EXHIBIT 10.9
FORMATION AND PURCHASE AGREEMENT
Dated as of October __, 1998
by and among
SUPPORT TERMINAL OPERATING PARTNERSHIP, L.P.
(a subsidiary of Kaneb Pipe Line Partners, L.P.),
and
NORTHVILLE INDUSTRIES CORP.
and
AFFCO, CORP.
TABLE OF CONTENTS
Page
SECTION 1. Certain Definitions.......................................2
SECTION 2. Formation of LLC; Contribution of Assets..................8
2.1 Formation of LLC .........................................8
2.2 Assumption of Future Obligations..........................9
2.3 Closing Adjustments.......................................12
SECTION 3. Purchase and Sale of LLC Interests;
Consideration for LLC Interests; and Managing
Member Appointment .......................................13
3.1 Purchase and Sale of LLC Interests........................13
3.2 Amount of Purchase Price..................................14
3.3 Payment of Purchase Price.................................14
3.4 Tax Elections Regarding Step-Up Basis.....................15
LLC Agreement.............................................15
SECTION 4. Representations and Warranties of Seller
and AFFCO.................................................15
Good Standing.............................................15
41 Authorization.............................................16
42 Financial Data............................................17
43 Competing Interest........................................17
44 Records and Books of Account..............................19
45 Liabilities...............................................19
46 Title to Assets; Liens and Encumbrances...................19
47 Fixed Assets; Real Property; Leased Premises..............20
48 Trademarks, Service Marks, Trade Names, Patents
and Copyrights............................................24
Contracts.................................................24
Labor Relations...........................................27
41 Legal Proceedings.........................................27
42 Compliance With Law; Permits and Licenses.................28
43 Actions Not in Ordinary Course............................28
44 Employee Matters..........................................29
45 Capital Projects and Expenditures.........................29
46 Environmental Protection..................................29
47 Employee Benefits.........................................32
48 Governmental Approvals....................................32
49 No Omissions..............................................33
410 Purchased LLC Interests...................................33
SECTION 5. Representations and Warranties of the Buyer...............34
5.1 Representations and Warranties of the Buyer...............34
(A) Good Standing....................................34
(B) Authorization....................................34
SECTION 6. Condition of Acquired Assets and Buyers
Due Diligence.............................................35
As Is.....................................................35
61 Conduct of Business.......................................35
62 Access....................................................36
SECTION 7. Conditions of Buyers Obligations to Close.................36
Agreements and Conditions.................................37
71 Accuracy of Representations and Warranties................37
72 Governmental Approvals; Consents..........................37
73 Material Adverse Change...................................38
74 No Actions or Proceedings.................................38
75 Bring-down Certificate....................................39
76 Good Standing Certificates................................40
77 Certified Charter Documents...............................40
78 Matters Satisfactory to the Buyers Counsel................40
79 Due Diligence.............................................40
710 Corporate Action..........................................41
711 Secretarys Certificate....................................41
712 Title Reports.............................................41
713 FIRPTA Affidavit..........................................42
714 Antitrust Improvements Act................................42
715 Deliveries................................................43
716 Product Storage Agreement.................................43
717 LLC Agreement.............................................43
SECTION 8. Conditions of the Seller=s Obligations to Close...........43
8.1 Agreements and Conditions.................................43
8.2 Accuracy of Representations and Warranties................44
8.3 Governmental Approvals; Consents..........................44
8.4 No Actions or Proceedings.................................44
8.5 General Partner=s Certificate.............................45
8.6 General Partner=s Certificate of Authorization............45
8.7 Antitrust Improvement Act.................................46
8.8 Product Storage Agreement.................................46
8.9 Deliveries................................................46
8.10 LLC Agreement.............................................46
SECTION 9. Deliveries of Seller......................................46
9.1 Title to Acquired Assets..................................47
9.2 Consents..................................................47
9.3 Good Standing Certificate.................................47
9.4 Secretary=s Certificate...................................47
9.5 Possession of Acquired Assets.............................48
9.6 Other Deliveries..........................................48
SECTION 10. Deliveries of Buyer, Seller, AFFCO and the
LLC at the LLC Interest Closing...........................48
A. Buyers Deliveries
10.1 Purchase Price............................................48
10.2 Certificate...............................................48
10.3 Other Deliveries..........................................48
B. LLC Deliveries
10.4 Certificates and LLC Agreement............................49
10.5 Other Deliveries..........................................49
10.6 Product Storage Agreement.................................49
C. Seller=s and AFFCO=s Deliveries
LLC Units Transfer........................................49
Other Deliveries..........................................49
SECTION 11. Additional Covenants............................................49
11.1 Consents Report; Inventory List...........................49
11.2 Sellers Employees.........................................52
11.3 Cooperation...............................................53
11.4 Receivables; Mail ........................................54
11.5 Further Assurances........................................54
SECTION 12. Indemnification
Indemnification by Seller..........................................55
11 Indemnification by the LLC....................................56
12 Indemnification by the Buyer..................................56
13 Procedures for Indemnification................................56
14 Right of Setoff...............................................58
SECTION 13.Survival of Representations; Effect of Certificates..............58
Survival Representations...........................................58
15 Effect of Certificates........................................58
SECTION 14. Fees and Disbursements..........................................58
SECTION 15. No Broker.......................................................59
SECTION 16. Notices.........................................................59
SECTION 17. Miscellaneous...................................................61
Entire Agreement...................................................61
16 Taxes.........................................................62
17 Governing Law.................................................62
18 Benefit of Parties; Assignment................................62
19 Pronouns......................................................63
110 Public Announcements..........................................63
111 Headings......................................................63
LIST OF SCHEDULES and EXHIBITS
SCHEDULE A: Description of Real Property
Annex 1- Linden Terminal Inventory
SCHEDULE B: Tankage Information, Linden Facility
Description of Facility
Three Crest Engineering Associates Inc. Surveys
dated A10/15/98@
SCHEDULE 4.3: Operating and Financial Data
SCHEDULE 4.4: Competing Interests
SCHEDULE 4.6: Liabilities
SCHEDULE 4.7(a): Liens on Acquired Assets
SCHEDULE 4.7(b): Terminal Assets not Acquired
SCHEDULE 4.8(a): Assets Not in Good Repair and Operating
Condition
SCHEDULE 4.8(b): Violations of Law
SCHEDULE 4.8(c): Lease, Easement and License Agreements
(ALeased Premises@)
SCHEDULE 4.8(d): Notices: Insurance Co./Board of Fire Underwriters
SCHEDULE 4.8(e): Permits, Licenses and Plans
SCHEDULE 4.10: Assumed Contracts
SCHEDULE 4.12: Legal Proceedings
SCHEDULE 4.13: Compliance with Law; Permits and Licenses
SCHEDULE 4.15: Linden Terminal Employees
SCHEDULE 4.16: Capital Projects and Expenditures
SCHEDULE 4.17: Discharge History of Hazardous Substances and
Wastes
SCHEDULE 8.8: Product Storage Agreement
SCHEDULE 11: Inspection Schedule
EXHIBIT A: Limited Liability Company Agreement
EXHIBIT B: Amended and Restated Limited Liability Company
Agreement
AGREEMENT dated as of October __, 1998 by and among Support
Terminal Operating, Partnership, L.P., a Delaware limited Partnership (the
"Buyer"); Northville Industries Corp., a New York corporation ("Seller"), and
AFFCO, Corp., a New York corporation that is an affiliate of Seller (AAFFCO@).
W I T N E S S E T H:
WHEREAS, Seller and AFFCO have formed a Delaware limited liability
company named ST Linden Terminal, LLC (the ALLC@); and
WHEREAS, Seller intends to contribute to the LLC all of the assets,
properties and rights of Seller relating to the Terminal(as defined below) (the
AContribution@) pursuant to the terms and conditions hereinafter set forth; and
WHEREAS, Seller, Buyer and AFFCO desire that immediately after the
Contribution (i) Seller and AFFCO sell to Buyer, and Buyer purchase from Seller
and AFFCO, one-half each of Seller=s and AFFCO=s interest in the LLC, and (ii)
Buyer be named manager of the LLC, all pursuant to the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and for other good and valuable consideration set forth herein, the parties
hereto agree as follows: . For purposes of this Agreement, the following terms
shall have the respective meanings set forth below: "Acquired Assets" means the
Terminal, the Real Property and the Fixtures and all the assets, properties and
rights of or relating to the Terminal of every kind and description, wherever
located, including, without limitation, all assets, property and rights listed
on Schedule A attached hereto. The Acquired Assets include all real, personal,
intangible and tangible property relating to the Terminal, inventories of fuel
and oil for Terminal equipment operation, pipeline fill machinery, Fixtures,
equipment, tools, spare parts, pumps, racks, drums, tanks, pipelines, marine
facilities, assignable permits and licenses, boats and other vessels, Contracts,
claims and rights(other than accounts receivables as of the Formation Closing
under Contracts of Seller relating to the Terminal and assigned to the LLC),
computer software owned or used by Seller in the operation of the Terminal, and
true copies of all books, records and documents of Seller relating to the
assets, properties and rights of the Terminal (including, without limitation,
operational files, blueprints, plans, specifications and drawings, but excluding
books, records and documents of Seller's business such as inactive inventory
records and customer storage and throughput records). "Actions" means any
claims, actions, suits, proceedings and investigations, whether at law, in
equity or in admiralty or before any court, arbitrator, arbitration panel or
Governmental Authority. "Code" means the Internal Revenue Code of 1986, as
amended. "Contracts" means all contracts, agreements, documents, instruments,
indentures, licenses, leases, commitments, plans, arrangements, sales orders and
purchase orders of every kind, whether written or oral. AControl' and all
derivations thereof means the direct or indirect ability or power to either
(i)vote (or direct the vote of) 50% or more of the voting interests in any
Person or (ii) direct the affairs of another, whether through voting power,
contract or otherwise. "Damages" means losses, liabilities, costs,(including
costs of remediation) damages, claims, expenses, fees, fines and penalties
(including reasonable attorneys fees and disbursements). "Environmental Laws"
means all Governmental Requirements related to and/or regulating (a) the
prevention or control of pollution or protection of the environment, (b) solid,
gasesous or liquid waste generation, handling, treatment, storage, disposal,
discharge, release, emission or transportation or (c) exposure to Hazardous
Materials. AEnvironmental Laws@ include the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. " 9601, et seq., as
amended, the Emergency Planning and Community Right-To-Know Act of 1986, 42
U.S.C. " 11001, et seq., as amended, the Resource Conservation and Recovery Act
of 1976,42 U.S.C. " 6901, et seq., as amended, the Toxic Substances Control Act,
15 U.S.C. " 2601, et seq., the Federal Insecticide, Fungicide, and Rodenticide
Act, 7 U.S.C. " 136, et seq., as amended, the Clean Air Act, 42 U.S.C. " 7401,
et seq., as amended, the Clean Water Act (Federal Water Pollution Control Act),
33 U.S.C. " 1251 et seq., as amended, the Safe Drinking Water Act,42 U.S.C. "
300f et seq., as amended, the Occupational Safety and Health Act, 29 U.S.C. "
641 et seq., as amended, and the Hazardous Materials Transportation Act, 49
U.S.C. " 1801 et seq., as amended. "ERISA" means the Employee Retirement Income
Security Act of 1974, as amended, and the rules and regulations promulgated
thereunder. "Financial Data" means the operating and financial data relating to
the Terminal furnished by Seller to the Buyer listed on Schedule 4.3. "Fixtures"
means all improvements and fixtures in all of their forms located on, under or
about the Terminal, including the marine facilities, all improvements and
equipment listed on Annex I to Schedule A hereto, all Parts thereof and all
accessions, additions, attachments, alterations, improvements, modifications,
substitutions and replacements thereto and therefor, and any reference to a
Fixture shall also include any related Part or any other interest therein.
