EXHIBIT 10.73
PURCHASE AND
SALE AGREEMENT
BETWEEN
BAYONNE INDUSTRIES, INC.
AND IMTT-BAYONNE,
AS SELLERS
AND
COGEN TECHNOLOGIES NJ, INC.
AS BUYER
MAY 22, 1986
TABLE OF CONTENTS
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PAGE
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ARTICLE 1
DEFINITIONS................................................................. 2
ARTICLE 2
PURCHASE AND SALE OF ASSETS................................................. 7
2.1 Purchase and Sale.................................................... 7
2.2 Payment and Security for Purchase Price.............................. 7
2.3 No Assumption of Liabilities......................................... 7
2.4 Assurances of Seller................................................. 7
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER.................................... 8
3.1 Organization and Good Standing....................................... 8
3.2 Authority............................................................ 8
3.3 No violation of Other Agreements..................................... 9
3.4 Title to Assets...................................................... 9
3.5 Operation of Assets.................................................. 9
3.6 Tax matters.......................................................... 9
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF COGEN..................................... 10
4.1 Organization and Good Standing....................................... 10
4.2 Authority............................................................ 10
4.3 No Violation of Other Agreements..................................... 10
4.4 Acquisition of Assets................................................ 11
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TABLE OF CONTENTS
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PAGE
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ARTICLE 5
INDEMNIFICATION AND SET-OFF................................................. 11
5.1 Indemnification...................................................... 11
5.2 Right to Set-Off..................................................... 12
ARTICLE 6
RIGHT OF RECONVEYANCE....................................................... 13
6.1 Right of Cogen to Rescind............................................ 13
6.2 Closing of Reconveyance.............................................. 12
6.3 Transfer of Beneficial Interest in Insurance......................... 14
6.4 Transfer, Issue or Reissue of Governmental
Authorizations....................................................... 14
ARTICLE 7
SUCCESSORS AND ASSIGNS...................................................... 15
ARTICLE 8
MISCELLANEOUS............................................................... 16
8.1 Notice............................................................... 16
8.2 Amendments........................................................... 17
8.3 Choice of Law........................................................ 17
8.4 Termination of Preexisting Lease..................................... 17
8.5 Other Agreements..................................................... 18
8.6 Captions............................................................. 18
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PURCHASE AND SALE AGREEMENT
---------------------------
THIS PURCHASE AND SALE AGREEMENT DATED AS OF MAY 22, 1986 by and between
BAYONNE INDUSTRIES, INC., a New Jersey corporation having its principal place of
business at the Foot of East 22nd Street, Bayonne, New Jersey 07002 ("BI") and
IMTT-BAYONNE, a Delaware partnership having its principal place of business at
the Foot of Xxxx 00xx Xxxxxx, Xxxxxxx, Xxx Xxxxxx 00000 ("IMTT") (collectively
"Seller") and COGEN TECHNOLOGIES NJ, INC., a Delaware corporation having its
principal place of business at 00000 Xxxxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxxx,
Xxxxx 00000 ("Cogen"), as Buyer.
BACKGROUND
----------
Seller owns and/or has registered in its name certain Assets, including the
Steam Producing Facilities and the Emissions Permit attendant thereto. The Steam
Producing Facilities are presently leased by BI to IMTT and are utilized to
produce steam which is used by IMTT in connection with the operation of the
Bayonne Facility. BI is also the owner of the Boiler House in which the Steam
Producing Facilities are located.
IMTT and Cogen have entered into the Steam Sale Agreement pursuant to which
Cogen, commencing on the Date of Initial Commercial Operation, will be obligated
to provide steam to IMTT and pursuant to which IMTT is obligated to purchase
steam for use in the Bayonne Facility. Seller desires to sell and
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Cogen desires to purchase the Assets, subject to the terms and conditions
contained herein.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto agree as
follows:
ARTICLE 1
---------
DEFINITIONS
-----------
The following terms when used herein shall have the following meanings,
unless a different meaning shall be expressly stated or apparent from the
context:
"Affiliate" means a corporation or other entity that directly or
indirectly, through one or more intermediaries, controls or is controlled by, or
is under common control with, another corporation or entity.
"Agreement" means this contract, including all exhibits and amendments
thereto that may be made from time to time.
"Assets" means collectively, the Steam Producing Facilities, together with
the Emissions Permit and all rights and privileges attendant thereto, and all
other Governmental Authorizations which BI and IMTT may have.
"Bayonne Facility" means the tank terminal facility located at Bayonne, New
Jersey, and all appurtenant property owned or leased at that location by IMTT,
BI, or any Affiliates thereof.
