarding the Procedural
Conventions and Dispute Resolution which shall govern this Asset Transfer
Agreement. Such Schedules A and B are hereby incorporated herein by reference.
0000FQNS.W51
ASSET TRANSFER AGREEMENT
ARTICLE II
CONTRIBUTIONS TO THE COMPANY
SECTION 2.1. Contribution of Assets. At the Effective Time:
(a) First, SRI and TRMI (East), severally, shall (i) cause Star to
transfer directly to the Company all of Star's right, title and interest in the
Star Contributed Assets and (ii) transfer directly to the Company all of their
respective right, title and interest in StarStaff Inc.; and
(b) Second, Shell and Shell Norco shall each transfer or cause to be
transferred directly to the Company all of its and its Affiliates' right, title
and interest in the Shell Contributed Assets.
SECTION 2.2. Transfer Subject to Permitted Exceptions and Agreement
Terms. The Contributed Assets shall be transferred to the Company subject to
Permitted Exceptions and in accordance with, and subject to, all provisions of
the Master Agreement and this Asset Transfer Agreement whether or not any of the
Transfer Instruments contains a specific exception for or reference to Permitted
Exceptions, the Master Agreement or this Asset Transfer Agreement.
SECTION 2.3. Excluded Assets. No party to this Asset Transfer Agreement
nor any of its Affiliates shall transfer any right, title or interest with
respect to the Excluded Assets.
SECTION 2.4. Assignment of Contracts and Rights; Equitable Ownership.
(a) Without limitation to any representation, warranty or indemnification
obligation set forth in the Master Agreement, this Asset Transfer Agreement
shall not constitute an agreement to assign or assume any Contributed Contract
or any claim, right, benefit, or liability thereunder, if such assignment,
without the approval or consent of a Third Party thereto, would be ineffective
or would constitute a breach or other contravention thereof or give rise to any
right of termination thereof and such approval or consent is not obtained. The
party required to contribute such Contributed Contract shall use its reasonable
efforts (which shall not require any payment of money to any Third Party by such
party or any of its Affiliates) to obtain the approval or consent of such Third
Party for the assignment to or assumption by the Company of any such Contributed
Contract, claim, right, benefit or liability arising thereunder. If as of the
Effective Time such assignment or assumption will be ineffective or will give
rise to any right of termination
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ASSET TRANSFER AGREEMENT
thereof, the parties will cooperate in arranging a mutually agreeable
alternative to enable the Company to obtain the benefits and assume the
obligations under such Contributed Contract as of the Effective Time or as soon
as practicable thereafter (including through a sub-contracting, sub-licensing,
sub-participation or sub-leasing arrangement, or an arrangement under which the
Person contributing such Contributed Contract would enforce such Contract for
the benefit of the Company, with the Company, to the extent permissible,
assuming such Person's executory obligations and any and all rights of such
Person against the other party thereto). If the approval of the other party to
such Contributed Contract is obtained, such approval will, as between the Person
contributing such Contributed Contract and the Company, constitute a
confirmation (automatically and without further action of the parties) that such
Contributed Contract is assigned to the Company as of the Effective Time, and
(automatically and without further action of the parties) that the liabilities
with respect to such Contributed Contract are assumed as of the Effective Time.
(b) The parties hereto agree that if any Contributed Assets or any
claim, right, benefit or liability thereunder are not transferred to the Company
at the Effective Time as a result of any restriction under any Applicable Law or
Contract that prohibits such transfer or makes such transfer unduly burdensome,
the party required to contribute such Contributed Assets will use its reasonable
efforts (which shall not require any payment of money to any Third Party by such
party or any of its Affiliates) to obtain such Contractual Consents or
Governmental Consents as might be required to consummate the contributions in
respect of such assets as soon as practicable after the Effective Time. During
the period between the Effective Time and the consummation of such contribution,
such party shall operate all such assets pursuant to instructions from the
Company and all benefits of, and risks arising out of or related to, the
ownership and operation of such assets shall be for the account of the Company.