AFormation Closing@ means the date and time determined as contemplated by
paragraph 2.1. "GAAP" means generally accepted United States accounting
principles. "Governmental Authority" means any and all foreign, federal, state
or local governments, governmental institutions, legislative bodies, public
authorities and governmental entities of any nature whatsoever, and any
subdivisions or instrumentalities thereof, including departments, boards,
bureaus, commissions, agencies, courts, administrations and panels, and any
divisions or instrumentalities thereof, whether permanent or ad hoc and whether
now or hereafter constituted or existing. AHazardous Materials@ means (1) any
Ahazardous waste@ as defined by the Resource Conservation and Recovery Act of
1976, 42.U.S.C. " 6901 et seq., as amended from time to time, and regulations
promulgated thereunder, (2) any Ahazardous substance@ as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. "9601, et seq., as amended from time to time, (3) asbestos, (4)
polychlorinated biphenyls, (5) underground storage tanks, whether empty, filled
or partially filled with any substance, (6) petroleum or any petroleum product,
(7) any other substance the presence of which is prohibited or restricted by any
law or other governmental requirement and, (8) any other substance which by any
law or other governmental requirement requires special handling or notification
of any federal, state or local governmental entity in its collection, storage,
treatment, recycling, or disposal. Aincludes@ and Aincluding@ means Aincluding,
without limitation@ or Aincludes, without limitation@, and all derivations
thereof shall have corresponding meanings. "LLC Interest Closing" means the
closing of the purchase and sale between Buyer, AFFCO, and Seller of interests
in the LLC as contemplated hereby, which shall take place at the offices of
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.C., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ or about October
30, 1998 at 10:00 a.m., or at such other time or place as the parties may agree
upon in writing. "Laws" mean laws, rules, regulations, codes, orders,
ordinances, judgments, injunctions and decrees. "Liabilities" means debts,
liabilities, obligations, duties and responsibilities of any kind and
description, whether absolute or contingent, monetary or non-monetary, direct or
indirect, known or unknown or matured or unmatured, or of any other nature.
"Lien" means any security interest, lien, mortgage, claim, charge, pledge,
restriction, equitable interest or encumbrance of any nature. "Parts" means all
appliances, parts, instruments, appurtenances, accessories, furnishings and
other equipment of whatever nature that may from time to time be incorporated or
installed in or attached to any item of equipment used in connection with the
operation of the Terminal or Fixture. "Person" means any natural person,
corporation, business trust, joint venture, association, company, firm,
partnership or other entity or government or Governmental Authority.
"Proprietary Rights" means any trade name, trademark, service ▇▇▇▇, patent or
copyright and any application for any of the foregoing. "Real Property" means
all real property included in the Acquired Assets, including land, buildings,
improvements and structures owned by Seller relating to the Terminal. "Taxes"
means all taxes, charges, fees, levies or other assessments, including, without
limitation, income, gross receipts, excise, real and personal property, sales,
transfer, license, payroll and franchise taxes, imposed by any Governmental
Authority and shall include any interest, penalties or additions to tax
attributable to any of the foregoing.
"Terminal" means Seller's 3.9 million barrel capacity
petroleum storage terminal located in Linden, New Jersey, including the real
estate upon which it is located, excess land adjacent thereto and related marine
facilities, as more particularly described in the documents entitled "Tankage
Information, Linden Facility@, ADescription of Facility@, and three Crest
Engineering Associates Inc. surveys, dated A10/15/98@, all of which are attached
hereto as Schedule B.
.ECTION 2.Formation of LLC; Contribution of Assets
. Immediately prior to the closing of the sale of interests in
the LLC from Seller and AFFCO to Buyer as contemplated by paragraph 3.1 (the
ALLC Interest Closing@), Seller and AFFCO will complete the formation of the LLC
pursuant to and in accordance with the Limited Liability Company Agreement
attached hereto as Exhibit A, with such changes therein as may be approved in
writing by Seller and Buyer. The date and time of completion of the formation of
the LLC and the transfer of the Acquired Assets is referred to herein as the
AFormation Closing.@ Seller shall, with the approval of Buyer (which approval
shall not be unreasonably withheld, conditioned or delayed), file with the
Secretary of State of Delaware all documents necessary to complete the formation
of the LLC immediately prior to the LLC Interest Closing. In connection with
formation of the LLC, but prior to the LLC Interest Closing, (i) Seller shall
contribute and transfer, and deliver possession and control of, the Acquired
Assets to the LLC in return for 99,000 LLC Units (as defined in the LLC
Agreement), and AFFCO will contribute $410,101 to the LLC in return for 1,000
Units.
2.2 Assumption of Future Obligations. From and after the Formation
Closing, the LLC shall assume and discharge the future obligations of Seller
under the Contracts set forth on Schedule 4.10 hereto (the AAssumed Contracts@)
solely to the extent to be performed after the Formation Closing, provided that
the LLC specifically shall not assume, or be treated as having assumed, any
liabilities of Seller under such Contracts with respect to any breaches of such
Contracts occurring on or before the Formation Closing or any damage to third
parties resulting from acts, events or omissions occurring on or before the
Formation Closing (the obligations assumed pursuant to this sentence being
referred to herein as the "Assumed Obligations"). Except as provided in the
preceding sentence, and notwithstanding anything else to the contrary contained
herein, the LLC is not assuming and shall not be liable for any Liabilities of
Seller of any nature whatsoever. Specifically, without limiting the generality
of the foregoing, the LLC is not assuming and shall not be liable for any
Liabilities (i) under Contracts which shall not have been assigned to the LLC
pursuant to this Agreement;(ii) by reason of or arising out of any default or
breach by Seller of any Contract, for any penalty against Seller under any
Contract, or relating to or arising out of any event which with the passage of
time or after giving of notice, or both, would constitute or give rise to such a
breach, default or penalty, whether or not such Contract is being assigned to
and assumed by the LLC pursuant to this Agreement; (iii) the existence of which
would conflict with or constitute a breach of any representation, warranty or
agreement of Seller contained herein; (iv) for fees and disbursements referred
to in Section 14 hereof; (v) to any shareholder or affiliate of Seller or to any
present or former employee, officer or director of Seller (or the beneficiaries
and dependents of such individuals, as applicable) including, without
limitation, Liabilities for any bonuses, any termination, vacation or severance
pay related to the termination of employees by Seller in connection with the
transactions contemplated hereby, and Liabilities arising under or pursuant to
any "employee benefit plan," as defined in Section 3(3) of ERISA, or other
compensation or benefit arrangement, including, without limitation, any post
retirement medical benefits and any Liabilities relating to the group health
plan continuation coverage requirements of Section 4980B of the Code and Part 6
of Title I of ERISA; (vi) relating to the execution, delivery and consummation
of this Agreement and the transactions contemplated hereby, including, without
limitation, any and all Taxes incurred as a result of the sale contemplated by
this Agreement except as set forth in Section 17.2 hereof;(vii) for any Taxes
accrued or incurred prior to the Formation Closing or relating to any period (or
portion of a period) prior thereto; (viii) relating to or arising out of any
environmental matter, including, without limitation, any violation of any
Environmental Law or any other Law relating to health and safety of the public
or the employees of Seller relating to the Terminal which existed prior to the
Formation Closing; (ix) relating to, or arising out of, services rendered by
Seller, or the conduct or operation of the Terminal, on or prior to the
Formation Closing; (x) arising with respect to any Actions (whether now in
existence or hereafter arising) relating to matters occurring on or prior to the
Formation Closing; and (xi) of Seller arising under or pursuant to this
Agreement. The LLC shall not assume or be bound by any Liabilities of Seller,
except for the Assumed Obligations expressly assumed by the LLC pursuant to the
first sentence of this paragraph 2.2. Seller hereby agrees to indemnify and hold
the LLC harmless from and against any and all Liabilities of Seller other than
the Assumed Obligations, and the LLC hereby agrees to indemnify and hold Seller
harmless from and against any and all Liabilities of Seller that constitute
Assumed Obligations assumed by the LLC pursuant to the first sentence of this
paragraph 2.2. Nothing contained in this paragraph 2.2 shall relieve or release
Seller from any obligations under covenants, warranties or agreements contained
this Agreement.