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"XX" xxxxx Xxxxxxx Industries, Inc., a New Jersey corporation, having its
principal place of business at the Foot of Xxxx 00xx Xxxxxx, Xxxxxxx, Xxx Xxxxxx
00000.
"Xxxx of Sale" means the xxxx of sale for the Assets.
"Boiler House" means the building located at the Bayonne Facility that
houses the Steam Producing Facilities, except that interior portion of the
building unrelated to the Steam Producing Facilities.
"Cogen" means Cogen Technologies NJ, Inc., a Delaware corporation, having
its principal place of business at 00000 Xxxxxxx Xxxxx Xxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000.
"Cogen Documents" means this Agreement, the Note, the Rent Note, the
Security Agreement, the Lease, the Option Agreement and all other documents
executed and delivered by Cogen in connection herewith or therewith.
"Cogeneration Facility" means the waste heat boilers, gas and steam
turbines, generators and all appurtenant structures, equipment, including
Cogen's interconnection facilities, and real property interests owned or leased
and operated by Cogen at the Bayonne Facility, for purposes of generating
electricity, steam, or other forms of useful thermal output.
"Date of Initial Commercial Operation" means 12:01 a.m. on the day Cogen
designates in writing as the initial date of commercial operation of the
Cogeneration Facility.
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"Easement" means that certain easement of even date herewith from BI and
IMTT to Cogen pursuant to which BI and IMTT grant to Cogen ingress and egress
over the Bayonne Facility to the Boiler House, including all exhibits and
amendments thereto that may be made from time to time, and any other easements,
rights-of-way or licenses that may be granted to Cogen under the Ground Lease.
"Emissions Permit" means all permits to construct and certificates to
operate the Steam Producing Facilities in compliance with applicable air quality
standards of the State of New Jersey and the Federal Government and any emission
reduction credits related to the operation of the Steam Producing Facilities.
"Financier" means any person, lending money for the construction and
operation of the Cogeneration Facilities, any person providing funds for the
refinancing or take-out of such loans, and any nominee or designee of any such
person.
"Governmental Authorization" means any and all necessary governmental
authorization, license, permit or certificate that is necessary for the
operation and maintenance of the Steam Producing Facilities in compliance with
all applicable federal, state, and local laws.
"Ground Lease" means that certain lease agreement among BI and IMTT, as
lessor, and Cogen as lessee, of even date herewith for certain property located
in Bayonne, New Jersey, including
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all exhibits and amendments thereto as may be made from time to time.
"IMTT" means IMTT-Bayonne, a Delaware partnership.
"Note" means the promissory note of even date herewith of Cogen, payable to
BI in the principal amount of $2,600,000.00.
"Operate and Maintain" means the engineering, purchasing, repair,
supervision, training, inspection, testing, protection, operation, use,
management, replacement, and maintenance of and for the Steam Producing
Facilities in accordance with applicable industry standards, good engineering
practice and applicable law.
"Option Agreement" means that certain option agreement of even date
herewith between Cogen and BI, including all exhibits and amendments thereto
that may be made from time to time.
"Party" or "Parties" means the signatories to this Agreement and their
permitted successors and assigns.
"Prime Rate" means the interest rate (sometimes referred to as the "Base
Rate") for large commercial loans to creditworthy entities published by First
National Bank of Chicago, or its successor bank, as such rate may be in effect
from time to time.
"Rent Note" means the promissory note of even date herewith of Cogen,
payable to BI in the principal amount of $600,000.00.
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"SRF Lease" means that certain steam producing facilities lease agreement
of even date herewith between Cogen, as lessor, and IMTT, as lessee, pursuant to
which the Steam Producing Facilities will be leased to IMTT, including all
exhibits and amendments thereto that may be made from time to time.
"Security Agreement" means that certain security agreement of even date
herewith between Cogen and BI executed and delivered by Cogen as security for
the payment of the Note, including all exhibits and amendments thereto that may
be made from time to time.
"Seller Documents" means this Agreement, the Xxxx of Sale, the Lease, the
Option Agreement, the Easement, and all other documents executed and delivered
by Seller in connection herewith and therewith.
"Steam Producing Facilities" means the existing boilers and appurtenant
structures and equipment located inside the Boiler House, including all
additions, replacements, improvements, substitutions, and increments thereto,
more particularly described in Exhibit A appended hereto, but not including the
Boiler House, located at the Bayonne Facility and operated for the purpose of
producing steam for industrial purposes at the Bayonne Facility.