The parties hereto agree that, at or as promptly as practicable after the
Effective Time, they will enter (and will cause the Company and each applicable
Affiliate and Specified Subsidiary to enter) into such agreements as might be
reasonably required to carry out the intent of the immediately preceding
sentence, including agreements (i) specifying, to the extent feasible, such
assets, (ii) setting up separate accounting systems for such assets, (iii)
providing for undertaking by the Company of any indemnity obligations of the
contributing party in respect of such assets (other than such obligations set
forth in the Motiva Joint Venture Documents), (iv) providing that until the
legal ownership is transferred to the Company, each party will treat such assets
in every respect as being equitably owned by the Company as of the Effective
Time and (v) providing such further specific assurances as the Company or
another party may reasonably request.
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ASSET TRANSFER AGREEMENT
ARTICLE III
ASSUMPTION OF LIABILITIES
SECTION 3.1. Assumed Liabilities and Obligations; Exclusions. (a) At the
Effective Time, the Company shall assume and thereafter pay, perform or
discharge the Assumed Liabilities. Such assumption may be effectuated by the
Company making full payments in respect of any Assumed Liability at the time of
the discharge of such Assumed Liability to any Person which, after the Effective
Time, remained liable in respect of such Assumed Liability and thereafter
discharged such Assumed Liability in accordance with the terms of the agreement
or instrument under which such Assumed Liability arose (but only to the extent
that such discharge was in accordance with the terms of the relevant agreement
or instrument as in effect at the Effective Time).
(b) Upon the terms and subject to the conditions hereof and in
consideration of the transfer of the Contributed Assets, the Company shall,
effective as of the Effective Time, perform and discharge all obligations of
Shell, Shell Norco and Star under the Contributed Contracts.
(c) Except as otherwise provided in Section 3.1(a) above, after the
Effective Time, neither Shell nor its Affiliates nor Star nor its Affiliates
shall pay, perform or discharge, in whole or in part, any Assumed Liability or
any obligation under the Contributed Contracts without the prior written consent
of the Company.
ARTICLE IV
INSTRUMENTS OF TRANSFER
SECTION 4.1. Shell Instruments of Transfer. At the Closing, Shell and
Shell Norco shall deliver such Shell Transfer Instruments (other than those
referred to in Section 5.1(a)), in form and substance reasonably satisfactory to
TRMI (East) and SRI, as shall be necessary or desirable to convey the Shell
Contributed Assets to the Company, including:
(a)(i) the Shell Contributed Asset Master Xxxx of Sale, (ii)
the Shell Contributed Asset Master Assignment and Assumption of
Contracts, (iii) the Shell Contributed Asset Master Assignment and
Assumption of Leases, (iv) the
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ASSET TRANSFER AGREEMENT
the Shell Contributed Asset Master Deed, (v) the Shell Contributed
Asset Master Subleases and Assignment and Assumption of Sublessor's
Interest in User Subleases;
(b) a deed or deeds, in respect of the Norco Refinery and the
Shell Terminals, substantially in the form of Exhibit G-1 annexed
hereto; provided, however, that such modifications shall be made as are
necessary to conform Exhibit G-1 to the requirements of Applicable Law
in the jurisdictions where the real property conveyed by the deed or
deeds in question is located; and
(c) any other bills of sale, endorsements, assignments and
instruments necessary to transfer the Shell Contributed Assets, other
than those provided for in Section 5.1(a).
SECTION 4.2. Star Instruments of Transfer. At the Closing, Star shall
deliver such Star Transfer Instruments (other than those referred to in Section
5.1(b)), in form and substance reasonably satisfactory to Shell, as shall be
necessary or desirable to convey the Star Contributed Assets to the Company,
including:
(a)(i) the Star Contributed Asset Master Xxxx of Sale, (ii)
the Star Contributed Asset Master Assignment and Assumption of
Contracts, (iii) the Star Contributed Asset Master Assignment and
Assumption of Leases, (iv) the Star Contributed Asset Master Deed, (v)
the Star Contributed Asset Master Subleases and Assignment and
Assumption of Sublessor's Interest in User Subleases;
(b) a deed or deeds, in respect of the Star Refineries and the
Star Terminals, substantially in the form of Exhibit G-2 annexed
hereto; provided, however, that such modifications shall be made as are
necessary to conform Exhibit G-2 to the requirements of Applicable Law
in the jurisdictions where the real property conveyed by the deed or
deeds in question is located; and
(c) any other bills of sale, endorsements, assignments and
instruments necessary to transfer the Star Contributed Assets, other
than those provided for in Section 5.1(b).