2.3 Closing Adjustments.
(a) All adjustments customary in asset acquisitions,
including, without limitation, rents, security deposits, real estate taxes,
water charges and other taxes and charges related to any Real Property, and any
tax certiorari proceedings and refunds or assessments related thereto, if
relating to a period before and after the Formation Closing, shall be
apportioned between Seller and the LLC. All such adjustments shall be made at
the time of the Formation Closing except for those adjustments that cannot be
determined as of the Formation Closing. If such adjustment cannot be determined
as of the Formation Closing it shall be determined as promptly as practicable
following the end of the period to which it related and paid not later than two
business days after such determination. Promptly after the final determination
of all adjustments, the adjustments shall be netted, and any net adjustment
amount owing shall be paid in cash by the Seller or the LLC, as the case may be,
to the other.
(b) Seller shall pay to the LLC at the time of the Formation
Closing the aggregate amount of all prepayments made to or advances received by
Seller under all Contracts being assigned to the LLC pursuant to this Agreement
including, but not limited to, all deposits made with respect to such agreements
for services to be rendered after the Formation Closing.
(c) The LLC shall pay to Seller at the time of the Formation
Closing the aggregate amount of all prepayments or advances made by the Seller
under all Contracts assigned to and assumed by the LLC pursuant to this
Agreement, but only to the extent such prepayments or advances apply to
shipments to be made by vendors or received at the Terminal after the Formation
Closing.
LLC Interests; and Managing Member Appointment.ests; Consideration for
3.1 Purchase and Sale of LLC Interests. On the LLC Interest
Closing date, and immediately after completion of the Formation Closing, Seller
and AFFCO will sell and transfer to Buyer, and Buyer will purchase from Seller
and AFFCO, free and clear of any liens or encumbrances of any nature whatsoever,
an aggregate of 50,000 LLC Units in the LLC, which will represent fifty percent
(50%) of the LLC Units owned by Seller, and fifty percent (50%) of the LLC Units
owned by AFFCO, and which in the aggregate will represent fifty percent (50%) of
all outstanding LLC Units (collectively the APurchased LLC Units@).
3.2 Amount of Purchase Price. The total consideration (the
"Purchase Price") to be paid by Buyer to the Seller and to AFFCO in exchange for
the Purchased LLC Units shall be $20,505,051 (the ABase Price@) plus one-half
(1/2) of the value of the pipeline fill transferred by Seller to the LLC in
connection with the Formation Closing, as determined pursuant to the provisions
of Section 11(the ▇▇▇▇▇ Fill Price@).
3.3 On the LLC Interest Closing date, the Buyer shall pay (i)
the Base Price (payable $20,300,000 to Seller and $205,051 to AFFCO); and (ii)
Buyer=s good faith estimate of the Line Fill Price, each by means of a wire
transfer of immediately available funds to an account number and depository
designated by Seller and AFFCO not less than three days prior to the LLC
Interest Closing by notice in writing to Buyer. As soon as possible after the
LLC Interest Closing, Seller and Buyer shall determine the actual Line Fill
Price. If the estimated Line Fill Price paid by Buyer to Seller on the LLC
Interest Closing date is greater than the actual Line Fill Price, Seller shall,
within five(5)days after the determination of the actual Line Fill Price, pay to
Buyer in cash the amount of the difference between the estimated Line Fill Price
paid on the LLC Interest Closing date and the actual Line Fill Price. If the
actual Line Fill Price is greater than the estimated Line Fill Price paid by
Buyer to Seller on the LLC Interest Closing date, Buyer shall, within five (5)
days after determination of the actual Line Fill price, pay to Seller in cash
the amount of the difference between the estimated Line Fill Price paid on the
LLC Interest Closing date and the actual Line Fill Price.
3.4 Tax Elections Regarding Step-Up Basis. Seller, Buyer and AFFCO
agree that, in connection with the purchase of the Purchased LLC Units by Buyer,
the LLC shall make any and all elections necessary or appropriate under any and
all state and federal taxation laws to permit Buyer to obtain the benefit of a
step-up in basis of the Acquired Assets, including elections under Sections 743
and 754 of the Code.
..5 Contemporaneous with the LLC Interest Closing, Seller,
Buyer and AFFCO shall take all actions necessary to cause said parties to
complete and execute an Amended and Restated Limited Liability Company Agreement
for the LLC in the form attached hereto of Exhibit B (Athe LLC Agreement@).
SECTION 4.Representations and Warranties of Seller and AFFCO.
Seller and AFFCO jointly and severally hereby warrant and represent to and agree
with the LLC and Buyer as follows:
. (a)Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of New York and has full power
and authority to own, lease and operate its properties and assets and to conduct
its business as now being conducted. Seller is duly qualified and in good
standing as a foreign corporation authorized to do business in the State of New
Jersey.
(b) AFFCO is a corporation duly organized, validly
existing and in good standing under the laws of the State of New York and has
full power and authority to own, lease and operate its properties and
assets and to conduct its business as now being
conducted.
..2 The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by the Board of Directors of Seller and AFFCO, and all other corporate action of
Seller and AFFCO, including all shareholder approvals, authorizations and
ratifications, necessary to authorize the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby and
thereby have been taken. This Agreement constitutes the valid and binding
obligations of Seller and AFFCO enforceable against them in accordance with its
terms. Seller and AFFCO have received the consent of all lenders, trustees or
security holders of Seller or AFFCO and all other Persons required for Seller
and AFFCO to enter into and deliver this Agreement or to consummate the
transactions contemplated hereby. Neither the Articles of Incorporation or
By-Laws of Seller or AFFCO or any Contract to which Seller or AFFCO is bound or
affecting any of its properties conflicts with or restricts the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby.
. Annexed hereto as Schedule 4.3 are copies of the Financial
Data furnished by Seller to the Buyer. The Financial Data in each case are true
and complete with respect to each item therein and fairly present the revenues,
expenses and throughput relating to the Terminal for the periods covered
thereby. Since August 31,1998, Seller has conducted its business relating to the
Terminal in a consistent manner without any material change of policy or
procedure, and there has been no occurrence of any event or any omissions, that
has resulted, or could reasonably be expected to result with the passage of time
or the giving of notice or both, in a material adverse effect on the Terminal,
the Acquired Assets or the business conducted thereat or therewith.
4.4 Competing Interests. Except as disclosed on Schedule 4.4,
to the best knowledge of Seller and its directors, neither Seller nor its
stockholders, nor any Associate (as hereinafter defined) of Seller or its
stockholders, nor, any director or officer of Seller:
owns, directly or indirectly, any equity interests in, or is a
director, officer or employee of, or consultant to, any
entity which is a competitor, supplier or customer of the
Terminal or the business of Seller operated thereat
(except for ownership, if any, of less than one percent
(1%) by value of the outstanding capital stock of any
corporation the capital stock of which is traded on a
nationally recognized securities exchange); or
owns, directly or indirectly, in whole or in part, any
property, asset or right which is associated with the
Terminal, the Acquired Assets or the business conducted
thereat or therewith or which Seller is presently
operating or using in connection with or the use of which
is necessary for or material to the operation of the
business conducted at the Terminal or with the Acquired
Assets.
For purposes of this Agreement, the term AAssociate@ means:
(x) with respect to an individual:
(i) the spouse of the individual and all ancestors
and lineal descendants of the individual and the
spouse, any trust in which the individual or any
person described in (i) above has an interest or any
trustee of such a trust, and
(i) any business entity which is directly or
indirectly Controlled by any of the foregoing; and with respect to a
Person other than a natural person, any Person Controlling, Controlled
by or under common Control
with such Person, and any director or officer of such Person.
. The records and books of account of Seller relating to the
Terminal have been regularly kept and maintained in conformity with GAAP
consistently applied.
. To Seller's knowledge, there are no Liabilities of Seller
relating to or affecting the Terminal (including, but not limited to,
Liabilities for Taxes or environmental matters relating to any prior period)
other than those Liabilities disclosed or provided for on Schedule 4.6 attached
hereto.
. The Seller is the owner of all of the Acquired Assets, and
has and will convey to the LLC good and insurable title to all real property
included in the Acquired Assets and good and marketable title to all other
property included in the Acquired Assets, in each case free and clear of all
Liens except for the Liens, if any, set forth on Schedule 4.7(a) hereto. The
Seller owns (or has the right to use pursuant to a valid lease, easement, or
license disclosed on Schedule 4.8 (c)and included in the Acquired Assets) all of
the assets used by it in the operation of the Terminal, or required by Seller
for the normal operation of the Terminal as such operation have been conducted
by Seller during the past 12 months. The Acquired Assets include all of the
assets real or personal, tangible or intangible, used in, related to or required
for, the conduct of operation of the Terminal as such operations have been
conducted by Seller during the past 12 months, except for the assets described
on Schedule 4.7 (b).