"Steam Sale Agreement" means that certain agreement between Cogen and IMTT
dated June 13, 1985, for the sale of steam and electricity from a cogeneration
plant, including all
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exhibits and amendments thereto that may be made from time to time.
ARTICLE 2
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PURCHASE AND SALE OF ASSETS
---------------------------
2.1 Purchase and Sale. Seller hereby sells and Cogen hereby purchases the
Assets for a purchase price of $2,600,000.00.
2.2 Payment and Security for Purchase Price. The payment of the purchase
price shall be evidenced by the Note and shall be secured as provided in the
Security Agreement. IMTT hereby assigns and transfers to BI any right that IMTT
may have to the purchase price of the Assets.
2.3 No Assumption of Liabilities. It is expressly understood and agreed by
the Parties that Cogen is not assuming any liabilities or obligations of Seller,
direct or indirect, matured or unmatured, contingent or fixed, known or unknown,
all of which shall remain the sole liability and obligation of Seller.
2.4 Assurances of Seller. Seller will perform any and all steps necessary
to effectuate the transfer, issue or reissue to Cogen of all Governmental
Authorizations with regard to all Assets so as to allow Cogen to operate and
Maintain such Assets in accordance with the SPF Lease as required thereunder
and/or to evidence its ownership interest therein and shall not
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take any act or omit to take any act the effect of which would be to limit
Cogen's ability to effectuate such transfer, issue or reissue; provided,
however, that the failure of any such Governmental Authorizations to be
transferred, issued or reissued due to no fault of Seller shall not void this
Agreement or the Xxxx of Sale or give rise to any liability on the part of
Seller.
ARTICLE 3
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REPRESENTATIONS AND WARRANTIES OF SELLER
----------------------------------------
Seller hereby represents and warrants to Cogen as follows:
3.1 Organization and Good Standing. BI is a corporation duly organized,
validly existing and in good standing under the laws of the State of New Jersey
and IMTT is a partnership duly organized, validly existing and in good standing
under the laws of the State of Delaware. To the best of Seller's knowledge,
information, and belief, Seller has all requisite power and authority to own and
operate the Assets as of the date hereof.
3.2 Authority. The execution, delivery and performance of the Seller
Documents have been duly and validly authorized and approved by the board of
directors and, to the extent necessary, the shareholders of BI and by the
managing committee of IMTT. Each of the Seller Documents constitutes the valid
and binding agreement of Seller enforceable against it in accordance with their
respective terms.
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3.3 No Violation of Other Agreements. The execution, delivery and
performance of the Seller Documents by Seller will not conflict with or cause a
breach of or default under any other agreement to which BI or IMTT is a party or
by which it or the Assets may be bound. Seller has no reason to believe that any
consents or approvals of any other persons, firms, corporations, entities, or
governmental authorities are required in connection with the execution and
delivery of this Agreement by Seller or the consummation by it of the
transactions contemplated hereunder.
3.4 Title to Assets. Seller has good and marketable title to the Assets and
owns the same free and clear of all liens, claims, security interests and
encumbrances.
3.5 Operation of Assets. To the best of Seller's knowledge, information,
and belief, the Assets have been operated and maintained in compliance with all
laws, rules, regulations and orders of all governmental authorities and Seller
has not received any notice that there exists or is continuing any violations
under any of the foregoing. To the best of Seller's knowledge, information, and
belief, Seller has filed with the appropriate governmental authorities all
reports and notices required to be filed or given by it in connection with the
operation and use of its Assets as of the date hereof.
3.6 Tax matters. Seller has timely filed with appropriate governmental
authorities all tax returns with
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respect to the ownership, use and operation of the Assets and has timely paid
all amounts shown to be due thereon and there are not pending any suits, actions
or claims in respect of any such taxes or returns.
ARTICLE 4
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REPRESENTATIONS AND WARRANTIES OF COGEN
---------------------------------------
Cogen hereby represents and warrants to Seller as follows:
4.1 Organization and Good Standing. Cogen is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and to the best of Cogen's knowledge, information, and belief, Cogen has all of
the requisite power and authority to own and, upon transfer, issue or reissue of
the Governmental Authorizations, operate the Assets.
4.2 Authority. The execution, delivery and performance of the Cogen
Documents have been duly and validly authorized and approved by the board of
directors and, to the extent necessary, the shareholders of Cogen. Each of the
Cogen Documents constitutes the valid and binding agreement of Cogen enforceable
against it in accordance with its terms.