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ASSET TRANSFER AGREEMENT
ARTICLE V
CERTAIN POST-CLOSING MATTERS
SECTION 5.1. Post-Closing Recordings. (a) Shell agrees that it will
use its best efforts to submit those deeds described in Section 4.1(b) to be
recorded on behalf of the Company within ninety (90) Business Days after the
later of the Closing Date or the Effective Time. Shell will use its best efforts
to (i) deliver or cause to be delivered to the Company (x) deeds to be recorded
substantially in the form of Exhibit G-1 (with such modifications as are
necessary to conform Exhibit G-1 to the requirements of Applicable Law in the
jurisdictions where the real property conveyed by the deed or deeds in question
is located) for all real property owned by Shell or Shell Norco that is included
in the Shell Contributed Assets, deeds for which were not delivered to the
Company in accordance with Section 4.1(b), (y) all transfer and gains tax
returns required by any Governmental Entity in respect of the properties
transferred by such deeds, and (z) subject to Section 2.4 hereof, assignments of
lease to be recorded substantially in the form of Exhibit H-1 with respect to
all real property leased by Shell or Shell Norco that is included in the Shell
Contributed Assets and (ii) cause such deeds and such assignments of leases
(with respect to recorded leases) to be recorded, in each case, within one
hundred eighty (180) days after the later of the Closing Date or the Effective
Time. Promptly upon receipt of any evidence of recordation in connection with
the recording of deeds provided for in this Section 5.1(a), Shell shall provide
the Company with evidence of such recording. Costs of title and survey
documentation, recordation, transfer taxes, deed stamps, sales taxes and similar
charges relating to Shell Transfer Instruments delivered under Section 4.1 or
under this Section 5.1(a) or otherwise arising out of the transfers contemplated
pursuant to this Asset Transfer Agreement shall be borne by Shell or Shell
Norco.
(b) Star agrees that it will use its best efforts to submit those deeds
described in Section 4.2(b) to be recorded on behalf of the Company within
ninety (90) Business Days after the later of the Closing Date or the Effective
Time. Star will use its best efforts to (i) deliver or cause to be delivered to
the Company (x) deeds to be recorded substantially in the form of Exhibit G-2
(with such modifications as are necessary to conform Exhibit G-2 to the
requirements of Applicable Law in the jurisdictions where the real property
conveyed by the deed or deeds in question is located) for all real property
owned by Star that is included in the Star Contributed Assets, deeds for which
were not delivered to the Company in accordance with Section 4.2(b), (y) all
transfer and gains tax returns required by any Governmental Entity in respect of
the properties
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ASSET TRANSFER AGREEMENT
transferred by such deeds, and (z) subject to Section 2.4 hereof, assignments of
lease to be recorded substantially in the form of Exhibit H-2 with respect to
all real property leased by Star that is included in the Star Contributed Assets
and (ii) cause such deeds and such assignments of leases (with respect to
recorded leases) to be recorded, in each case, within one hundred eighty (180)
days after the later of the Closing Date or the Effective Time. Promptly upon
receipt of any evidence of recordation in connection with the recording of deeds
provided for in this Section 5.1(b), Star shall provide the Company with
evidence of such recording. Costs of title and survey documentation,
recordation, transfer taxes, deed stamps, sales taxes and similar charges
relating to Star Transfer Instruments delivered under Section 4.2 or under this
Section 5.1(b) or otherwise arising out of the transfers contemplated pursuant
to this Asset Transfer Agreement shall be borne by Star.
(c) Except with respect to Contributed Assets covered under Section
2.4, all deeds and assignments of lease shall be dated the Effective Time, and
notwithstanding the date of recordation thereof, as between the parties hereto
the date of transfer with respect to the Contributed Assets shall be the
Effective Time. Notwithstanding the foregoing, in the event that any penalties
or interest will be payable to any Governmental Entity with respect to any
recording or transfer tax or fee due to any difference in the date of the deeds
and the recorded assignments of lease and the date of actual recordation, the
party submitting such deed or assignment of lease may date such document as of
such later date as may be necessary to prevent the incurrence of such penalties
or interest, it being agreed that notwithstanding the date of such deed or
assignment of lease, as between the parties, the date of transfer shall be the
Effective Time. During the period between the Effective Time and the date of
recordation of the deeds and any recorded assignments of lease, the transferor
of the relevant Contributed Assets shall take no action adversely affecting the
Company's title thereto.
SECTION 5.2. Access to and Retention of Records. As of the Effective
Time, the Company shall acquire and take possession of the Books and Records,
provided, that if any part of such Books and Records cannot without unreasonable
effort be separated from books, records, files and other data that do not
constitute Books and Records or relate to services to be provided to the
Company, then Shell, Star, TRMI (East), SRI or their relevant Affiliates, as the
case may be, shall retain such part of the Books and Records and make such part
available to the Company as provided herein. Each of the parties hereto agrees
that it shall, and shall cause its relevant Affiliates to, (i) preserve and keep
the Books and Records or the parts thereof in its possession, as the case may
be, (A) in accordance with their respective records retention programs, or (B)
for any longer period as may be required by any Governmental Entity or ongoing
litigation or a
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ASSET TRANSFER AGREEMENT
required by any of the Motiva Joint Venture Documents and (ii) during such
period, subject to the Confidentiality Agreement, shall allow each other party's
counsel, accountants, officers, employees and other representatives access to
such Books and Records upon such other party's reasonable request and during
normal business hours for the purpose of examining and, at the examining party's
expense, copying them, to the extent reasonably required by such party in
connection with (A) any insurance claims by, legal proceedings against or
governmental investigations of such party, (B) the preparation of any tax return
required to be filed by such party, the defense of any audit, examination,
administrative appeal or litigation of any tax return, or (C) any other
reasonable business purpose reasonably related to such party's or its
Affiliates' Ownership Interest; provided that Star may transfer any Books or
Records in its possession to the Company, SRI or TRMI (East) upon or in
anticipation of its dissolution.
SECTION 5.3. Availability of Personnel. Each of the parties hereto
shall afford, and shall cause their respective Affiliates to afford, to each
other on a reasonable basis their respective personnel as necessary to permit
the Company, as the case may be, to provide background information necessary to
(i) prepare tax returns, (ii) prosecute Claims or (iii) investigate, defend
against, or otherwise oppose any pending or threatened Claim against any party
or any of such party's Affiliates, as the case may be, in each case, in
connection with the Contributed Assets. The party affording its, or its
Affiliates', personnel shall be reimbursed by the other party for its reasonable
incremental out-of-pocket expenses of such personnel, but shall not charge any
other fee to any other party hereto.
SECTION 5.4. Mail; Payments. (a) Each of Shell, Star, TRMI (East),
Shell Norco and SRI authorizes and empowers the Company from and after the
Effective Time to receive and open all mail and other communications directed to
any of Shell, Star, TRMI (East), Shell Norco, SRI or their Affiliates and
received by the Company, and, except for matters as to which Shell, TRMI (East),
SRI or any of their respective Affiliates is providing indemnification under any
Motiva Joint Venture Document, to act with respect to such communications in
such manner as the Company may elect if such communications relate to the
Contributed Assets. If such communications do not relate to the Contributed
Assets or relate to matters as to which Shell, TRMI (East) or SRI is providing
indemnification under any Motiva Joint Venture Document, the Company shall
forward the same promptly to the party (or parties) providing such
indemnification or to whom such communications relate. Each of Shell, Star, TRMI
(East), Shell Norco and SRI shall, and shall cause their respective Affiliates
to, promptly deliver to the Company any cash, checks, other instruments of
payment and funds to which the
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ASSET TRANSFER AGREEMENT
Company is entitled and shall hold such cash, checks, other instruments of
payment and funds in trust for the Company until such delivery. The Company
shall promptly deliver to Shell, Star, TRMI (East), SRI, Shell Norco or their
Affiliates, as applicable, any cash, checks or other instruments of payment to
which such entity is entitled and shall hold such cash, checks or other
instruments of payment in trust for such entity until such delivery.
(b) The Company authorizes and empowers Shell, Star, TRMI (East), Shell
Norco, SRI and their Affiliates from and after the Effective Time to receive and
open all mail and other communications directed to the Company and received by
any such entity, and to act with respect to such communications in such manner
as such entity may elect if such communications do not relate to the Contributed
Assets or do relate to matters as to which such entity or any of its Affiliates
is providing indemnification under any Motiva Joint Venture Document or, if such
communications do relate to the Contributed Assets and not to such indemnified
matters, to forward the same promptly to the Company.
SECTION 5.5. Existing Insurance Coverage. If, after December 1, 1997,
any of Shell, Star, TRMI (East), Shell Norco, SRI or their Affiliates receives,
directly or indirectly, from any insurer cash proceeds attributable to (i)
casualty and property (but not liability or business interruption for periods
prior to the Effective Time) insurance coverage applicable to any of the
Contributed Assets with respect to any occurrence or any series of related
occurrences on or after December 1, 1997 or (ii) real property title insurance
in respect of any of the Contributed Assets, which proceeds, in either the case
of clause (i) or (ii), aggregate in excess of $1,000,000 for such occurrence or
series of related occurrences, then such recipient shall pay over such cash
proceeds to the Company (net of any deductible, co-payment, retro fees,
premiums, costs or other charges payable to the insurance carrier or obligations
to reimburse the insurance carrier for which it is liable and net of the cost of
collection) except to the extent that (x) the damage or loss incurred as a
result of such occurrence or series of occurrences was repaired, restored or
reimbursed by or on behalf of such recipient prior to the Effective Time or will
be obligated to be reimbursed by such recipient pursuant to the Motiva Joint
Venture Documents or (y) Shell, SRI and Texaco have otherwise expressly agreed
in writing that such proceeds shall not be paid over to the Company. Any such
payment paid over to the Company shall reduce any amounts payable by such
recipient or its Affiliates with respect to such occurrence under Article 8 of
the Master Agreement. Any other insurance proceeds received by any of Shell,
Star, TRMI (East), Shell Norco, SRI or their Affiliates with respect to any
occurrence or series of occurrences prior to the Effective Time shall be
retained by such recipient.
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ASSET TRANSFER AGREEMENT
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.1. Representations and Warranties of Shell and Shell Norco.
Each of Shell and Shell Norco represents and warrants to each of the other
parties hereto as follows; provided that Shell and Shell Norco shall have no
liability to any other party hereto or any other Person (including any Person
indemnified under Article 8 of the Master Agreement) for the breach of any
representation or warranty hereunder to the extent that the facts or
circumstances that gave rise to such breach:
(i) were actually disclosed in writing in the Due Diligence
Process to any of the Due Diligence Representatives of such
other party;
(ii) would reasonably be expected to be discovered by such other
party based on facts or circumstances so disclosed in writing
during the Due Diligence Process; or
(iii) were actually known to such other party or such other party's
Due Diligence Representatives on or prior to the Closing Date.
(a) Good, Indefeasible or Marketable Title. With such
exceptions as would not, individually and in the aggregate, have a
Company Material Adverse Effect, each entity contributing Shell
Contributed Assets pursuant to Section 2.1 has good (and in the case of
interests in real property, indefeasible or marketable) title to all
Shell Contributed Assets so contributed thereby, free of all Liens
other than (x) Permitted Exceptions and (y) provisions in contracts,
licenses and agreements which prohibit or otherwise restrict assignment
and upon the granting of the deeds and other instruments of transfer
provided for herein, the Company shall receive good (and in the case of
interests in real property, indefeasible or marketable) title to the
Shell Contributed Assets as described above.
For the avoidance of doubt, in the event that any
representation or warranty with respect to title to the Shell
Contributed Assets set forth in any of the Shell Transfer Instruments
or implied by Applicable Law may be interpreted to create
representations or warranties other than those set forth in this
Section 6.1(a), the representation and warranty set forth in this
Section 6.1(a) shall
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ASSET TRANSFER AGREEMENT
govern and such other representations and warranties shall be
without force or effect.
(b) Pro Forma Financial Information. With such exceptions as
would not, individually and in the aggregate, have a Company
Material Adverse Effect:
(i) the Shell Pro Forma Financial Information
represents Shell's good faith allocation of the results of
operations and cash flows of Shell's oil products business
segment, for the periods indicated therein, among (A) the
Shell Valuated Units, (B) the businesses being contributed to
Equilon (including the assets to be held separately pursuant
to the Consent Order), (C) Shell's interest in the business
conducted by DPRLP and (D) the Shell Excluded Assets;
(ii) the Shell oil products business segment
information referred to in clause (i) was included in Shell's
audited financial statements for the periods indicated
therein; and
(iii) the Shell Pro Forma Financial Information was
not necessarily prepared in accordance with GAAP, but was
prepared with due care after reasonable inquiry and is a fair
presentation of the financial performance of the Shell
Valuated Units for the periods indicated therein.
(c) Shell Contributed Assets. With such exceptions as would
not, individually and in the aggregate, have a Company Material
Adverse Effect, except for the Shell Excluded Assets and the Shell
Intellectual Property Rights, the Shell Contributed Assets constitute
all of the assets used for or necessary to the operation of the Shell
Valuated Units in the ordinary course of business and in substantially
the same manner as such Shell Valuated Units were operated as of
December 1, 1997.
SECTION 6.2. Representations and Warranties Regarding Star. Each of
Star, TRMI (East) and SRI represents and warrants to each of the other parties
hereto as follows; provided that Star, TRMI (East) and SRI shall have no
liability to any other party hereto or any other Person (including any Person
indemnified under Article 8 of the Master Agreement) for the breach of any
representation or warranty hereunder to the extent that the facts or
circumstances that gave rise to such breach:
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ASSET TRANSFER AGREEMENT
(i) were actually disclosed in writing in the Due Diligence
Process to any of the Due Diligence Representatives of such
other party;
(ii) would reasonably be expected to be discovered by such other
party based on facts or circumstances so disclosed in writing
during the Due Diligence Process; or
(iii) were actually known to such other party or such other party's
Due Diligence Representatives on or prior to the Closing Date.
(a) Good, Indefesible or Marketable Title. With such
exceptions as would not, individually and in the aggregate, have a
Company Material Adverse Effect, Star has good (and in the case of
interests in real property, indefeasible or marketable) title to all
Star Contributed Assets so contributed thereby, free of all Liens other
than (x) Permitted Exceptions and (y) provisions in contracts, licenses
and agreements which prohibit or otherwise restrict assignment and upon
the granting of the deeds and other instruments of transfer provided
for herein, the Company shall receive good (and in the case of
interests in real property, indefeasible or marketable) title to the
Star Contributed Assets as described above.
For the avoidance of doubt, in the event that any
representation or warranty with respect to title to the Star
Contributed Assets set forth in any of the Star Transfer Instruments or
implied by Applicable Law may be interpreted to create representations
or warranties other than those set forth in this Section 6.2(a), the
representation and warranty set forth in this Section 6.2(a) shall
govern and such other representations and warranties shall be without
force or effect.
(b) Financial Information. With such exceptions as would not,
individually and in the aggregate, have a Company Material Adverse
Effect, the Star Financial Statement (i) has been prepared with due
care after reasonable inquiry and (ii) is a fair presentation of the
financial performance and cash flow of Star.
(c) Star Contributed Assets. With such exception as would
not, individually and in the aggregate, have a Company Material
Adverse Effect, except for the Star Excluded Assets and the Texaco
Intellectual Property Rights, the Star Contributed Assets constitute
all of the assets used for or necessary to
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ASSET TRANSFER AGREEMENT
the operation of Star in the ordinary course of business and in
substantially the same manner as Star was operated as of December 1,
1997.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. Further Assurance. (a) From and after the Effective Time,
each of the parties hereto shall, at any time and from time to time, at the
request of any other party hereto, make, execute and deliver, or use its best
efforts to cause to be made, executed and delivered, such assignments,
conveyances, deeds, bills of sale, filings and other instruments, agreements
(including any agreements which may be necessary or desirable in connection with
the making of any filing or the obtaining of any approval in any jurisdiction),
consents and assurances and take or cause to be taken all such action as the
parties hereto may reasonably request for the effectual consummation of this
Asset Transfer Agreement and the Motiva Joint Venture Transactions. It is
understood that this Section 7.1(a) may be applied to require the assignment or
conveyance (i) to the Company of assets owned or leased by any party or its
Affiliates that constitute Shell Contributed Assets or Star Contributed Assets
but by mistake were not assigned or conveyed to the Company at the Effective
Time, or (ii) to any party or Affiliate of a party of assets transferred to the
Company that were not listed on the Asset List (or was listed on the Asset List
but was an Excluded Asset or the non-contributed portion of a Shell Common
Contract or Shell Shared Asset) and are not Shell Contributed Assets or Star
Contributed Assets, but were assigned or conveyed by mistake to the Company.
(b) From time to time after the Effective Time, as and when requested
by the Company, TRMI (East) shall, or shall cause its Worldwide Affiliates to
execute and deliver, or cause to be executed and delivered, all such documents
and instruments and shall take, or cause to be taken, all such further or other
actions as any other party may reasonably deem necessary or desirable to
transfer legal or beneficial title to any Star Contributed Asset which should
have been transferred by TRMI (East) or its Worldwide Affiliates to Star
effective as of December 31, 1988 in accordance with the transaction documents
by which Star was formed which for any reason was not transferred.
SECTION 7.2. Effectiveness. This Asset Transfer Agreement shall be
effective as of the Effective Time.
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ASSET TRANSFER AGREEMENT
SECTION 7.3. Exclusivity. For avoidance of doubt, Section 8.01 of the
Master Agreement shall constitute the exclusive remedy for any misrepresentation
or breach of warranty or covenant contained in or arising under this Asset
Transfer Agreement.
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ASSET TRANSFER AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Asset Transfer
Agreement to be duly executed as of the day and year first above written.
STAR ENTERPRISE
By: SAUDI REFINING, INC.
PARTNER
By /s/ F. R. Xxxxxxx
-------------------
Title: President and Chief
Executive Officer
By: TEXACO REFINING AND
MARKETING (EAST) INC.
PARTNER
By /s/ X. Xxxxxx Berry Jr.
-------------------------
Title: Vice President
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ASSET TRANSFER AGREEMENT
SAUDI REFINING, INC.
By /s/ F. R. Xxxxxxx
------------------------
Title: President and Chief Executive Officer
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ASSET TRANSFER AGREEMENT
TEXACO REFINING AND
MARKETING (EAST) INC.
By /s/ X. X. Xxxxxx
-------------------
Title: Chairman
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ASSET TRANSFER AGREEMENT
SHELL OIL COMPANY
By /s/ X. X. Xxxxxx
----------------
Title: Senior Vice President
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ASSET TRANSFER AGREEMENT
SHELL NORCO REFINING COMPANY
By /s/ X. X. Xxxxxxxx
------------------
Title: Attorney-in-Fact
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ASSET TRANSFER AGREEMENT
MOTIVA ENTERPRISES LLC
By /s/ X. Xxxxxx Xxxxx Xx.
-----------------------
Title: CEO
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ASSET TRANSFER AGREEMENT