4.8 Fixed Assets; Real Property; Leased Premises
(a) Schedule A hereto sets forth a true and complete
description of all Real Property that constitutes, or is used in or necessary
for the operation of, the Terminal as it has been operated by Seller during the
past 12 months, and a true and complete list of the Acquired Assets. Except as
disclosed on Schedule 4.8 (a), each of the tangible assets included in the
Acquired Assets is in good repair and operating condition, normal wear and tear
excepted, and is currently capable of being used for its intended purpose in the
operation of the Terminal. Except as set forth on Schedule 4.8 (b), there are no
violations of any Law that affect or purport to affect any of the Acquired
Assets or any of the operations thereof. All water, utility and other charges,
sewer rent and assessments affecting the Real Property or Leased Premises or any
part thereof, and all Taxes, permit fees or charges imposed against or affecting
the Real Property or Leased Premises (to the extent payable by Seller) or any
part thereof, have been paid in full. Seller has not received notice of any
assessments, or of the commencement of any proceedings by any agency or
authority having jurisdiction seeking a Ataking@ or condemnation of all or any
part of the Terminal, and has no knowledge of any such pending assessments or
condemnation proceedings, affecting the Real Property or Leased Premises.
(b) The Real Property includes, and there will be transferred
to the LLC at the time of the Formation Closing, all of Seller's right, title
and interest, if any, in and to all strips, gores, easements, rights of way,
privileges, appurtenances, land lying in the bed of any street, road or avenue,
whether opened or proposed or in front of or adjoining the Real Property to the
center line thereof, any rights arising from damage to the Real Property or any
part thereof by reason of change of grade or closing of any street, road,
highway or avenue, underwater rights and rights of way, beach, marine
facilities, navigation markers and all rights belonging and inuring to the
benefit of the Real Property. Except as set forth on the surveys attached hereto
in Exhibit B or as on Schedules 4.7(a) or 4.8(c) the buildings, driveways and
all other structures and improvements upon the Real Property are within the
boundary lines thereof and do not encroach upon the property of any other
Persons. All Real Property shall be conveyed to the LLC by a Bargain and Sale
Deed with Covenant against Grantor=s Acts, subject only to the Liens, if any,
set forth on Schedule 4.7 (a) attached hereto.
(c) Schedule 4.8 (c) sets forth a true and complete list of
each lease of premises, easement, license or right-of-way, executed by or
binding upon Seller relating to the Terminal as lessee, sub-lessee, licensee,
tenant or assignee (the "Leased Premises") setting forth in each case a brief
description of the type of agreement, the rental payable thereunder and the term
(including any extensions available) thereunder. Except as set forth on Schedule
4.8(c), each such lease is in full force and effect on the date hereof without
any default or breach thereof by Seller or any other party thereto. Except as
set forth on Schedule 4.8(c), no consent of any landlord or any other party is
required under any such lease in order to assign each such lease to the LLC (or
its designee) and to keep such lease in full force and effect after the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby. True and complete copies of all leases
required to be listed on Schedule 4.8(c), including all amendments, addenda,
waivers and all other binding documents affecting the tenant's rights
thereunder, have heretofore been delivered to the Buyer.
(d) Except as set forth on Schedule 4.8(d) attached hereto,
within the past five years Seller has not received any notice of or writing
referring to any requirements or recommendations by any insurance company which
was issued a policy covering any part of any Real Property or Leased Premises or
by any board of fire underwriters or other body exercising similar functions,
requiring or recommending any repairs or work to be done on any part of any Real
Property or Leased Premises. All of the public utilities required for the
operation of the Real Property or Leased Premises in the manner currently
operated are installed and operating, and all installation and connection
charges have been paid in full or provided for. To the best knowledge of Seller,
except as disclosed by Seller to Buyer or that could reasonably be determined by
the Buyer in the course of its site inspections or due diligence, (i) the
plumbing, electrical, heating, air conditioning, ventilating and all other
structural or material mechanical systems in the buildings upon the Real
Property and Leased Premises or relating to tanks, pipelines, gauges, pumps,
diesel engines and other equipment are in reasonable operating condition and
repair, normal wear and tear excepted, and are adequate for the operation of the
Terminal as heretofore conducted and (ii) the roof, basement, tanks, platforms,
shore line structures, piers and foundation walls of the buildings of the Real
Property and Leased Premises are free of leaks and other defects which would
interfere with the operations of each such Real Property or Leased Premises.
(e) The rights of Seller to operate and maintain the Terminal are
subject to the permits, licenses and plans listed on Schedule 4.8(e)hereto.
. Seller does not use any Proprietary Rights in the conduct of
the Terminal. No claim has been asserted or, to Seller's knowledge, threatened,
by any Person with respect to the ownership, validity, license or use of, or any
infringement resulting from, any alleged use of Proprietary Rights by Seller at
the Terminal.
..10 Except for (a) the leases described in Schedule
4.8(c)hereto, and (b) as set forth on Schedule 4.10 hereto, Seller is not a
party to, or subject to or bound by, (and no offers are outstanding the
acceptance of which would result in a Contract binding upon Seller with respect
to the Terminal or the Acquired Assets) any of the following which relate to or
affect the Terminal or the Acquired Assets: any (i) lease; (ii) royalty,
distribution, agency, territorial or license agreement (iii) Contract (for
employment or otherwise) with any officer, employee, director or shareholder (or
any affiliate of any such officer, employee, director or shareholder) or any
professional person or firm, consultant, independent contractor or advertising
firm or agency; (iv) Contract or collective bargaining agreement with any labor
union or representative of employees; (v) Contract guaranteeing the payment or
performance of the obligations of others; (vi) Contract pursuant to which
indebtedness may be incurred; (vii) Contract limiting the freedom of Seller to
engage in any line of business or to compete with any Person; (viii) Contract
not entered into in the ordinary course of business of the Terminal; (ix)
Contract which may have, or which if canceled, modified or not transferred may
have, a potential adverse impact on the business or operations of the Terminal
or the Acquired Assets; (x) shareholders' agreement, joint venture agreement or
other Contract with respect to the operation or management of the Terminal; (xi)
Contract that places any limits or restrictions on the Acquired Assets; or (xii)
Contract that involves payments by or to Seller at a rate of $10,000 or more per
annum. Schedule 4.10 hereto contains a true and complete description of the
terms and conditions of each contract which is not in writing to which Seller is
a party or to which it is subject or by which it is bound that involves payments
by or to Seller at an annualized rate of $10,000 or more. True and complete
copies of all written Contracts (and all amendments thereto) listed on Schedule
4.10 have heretofore been delivered by Seller to the Buyer. Except as set forth
on Schedule 4.10, no Contract to which Seller is a party or to which it is
subject or by which it is bound relating to or affecting the Terminal or the
Acquired Assets requires the consent of any other Person by reason of the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby. To Seller's knowledge, each of the Contracts to which
Seller is a party or to which it is subject or by which it is bound relating to
or affecting the Terminal or the Acquired Assets (including, without limitation,
those set forth on Schedule 4.10 hereto) is a valid and subsisting Contract of
all of the parties thereto in full force and effect without modification. Seller
has performed all obligations required to be performed by it and is not in
default under any Contract to which it is a party or to which it is subject or
by which it is bound relating to or affecting the Terminal or the Acquired
Assets, and no event has occurred thereunder which, with or without the lapse of
time or the giving of notice, or both, would constitute a default by it
thereunder. Except as set forth on Schedule 4.10, to the Seller's knowledge, no
other party is in default under any such Contract. Except for matters which are
publicly available, or have been disclosed by Seller to the Buyer in this
Agreement or the Schedules annexed hereto. Seller has no knowledge of any facts
or conditions relating to the Contracts which may result in or have a material
adverse effect on or relate to the Terminal.
..11 There are no labor strikes, disputes, slow downs, work
stoppages or other labor troubles or grievances pending or, to Seller's
knowledge, threatened against or involving Seller relating to or affecting the
Terminal. No unfair labor practice complaint before the National Labor Relations
Board, no discharge or grievance before the Equal Employment Opportunity
Commission and no complaint, charge or grievance of any nature before any
similar or comparable state or local agency, in any case relating to the
Terminal or the conduct of the business at the Terminal is pending or, to
Seller's knowledge, threatened. Seller has not received notice, and has no
knowledge, of the intent of any Governmental Authority responsible for the
enforcement of labor or employment laws to conduct any investigation of or
relating to the Terminal.
..12 Except as set forth on Schedule 4.12, there are no
actions, orders or decrees (whether or not purportedly on behalf of Seller)
pending or, to the knowledge of Seller, threatened against or affecting the
Terminal or the Acquired Assets or the business conducted thereat or therewith.
Seller is not in default with respect to any order, writ, agreement, permit,
permission, injunction or decree of any Governmental Authority relating to or
affecting the Terminal or the Acquired Assets or the business conducted thereat
or therewith.
.ompliance With Law; Permits and Licenses
(a) Except as set forth on Schedule 4.13, Seller has complied
and is in compliance in all material respects with all Laws of any Governmental
Authority applicable to the Terminal or the Acquired Assets or the business
conducted thereat or therewith.
(b) Except as set forth on Schedule 4.13, Seller holds all the
permits, permissions, licenses and franchises which are necessary for or
material to its current ownership, use, occupancy or operation of the Acquired
Assets or the conduct of the business at the Terminal, which permits,
permissions, licenses and franchises are listed on Schedule 4.8(e) hereto and
which are assignable without any consents, except as set forth on such Schedule
4.8(e). To the best of Seller=s knowledge, all of such permits, permissions,
licenses and franchises, if any, are in full force and effect and the Seller is
not in default of any conditions or requirements thereto or therefor.
. From and after August 31, 1998, Seller has not (i) incurred
any Liability relating to the Terminal, except current liabilities in the
ordinary course of business and Liabilities incurred under Contracts entered
into in the ordinary course of business; (ii) sold or transferred any assets
relating to the Terminal; (iii) except in the ordinary course of business and in
accordance with normal policy of performance review and salary increases,
increased the compensation payable to any of the Terminal's employees, directors
or officers or increased the aggregate payment of any fees or granted any
bonuses; or (iv) entered into any transaction relating to or affecting the
Terminal not in the ordinary course of business or agreed (whether or not in
writing) to do any of the foregoing.