4.3 No Violation of Other Agreements. The execution, delivery and
performance by Cogen of the Cogen Documents will not conflict with or cause a
breach of or default under any other agreement to which Cogen is a party or by
which it or its
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properties may be bound. Cogen has no reason to believe that any consents or
approvals of any other persons, firms, corporations, entities, or governmental
authorities are required in connection with the execution or delivery of this
Agreement by Cogen.
4.4 Acquisition of Assets. Except for its reliance upon the accuracy of the
representations and warranties of Seller contained in Article 3 hereof, Cogen
represents and warrants that it is acquiring the Steam Producing Facilities in
an "as is" condition.
ARTICLE 5
---------
INDEMNIFICATION AND SET-OFF
---------------------------
5.1 Indemnification. Each Party agrees to and hereby does indemnify and
hold the other Party and its shareholders, partners, officers and directors,
agents and employees (each an "Indemnified Party") harmless from and against any
and all loss, cost, damage and expense (including reasonable attorney's fees and
expenses) suffered or incurred by any of them arising out of or relating to the
misrepresentation or breach of any warranty of such Party contained in this
Agreement. In case a claim may be asserted or action brought against any party
entitled to indemnification hereunder, such Indemnified Party shall promptly
notify the other Party in writing and such other Party shall assume the defense
thereof, including the
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employment of counsel satisfactory to the Indemnified Party and the payment
of all costs and expenses with respect thereto. Any one or more of the
Indemnified Parties shall at its cost have the right to employ separate counsel
in any such action and to participate in the defense thereof. The Party
obligated to indemnify under this Article 5 (the "Indemnifying Party") shall not
be liable for any settlement of any such claim or action effected without its
consent. The Indemnifying Party may not settle any such claim or action without
the consent of the Indemnified Party, which consent shall be conditioned upon
the Indemnifying Party demonstrating to the Indemnified Party that the
Indemnifying Party has sufficient financial means to make all payments under any
such settlement as and when due.
5.2 Right to Set-Off. In addition to any other remedies available to it,
Cogen shall have the right to set-off against any next payments due under the
Note the amount of all losses, costs, damages, or expenses (including reasonable
attorney's fees and expenses) suffered or incurred by it as a result of any
representation or warranty of Seller which is false or misleading in any
material respect, or as a result of the breach by the Seller of its convenants
and obligations contained in this Agreement, provided, however, that such
alleged breach or misrepresentation must first be recognized in a nonappealable
judgment by a court of competent jurisdiction.
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ARTICLE 6
---------
RIGHT OF RECONVEYANCE
---------------------
6.1 Right of Cogen to Rescind. Cogen shall have the unconditional right
upon written notice thereof to Seller, to elect to reconvey the Assets to Seller
at any time on or before the close of business on the date six (6) months from
the date of this Agreement.
6.2 Closing of Reconveyance. The closing of the reconveyance of the Assets
shall be held on the fifteenth (15th) business day after the giving of notice
referred to in Article 6.1 at 10:00 a.m. at the Bayonne Facility. At such
closing, Cogen shall deliver to BI a bank cashier's or certified check payable
to the order of BI in the amount of $240,000.00 together with a xxxx of sale,
substantially in form similar to that delivered on the date hereof, reconveying
the Assets to Seller against receipt of the Note marked "cancelled". In
addition, the Parties will execute and deliver documents or instruments
necessary or appropriate to effect the termination of the Steam Sale Agreement,
the Ground Lease, the Security Agreement, the SPF Lease, the Option Agreement,
and the Easement, provided, however, that notwithstanding such termination and
cancellation, each Party to the aforesaid agreements retains its respective
rights with regard to any breaches, defaults, or misrepresentations under such
agreements.
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6.3 Transfer of Beneficial Interest in Insurance. If during the period
from the date hereof to the date of the closing referred to in Article 6.2, the
Steam Producing Facilities shall suffer any damage, loss or destruction, and
Cogen exercises its rights under this Article 6 to reconvey the Assets, then
Cogen, in addition to the execution and delivery of the xxxx of sale referred to
in Article 6.2, shall at the same time execute and deliver to Seller an
instrument effective to assign to Seller all right, title and interest of Cogen
in and to any insurance proceeds relating to such damage, loss or destruction to
which Cogen may be entitled.
6.4 Transfer, Issue or Reissue of Governmental Authorizations. Upon any
reconveyance of the Assets pursuant to this Article 6, Cogen shall take all
steps necessary to effectuate the transfer, issue or reissue to Seller of all
Governmental Authorizations with regard to all Assets so as to allow Seller to
Operate and Maintain such Assets and/or to evidence its ownership interest
therein and shall not take any act or omit to take any act the effect of which
would be to limit Seller's ability to effectuate such transfer, issue or
reissue; provided, however, that the failure of any such Governmental
Authorizations to be transferred, issued or reissued due to no fault of Cogen
shall not void the reconveyance or give rise to any liability on the part of
Cogen.
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ARTICLE 7
---------
SUCCESSORS AND ASSIGNS
----------------------
7.1 This Agreement shall be binding upon and inure to the benefit of the
Parties.
7.2 Except as is expressly set forth in this Agreement, neither the rights
nor the obligations under this Agreement may be assigned, pledged, hypothecated
or otherwise transferred.
7.3 Cogen is expressly permitted to assign this Agreement as provided in
this Article 7.3. Cogen may assign this Agreement to Cogen Technologies NJ
Venture, provided that such assignment shall be of no force and effect unless
and until Cogen Technologies NJ Venture shall have assumed in writing all of
Cogen's obligations under the following instruments and notes, and shall have
agreed in writing to cure any existing defaults and breaches of Cogen hereunder
and thereunder:
(1) The Steam Sale Agreement
(2) The Ground Lease
(3) The Option Agreement
(4) The SPF Lease
(5) The Note
(6) The Security Agreement
(7) The Rent Note
Cogen may assign this Agreement to any Financier which shall be obligated
hereunder only as provided in Articles 21.6 and 21.7 of the Ground Lease.
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7.4 Seller is expressly permitted to assign this Agreement to any person or
entity, provided that such assignment shall be of no force and effect unless and
until such person or entity shall have assumed in writing all of Seller's
obligations under this Agreement and under the instruments referred to in
Article 7.3, with the exception of the Note and the Rent Note, and shall have
agreed in writing to cure any defaults and breaches hereunder and thereunder.
7.5 Notwithstanding any such assignment by Seller or Cogen, the assignor
shall remain fully liable for its obligations hereunder.
ARTICLE 8
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MISCELLANEOUS
-------------
8.1 Notice. All notices, including communications and statements which are
required or permitted under the terms of this Agreement, shall be in writing,
except as otherwise provided. Service of a notice may be accomplished by
personal service, telegram or registered or certified mail. If a notice is sent
by registered or certified mail, it shall be deemed served within three (3)
days, excluding Saturdays, Sundays or legal Federal holidays, except as
otherwise demonstrated by a signed receipt. If a notice is served by telegram,
it shall be deemed served eighteen (18) hours after delivery to the telegram
company. Notices may be sent to the Parties at the following addresses:
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(a) Cogen: Cogen Technologies NJ, Inc.
00000 Xxxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxx X. XxXxxx,
President
With information copy to:
Cogen Technologies NJ, Inc.
Foot of Xxxx 00xx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attention: Plant Manager
(b) Seller: Bayonne Industries, Inc.
Foot of Xxxx 00xx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx Xxxxxxx
or
International-Matex Tank
Terminals
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
Partnership Manager
8.2 Amendments. No amendment or modification of the terms of this Agreement
shall be binding on either Seller or Cogen unless reduced to writing and signed
by both parties.
8.3 Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey.
8.4 Termination of Preexisting Lease. By executing this Agreement, BI and
IMTT hereby terminate any lease that may exist with regard to the Steam
Producing Facilities, which lease shall hereafter be of no force and effect.
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8.5 Other Agreements. This Agreement supersedes any and all oral or
written agreements and understandings heretofore made relating to the subject
matters herein, and together with the Seller Documents and the Cogen Documents
constitutes the entire agreement and understanding of the Parties relating to
the subject matters herein.
8.6 Captions. All indices, titles, subject headings, section titles and
similar items are provided for the purpose of reference and convenience and are
not intended to be inclusive, definitive or to affect the meaning, content or
scope of this Agreement.
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IN WITNESS WHEREOF, the Parties have entered into this Agreement to be
signed in quadruplicate original as of the date first written above.
[SEAL]
ATTEST: BAYONNE INDUSTRIES, INC.
/s/ Xxxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxxx,
Assistant Secretary Executive Vice-President/
Secretary
WITNESS; IMTT-BAYONNE
/s/ Xxxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------ -------------------------------------
Xxxxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxxx,
Assistant Secretary Secretary
[SEAL]
ATTEST: COGEN TECHNOLOGIES NJ, INC.
/s/ Xxxx X. Xxxx By: /s/ Xxxxxx X. XxXxxx
------------------------------ -------------------------------------
Xxxx X. Xxxx, Xxxxxx X. XxXxxx,
Assistant Secretary President