On the LLC Interest Closing date there will be no bonuses, profit
sharing, incentives, commissions or other compensation of any kind with respect
to work done prior to the LLC Interest Closing due to or expected by present or
former employees of Seller relating to the Terminal for which Buyer or the LLC
would be liable. Schedule 4.15 sets forth a true and complete list of the names
of each employee of Seller utilized in connection with the operation of the
Terminal, and Seller has delivered to Buyer a true and correct Schedule of the
current annual compensation of each such employee.
. Except as set forth on such Schedule 4.16, Seller does not have any
commitments for capital expenditures relating to the Terminal.
..17 Environmental Protection
(a) Except as set forth on Schedule 4.17 attached hereto, to
the best knowledge of Seller, Seller has obtained all permits, licenses,
permissions, consents, certificates and other authorizations which are required
with respect to its operation of the Terminal under any Environmental Laws and
all such permits, licenses, permissions, consents, certificates and other
authorizations are listed on Schedule 4.8(e) hereto. Except as set forth on
Schedule 4.17 attached hereto, to the best knowledge of Seller, Seller has
complied in all material respects with all Environmental Laws relating to or
affecting the Terminal.
(b) Except as set forth on Schedule 4.17 attached hereto, to
the best knowledge of Seller, Seller is in compliance in all material respects
with all the terms of all permits, licenses, permissions, consents and
authorizations required by any Environmental Laws, and is in substantial
compliance with all other material limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in any Environmental Laws or contained in any regulation, code, plan,
order, decree, judgment, injunction, notice or demand letter issued, entered or
approved thereunder. Except as set forth on Schedule 4.17 attached hereto, to
the best knowledge of Seller, all business conducted at the Terminal prior to
the date hereof is or was in compliance in all material respects with all
Environmental Laws applicable thereto. To the best of Seller's knowledge, Seller
has delivered to the Buyer true and complete copies of all environmental
studies, audits, assessments and reports available to Seller made in the last
ten years by or known by Seller relating to the Terminal or Assets.
(c) Except as set forth on Schedule 4.17 attached hereto,
there is no pending or, to Seller's knowledge, threatened civil, criminal or
administrative Action, demand, claim, hearing, notice of violation,
investigation, proceeding, notice or demand letter that in any material respect
affects or applies to the Terminal, its business or assets, the services it
provided or past practices at the Terminal relating in any way to any
Environmental Laws or any regulation, code, plan, order, decree, judgment,
injunction, notice or demand letter issued, entered or approved thereunder.
(d) Except as set forth on Schedules 4.12 and 4.17 attached
hereto, to the best knowledge of Seller there are and have been no past or
present (or, to the knowledge of Seller, and not otherwise disclosed to the
Buyer during its due diligence or, based on information publicly available to
the Buyer, anticipated) events of disposal, spill or release of hazardous
substances or wastes, arising out of the use of the Terminal which may interfere
with or prevent compliance or continued compliance by Seller with any
Environmental Laws or with any regulation, code, plan, order, decree, judgment,
injunction, notice or demand letter issued, entered or approved thereunder, or
which may give rise to any common law or legal liability, or otherwise form the
basis of any claim, action, demand, suit, proceeding, hearing, notice of
violation, study or investigation, based on or related to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling, or the emission, discharge, release or threatened release into the
environment, of any petroleum product, pollutant, contaminant, chemical or
industrial, toxic or hazardous substance or waste.
..18 Employee Benefits
(a) The reporting and disclosure requirements of ERISA and the
Code, as applicable, and the group health plan continuation coverage
requirements of Section 4980B of the Code and Part 6 of Title I or ERISA, with
respect to the employees of Seller have been fulfilled in all material respects.
(b) Seller contributes to the United Service Workers of
America Security Fund which is a "multiemployer plan," as such term is defined
in Section 3(37) of ERISA covering employees at the Terminal. The terms of such
contribution are set out in Article 15 of the collective bargaining agreement
set forth on Schedule 4.10.
. Except as set forth on Schedule 4.8(e) attached hereto, no
governmental authorization, approval, order, license, permit, franchise, or
consent and no notice, registration, declaration or filing by Seller or any
shareholder of Seller with any Governmental Authority is required in connection
with the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby.
. No representation or warranty by Seller contained in this Agreement,
and no statement contained in any Schedule, Exhibit, certificate or other
instrument furnished to Buyer under or in connection with this Agreement,
contains any untrue statement of any material fact, or omits to state any
material fact necessary in order to make the statements contained herein or
therein not misleading.
4.21 Purchased LLC Interests. Immediately prior to the LLC Interest
Closing, Seller and AFFCO will own all right, title and interest in and to the
Purchased LLC Units, free and clear of any liens or encumbrances of any nature
whatsoever, and the consummation of the sale of the Purchased LLC Units to Buyer
as contemplated hereby will transfer to Buyer good and marketable title to the
Purchased LLC Interests, free and clear of any liens or encumbrances of any
nature whatsoever. The Purchased LLC Units, at the time of the LLC Interest
Closing, will represent fifty percent (50%) of the interest in the LLC owned by
each of Seller and AFFCO and in the aggregate wi11 represent fifty percent (50%)
of all outstanding LLC Units. As of the time of the LLC Interest Closing, the
organizational and governing documents of the LLC will consist of only a
Certificate of Limited Liability Company(in a form, and containing such
provisions, as is approved by Buyer) and the Limited Liability Company Agreement
as set forth in Exhibit A, with such changes therein as may have been approved
in writing by the Seller and Buyer. Immediately prior to the LLC Interest
Closing, the total outstanding LLC Units will be 100,000 with 99,000 being owned
by Seller and 1,000 being owned by AFFCO. At the time of the LLC Interest
Closing, there will not exist any rights of any Person other than Buyer to
acquire any interest in the LLC (whether from the LLC or any existing owner of
the LLC), and the LLC will not have (i) any obligation to purchase or redeem any
interest in the LLC, or (ii) any obligation or liability of any nature other
than the Assumed Obligations, its obligations under this Agreement and its
obligations under the LLC Agreement. Prior to the Formation Closing, the LLC
will not have conducted any business or operations or taken any actions other
than as necessary to consummate its organization under Delaware law.
SECTION 5. Representations and Warranties of the Buyer.
5.1 Representations and Warranties of the Buyer. The Buyer
warrants and represents to and agrees with Seller as follows:
. The Buyer is a limited partnership duly organized, validly
existing and in good standing under the laws of Delaware. .
The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been
duly authorized by the general partner of the Buyer in
accordance with its partnership agreement, and all other
action of the Buyer, including all approvals, authorizations
and ratifications, necessary to authorize the execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby have been taken. This
Agreement constitutes a binding obligation of the Buyer,
enforceable against the Buyer in accordance with its terms. No
consents of any lender, trustee or security holder of the
Buyer or any other Person is required for the Buyer to enter
into and deliver this Agreement and to consummate the
transactions contemplated hereby. .ECTION 6. Condition of
Acquired Assets and Buyer=s Due Diligence 6.1 @As Is@. Except
as may be otherwise set forth in the representations and
warranties contained in Section 4 above, the Acquired Assets
are being contributed and transferred by Seller to the LLC Aas
is@, at the date of this Agreement, and in their present
physical condition subject only to natural deterioration
between the date hereof and the Formation Closing. This
Agreement, as written, contains all of the terms of the
agreement entered into between the parties as of the date
hereof, and Buyer acknowledges that Seller has made no
representations, and held out no inducements to Buyer or the
LLC, other than those herein specifically expressed. Except as
specifically stated herein, the Buyer has not relied on any
statements, representations or warranties of Seller, either
express or implied. The Seller is not liable or bound in any
manner by any verbal or written statements pertaining to the
Acquired Assets or the operation, expense, condition or income
of the Terminal, unless the same are specifically set forth
herein. Except for those representations and warranties of
Seller which are set forth in this Agreement, Buyer is
entering into this Agreement based solely upon its own
investigation and inspection and not upon any information,
data, statements or representations, written or oral as to the
physical condition, state of repair, use, cost of operation,
or any other matter related to the Acquired Assets. 6.2
Conduct of Business. From the date of this Agreement through
the LLC Interest Closing date, Seller shall, and shall cause
the LLC to, conduct the operations and business of the
Terminal in the ordinary course consistent with the operations
and business of the Terminal as it has been conducted by
Seller during the past 12 months. 6.3 Access. From the date of
this Agreement through the LLC Interest Closing date, Seller
shall provide Buyer and its representatives full and complete
access to the Acquired Assets, the Terminal and its books and
records related thereto, at all reasonable times. SECTION 7.
Conditions of Buyers' Obligations to Close. The obligations of
Buyer under this Agreement are, at the option of the Buyer,
subject to the conditions set forth below, which conditions
may be waived by the Buyer without releasing or waiving any of
its rights hereunder. 7.1 Agreements and Conditions. On or
before the LLC Interest Closing, Seller and AFFCO shall have
effected the Formation Closing and the other transactions
contemplated by Section 2.1 of this Agreement, and shall have
complied in all material respects with all covenants,
obligations and agreements required by this Agreement to be
performed or complied with by Seller or AFFCO prior to or at
the LLC Interest Closing. 7.2 Accuracy of Representations and
Warranties. Each of the representations and warranties of the
Seller and AFFCO contained in this Agreement and in any
certificate delivered to the Buyer or to the LLC pursuant
hereto shall be true and correct in all material respects on
and as of the LLC Interest Closing, with the same force and
effect as though made on and as of the LLC Interest Closing(or
on the date to which it relates, in the case of any
representation or warranty which specifically relates to an
earlier date). 7.3 Governmental Approvals; Consents. All
consents, permits, approvals, licenses or orders from any
Governmental Authority or other third party required to be
obtained for the lawful consummation of the transactions
contemplated by this Agreement (and each other agreement
delivered or to be delivered in connection herewith) shall
have been obtained (including, without limitation, those set
forth on Schedules 4.13 and 4.19). 7.4 Material Adverse
Change. From the date of the Financial Data to the date of the
LLC Interest Closing, neither Seller nor AFFCO shall not have
suffered any change which has or could have a material adverse
effect on (i) the results of operations, business or prospects
of the Terminal, (ii) the ability of the Seller or AFFCO to
consummate the transactions contemplated by this Agreement, or
(iii) the ability of the LLC to conduct its business and
operate the Terminal after the consummation of the
transactions contemplated by this Agreement. 7.5 No Actions or
Proceedings. There shall not have been any action taken, or
any statute, rule, regulation, decree, judgment, order or
injunction proposed, promulgated, enacted, issued or entered
by any Governmental Authority or judicial authority, and there
shall be no action, suit or proceeding pending or threatened
which, in the Buyer's reasonable judgment, (i) makes, or may
make, this Agreement (and each other agreement delivered or to
be delivered in connection herewith) or any of the
transactions contemplated hereby or thereby illegal or
imposes, or may impose, material damages or penalties in
connection therewith, (ii) imposes, or may result in the
imposition of, material limitations on the ability of the
Buyer effectively to exercise full rights of ownership of the
Purchased LLC Units or makes the holding by the Buyer of the
Purchased LLC Units illegal or subject to any materially
burdensome requirement or condition, (iii) imposes, or may
result in the imposition of, material limitations on the
ability of the LLC effectively to exercise full rights of
ownership over the Acquired Assets or makes the holding by the
LLC of any of the Acquired Assets illegal or subject to any
materially burdensome requirement or condition,(iv) requires,
or may require, the Buyer or any of its affiliates to cease or
refrain from engaging in any material business,(v) otherwise
prohibits, restricts or delays the consummation of the
transactions contemplated by this Agreement (and each other
agreement delivered or to be delivered in connection
herewith), (vi) increases, or may increase, in any material
respect the liabilities or obligations of the Buyer arising
out of this Agreement (and each other agreement delivered or
to be delivered in connection herewith) or any of the other
transactions contemplated hereby and thereby, or (vii)impairs,
or may impair, the contemplated benefits to the Buyer of any
of the transactions contemplated by this Agreement (and each
other agreement delivered or to be delivered in connection
herewith). 7.6 Bring-down Certificate. The Buyer shall have
received a certificate from each of Seller and AFFCO, executed
by an executive officer of the each of Seller and AFFCO and
dated the date of the LLC Interest Closing, satisfactory in
form and substance to the Buyer and its counsel, certifying as
to the satisfaction by such parties of the conditions set
forth in Sections 7.1 and 7.2 hereof. 7.7 Good Standing
Certificates. The Buyer shall have received certificates
issued by the appropriate Governmental Authorities evidencing,
as of a recent date, the existence and good standing of (i)
each of the Seller and AFFCO in its jurisdiction of
incorporation and in the jurisdictions in which it is
qualified to do business, and (ii) the LLC in its jurisdiction
of formation and in the jurisdictions in which it is qualified
to do business. 7.8 Certified Charter Documents. The Buyer
shall have received a copy of the Certificate of Limited
Liability Company of the LLC, certified by the appropriate
Governmental Authorities. 7.9 Matters Satisfactory to the
Buyer's Counsel. All actions, proceedings, opinions and
ancillary documents required or incidental to the consummation
of the transactions contemplated by this Agreement (and each
other agreement delivered or to be delivered in connection
herewith), and all legal matters related thereto, shall be
reasonably satisfactory to counsel for the Buyer. 7.10 Due
Diligence. All due diligence (financial, legal or otherwise)
reviews of the Seller, the Terminal, the Acquired Assets and
the LLC shall have been completed and shall be satisfactory to
the Buyer and its counsel. 7.11 Corporate Action. All
corporate or other actions necessary to authorize (i) the
execution, delivery and performance by each of the Seller and
AFFCO of this Agreement (and each other agreement delivered or
to be delivered in connection herewith) and (ii) the
consummation of the transactions contemplated hereby and
thereby, shall have been duly and validly taken by the Seller
and AFFCO respectively, and shall be in full force and effect.
7.12 Secretary's Certificate. The Buyer shall have received
from the Seller and AFFCO a certificate, executed by the
Secretary or an Assistant Secretary of the Seller and AFFCO
and dated the date of the LLC Interest Closing, with respect
to the accuracy and completeness of the resolutions adopted by
the Board of Directors of the Seller and AFFCO authorizing
this Agreement(and each other agreement delivered or to be
delivered in connection herewith) and the consummation of the
transactions contemplated hereby and thereby. 7.13 Title
Reports. Prior to the date of the LLC Interest Closing, the
LLC shall have obtained, at the LLC=s expense, a commitment
for an owner's policy of title insurance for each of the
parcels of land comprising the Real Property, in which the
title insurance company issuing said commitment shall agree to
insure, without extra premium, title to such Real Property by
a standard ALTA Form with such endorsements as may be
reasonably acceptable to the Buyer, including, without
limitation, easements and appurtenances thereto, free and
clear of all leases, tenancies, rights or claims of occupancy
by others, Contracts, mortgages, Liens and other evidences of
indebtedness, except as set forth on Schedule 4.7 (a) or
approved by the Buyer and except for liens for taxes not due
and payable on the Closing Date. Within ten (10) days of
receipt of final title reports and surveys for all the real
property, the Buyer shall notify Seller of any matters which
render the title to any Real Property unsatisfactory to the
Buyer. 7.14 FIRPTA Affidavit. Buyer shall have received from
Seller all necessary certificates and notices pursuant to
Section 1445 of the Code to the effect that Seller is not a
foreign corporation or a "United States Real Property Holding
Corporation." 7.15 Antitrust Improvements Act. If applicable,
the thirty day waiting period required by the HSR Act shall
have expired or been terminated without a request from any
appropriate governmental agency for additional information or,
if additional information has been requested, the twenty day
extended waiting period shall have expired and no party shall
have received any notice from the Federal Trade Commission or
the Department of Justice that the transactions contemplated
by this Agreement violate Section 5 of the Federal Trade
Commission Act or Section 7 of the ▇▇▇▇▇▇▇ Act. 7.16
Deliveries. Buyer and the LLC shall have respectively received
the deliveries to be made by Seller and AFFCO pursuant to
Sections 9, 10.8 and 10.9. All consents shall have been
obtained and the LLC shall have received all permits,
permissions, licenses, approvals and authorizations necessary
to enable it to own and operate the Acquired Assets. 7.17
Product Storage Agreement. Buyer and the LLC have received a
duly executed Product Storage Agreement substantially in the
form set out in Schedule 8.8 providing Seller with tankage at
the Linden Terminal. 7.18 LLC Agreement. Buyer shall have
received an LLC Agreement duly executed and delivered by
Seller and AFFCO. SECTION 8. Conditions of the Seller's
Obligations to Close. The obligations of Seller under this
Agreement are, at the option of Seller, subject to the
following express conditions, which conditions may be waived
by Seller without releasing or waiving any of its rights
hereunder. 8.1 Agreements and Conditions. On or before the LLC
Interest Closing, Buyer shall have complied in all material
respects with all covenants, obligations and agreements
required by this Agreement to be performed or complied with by
Buyer prior to or at the LLC Interest Closing. 8.2 Accuracy of
Representations and Warranties. Each of the representations
and warranties of the Buyer contained in this Agreement and in
any certificate delivered to the Seller pursuant hereto shall
be true and correct in all material respects on and as of the
date of the LLC Interest Closing, with the same force and
effect as though made on and as of the date of the LLC
Interest Closing (or on the date to which it relates, in the
case of any representation or warranty which specifically
relates to an earlier date). 8.3 Governmental Approvals;
Consents. All consents, permits, approvals, licenses or orders
from any Governmental Authority or other third party required
to be obtained for the lawful consummation of the transactions
contemplated by this Agreement (and each other agreement
delivered or to be delivered in connection herewith) shall
have been obtained. 8.4 No Actions or Proceedings. There shall
not have been any action taken, or any statute, rule,
regulation, decree, judgment, order or injunction proposed,
promulgated, enacted, issued or entered by any Governmental
Authority or judicial authority, and there shall be no action,
suit or proceeding pending or threatened which, in the
reasonable judgment of the Seller, (i) makes, or may make,
this Agreement (and each other agreement delivered or to be
delivered in connection herewith) or any of the transactions
contemplated hereby or thereby illegal or imposes, or may
impose, material damages or penalties in connection
therewith,(ii) otherwise prohibits, restricts or delays the
consummation of the transactions contemplated by this
Agreement (and each other agreement delivered or to be
delivered in connection herewith),(iii) increases, or may
increase, in any material respect the liabilities or
obligations of such party arising out of this Agreement (and
each other agreement delivered or to be delivered in
connection herewith) or any of the other transactions
contemplated hereby and thereby, or (iv) impairs, or may
impair, the contemplated benefits to the Seller of any of the
transactions contemplated by this Agreement (and each other
agreement delivered or to be delivered in connection
herewith). 8.5 General Partner's Certificate. The Seller shall
have received from the Buyer a certificate, executed by its
general partner and dated the date of the LLC Interest
Closing, satisfactory in form and substance to the Seller and
its counsel, certifying as to the satisfaction of the
conditions set forth in Sections 8.1 and 8.2 hereof. 8.6
General Partner's Certificate of Authorization. The Seller
shall have received from the Buyer a certificate, executed by
the general partner of the Buyer, dated the date of the LLC
Interest Closing, with respect to the accuracy and
completeness of the resolutions adopted by the general partner
of Buyer authorizing this Agreement (and each other agreement
delivered or to be delivered in connection herewith) and the
consummation of the transactions contemplated hereby and
thereby. 8.7 Antitrust Improvements Act. If applicable, the
thirty day waiting period required by the HSR Act shall have
expired or been terminated without a request from any
appropriate governmental agency for additional information or,
if additional information has been requested, the twenty day
extended waiting period shall have expired and no party shall
have received any notice from the Federal Trade Commission or
the Department of Justice that the transactions contemplated
by this Agreement violate Section 5 of the Federal Trade
Commission Act or Section 7 of the ▇▇▇▇▇▇▇ Act. 8.8 Product
Storage Agreement. Seller shall have received a duly executed
Product Storage Agreement substantially in the form set out in
Schedule 8.8 providing Seller with tankage at the Linden
Terminal. 8.9 Deliveries. Seller shall have received the
deliveries to be made by Buyers pursuant to Sections 10.1 and
---------- 10.2 of this Agreement. 8.10 LLC Agreement. Seller
shall have received an LLC Agreement duly executed and
delivered by Buyer. . Seller agrees at the Formation Closing
to deliver to the LLC and Buyer as appropriate, the following:
. All conveyances, covenants, warranties, deeds, assignments,
bills of sale, confirmations, powers of attorney, approvals,
consents and any and all further instruments as may be
necessary, expedient or proper in order to complete any and
all conveyances, transfers and assignments provided for herein
and to convey to the LLC such title to the Acquired Assets as
Seller is obligated hereunder to convey as described in
Sections 4.7 and 4.8. . All Consents required in connection
with the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby. . Good
Standing Certificates, dated as of a recent date, from (i) the
Secretary of State of the State of New York, showing Seller
and AFFCO to be in existenance and good standing in New York,
Seller's and AFFCO=s jurisdiction of incorporation and (ii)
from the Secretary of State of the State of New Jersey,
showing Seller to be authorized to conduct business in New
Jersey. . A certificate of the Secretary or an Assistant
Secretary of each of Seller and AFFCO, in form and substance
reasonably satisfactory to the Buyer and the Buyer's title
insurer, setting forth a copy of the resolutions adopted by
the Board of Directors of Seller and AFFCO authorizing and
approving the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby. .
Possession of the Acquired Assets, including all books,
records, Contracts and other documents relating to the
Acquired Assets, required to be delivered hereunder. . Such
other documents or instruments as Buyer or the LLC or their
counsel may reasonably request. .ECTION 10. Deliveries of
Buyer, Seller, AFFCO and the LLC at the LLC Interest Closing
A. The Buyer agrees at the LLC Interest Closing to deliver to
Seller the following: . The Purchase Price to be delivered
pursuant to paragraph 3.3 hereof. 10.2 Certificate. A
certificate of the general partner of the Buyer setting forth
a copy of the resolutions adopted by the general partner of
Buyer authorizing and approving the execution and delivery of
this Agreement and the consummation of the transactions
contemplated hereby. . Such other documents or instruments as
Seller and AFFCO may reasonably request. The LLC agrees at the
LLC Interest Closing to deliver the following: . Duly executed
certificates and an LLC Agreement and such other documents or
instruments representing or in connection with the LLC
Interests to each of the Seller, AFFCO and the Buyer. . Such
other documents or instruments as either of the Buyer, the
Seller or AFFCO may reasonably request. 10.6 Product Storage
Agreement. A duly executed Product Storage Agreement
substantially in the form set out in Schedule 8.8 providing
Seller with tankage at the Linden Terminal. C. Seller and
AFFCO agree on the LLC Interest Closing to deliver the
following: 10.7 LLC Units Transfer. Such transfer documents as
Buyer may reasonably require to transfer the Purchased LLC
Units to Buyer as contemplated hereby. 10.8 Other Deliveries.
Such other documents or instruments as either of the Buyer or
LLC may reasonably request, including an executed Product
Storage Agreement substantially in the form set out in
Schedule 8.8. .ECTION 11. Additional Covenants .1.1 Contents
Report; Inventory List (a) Buyer and Seller shall conduct a
reconciliation of all pipeline fill and product stored at the
Linden Terminal (whether contained in storage or utilized as
line-fill) on the LLC Interest Closing date(the ACut-Off
Date@). At that time, an independent inspector, whose
selection shall be mutually agreed upon by the parties hereto
(the AInspector@), shall conduct a physical audit of the
amount, type and quality of product contained in each storage
tank and line at the Linden Terminal. Buyer and Seller shall
each designate a single representative to accompany the
Inspector during the course of the audit. The Inspector shall
conduct the tests described in the Inspection Schedule
attached hereto as Schedule 11. The fees and expenses of the
Inspector will be shared equally by Buyer and Seller. During
the audit, the storage tanks and lines are to be gauged in
accordance with standard industry practice. Seller shall
produce a book inventory of customer product at the Linden
terminal as of the Cut-Off Date. The results of such audit
(AReconciliation Audit@) will be provided to Buyer and Seller
promptly following the date of the LLC Interest Closing.
Seller, with the participation of Buyer, will reconcile ABook
to Physical@ for each customer and confirm the account of each
customer by letter in a form to be agreed to by the parties
with each customer. Seller will keep a true and correct record
of any changes in the customer inventory from the date of the
Reconciliation Audit to the time of the LLC Interest Closing
(AFinal Monitoring@). Any changes noted in the Final
Monitoring will be confirmed with the relevant customers in a
follow-up letter similar to the letter in the form of letter
referred to above. If the Reconciliation Audit and Final
Monitoring determine that the quantity of product as described
in the books and records of Seller as of the LLC Interest
Closing is either greater or less than the quantity of product
as determined by the Inspector in the course of the physical
audit, any shortfall or overage in the amount of product will
be entirely for the account of the Seller, and Seller shall
settle any disputes or differences with its customers
resulting from such shortfalls or overages. Seller will use
its best efforts to reach any such settlement within 30 days
after Closing and will keep Buyer appraised of the status of
such efforts. (b) At the time of the Reconciliation Audit the
Inspector will take (and appropriately label) representative
samples of product from each of the tanks and, possible, all
pipelines. The Inspector shall retain such samples for a
period of one (1) year from the LLC Interest Closing. The
retained samples, together with the tests described in
Schedule 11, shall be conclusive as between the parties as to
the quality of the product stored at the Linden Terminal as of
the LLC Interest Closing. If the samples and/or the tests as
appropriate reflect any degradation of product quality as of
the LLC Interest Closing, any liability associated therewith
shall be for the account of the Seller, who shall settle any
dispute or differences with its customers related thereto. Any
product degradation occurring after the LLC Interest Closing
will be for the account of the LLC. (c) Seller represents to
Buyer and the LLC that the pipeline fill contained in the
Terminal pipelines was owned by Seller prior to the Formation
Closing as inventory and is included in the Acquired Assets.
Buyer and Seller agree that the amount and type of such
pipeline fill shall be determined based on the report of the
independent inspector as set forth above, and that the value
of such pipeline fill shall be determined by Buyer and Seller
as soon as possible after the LLC Interest Closing, the value
as so determined will be used to calculate the final Line Fill
Price based on prices equal to the mean New York Harbor
product prices published in Platts Oilgram plus any applicable
taxes as of the LLC Interest Closing. 11.2 Sellers Employees.
Seller agrees that it will terminate the employment of all its
employees at the Terminal, it being understood that the LLC
either directly or through an affiliate of the Buyer will
offer to employ a substantial number of such employees on
substantially the same terms as they are presently employed by
Seller. In addition, on the LLC Interest Closing, Seller shall
assign and the LLC either directly or through an affiliate of
the Buyer shall assume, the collective bargaining agreement
set forth on Schedule 4.10 except for matters contained
therein relating to the pension plans, which shall be the
subject of collective bargaining between the LLC directly or
an affiliate of the Buyer and Local 355 of the Service
Employees International Union (ASEIU@). The foregoing
provision shall be subject to good faith collective bargaining
having been successfully completed between the assuming party
and Local 355-SEIU as to matters not expressly addressed in
the collective bargaining agreement set forth on Schedule
4.10. . Seller will cooperate with Buyer and the LLC, and
Seller will use its best efforts to have the officers,
directors and other employees of Seller cooperate with Buyer
and the LLC, at the LLC's or the Buyer's request and at the
Seller=s expense, on and after the LLC Interest Closing, in
furnishing information, evidence, testimony and other
assistance in connection with any actions, proceedings,
arrangements or disputes involving the Seller and/or Buyer or
the LLC and based upon contracts, arrangements, commitments or
acts of Seller which were in effect or occurred on or prior to
the Formation Closing (collectively AThird Party Disputes@).
Provided, however, that in the event such Third Party Dispute
arises out of or is related to actions (other than actions of
Seller and its affiliates), which occur subsequent to the LLC
Interest Closing, then all of Seller=s reasonable expenses
incurred hereunder should be reimbursed by the LLC. After the
Formation Closing, Seller agrees that Buyer and the LLC shall
have the right for any proper purpose to inspect and make
copies of any books, records and files in its possession
relating to the business, assets or operations of the Terminal
prior to the Formation Closing. . Seller agrees that it will
promptly transfer and deliver to the LLC any cash or other
property that Seller may receive in respect of any receivables
or other items to which the LLC is entitled by reason of this
Agreement. Seller agrees to deliver to the LLC promptly upon
receipt any mail, checks or other documents received by it to
which the LLC is entitled by reason of this Agreement
pertaining to the Acquired Assets or otherwise to the
Terminal, as conducted by the LLC, or any of the Assumed
Liabilities. The LLC shall agree to deliver to Seller any
mail, cash, or other receivables or other items which it
receives to which it is not entitled by reason of this
Agreement or otherwise and to which Seller is entitled. .
Buyer, Seller and AFFCO agree at any time and from time to
time after the Formation Closing, upon the request of any
other party, that they shall, and shall cause the LLC to, do,
execute, acknowledge and deliver, or to cause to be done,
executed, acknowledged and delivered, all such further acts,
assignments, transfers, powers of attorney and assurances as
may be required for the better assigning, transferring,
conveying and confirming to the other party, or to its
successors and assigns, of any or all of the Acquired Assets
or the Purchased LLC Units and to carry out the terms and
conditions of this Agreement; provided, however, that each
party shall pay its own expenses incurred in connection
therewith. .ECTION 12. Indemnification . Seller agrees to
indemnify Buyer and the LLC against and hold them harmless
from any and all Damages which Buyer or the LLC may sustain at
any time by reason of any of the following, whether contingent
or absolute, direct or indirect, known or unknown, matured or
unmatured and regardless of when discovered or asserted: (i)
noncompliance with any applicable bulk sales or transfer law,
(ii) any Liability or Contract of, or claim against,
Seller,(including but not limited to Liabilities for Taxes),
that are not Assumed Obligations, (iii) any Liability or claim
made by a third party (including any Government Authority)
arising in any way from any product manufactured or sold, or
service rendered, or action taken or omitted by, or relating
to the operations of, Seller, the Terminal or the Acquired
Assets on or prior to the LLC Interest Closing, (iv) any
Liability or claim (including remedial, removal, response,
abatement, clean-up, investigation and monitoring costs and
any other related costs and expenses) under any Environmental
Laws or environmental permits or with respect to any Hazardous
Material or waste relating to or resulting from any event,
action or failure to act which occurred on or prior to the LLC
Interest Closing, including, without limitation, those listed
on Schedule 4.17 attached hereto, or (v) the breach of or
failure to comply with any of the warranties, representations,
conditions, covenants or agreements of Seller contained in
this Agreement or in any agreement or document delivered
pursuant hereto or in connection herewith, or arising out of
the consummation of the transactions contemplated hereby. . In
connection with the Formation Closing, and thereafter the LLC
shall agree, to indemnify and hold Seller harmless from and
against any and all Damages which Seller may sustain at any
time by reason of any Assumed Obligation, or the LLC's
ownership or operation of the Terminal after the LLC Interest
Closing. 12.3 Indemnification by the Buyer. Buyer agrees to
indemnify and hold Seller harmless from and against any and
all Damages which Seller may sustain at any time by reason of
the breach of or failure to comply with any warranties,
representations, conditions, covenants or agreements of or by
Buyer contained in this Agreement or in any agreement,
certificate or document delivered pursuant to or in connection
with this Agreement or arising out of the consummation of the
transactions contemplated hereby. . In the event that any
claim is asserted against any party hereto, or any party
hereto is made a party defendant in any action or proceeding,
and such claim, action or proceeding involves a matter which
is the subject of this indemnification, then such party (an
"Indemnified Party") shall give written notice to the other
party hereto (the "Indemnifying Party") of such claim, action
or proceeding, and such Indemnifying Party shall have the
right to join in the defense of said claim, action or
proceeding at such Indemnifying Party's own cost and expense
and, if the Indemnifying Party agrees in writing to be bound
by and to promptly pay the full amount of any final judgment
from which no further appeal may be taken and if the
Indemnified Party is reasonably assured of the Indemnifying
Party's ability to satisfy such agreement, then at the option
of the Indemnifying Party, such Indemnifying Party may take
over the defense of such claim, action or proceeding, except
that, in such case, the Indemnified Party shall have the right
to join in the defense of said claim, action or proceeding at
its own cost and expense. Any indemnification obligation
contained herein shall also include the obligation to
indemnify the Indemnified Party with respect to any amounts
expended by the Indemnified Party to enforce and collect on
its indemnification rights, including legal fees and expenses.
The parties agree to consult and cooperate reasonably with
each other and their respective consultants, professionals or
other experts, if any in connection with the joint defense of
any indemnified obligation hereunder, or in connection with
any investigations or settlement proceedings relating to such
matters. 12.5 Right of Setoff. Each Indemnified Party may
offset any amounts to which it is entitled to indemnity
hereunder against any amounts owed by the Indemnified Party to
the Indemnifying Party. .ECTION 13. Survival of
Representations; Effect of Certificates 13.1 Survival
Representations. The parties hereto agree that all
representations, warranties, covenants, conditions and
agreements contained herein or in any instrument or other
document delivered pursuant to this Agreement or in connection
with the transactions contemplated hereby shall survive the
execution and delivery of this Agreement, the consummation of
the transactions contemplated hereby and any investigation or
audit made by any party hereto. 13.2 Effect of Certificates.
Each statement contained in any certificate delivered in
connection with this Agreement or the consummation of the
transactions contemplated hereby shall constitute the
representation, warranty and agreement of the party delivering
such certificate and shall have the same force and effect as
if it had been incorporated into this Agreement as a
representation, warranty and agreement by such party. . No
part of the fees and disbursements of the counsel, accountants
or auditors retained by any party in connection with the
negotiation, preparation, execution and performance of this
Agreement shall be paid or assumed by any other party, it
being the intent of the parties that each party shall bear
such fees. . Buyer, on the one hand, and Seller, on the other
hand, each represents to the other that no broker or finder
has been involved with any of the transactions relating to
this Agreement. In the event of a claim by any broker or
finder that such broker or finder represented or was retained
by Seller, on the one hand, or Buyer, on the other hand, in
connection herewith, Seller or Buyer, as the case may be,
agrees to indemnify and hold the other harmless from and
against any and all loss, liability, cost, damage, claim and
expense, including, without limitation, attorneys' fees and
disbursements, which may be incurred in connection with such
claim. . All notices, requests, demands and other
communications provided for by this Agreement shall be in
writing and shall be deemed to have been given when hand
delivered to the person to receive such notice, or when
received if sent by telecopier or by same day or overnight
recognized commercial courier service or by certified, return
receipt requested, United States mail, at the address of the
parties stated below or to such changed address as such party
may have fixed by notice: To Seller: Northville Industries
Corp. and AFFCO ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇ Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: Northville Industries Corp.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
and ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.C.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
To Buyer: Support Terminal Operating Partnership, L.P.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman & Chief
Executive Officer
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: Mr. ▇▇▇▇ ▇▇▇▇▇▇▇
President
Support Terminal Services, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
and Fulbright & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
To the LLC TO ALL PARTIES SET FORTH ABOVE
AS PROVIDED
provided, that any notice of change of address shall be effective only upon
receipt.
.ECTION 17. Miscellaneous
. This Agreement, including the Exhibits and Schedules hereto, sets
forth the entire agreement and understanding among Seller, AFFCO and the Buyer
with respect to the transactions contemplated hereby and merges and supersedes
all prior discussions, agreements and understandings of every kind and nature
among them as to the subject matter hereof, and no party shall be bound by any
condition, definition, warranty or representation other than as expressly
provided for in this Agreement or as may be on a date on or subsequent to the
date hereof duly set forth in writing signed by each party which is to be bound
thereby. Unless otherwise expressly defined, terms defined in this Agreement
shall have the same meanings when used in any Exhibit or Schedule and terms
defined in any Exhibit or Schedule shall have the same meanings when used in the
Agreement or in any other Exhibit or Schedule. This Agreement (including the
Exhibits and Schedules hereto) shall not be changed, modified or amended except
by a writing signed by each party to be charged and this Agreement may not be
discharged except by performance in accordance with its terms or by a writing
signed by each party to be charged.
. Transfer taxes payable to the state of New Jersey on the sale or
transfer of the Real Property contemplated hereby, if any, shall be paid by
Seller.
. THIS AGREEMENT AND ITS VALIDITY, CONSTRUCTION AND PERFORMANCE SHALL
BE GOVERNED IN ALL RESPECTS BY THE LAWS OF NEW YORK, WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT FOR THE PROVISIONS OF THIS AGREEMENT
WHICH RELATE TO THE TRANSFER OF THE REAL PROPERTY, WHICH SHALL BE GOVERNED BY
NEW JERSEY REAL PROPERTY LAW AND EXCEPT FOR MATTERS RELATING TO THE LLC
INTERESTS TO THE EXTENT GOVERNED BY THE DELAWARE LIMITED LIABILITY COMPANY ACT.
. This Agreement shall be binding upon and shall inure to the benefit
of the Buyer, AFFCO and Seller and their respective successors and permitted
assigns. Prior to LLC Interest Closing, the Agreement may not be assigned by
Seller, AFFCO or the Buyer except with the prior written consent of the other
parties; provided, however, that without Seller's or AFFCO=s consent, the Buyer
may assign this Agreement and its rights and obligations hereunder to any
subsidiary or affiliate of the Buyer. Except as expressly provided herein and
for all rights and benefits which shall inure to the Buyer or the LLC, nothing
herein contained shall confer or is intended to confer on any third party or
entity which is not a party to this Agreement any rights under this Agreement.
. Whenever the context requires, the use in this Agreement of a pronoun
of any gender shall be deemed to refer also to any other gender, and the use of
the singular shall be deemed to refer also to the plural.
. Seller and the Buyer agree that they will consult with each other
before issuing any press releases or otherwise making any public statements with
respect to this Agreement or the transactions contemplated hereby and shall not
issue any press release or make any public statement prior to such consultation,
except as may be required by law.
. The headings in the sections, paragraphs, Schedules and Exhibits of
this Agreement are inserted for convenience of reference only and shall not
constitute a part hereof. The words "herein," "hereof," "hereto" and hereunder,"
and other words of similar import refer to this Agreement as a whole and not to
any particular provision of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed on the day and year first above written.
NORTHVILLE INDUSTRIES CORP.
By:
Name:
Title:
AFFCO CORP.
By: ___________________________
Name:
Title:
SUPPORT TERMINAL OPERATING
PARTNERSHIP, L.P.
By:
Name:
Title: