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EXHIBIT 10.6
ASSET PURCHASE AND SALE AGREEMENT
BETWEEN
▇▇▇▇▇ ENERGY, INCORPORATED
AND
▇▇▇▇▇▇▇▇ ENERGY VENTURES, INC.
JULY 31, 2000
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ASSET PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT, including any and all exhibits and
schedules attached hereto and incorporated by reference herein ("Agreement") is
made and entered into as of the 31st day of July, 2000, by and between ▇▇▇▇▇
Energy, Incorporated, a Delaware corporation, Wyco New Haven, Inc., a Delaware
corporation, and Wym Corp., a Delaware corporation (collectively, "Seller"), and
▇▇▇▇▇▇▇▇ Energy Ventures, Inc. a Delaware corporation ("Buyer"), sometimes
referred to herein collectively as "Parties" or individually as "Party".
WITNESSETH
WHEREAS, Seller is the owner of certain petroleum products facilities in
and around New Haven and Hamden, Connecticut; and
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase
from Seller such facilities, upon the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the premises and mutual
representations, warranties, covenants, and promises contained herein, the
Parties agree as follows:
DEFINITIONS
"Affiliates" means with respect to any individual or legal business
entity, any Person whom directly or indirectly controls, is controlled by, or is
under a common control with such individual or legal business entity. The term
"control" (including the terms "controlled by" and "under common control with")
as used in the preceding sentence means the possession, directly or indirectly,
of the power to direct or cause the direction of management and policies of a
Person.
"Assigned Contracts" has the meaning set forth in Section 5.9.
"Assigned Permits" has the meaning set forth in Section 5.7.
"Best of Seller's Knowledge" means the knowledge of Seller's current
officers and directors who shall make reasonable efforts to discover and deliver
the document, fact or information to Buyer.
"Buyer Indemnitees" has the meaning set forth in Section 11.2.
"Claim Notice" has the meaning set forth in Section 11.1.
"Claims" has the meaning set forth in Section 11.2.
"Closing" has the meaning set forth in Section 3.1.
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"Closing Date" means the date as set forth and calculated in Section 3.1.
"Code" means the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder.
"Cure Period" has the meaning set forth in Section 4.3.2.
"Disclosure Schedule" has the meaning set forth in Article 5.
"Environmental Law or Environmental Laws" means all applicable common law,
federal, state, or local law, including any plans, rules, regulations, orders or
ordinances adopted, or other criteria and guidelines promulgated pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C.
Section 9601 et seq.; the Toxic Substance Control Act, 15 U.S.C. Section 2601 et
seq.; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1802 et
seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et
seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; or other applicable
federal, state, or local law, including any plans, rules, regulations, orders,
or ordinances adopted pursuant to the preceding laws or other similar laws,
regulations, rules, orders, or ordinances that are currently in effect and as
may be amended or created in the future relating to the protection of human
health and the environment.
"Environmental Permit" has the meaning set forth in Section 5.13.
"GAAP" means generally accepted accounting principles in the United States
of America consistently applied for the time periods involved.
"Governmental Authority" means the United States and any state, county,
city or other political subdivision, agency, department, board, court or
instrumentality that has jurisdiction over the asset, entity or matter in
question.
"Hazardous Materials" means any wastes, substances, or materials, whether
solid, liquids or gases, that are deemed hazardous, toxic, pollutants or
contaminants, including, but not limited to, substances defined as "hazardous
wastes", "hazardous materials," "restricted hazardous materials," "extremely
hazardous substances" or "toxic substances" in any of the Environmental Laws.
"Hazardous Materials" also includes, but is not limited to, (a) any
petrochemical or petroleum products, oil or coal ash, radioactive materials,
radon gas, asbestos in any form that is or could become friable, urea
formaldehyde foam insulation and transformers or other equipment that contain
dielectric fluid which may contain levels of regulated polychlorinated
biphenyls; and (b) any other chemical, material or substance, or combination
thereof, exposure to which is prohibited, limited or regulated by any applicable
Environmental Law.
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976
(as amended) or any successor law, and regulations and rules issued pursuant to
the Act or any successor law.
"Indemnified Party" has the meaning set forth in Section 11.7.
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"Indemnifying Party" has the meaning set forth in Section 11.7.
"Land" has the meaning set forth in Section 1.1 (a).
"Legal Requirement" means any federal, state, local, municipal or other
administrative order, constitution, law, ordinance, ruling, regulation or
statute (as to representations and warranties set forth in this Agreement, such
orders, constitutions, laws, ordinances, rulings, regulations or statutes in
effect as of the date such representation or warranty is made).
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, governmental agency or authority, or any other
entity.
"'Personal Property" has the meaning set forth in Section 1.1(b).
"Product" or "Products" means all refined petroleum products, including
additives injected into those refined petroleum products, and asphalt.
"Purchase Price" has the meaning set forth in Section 2.2.
"Release" means any emission, spill, seepage, leak, escape, leaching,
discharge, injection, pumping, pouring, emptying, dumping, disposing of
Hazardous Materials from any source into or upon the environment (including the
air, soil, surface water and groundwater at, on, above or under the Subject
Property).
"Seller Indemnitees" has the meaning set forth in Section 11.3.
"Subject Property" refers to the assets to be sold and purchased under
this Agreement and has the meaning set forth in Section 1.1.
"Survival Period" has the meaning set forth in Section 11.1.
"Title Company" has the meaning given to it in Section 3.4.1(l).
"Title Commitment" has the meaning set forth in Section 4.3.2.
"Title Defect" has the meaning set forth in Section 4.3.2.
ARTICLE I
DESCRIPTION OF PROPERTY
1.1 Description of Property. The facilities, properties, and other assets
covered by this Agreement (hereinafter referred to as the "Subject Property")
consist of the petroleum products facilities located in or near New Haven and
Hamden, Connecticut and include, without limitation, the following:
(a) the fee simple interest in the four (4) tracts of land ("Land")
described on Exhibit A, attached hereto and incorporated herein, together with
(1) any and all appurtenant surface
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leases, easements, rights of way, permits and licenses granted, to the fee owner
of the Land and which, benefit or pertain to the Land; and (2) any and all
buildings, structures, fixtures and other real property improvements situated on
the Land;
(b) the personal property and equipment ("Personal Property") currently
used on or in connection with the operation, repair and maintenance of the
Subject Property, as described on Exhibit B hereto, and including, without
limitation, (1) any and all piping, valves, fittings, meters, tanks, pumps,
additive equipment and other engineering works and (2) appurtenant equipment,
utilities, and facilities, including, but not limited to, the existing pipelines
between the various tracts of the Land used for the delivery/ transfer of
Products owned by Seller; and
(c) the Assigned Contracts and Assigned Permits as described on
Exhibit C.
ARTICLE 2
PURCHASE AND SALE OF THE SUBJECT PROPERTY
2.1 Agreement to Sell and Purchase the Subject Property. Upon the terms and
subject to the conditions set forth in this Agreement, at the Closing, Seller
shall sell, transfer, convey, assign and deliver to Buyer, and Buyer shall
purchase, acquire and accept from Seller, effective as of 12:01 a.m. local time
at the location of the Subject Property, on the Closing Date, the Subject
Property.
2.2 Purchase Price. Upon the terms and subject to the conditions set forth in
this Agreement, in consideration of the sale, conveyance, assignment, transfer
and delivery of the Subject Property, Buyer shall pay to Seller in cash a total
amount of $30,825,000 for the Subject Property ("Purchase Price"), subject to
any adjustments, prorations and deductions as provided herein, to be delivered
at the Closing by wire transfer of immediately available funds to such account
as Seller shall designate to Buyer in writing not less than three (3) business
days prior to the Closing Date. Notwithstanding the foregoing, the Parties agree
that at Closing, the following specified portion of the Purchase Price, to-wit:
$500,000 shall be paid and delivered by Buyer into escrow pursuant to and
subject to the terms of that certain "Title Defects Escrow Agreement" in the
form attached hereto as Exhibit D.
ARTICLE 3
CLOSING
3.1 Closing. The closing of the sale and purchase contemplated by this
Agreement, as evidenced by the act of Buyer and Seller delivering to the other
the instruments specified in Section 3.2 ("Closing"), shall take place at the
offices of Seller on August 31, 2000 or within five (5) business days of the
satisfaction or waiver of the last condition to Closing contained in Article 8
or Article 9, whichever is later ("Closing Date"), or such other date or place
as Buyer and Seller may mutually agree to in writing.
3.2 HSR Act. The Buyer and the Seller shall, in cooperation with each other,
each file or cause to be filed with the DOJ and the FTC any reports or
notifications that may be required to
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be filed by them under the HSR Act in connection with the transactions
contemplated by this Agreement. The Buyer and Seller shall each promptly comply
with all requests for further documents and information made by the DOJ or the
FTC, and shall furnish to the other all such information in its possession as
may be necessary for the completion of the reports or notifications filed by the
other. All fees due from a Party to the FTC or the DOJ under the HSR Act in
connection with the filing of any of those reports or notifications shall be
borne by the Party making such filing.
3.3 Schedules. The Parties recognize that the Exhibits and Schedules attached to
this Agreement will not be finalized at the time that this Agreement is executed
and that the completion of mutually-acceptable final Exhibits and Schedules
prior to Closing shall be conditions of each Party to close. The Parties agree
that any representations or warranties herein that relate to the accuracy or
completeness of any Exhibit or Schedule attached to this Agreement shall be
deemed to be made with respect to and to apply only to such Exhibits and
Schedules as the Parties agree are final. The Parties further agree to endeavor
in good faith to finalize all such Exhibits and Schedules prior to Closing.
3.4 Deliveries at Closing.
3.4.1 Seller's Deliveries. At the Closing, Seller shall deliver, or cause
to be delivered, to Buyer the following in form and substance satisfactory to
Buyer:
(a) Seller-executed Warranty Deed(s) conveying the Land to Buyer, in
the form set forth in Exhibit E;
(b) A Seller-executed ▇▇▇▇ of Sale transferring the Personal
Property to Buyer, in the form set forth in Exhibit F;
(c) A Seller-executed Assignment and Assumption Agreement assigning
the Assigned Contracts and Assigned Permits to Buyer, in the form set
forth in Exhibit G;
(d) A Seller-executed Transition Services Agreement inform set forth
in Exhibit H;
(e) such documents as required, including mortgage releases, and
UCC-3 filings as appropriate, to evidence the release of any and all
claims and security interests upon the Seller's interest in the Subject
Property;
(f) all written or electronically-stored files, maps, records,
financial statements and information documents, returns, assessments,
renditions, reports and other instruments in the possession or control of
Seller related to the Subject Property, including, without limitation,
those related to construction, acquisition, maintenance, operation or
regulatory compliance of the Subject Property;
(g) copy of duly-adopted resolutions of the Board of Directors of
Seller approving the execution, delivery and performance of this Agreement
certified by an officer as being true and correct and not modified,
withdrawn or amended as of the time of Closing;
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(h) officer's certificate that Seller's representations and
warranties are true and correct as of the time of Closing;
(i) a foreign ownership affidavit pursuant to Section 1445 of the
Internal Revenue Code in the form set forth in Exhibit I;
(j) document(s) evidencing that any and all persons or entities with
preferential purchase rights, options or other rights to purchase or
acquire any interest in the Subject Property, in whole or in part, as set
forth in the Disclosure Schedule, have been given notice of their right to
exercise the same, together with evidence of a waiver of such rights or a
certificate from Seller that such rights have not been exercised.
(k) schedule and certificates of insurance of property and liability
insurance and schedule of surety bonds in effect regarding the right,
title and interest of the Seller in the Subject Property for the period
immediately prior to the Closing, including types of coverage,
deductibles, limits, policy numbers, period of coverage and names of
insurance companies;
(l) affidavit, in a form acceptable to the title company selected by
Buyer to provide title insurance on the Subject Property for Buyer (the
"Title Company"), providing that all bills have been paid that may create
workmans' or materialmans' liens on the Subject Property and any other
document from Seller reasonably required by the Title Company for the
issuance to Buyer of a policy of title insurance covering the Land; and
3.4.2 Buyer's Deliveries. At the Closing, Buyer shall deliver to Seller
the following in form and substance satisfactory to Seller:
(a) The Purchase Price, subject to any adjustments, prorations,
additions or deductions as set forth in this Agreement;
(b) Assignment and Assumption Agreement, in the form of Exhibit F,
executed by Buyer, whereby Buyer or its designee assumes all of Seller's
rights and obligations under the Assigned Contracts and Assigned Permits
from and after Closing;
(c) a Buyer-executed Transition Services Agreement in the form set
forth in Exhibit H;
(d) officer's certificate that Buyer's representations and
warranties are true and correct as of the Closing Date; and
(e) a copy of duly-adopted resolutions of the Board of Directors of
Buyer approving the execution, delivery and performance of this Agreement
certified by an officer as being true and correct and not modified,
withdrawn or amended as of the time of Closing.
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3.5 Prorations and Adjustments.
3.5.1 Except as otherwise provided in this Section 3.3 or in Section 7.3,
all taxes (other than taxes based on income), assessments, utilities, rents and
other expenses and revenues arising out of or relating to the Subject Property
shall be prorated between Seller and Buyer as of 12:01 a.m. on the Closing Date.
Buyer and Seller hereby agree to fully cooperate, following the Closing, in the
distribution of any such expense(s) and/or revenue(s) the amount of which is
unknown as of the Closing Date. Seller will deliver to Buyer, within 90 days of
the Closing Date, a report showing the distribution of any such expenses and/or
revenues as of the Closing Date. Within 10 days of the date of delivery of the
report, Buyer will notify Seller of any disagreement with said report with
details of the disagreement. Failure to notify Seller within said 10 days will
constitute Buyer's agreement with the report. If the Parties cannot resolve the
disagreement within an additional 10 days, either party may submit Seller's
report and Buyer's notification, together with any material deemed relevant by
the Parties, to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP's New York, New York office, with a request
to resolve the disagreement as soon as practicable. The Parties will cooperate
with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ in the resolution of the disagreement and each party shall
pay for 50% of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇'▇ fees and expenses. All amounts of funds which
are either undisputed or for which any dispute has been resolved shall be paid
to the Party entitled thereto within five (5) days of the earliest date that
such funds are determined to be undisputed or that any dispute respecting such
funds is resolved. The decision of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ will be final and
non-appealable to any court or other judicial or non-judicial body. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇'▇ determination shall be in writing and the Party which is determined
to owe funds to the other Party shall pay all such funds within 10 days of such
determination.
3.5.2 That portion of real estate, personal property, and other ad valorem
taxes assessed for all years prior to 2000 against the Subject Property shall be
the responsibility of Seller. That portion of real estate, personal property,
and other ad valorem taxes assessed for the year 2000 against the Subject
Property which is payable by Seller shall be prorated between the Parties to the
Closing Date, with Seller being responsible for the prorated portion of such
taxes up to the Closing Date, and Buyer being responsible for its prorated
portion of such taxes on the Closing Date and thereafter. In the event such
taxes are payable in arrears, Seller will pay Buyer, at Closing, Seller's
estimated proportionate share of 2000 real estate, personal property, and ad
valorem taxes, such estimate being based on the latest assessment and Buyer
shall be responsible for payment of all such taxes for the 2000 tax year and
upon payment thereof, necessary corrections to the estimated 2000 amount paid at
Closing by Seller will be paid promptly by the appropriate Party to the other
Party. In the event that such taxes are payable in advance, Buyer will reimburse
to Seller, at Closing, the amount of such prepaid taxes which is attributable to
the period on and after the Closing Date.
3.5.3 Buyer shall pay at Closing: (a) all recording fees; (b) fifty
percent (50%) of all survey fees; (c) one hundred percent (100%) of any and all
costs related to any required environmental assessment(s); (d) fifty percent
(50%) of all fees charged by the Title Company related to preparing the title
commitment on the Land and all premiums charged by the Title Company for title
insurance policies and any endorsements thereto desired by Buyer related to the
Land; and (e) fifty percent (50%) of escrow agent fees, if any.
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3.5.4 Seller shall pay at Closing: (a) all sales, use, excise or personal
property transfer taxes related to the Subject Property; (b) fifty percent (50%)
of all survey fees; (c) fifty percent (50%) of all fees charged by the Title
Company related to preparing the Title Commitment on the Land and all premiums
charged by the Title Company for title insurance policies and any endorsements
thereto desired by Buyer related to the Land; (d) fifty percent (50%) of escrow
agent fees, if any.
ARTICLE 4
INSPECTIONS AND APPROVAL OF TITLE
4.1 Access to Information. Buyer's and its Affiliates' respective officers,
employees, representatives, and agents shall have access to all of the records
of Seller pertaining to the ownership, use and/or operation of the Subject
Property in Seller's possession or capable of being obtained by Seller by
request, including, without limitation, records, books, contracts, accounting
records and information, financial records and information, commitments,
reports, permits, applications, monitoring reports, environmental assessments/
audits, studies, correspondence and any other relevant data at all reasonable
times from the date hereof to the Closing in order that Buyer may make such
technical, legal, financial, accounting, environmental or other review or
investigation as Buyer deems desirable; and the officers, employees,
representatives, and agents of Seller shall permit such access or furnish Buyer
with such data or information as may be reasonably requested by Buyer,
including, but not limited to, access to such information maintained in
electronic format. Buyer may inspect and, at its own expense, make copies of
said data and information, as Buyer deems reasonably necessary. Seller shall
also make reasonably available its officers, agents, employees and other
representatives, during normal business hours, to discuss with Buyer and Buyer's
representatives any and all information relating to the Subject Property and to
the ownership, use and operation thereof.
4.2 Access to the Subject Property. At Buyer's sole cost, risk, and expense,
Seller shall provide Buyer and its Affiliates' respective employees,
representatives and agents with access to the Subject Property at all reasonable
times from the date hereof to the Closing for the purpose of inspection, review,
and testing of the Subject Property, including the physical condition of the
Subject Property, environmental status (including, but not limited to,
conducting an environmental assessment), availability of utilities, and any and
all other test and inspections which Buyer deems pertinent, convenient or
desirable in order to make its own evaluation of the Subject Property.
4.3 Real Property Title.
4.3.1 Survey.
(a) Within three (3) days following the date of this Agreement,
Seller shall make available to Buyer legible copies of any and all surveys,
plats and drawings, prepared prior to the date of this Agreement, in Seller's
possession, of the outer boundaries of the Land, of any existing pipelines
between any of the four tracts of Land, and of any utility easements, lines and
facilities associated with the Subject Property.
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(b) Buyer shall cause metes and bounds surveys to be made of the
Land by a registered surveyor. Each such survey shall be certified to Buyer,
Seller and the Title Company. The metes and bounds description of these surveys
shall then become the fee property legal descriptions for each tract of the Land
Exhibit, superseding any earlier legal descriptions Exhibit.
4.3.2 Title Defects. Promptly following the execution of this Agreement,
Buyer shall order title commitments from the Title Company ("Title Commitment")
with respect to the Land. Within ten (10) days following Buyer's receipt of the
Title Commitments and within five (5) days of Buyer's receipt of any amendment
to any such Title Commitment showing any new title matter, Buyer shall notify
Seller in writing as to whether Buyer objects to any title matter which appears
on such Title Commitments and which affects the marketability of title to the
Land ("Title Defect"). Seller shall use its commercially reasonable efforts to
remove or cure any Title Defect during either the thirty (30) day period after
receipt of Buyer's notice or the twelfth day preceding the Closing Date,
whichever date occurs first ("Cure Period") to remedy Title Defects. In the
event that Seller fails to cure the Title Defects to Buyer's satisfaction within
the Cure Period, Buyer shall have the option, exercisable within ten (10) days
from the expiration of the Cure Period, to:
(a) accept the status of the title subject to the Title Defects and
proceed with the performance of its obligations as set forth in this Agreement,
in which case the Warranty Deeds in the form of Exhibit D will be modified to
incorporate the Title Defects as exceptions to Seller's warranties thereunder;
(b) extend the Cure Period for a reasonable period mutually
agreeable to the Parties up to, but not beyond, the first business day preceding
the Closing Date to give Seller an additional opportunity to cure the Title
Defects (at the end of which period, if Seller still has not cured the Title
Defect to Buyer's satisfaction, Buyer shall have until Closing to elect option
(a), (c), (d) or (e) in Section 4.3.2; (c) attempt to negotiate with the Seller
to modify this Agreement in a manner providing for the elimination of that
portion of the Land which is affected by the Title Defect in exchange for a
suitable reduction in the Purchase Price;
(c) close and treat with such Title Defects under Section 11.2 of
this Agreement as Seller's indemnity obligations; or
(d) if the Title Defect (whether one or more) is material, in the
reasonable opinion of Buyer, with respect to the Land, terminate this Agreement
by giving written notice to Seller;
4.3.3 Standards of Title. No matter shall be deemed to be a Title Defect
if, under the Standards of Title promulgated by the Connecticut Bar Association
in effect at the time of Closing, such matter does not render title unmarketable
or if title is insurable by a title insurance company without an exception being
taken for such matter.
ARTICLE 5
REPRESENTATIONS OF SELLER
Subject to the disclosures as provided by Seller on Schedule A, if any
("Disclosure Schedule"), and subject to the following: The execution, delivery
and performance of this
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Agreement shall be subject to the reserved power of Seller's Board of Directors
and shareholders to determine, prior to Closing, whether or not to approve and
authorize this Agreement. Such approval, if given, shall, at the time of
Closing, constitute the due and valid authorization of the execution, delivery
and performance by Seller's Board of Directors and shareholders in accordance
with Section 271 (concerning the sale of assets) of the General Corporation Law
of the State of Delaware, Seller represents and warrants to Buyer as of the date
hereof and as of the Closing Date that:
5.1 Organization, Qualification and Good Standing. Seller (a) is a Delaware
corporation, duly organized, validly existing, and in good standing under the
laws of the State of Delaware, (b) is duly qualified to transact business and is
in good standing under the laws of each jurisdiction where the conduct of its
business requires it to so qualify, and (c) has all the requisite company power
and authority to own or hold under lease its property and assets, and to
transact the business in which it is engaged.
5.2 Authority. This Agreement has been duly executed and delivered by Seller.
Seller has the full corporate power and authority to enter into this Agreement,
to make the representations, warranties, covenants and agreements, and to
consummate the transactions herein contemplated.
5.3 Legally Binding. This Agreement and each of the documents described herein
to be executed by Seller constitute legal, valid and binding obligations of
Seller, enforceable against Seller in accordance with their terms, except as
enforcement may be limited by bankruptcy, insolvency, or other similar laws
affecting the enforceability of creditors' rights in general, and to moratorium
laws from time to time in effect. The enforceability of Seller's obligations
under this Agreement is subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
5.4 No Violation or Breach Resulting from this Transaction. Neither the
execution and delivery of this Agreement by Seller nor the consummation by
Seller of the transactions contemplated hereby:
(a) will constitute a violation or breach by Seller of any judgment,
order, writ, injunction or decree issued against or imposed upon Seller;
(b) will, to the Best of Seller's Knowledge, result in the violation by
Seller of any applicable law, order, rule or regulation or decree of any
governmental or quasi-governmental authority; or
(c) will constitute a breach of or default under (or an event that, with
giving of notice or passage of time or both, would constitute a breach of or
default under), or will result in the termination of, or accelerate the
performance required by, or result in the creation or imposition of any security
interest, lien, charge or other encumbrance upon the Subject Property under any
material contract, instrument or agreement to which Seller is a party or by
which Seller or any of its assets is bound.
5.5 No Consent Required. Except as may be required by the HSR Act or by the
Connecticut Commissioner of Environmental Protection under Section 22a-134 of
the Connecticut General Statutes, no approval, notification, permits, licenses,
authorization, or other action by, to or from, or filing
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with, any Governmental Authority or any third party is required in connection
with the execution, delivery, and performance by Seller of this Agreement.
5.6 Governmental/Regulatory Notices/Judicial Actions.
(a) To the Best of Seller's Knowledge there are no material violations of
or instances of noncompliance with any laws, rules, regulations, ordinances,
orders, judgments and decrees applicable to Seller's ownership, use, and
operation of the Subject Property or the condition thereof;
(b) There are no pending, or to the Best of Seller's Knowledge threatened,
claims, actions, suits, proceedings, or investigations by or before any court or
Governmental Authority against Seller with respect to its interest in the
Subject Property or the use or operations thereof;
(c) There are no judgments, orders, writs or injunctions of any
Governmental Authority presently in effect against Seller with respect to its
interest in the Subject Property; and
(d) There are no pending condemnation or similar proceedings affecting the
Subject Property or any portion thereof or, to the Best of Seller's Knowledge,
any such action presently threatened against all or any portion of the Subject
Property.
(e) With respect to that certain Terminalling Agreement, Contract No.
E-533, between Motiva Enterprises, L.L.C. ("Motiva") and Seller (the
"Terminalling Agreement"), Seller believed and continues to believe: (1) that it
had the contractual right, under the terms of the Terminalling Agreement, to
terminate such Terminalling Agreement upon its determination of a material
breach thereof by Motiva; (2) that Seller made the determination that Motiva was
in material breach of the Terminalling Agreement; and (3) that based upon its
determination of Motiva's material breach of the Terminalling Agreement, Seller
terminated that agreement.
5.7 Permits, Licenses and Authorizations. All permits, licenses, and
authorizations required for Seller to own and/or operate the Subject Property in
all material respects in the manner and in the areas in which the Subject
Property is presently being used or operated, which such permits, licenses and
authorizations include, without limitation, all permits, licenses agreements,
leases, prescriptive rights and/or any other contracts or permits, whether known
or unknown, which provide for or affect the rights and permission to utilize the
Subject Property ("Assigned Permits") (a) have been granted by the appropriate
Governmental Authority, (b) are valid and in full force and effect, and (c)
copies thereof have been provided, or within five (5) days after execution of
this Agreement will be made available, to Buyer.
5.8 Taxes. All returns required to be filed pursuant to federal, state or local
laws with respect to the ownership and/or operation of the Subject Property have
been or will be timely filed, and all taxes (other than income taxes), including
any interest, penalties or additions attributable thereto, imposed or assessed,
whether federal, state or local, on the Subject Property which would result in a
lien attaching to the Subject Property if not paid, have been or will be timely
paid. Furthermore, no tax returns covered by this Section are now under audit or
investigation by any taxing authority, and no suits or other judicial or
administrative proceedings or claims are pending or to the Best of Seller's
Knowledge threatened with respect to any tax return covered by this Section 5.8.
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5.9 Contracts. Within five (5) days after execution of this Agreement, Seller
shall make available to Buyer true and complete copies of all contracts,
agreements and instruments or other legally enforceable obligations affecting or
related to the Subject Property and all amendments or modifications thereof.
Each contract listed on Exhibit C ("Assigned Contracts") is in full force and
effect and is valid and enforceable in accordance with its terms. There have
been no claims or causes of action which gives rise to a right of offset by any
party under the Assigned Contracts for monies owed by Seller. Seller is not in
violation, breach or default under the Assigned Contracts nor is any other party
to the Assigned Contracts in violation, breach or default thereunder.
5.10 Title to Subject Property. Except for (a) any and all provisions of any
ordinance, municipal regulation, or public law; (b) any declarations,
restrictions, covenants and easements of record which do not interfere with or
prohibit the use of the Property for Products receipt, storage, terminalling and
delivery; or (c) any lien for property taxes and governmental assessments that
are not yet due and payable, Seller currently owns and shall deliver to Buyer at
Closing good and marketable title to the Subject Property free and clear of all
liens, charges, mortgages, security interests, pledges or other encumbrances of
any nature whatsoever.
5.11 Insurance. There are no occurrences and/or incidents that have been
reported as a claim or potential claim nor are there any ongoing, open and/or
outstanding claims against Seller's insurance on its ownership interest in the
Subject Property.
5.12 Foreign Person. Seller is not a "foreign person" as defined in Section 1445
of the Code and the regulations promulgated thereunder.
5.13 Environmental Matters.
(a) Seller's ownership, use and operation of the Subject Property are in
compliance with all applicable Environmental Laws and Seller has not received
written notice from any Governmental Authority asserting any act of
non-compliance;
(b) There is no suit, action, claim, arbitration, administrative or legal
proceeding or governmental investigation concerning Environmental Laws pending
or to the Best of Seller's Knowledge threatened against or related to the
Subject Property;
(c) Seller has not received any written request for information, or been
notified that it may be or is a potentially responsible party under CERCLA or
any similar State law with respect to the Subject Property;
(d) Seller has not entered into or agreed to any consent decree or order,
and is not subject to any judgment, decree, judicial order or administrative
proceeding relating to compliance with any Environmental Law with respect to the
Subject Property;
(e) There have been no reportable Releases and there exists no threat of
Release (i) by the Seller or (ii) by any other person or entity at, on, in,
under, over or in any way affecting the Subject Property;
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(f) All off-site disposal of Hazardous Materials has, to the Best of
Seller's Knowledge, occurred in compliance with applicable Environmental Law;
(g) No remediation projects are in the process of being performed at the
Subject Property;
(h) Seller has provided Buyer copies of all environmental permits,
including, without limitation, all permits, licenses, franchises and other
governmental authorizations, consents and approvals (collectively referred to
herein as the "Environmental Permits") in effect with respect to the Subject
Property on the date of this Agreement. Seller has not received any written
notice of any noncompliance relating to any of the Environmental Permits. All
Environmental Permits are valid and in full force and effect and Seller is in
compliance therewith;
(i) The Subject Property has not been used to produce, manufacture,
process, generate, store, use, handle, recycle, treat, dispose of, manage, ship
or transport Hazardous Materials, other than as customary in the normal course
of the operation of the Subject Property and in compliance with Environmental
Laws;
(j) There is not presently located at, in, or beneath the Subject Property
(1) any polychlorinated biphenyl ("PCBs") regulated under the Toxic Substances
Control Act used in hydraulic oils, transformers or other equipment, or (2)
friable asbestos containing material that is in need of removal, repair or
encapsulation;
(k) Seller has made available to Buyer copies of all internally prepared
or commissioned environmental studies, assessments and reports which relate to
the Subject Property and/or Seller's compliance with Environmental Laws with
respect to the Subject Property;
(l) There are no underground storage tanks which are subject to regulation
under the underground storage tank regulations issued pursuant to the federal
Resource Conservation and Recovery Act or comparable state law, located at, on
or in the Subject Property; and
(m) Seller has not received any written complaint from any person or
entity claiming property damage or personal injury caused by some act of
non-compliance with Environmental Laws relating to the use or operation of the
Subject Property.
5.14 Preferential Purchase Rights. There are no preferential purchase rights,
options, or other rights held by any person or entity not a party to this
Agreement to purchase or acquire any interest in the Subject Property, in whole
or in part, as a result of the transactions contemplated by this Agreement.
5.15 Records. All records and documents relating to the operation and
maintenance of the Subject Property furnished to Buyer were prepared and
maintained in the ordinary course of business, and, to the Best of Seller's
Knowledge, are complete and accurate in all material respects.
5.16 Brokers. Seller represents and warrants it has not retained any brokers
with respect to this Agreement and agrees to indemnify Buyer against any claim
by any Person for any
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commission, brokerage, finder's fee or any other payment based upon any
agreement or understanding between such Person and Seller.
5.17 Seller-Retained Liabilities and Obligations. All Claims, as defined in
Section 11.2 hereof, (other than environmental-related Claims governed by
Section 11.4 of this Agreement) relating to or affecting the Subject Property or
its ownership, possession or use and arising out of, resulting from or relating
to events, matters, occurrences or conditions arising, existing or occurring on
or before Closing shall be retained by Seller at Closing. Without limitation of
the foregoing, such Seller-Retained Claims and matters to be retained after
Closing by Seller shall include the Accounts Receivables and Payables governed
by Section 7.3 of this Agreement.
ARTICLE 6
REPRESENTATIONS OF BUYER
Subject to the following: The execution, delivery and performance of this
Agreement shall be subject to the reserved power of Buyer's Board of Directors
to determine, prior to Closing, whether or not to approve and authorize this
Agreement. Such approval, if given, shall, at the time of Closing, constitute
the due and valid authorization by the Buyer's Board of Directors of the
execution, delivery and performance of this Agreement, Buyer represents and
warrants to Seller as of the date hereof and as of the Closing Date that:
6.1 Organization and Good Standing. Buyer is a Delaware corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
6.2 Authority. This Agreement has been duly executed and delivered by Buyer.
Buyer has the full corporate power and authority to enter into this Agreement,
to make the representations, warranties, covenants and agreements, and to
consummate the transactions herein contemplated.
6.3 Legally Binding. This Agreement and each of the documents described herein
to be executed by Buyer constitute legal, valid and binding obligations of
Buyer, enforceable against Buyer in accordance with their terms, except as
enforcement may be limited by bankruptcy, insolvency, or other similar laws
affecting the enforceability of creditors' rights in general, and to moratorium
laws from time to time in effect. The enforceability of Buyer's obligations
under this Agreement is subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
6.4 No Violation or Breach Resulting from this Transaction. Neither the
execution and delivery of this Agreement by Buyer nor the consummation by Buyer
of the transactions contemplated hereby:
(a) will constitute a violation or breach by Buyer of any judgment, order,
writ, injunction or decree issued against or imposed upon Buyer;
(b) will, to the Best of Buyer's Knowledge result in the violation by
Buyer of any applicable law, order, rule or regulation or decree of any
governmental or quasi-governmental authority; or
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(c) will constitute a breach of or default under (or an event that, with
giving of notice or passage of time or both, would constitute a breach of or
default under), or will result in the termination of, or accelerate the
performance required by, any material contract, instrument or agreement to which
Buyer is a party or by which Buyer or any of its assets is bound.
6.5 Brokers. Buyer represents and warrants it has not retained any brokers with
respect to this Agreement and agrees to indemnify Seller against any claim by
any Person for any commission, brokerage, finder's fee or any other payment
based upon any agreement or understanding between such Person and Buyer.
6.6 No Consent Required. Except as may be required by the HSR Act or by the
Connecticut Commissioner of Environmental Protection under Section 22a-134 of
the Connecticut General Statutes, no approval, notification, permits, licenses,
authorization, or other action by, to or from, or filing with, any Governmental
Authority or any third party is required in connection with the execution,
delivery, and performance by Buyer of this Agreement.
6.7 Buyer-Assumed Liabilities and Obligations. All Claims relating to or
affecting the Subject Property or its ownership, possession or use and arising
out of, resulting from or relating to events, matters, occurrences or conditions
arising or occurring after Closing shall be assumed by Buyer at Closing
(including all environmental-related matters governed by Seller's
representations and warranties set forth in Sections 5.13(a) - (i), (k) and (m)
of this Agreement). Without limitation of the foregoing, such Buyer-Assumed
Claims would include the obligations arising under Contracts and Permits after
the time of the Closing.
ARTICLE 7
OTHER AGREEMENTS AND OBLIGATIONS OF THE PARTIES
7.1 Conduct of Business Pending Closing.
7.1.1 From the date of execution of this Agreement to and including the
Closing Date, Seller shall:
(a) conduct the business of the Subject Property in the ordinary
course consistent with past practices;
(b) maintain the Subject Property in good repair, order and
condition consistent with past practice, subject only to normal wear and tear;
(c) operate the Subject Property in compliance in all material
respects with all statutes, laws, ordinances, rules, regulations and orders
applicable to the Subject Property;
(d) maintain records relating to the Subject Property consistent
with past practice; and
(e) continue in full force and effect the insurance currently
maintained by Seller on the Subject Property with substantially the same form
and with the same limits and deductibles as presently maintained by Seller.
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7.1.2 Without limiting the generality of Sections 7.1.1, except as
expressly provided in this Agreement, from the date hereof to and including the
Closing Date, Seller shall not:
(a) sell, transfer, encumber or otherwise dispose of any of its
interest in the Subject Property;
(b) enter into any agreements, commitments or contracts affecting
the Subject Property other than agreements in the ordinary course of business or
in accordance with past practices, and in no event for any term in excess of
thirty (30) days following the Closing Date, or terminate, amend or modify any
of the Assigned Contracts;
(c) settle any pending judicial or administrative litigation or
claim applicable to the Subject Property except for settlements which do not
impose any obligation on the Subject Property or the use or operation of the
Subject Property which extends beyond the Closing Date; or
(d) make any material changes to the physical characteristics of the
Subject Property.
7.2 Transfer of Custody of Products.
(a) It is understood by the Parties that Seller will have, as of the
Closing Date, custody of an inventory of Products at the Subject Property. The
Products are not the property of Seller, but are the property of Seller's
customers. The Products are specifically excluded from this sale, except as to
the transfer of their custody from Seller to Buyer. On the Closing Date, the
quality of the Products shall be in compliance with Seller's existing product
specifications, Seller will transfer custody of the Products to Buyer, and Buyer
will issue to Seller the necessary documentation to acknowledge receipt of the
Products upon Buyer's verification and acceptance of both the physical and book
Products inventory. Buyer agrees that on the Closing Date it will assume from
Seller the obligations relating to the storage, handling, terminalling and
delivery of the Products insofar and only insofar as those obligations arise
after the Closing.
(b) Seller shall close the Subject Property to all receipts and deliveries
of Product at 11:30 p.m. on the day prior to the Closing Date. The Parties, or
their qualified representatives, shall jointly gauge or cause to be gauged by an
independent firm and identify, calculate or measure all contents located in
above-ground storage tanks at the Subject Property that are active to the truck
rack or to Buckeye Pipeline or that are scheduled for vessel receipt. After
12:01 a.m. on the Closing Date, upon completion of such gauging, receipts and
deliveries will be restarted. Beginning at 8:00 a.m. on the Closing Date, the
Parties will gauge (1) the remaining inactive above-ground storage tanks at the
Subject Property, and (2) the line fill at the Subject Property. The calculation
of the Products shall be recorded using the following categories of items: (A)
all volumes of bottom sediment and water ("BS&W") as measured by hand gauge
lines, (B) all volumes of Products in storage tanks as measured by hand gauge
lines, and (C) all volumes of Products in pipelines at the Subject Property. The
volumes of Products measured shall be adjusted to 60 degrees Fahrenheit and, as
indicated by the separate measurement of BS&W, shall exclude any water. The
representatives of the Parties shall agree on a final inventory volume for
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each Product. Seller and Buyer shall equally share the costs for such
measurement by an independent firm, if any.
(c) Within five (5) days after Closing, Seller shall request, and shall
use reasonable commercial efforts to obtain, a certificate from each customer
certifying as of the time of Closing: (1) that there is no default of Seller
under any terminalling, storage or similar agreement involving the Subject
Property, and that Seller has fully performed under the same, (2) a statement of
the customer's inventory at the Subject Property, excluding BS&W and adjusted to
60 degrees Fahrenheit (which statement shall reflect the settlement of any
overages or underages therein), and (3) a statement of any amounts paid or
payable to Seller in advance for services to be rendered under such agreement
after Closing, the total dollar amount of which shall be paid to Buyer by Seller
at Closing.
(d) At Closing, Seller shall transfer custody of the Products to Buyer and
shall transfer title to and custody of the BS&W to Buyer.
7.3 Accounts Receivables and Payables. All of the accounts receivable due to and
accounts payable owed by Seller from and to third parties arising during its
ownership of the Subject Property through the Closing Date shall be retained by
Seller.
7.4 Public Announcements. Except as required by applicable law or the applicable
rules and regulations of any governmental agency or stock exchange, neither
Seller nor Buyer shall make any public statement or releases concerning this
Agreement or the transactions contemplated hereby except for such written
information as shall have been approved in writing as to form, content and
duration by both Parties, which approval shall not be unreasonably withheld;
provided, however, the Parties shall have no such obligation following the
Closing of the transaction contemplated herein.
7.5 Third Party Negotiations. Seller will not, directly or indirectly, through
any representative or otherwise, solicit or entertain offers from, negotiate
with or in any manner encourage, discuss, accept or consider any proposal of any
other party relating to the sale, lease or other disposition of the Subject
Property, in whole or in part, whether through direct purchase, merger,
consolidation or business combination; provided, however, Seller shall have no
such continuing obligation in the event this Agreement is terminated by either
Party pursuant to its terms and conditions.
7.6 Reasonable Efforts and Further Negotiations. Each of the Parties will use
its respective reasonable efforts to (a) cause to be fulfilled and satisfied all
of the conditions to the Closing and (b) cause to be performed all of the
matters required of it at or prior to the Closing. Without limitation of the
foregoing, the Parties agree to use their reasonable respective efforts to
obtain the approvals, required from their respective shareholders and Boards and
to which this transaction is made subject in Articles 5 and 6, at least five (5)
days before Closing. The Parties agree to negotiate the form and content of any
documents required to be delivered at the Closing, or otherwise required to
effect the transactions contemplated hereby, in good faith, taking into
consideration the intents and purposes of this Agreement and terms and
conditions normally and reasonably found in transactions of similar form and
magnitude.
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7.7 Seller Disclosure Schedule. From the date of this Agreement to the Closing
Date, Seller shall have the continuing obligation to promptly supplement or
amend the Disclosure Schedule, being delivered concurrently with the execution
of this Agreement and attached hereto, with respect to any matter hereafter
arising or discovered which, if existing or known at the date of this Agreement,
would have been required to be set forth or described in the Disclosure
Schedule.
7.8 Confidentiality. This Agreement and any and all information, whether oral or
written, exchanged between the Parties relating to the transaction contemplated
herein, is subject to that certain Nondisclosure Agreement executed by the
Parties, dated August 23, 1999. If this Agreement and the transactions provided
for herein shall be terminated or abandoned for any reason whatsoever, each
party shall return to the other parties any and all proprietary, confidential
and secret information and data furnished to such party in connection herewith
and hold in confidence its knowledge of any and all such proprietary,
confidential and secret information or data and not disclose or publish the same
directly or indirectly (a) without the prior written consent of such other party
or (b) until the same has been theretofore publicly disclosed by such other
party or otherwise cease to be secret or confidential as evidenced by general
public knowledge; provided, however, that each party shall have the right to
disclose such information, without consent to the extent that (x) such party is
required by applicable law to do so, or (y) such disclosure is required in
connection with litigation pertinent to such information. The foregoing
provisions are intended to supplement and not supersede any existing
confidentiality agreement between the Parties.
7.9 Buyer shall, without limitation of other provisions of this Agreement,
assume all obligations, liabilities, duties and responsibilities imposed by or
arising from the Connecticut Transfer Act, Conn. Gen. Statutes Section 22a-134
et seq., as amended (the "Transfer Act") with respect to transfer of the Subject
Property. The Buyer shall be designated and shall serve as the "certifying
party," as defined by the Transfer Act, for the Subject Property. The Buyer
shall prepare and execute the Transfer Act Form IIs and Environmental Condition
Assessment Forms at the time of Closing, in the manner required to be designated
as such certifying party. The Buyer shall pay all fees, costs and expenses
associated with the obligations, liabilities, duties and responsibilities
imposed by or arising from the Transfer Act.
ARTICLE 8
CONDITIONS TO OBLIGATIONS OF SELLER
The obligations of Seller to effect the transactions contemplated by this
Agreement on the Closing Date shall be subject to the fulfillment, prior to or
at the Closing, of each of the conditions set forth in this Article 8 (unless
waived, in whole or in part, in writing by Seller).
8.1 Representation and Warranties True. The representations and warranties made
by Buyer as set forth in Article 6 of this Agreement shall have been true and
correct when made and shall be true and correct as of the Closing Date as though
such representations and warranties were made at and as of such date.
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8.2 Performance of Obligations. Buyer shall have performed, observed and
complied with, in all material respects, all agreements, obligations, covenants
and conditions required by this Agreement to be performed or complied with by it
on or prior to the Closing Date, including Buyer's obligations hereunder to make
payment of the Purchase Price.
8.3 Litigation. No action or proceeding shall be pending or threatened against
Seller or Buyer in any arbitration proceeding or court of law or by any
Governmental Authority on the Closing Date, wherein an unfavorable judgment,
decree or order could prevent, make unlawful or materially affect the
consummation of the transactions contemplated by this Agreement.
8.4 Documents and Deliveries. All instruments and documents required on Buyer's
part to effectuate this Agreement and the transactions contemplated hereby shall
be delivered to Seller and shall be in form and substance consistent with the
requirements herein.
8.5. Legal Requirements. All Legal Requirements shall have been compiled with,
in all material respects.
8.6 Corporate Approvals. Seller shall have obtained all necessary approvals from
its shareholders and Board of Directors.
8.7 Schedules. The Parties shall have reached agreement on final Exhibits and
Schedules to this Agreement in accordance with Section 3.3.
ARTICLE 9
CONDITIONS TO OBLIGATIONS OF BUYER
The obligations of Buyer to effect the transactions contemplated by this
Agreement on the Closing Date shall be subject to the fulfillment, prior to or
at the Closing, of each of the conditions set forth in this Article 9, unless
waived, in whole or in part, in writing by Buyer.
9.1 Representation and Warranties True. The representations and warranties made
by Seller as set forth in Article 5 of this Agreement shall have been true and
correct when made and shall be true and correct as of the Closing Date as though
such representations and warranties were made at and as of such date without
giving effect to any update to Seller's Disclosure Schedule; provided, however,
that the representations and warranties set forth in Section 5.13 shall be
deemed to be true and correct for purposes of this Article 9 unless Buyer
reasonably determines that there is a catastrophic environmental condition on,
in or related to the Subject Property.
9.2 Performance of Obligations. Seller shall have performed, observed and
complied with, in all material respects, all agreements, obligations, covenants
and conditions required by this Agreement to be performed or complied with by it
on or prior to the Closing Date.
9.3 Litigation. No action or proceeding shall be pending or threatened against
Seller or Buyer in any arbitration proceeding court of law or by any
administrative or governmental agency on the Closing Date, wherein an
unfavorable judgment, decree or order could prevent, make unlawful or materially
affect the consummation of the transactions contemplated by this Agreement.
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9.4 Absence of Certain Changes. There shall not have occurred any act or
omission constituting a violation of any Environmental Law, rule or regulation
of any Governmental Authority between the date of this Agreement and the Closing
Date or any damage or destruction in the nature of a casualty loss, whether
covered by insurance or not, which in either case could materially adversely
affect the normal utilization and operations of the Subject Property. No
material adverse changes in the facilities comprising the Subject Property or in
business thereof shall have occurred on or after June 26, 2000.
9.5 Documents and Deliveries. All instruments and documents required on Seller's
part to effectuate this Agreement and the transactions contemplated hereby shall
be delivered to Buyer and shall be in form and substance consistent with the
requirements herein.
9.6 Title Insurance Policy. The Title Company shall have committed to issue to
Buyer at Closing, an extended coverage ALTA owner's policy of title insurance
upon payment by Buyer of its regularly scheduled premium, insuring marketable
fee title to the Land in Buyer in the amount equal to the Purchase Price, as set
forth in Section 2.2, subject only to the printed provisions of such policy and
such other title matters accepted by Buyer pursuant to Section 4.3.2.
9.7 Due Diligence Review. Buyer shall have completed, to Buyer's reasonable
satisfaction, a due diligence investigation of the Subject Property, including
without limitation, a physical inspection of the Subject Property and a review
of any and all documents and other writings related to or affecting the Subject
Property.
9.8 Preferential Purchase Rights. Seller has provided written notice of this
Agreement to those Persons set forth on the Disclosure Schedule pursuant to and
in accordance with the terms of the governing documents and either (i) such
Persons have notified Seller of their intent to either waive or not to exercise
their preferential rights with respect to this Agreement, or (ii) said
preferential rights of first refusal have expired pursuant to the terms of the
governing documents.
9.9. Legal Requirements. All Legal Requirements shall have been compiled with,
in all material respects.
9.10 Corporate Approvals. Buyer shall have obtained all necessary approvals from
its shareholders and Board of Directors.
9.11 Additional Agreements. Buyer shall have executed and/or delivered all other
documents and agreements necessary to effectuate the transaction set forth in
this Agreement.
9.12 Schedules. The Parties shall have reached agreement on final Exhibits and
Schedules to this Agreement in accordance with Section 3.3.
ARTICLE 10
LOSS BY CASUALTY; CONDEMNATION
10.1 Risk of Loss. Risk of loss of or damage to the Subject Property shall be
borne by Seller until the Closing Date; thereafter, Buyer shall bear the risk of
loss or damage. Seller shall
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promptly notify Buyer of any casualty to the Subject Property, any condemnation
proceeding commenced or threatened, or the exercise of any preferential right to
purchase any of the Subject Property prior to the Closing. In the event of any
such casualty, condemnation proceeding or exercise of preferential rights, Buyer
shall elect in writing to either (a) purchase the Subject Property under the
terms and conditions set forth herein with a reduction to Purchase Price as
agreed upon by Buyer and Seller before Buyer makes this election, or (b)
terminate this Agreement, in which event, except as otherwise provided herein,
neither Party shall have any further rights or obligations hereunder.
ARTICLE 11
INDEMNIFICATION
11.1 Survival. Except for the Seller's environmental representations and
warranties set forth in Sections 5.13(a) - (i), (k) and (m), which such
representations and warranties shall terminate upon Closing, and as expressly
provided in Section 11.4(b), the representations, warranties, covenants and
obligations of the Parties under this Agreement shall survive the Closing for a
period of three (3) years ("Survival Period"); provided, however, that any bona
fide claim relating thereto (a) is asserted in writing to the other Party
specifying in reasonable detail the specific nature of the Claim and the
estimated amount of such Claim ("Claim Notice"), and (b) shall, if delivered in
accordance with Section 11.7 during the Survival Period, with respect only to
such Claim, survive the Survival Period.
11.2 Indemnification by Seller.
(a) Except as otherwise provided in this Article or in this Section,
Seller shall indemnify, defend, protect and hold harmless Buyer, its Affiliates,
successors and assigns and their respective directors, officers, employees,
shareholders, representatives and agents (collectively, the "Buyer Indemnitees")
from and against any and all claims, disputes, demands, actions or causes of
action, arbitration proceedings, assessments, judgments, damages, losses,
expenditures, costs, expenses (including, without limitation, interest,
penalties, reasonable attorneys' fees, and reasonable consultants' fees,
expenses and court costs incurred in connection therewith and all reasonable
costs and expenses of investigating and defending any Claim) obligations, and
liabilities of every type and nature whatsoever (collectively, "Claims")
suffered or incurred by Buyer in consequence of such Claims arising from or
relating to:
(1) any inaccuracy in or breach by Seller of any representation or
warranty of Seller set forth in this Agreement, including those set forth
in Sections 5.13(j) and 5.13(l) but specifically excluding those set forth
in the other sections of Section 5.13 hereof;
(2) the Subject Property and arising from or with respect to events
occurring or conditions existing prior to the Closing Date; provided,
however, that this Section 11.2 shall not apply, with respect to Claims
arising out of matters relating to pollution or protection of the
environment other than those arising with respect to Sections 5.13(j) and
(1), but only to the extent set forth in Section 11.2(a)(1) above; or
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(3) any noncompliance by Seller with any laws applying to transfers
by a Seller of all or substantially all of its assets that may be
applicable to the transaction contemplated by this Agreement.
11.3 Indemnification by Buyer. Except as otherwise provided in Article 11.4,
Buyer shall indemnify, defend, protect and hold harmless Seller, its parent,
Affiliates, successors and assigns and their respective directors, officers,
employees, shareholders, representatives and agents (collectively, the "Seller
Indemnitees") from and against any and all Claims suffered or incurred by Seller
in consequence of such Claims arising from or relating to:
(a) any inaccuracy in or breach by Buyer of any representation or warranty
of Buyer set forth in this Agreement; or
(b) Buyer's ownership or operation of the Subject Property that relates to
the period of time from and after the Closing Date.
11.4 Environmental Indemnification.
(a) Buyer Indemnification. Subject to the terms of this Article, Buyer
agrees to indemnify, defend, protect and hold harmless Seller Indemnitees from
and against any and all Claims suffered or incurred by Seller Indemnitees in
consequence of such Claims arising out of, relating to, or resulting from
environmental conditions of the Subject Property (whether occurring before or
after the Closing Date) except for such Claims as arise from or relate to any
inaccuracy in or breach by Seller of its representations and warranties set
forth in Sections 5.13(j) and (l);
(b) The Buyer's environmental indemnity obligations arising pursuant to
this Agreement shall survive beyond the three-year period established under
Section 11.1.
(c) Exclusivity. Sections 11.4 and 11.3 set forth the Parties' entire
agreement as to environmental matters and shall supersede and control over any
other term and provision in this Agreement.
11.5 Limitation on Liability.
(a) Neither party hereto shall have any liability for Claims pursuant to
this Article 11 unless a Claim Notice has been delivered to the other Party as
required by Section 11.1 within the applicable Survival Period.
(b) Notwithstanding the provisions of Sections 11.3 and 11.4 above,
neither the Buyer nor the Seller shall be entitled to receive indemnification
under this Agreement for a Claim relating to a breach of a representation or
warranty contained herein until the aggregate amount of indemnification Claims
they shall have asserted hereunder shall exceed Fifty Thousand dollars
($50,000); provided that if the Purchaser or the Seller shall successfully
assert Claims for indemnification hereunder in excess of Fifty Thousand dollars
($50,000) in the aggregate they shall be entitled to receive indemnification for
the amount of the indemnity Claims in excess such Fifty Thousand dollar
($50,000) "deductible".
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(c) The Parties hereto agree to waive any rights to special, incidental,
consequential, indirect or punitive damages, including, without limitation, loss
of profits, resulting from any Claim. However, this waiver shall not apply to
such damages incurred by third parties for which either party is obligated to
indemnify the other hereunder.
11.6 Cooperation by Buyer and Seller. Buyer and Seller shall cooperate fully
with one another in connection with any matters covered by the indemnity
obligations under this Agreement. Such cooperation shall include, without
limitation, providing the other Party with reasonable access to files,
properties and personnel and advance notification of any meeting or
communications with any third parties which could reasonably be expected to
affect the rights or obligations of the other Party under this Agreement.
11.7 Notice of Asserted Liability; Opportunity to Defend. All Claims under
Article 11 shall be asserted and resolved pursuant to this Section 11.7. Any
person claiming indemnification hereunder is hereinafter referred to as the
"Indemnified Party" and any person against whom such claims are asserted
hereunder is hereinafter referred to as the "Indemnifying Party".
(a) Third Party Claims. In the event that any Claims are asserted against
or sought to be collected from an Indemnified Party by a third party, the
Indemnified Party shall with reasonable promptness provide to the Indemnifying
Party a Claim Notice. The Indemnifying Party shall not be obligated to indemnify
the Indemnified Party with respect to any such Claims if the Indemnified Party
fails to notify the Indemnifying Party thereof in accordance with the provisions
of this Agreement in reasonably sufficient time so that the Indemnifying Party's
ability to defend against the Claims is not prejudiced. The Indemnifying Party
shall have 30 days from the personal delivery or receipt of the Claim Notice
("Notice Period") to notify the Indemnified Party (a) whether or not it disputes
the liability of the Indemnifying Party to the Indemnified Party hereunder with
respect to such Claims and/or (b) whether or not it desires, at the sole cost
and expense of the Indemnifying Party, to defend the Indemnified Party against
such Claims. In the event that the Indemnifying Party notifies the Indemnified
Party within the Notice Period that it desires to defend the Indemnified Party
against such Claims, the Indemnifying Party shall have the right to defend all
appropriate proceedings, and with counsel of its own choosing, which proceedings
shall be promptly settled or prosecuted by them to a final conclusion. If the
Indemnified Party desires to participate in, but not control, any such defense
or settlement it may do so at its sole cost and expense. If requested by the
Indemnifying Party, the Indemnified Party agrees to cooperate with the
Indemnifying Party and its counsel in contesting any Claims that the
Indemnifying Party elects to contest or, if appropriate and related to the claim
in question, in making any counterclaim against the person asserting the third
party Claims, or any cross-complaint against any person. No claim may be settled
or otherwise compromised in a manner that imposes any obligation or liability on
the Indemnifying Party without the prior written consent of the Indemnifying
Party provided that a reasonable defense(s) to such third party claim exists.
(b) Other Claims. A claim for indemnification for any matter not involving
a third party claim may be asserted by delivery of a Claim Notice to the party
from whom indemnification is sought. The Indemnified Party shall with reasonable
promptness provide to the Indemnifying Party such Claim Notice. The Indemnifying
Party shall not be obligated to indemnify the Indemnified Party with respect to
any such claims if the Indemnified Party fails to
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provide notice to the Indemnifying Party thereof in accordance with the
provisions of this Agreement in reasonably sufficient time so that the
Indemnifying Party's ability to address the subject of the indemnification is
not prejudiced.
11.8 Exclusive Remedy. Except as otherwise expressly provided herein, as between
the Buyer and Seller, the rights and obligations set forth in this Article 11
will be the exclusive rights and obligations with respect to this Agreement, the
events giving rise to this Agreement, and the transactions provided for herein
or contemplated hereby or thereby. It being understood and agreed between Seller
and Buyer that all other rights and obligations between Seller on the one hand
and the Buyer on the other hand shall be governed by this Agreement.
ARTICLE 12
DISCLAIMER OF CONDITION OF SUBJECT PROPERTY
EXCEPT AS PROVIDED IN ARTICLE 5, SELLER FURTHER DISCLAIMS, AND BUYER
HEREBY WAIVES, ALL WARRANTIES AND REPRESENTATIONS (WHETHER WRITTEN OR ORAL,
EXPRESS OR IMPLIED) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
DESCRIPTION, CONDITIONS, DESIGN OR OTHERWISE, WITH RESPECT TO THE SUBJECT
PROPERTY.
ARTICLE 13
TERMINATION
13.1 Termination. This Agreement may be terminated:
(a) by Buyer, if a breach of this Agreement has been committed by Seller
and such breach is not de minimis and has not been waived;
(b) by Seller, if a breach of this Agreement has been committed by Buyer
and such breach is not de minimis and has not been waived;
(c) by Buyer, if any of the conditions in Article 9 have not been
satisfied as of October 31, 2000; or if satisfaction of such a conditions or
becomes impossible (other than through the failure of Buyer to comply with its
obligations under this Agreement) and Buyer has not waived such condition on or
before October 31, 2000;
(d) by Seller, if any of the conditions in Article 8 have not been
satisfied as of October 31, 2000; or if satisfaction of such a conditions or
becomes impossible (other than through the failure of Seller to comply with
their obligations under this Agreement) and Seller has not waived such condition
on or before October 31, 2000; or
(e) by mutual consent of Buyer and Seller.
13.2. Termination Obligations. If this Agreement is terminated pursuant to
Section 13.1 (a), all further obligations of the Parties under this Agreement
will terminate, except that the obligations in Section 5.16, 6.5 and 7.8 will
survive; provided, however, that if this Agreement is terminated
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by a Party because of the breach of the Agreement by the other Party or because
one or more of the conditions to the terminating Party's obligations under this
Agreement is not satisfied as a result of the other Party's failure to comply
with its obligations under this Agreement, then the terminating Party's right to
seek damages subject to Section 11.5 will survive such termination unimpaired.
SECTION 14
MISCELLANEOUS
14.1 Notices. All notices or correspondence required or permissions to be given
hereunder shall be in writing. Notices may be given in person, or may be sent by
nationally recognized overnight courier, registered or certified mail (postage
prepaid and return receipt requested) or facsimile with written confirmation to
the party to be notified at the following address:
If to Seller: ▇▇▇▇▇ Energy, Incorporated
c/o ▇.▇. ▇▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chairman
Fax #: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax #: ▇▇▇-▇▇▇-▇▇▇▇
If to Buyer: ▇▇▇▇▇▇▇▇ Energy Ventures, Inc.
▇.▇. ▇▇▇ ▇▇▇▇, Mail Drop 720-A
One ▇▇▇▇▇▇▇▇ Center (74172)
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇ - Director, Terminal
Services & Development
Fax #: ▇▇▇-▇▇▇-▇▇▇▇
or such other address as may be designated by notice to the other party. Notices
shall be deemed given when received by the party to be notified; provided,
however, that notices received after 5:00 p.m. or on a non-business day shall be
deemed to be given the following business day.
14.2 Expenses. Except as otherwise provided herein, each party hereto shall bear
its own expenses incurred in connection with the preparation, execution and
performance of this Agreement and the transactions contemplated herein. In the
event of termination of this Agreement, the obligation of each party to pay its
own expenses will be subject to any rights of such party arising from a breach
of this Agreement by the other party.
14.3 Further Assurances. Buyer and Seller shall upon request execute and deliver
or cause to be executed and delivered all documents, conveyances, deeds,
assignments, or other instruments
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or further assurance, and shall do or cause to be done any acts or things as may
be reasonably necessary or advisable to implement and give full effect to the
provisions of this Agreement.
14.4 Waiver. Except as otherwise provided herein, neither the failure nor any
delay on the part of any party in exercising any right, power or remedy
hereunder shall operate as a waiver thereof, or of any other right, power or
remedy; nor shall any single or partial exercise of any right, power or remedy
preclude any further or other exercise thereof, or the exercise of any other
right, power or remedy. No waiver of any of the provisions of this Agreement
shall be valid unless it is in writing and signed by the party against whom it
is sought to be enforced.
14.5 Parties in Interest. Except as otherwise provided herein, nothing in this
Agreement expressed or implied, is intended to confer upon any third person any
rights or remedies under or by reason of this Agreement.
14.6 Assignability. This Agreement shall not be assigned in whole or in part by
either Party except upon the prior written consent of the other Party; provided,
however, that the preceding requirement for consent shall not apply to Buyer if
Buyer assigns this Agreement, in whole or in part, to one or more of its
Affiliates. In the later case, Buyer shall give Seller prompt notice of such
assignment. No assignment hereunder shall effect a novation; the assignor shall,
following such assignment, remain liable for its obligations arising hereunder.
14.7 Successor and Assigns. This Agreement shall inure to the benefit of and be
binding upon Buyer and Seller and their respective successors and assigns.
14.8 Amendments. This Agreement may only be amended or modified by a written
instrument executed by the duly authorized representatives of both Seller and
Buyer.
14.9 Headings. The article and section headings contained herein are for
convenience only and shall not in any way affect the meaning, construction or
interpretation of this Agreement.
14.10 Partial Invalidity. In the event any provision or portion of a provision
hereof is held to be invalid, void, or unenforceable, such holding shall not
affect the remaining portion of that provision or any other provision hereof.
14.11 Interpretation. This Agreement is the product of negotiations during which
all Parties have had an opportunity to make alterations, changes, and deletions
to the text and have, in fact, made such alterations, deletions, and additions.
This Agreement should be read as if drafted equally by all concerned with no
presumption or penalty attached to any party for its particular role in
producing any preliminary of final draft of this Agreement.
14.12 Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
14.13 Governing Law. THIS AGREEMENT, AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER, SHALL BE CONSTRUED, INTERPRETED, ENFORCED, AND GOVERNED BY
THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES
THEREOF, EXCEPT THAT CONNECTICUT LAW
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WILL GOVERN WITH RESPECT TO THE QUALITY OF TITLE TO AND THE CONVEYANCING OF THE
LAND.
14.14 Dispute Resolution. In relation to any dispute resolution, legal action,
or proceedings to enforce this Agreement or arising out of or in connection with
this Agreement ("Proceedings"), each Party irrevocably agrees to conduct such
Proceedings in New Haven, Connecticut and submits to the exclusive jurisdiction
of the courts in New Haven, Connecticut and waives any objection to Proceedings
in such courts on the grounds of jurisdiction or venue or on the grounds that
the Proceedings have been brought in an inconvenient forum. The prevailing Party
in any such Proceedings (specifically excluding the dispute resolution
proceedings described in the following paragraph) shall be entitled to recover
its reasonable attorneys' fees and other fees and expenses from the other Party.
The Parties agree that all claims, controversies and disputes arising out
of or relating to this Agreement, or to the breach, termination, interpretation
or validity thereof ("Disputes"), shall be handled as follows: The Party
initiating the Dispute shall first give notice of the Dispute to the other
Party. If the Dispute involves the amount of an invoice or portion thereof,
Buyer shall pay all undisputed amounts and give notice of the Dispute within
fourteen (14) days of receipt of such invoice and stating the reasons for the
disputed amount. Representative of each Party, having authority to settle the
Dispute then shall meet in New Haven, Connecticut and endeavor in good faith to
resolve the Dispute. If such representatives fail to meet or are unable to
resolve the Dispute within thirty (30) days after the notice from the Party
initiating the Dispute, such Dispute shall be settled by binding arbitration in
accordance with the CPR Institute for Dispute Resolution ("CPR") Rules for
Non-Administered Arbitration in effect on the date of this Agreement by a sole
arbitrator agreed to by the Parties. However, if the Parties cannot agree upon
the arbitrator, such arbitrator shall be an arbitrator recommended by the CPR
Institute for Dispute Resolution from the CPR Panel of Distinguished Neutrals.
The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C.
Sections 1-16, to the exclusion of state laws inconsistent therewith, and
judgment upon the award rendered by the arbitrator may be entered by any court
having jurisdiction thereof. Except as the Parties may otherwise agree, the
place of the arbitration will be New Haven, Connecticut. The arbitrator shall
not be empowered to award damages (a) which exceed the liability limitations set
forth in Section 11.5(b) or (b) in excess of compensatory damages except to the
extent such excess damages would be recoverable under the indemnity obligations
herein of the Party liable therefor.
14.15 Entire Agreement. This Agreement, together with the Exhibits and Schedules
attached hereto, embodies the entire agreement and understanding between the
Parties with respect to the subject matter hereof and supersedes any and all
prior agreements and understandings relating thereto, written and oral,
including, but not limited to, prior drafts of this Agreement.
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IN WITNESS WHEREOF, the Parties to this Agreement have executed this
Agreement by their respective, duly authorized representatives as of the date
first above written.
SELLER: BUYER:
▇▇▇▇▇ ENERGY, INCORPORATED ▇▇▇▇▇▇▇▇ ENERGY VENTURES, INC.
By: /s/ Stanford ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------- ----------------------------
Title: Chairman Title: Vice President
------------------------------ -------------------------
Date: 8/1/00 Date: 7/31/00
------------------------------ -------------------------
WYCO NEW HAVEN, INC.
By: /s/ Stanford ▇. ▇▇▇▇▇▇
---------------------------------
Title: Chairman
------------------------------
Date: 8/1/00
------------------------------
WYM CORP.
By: /s/ Stanford ▇. ▇▇▇▇▇▇
---------------------------------
Title: Chairman
------------------------------
Date: 8/1/00
------------------------------
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AMENDMENT NO. 1 TO
ASSET PURCHASE AND SALE AGREEMENT
This Amendment No. 1 to the Purchase and Sale Agreement ("Amendment")
is made and entered into as of August 31, 2000, by and among ▇▇▇▇▇ Energy,
Incorporated, a Delaware corporation, Wyco New Haven, Inc., a Delaware
corporation, and WYM Corp., a Delaware corporation (collectively, "Seller"),
and ▇▇▇▇▇▇▇▇ Energy Ventures, Inc. a Delaware corporation ("Buyer")
sometimes referred to herein collectively as "Parties" or individually as
"Party."
Witnesseth
WHEREAS, Seller and Buyer have entered into a Purchase and Sale Agreement,
dated as of July 31, 2000 ("Agreement"), relating to the sale of certain
petroleum products facilities in and around New Haven and Hamden, Connecticut;
and
WHEREAS, Seller and Buyer desire to amend the Agreement.
NOW, THEREFORE, in consideration of the premises and mutual
representations, warranties, covenants and promises contained herein, the
Parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. All capitalized terms used in this Amendment have the same
meaning as set forth in the Agreement.
ARTICLE 2
SCHEDULES
2.1 Schedules. The Exhibits and Schedules required to be attached to the
Agreement are attached to this Amendment.
ARTICLE 3
AMENDMENTS
3.1 Real Property Title. Section 4.3.2 is amended in its entirety as follows:
4.3.2 Title Defects. Promptly, following the execution of this
Agreement, Buyer shall order title commitments from the Title Company
("Title Commitments") with respect to the Land. Within ten (10) days
following Buyer's receipt of the Title Commitments and within five (5)
days of Buyer's receipt of any amendment to any such Title Commitment
showing any new title matter, Buyer shall notify Seller in writing as to
31
whether Buyer objects to any title matter which appears on such Title
Commitments and which affects the marketability of title to the Land
("Title Defect"). Within ten (10) days following Buyer's receipt of the
Title Commitments and within five (5) days of Buyer's receipt of any
amendment to any such Title Commitment showing any new title matter, Buyer
shall notify Seller in writing as to whether Buyer objects to any Title
Defects which appear on such Title Commitments. Seller shall use its
commercially reasonable efforts to remove or cure any such noticed Title
Defect up to the time of Closing. If the Seller fails to cure the Title
Defects to Buyer's satisfaction prior to Closing, Buyer shall have the
following elections:
(a) accept the status of the title subject to the Title
Defects and proceed with the performance of its obligations as set
forth in this Agreement, in which case the Warranty Deeds in the
form of Exhibit D will be modified to incorporate the Title Defects
as exceptions to Seller's warranties thereunder;
(b) attempt to negotiate with the Seller to modify this
Agreement prior to Closing in a manner providing for the elimination
of that portion of the Land which is affected by the Title Defect in
exchange for a suitable reduction in the Purchase Price;
(c) Close and treat with such Title Defects under the Title
Defect Escrow Agreement as hereinafter set forth in this Section
4.3.2. For purposes of this subsection (c), the Parties recognize
and agree that the Land surveys which Buyer requested pursuant to
Section 4.3.1(b) shall not have been completed and certified prior
to Closing and hereby agree that the lack of such completed Land
surveys will be deemed to be Title Defects to be dealt with as
follows:
(1) Buyer shall have an additional 75 days after Closing
to complete the surveys. Within five business days following
the delivery of the surveys to Buyer, Buyer shall deliver such
surveys to the Title Company and shall, within twenty days
after such delivery, notify Seller in writing of any concerns
shown by the survey (which are not shown on any earlier
surveys delivered to Buyer) which impair Buyer's ability to
use the Land (or any commercially material portion of the
Land) for use as a petroleum products facility ("Survey
Concerns"), or which result in exceptions to Buyer's new Title
Commitments that were not reflected in the Title Commitments
issued to Buyer at Closing and which affect Buyer's use of the
Land ("New Title Defects"). Upon receipt of such notice,
Seller shall have 20 days to notify Buyer as to Seller's
resolution, or proposed resolution, of the Survey Concerns or
new title exceptions, or as to whether Seller wishes to
dispute the existence of the Survey Concerns or the fact that
such new exceptions constitute New Title Defects. Unless
Seller disputes the existence of the Survey Concerns or the
fact that such new exceptions constitute New Title Defects
within the 20-day period or remediates or removes the Survey
Concerns or New Title Defects within a reasonable time (not
exceeding 30 days) after notifying
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Buyer that Seller will remove or remediate the Survey Concerns
or New Title Defects, Buyer may prosecute the remediation of
the Survey Concerns and/or New Title Defects and shall be
entitled to pay all reasonable remediation costs and all third
party expenses reasonably incurred from the $500,000 deposited
in the Title Defects Escrow Agreement.
(2) The escrow agent under the Title Defects Escrow
Agreement shall pay to Seller all amounts remaining in said
Agreement after the earliest to occur of: (A) the issuance of
a title insurance policy or policies, acceptable to Buyer, by
the Title Company, as described in Section 9.6 of the
Agreement, which reflect no Survey Concerns or New Title
Defects or (B) the removal or remediation of the Survey
Concerns and any New Title Defects, to Buyer's reasonable
satisfaction or (C) the determination pursuant to an
applicable dispute resolution proceeding that all or portion
of the escrowed funds shall be returned to Seller.
(3) Seller will endeavor in good faith to provide such
correction or other quitclaim deeds as are reasonably required
by Buyer as a consequence of such updated surveys.
3.2 Permits, Licenses and Authorizations. Section 5.7 is hereby amended as
follows:
The term "Assigned Permits" is deleted from the seventh line."
The following sentence is added after the word "Buyer" at the end of the
tenth line: "The permits, licenses and authorizations that are to be
assigned to Buyer at Closing (the "Assigned Permits"), if any, are listed on
Exhibit C."
3.3 Contracts. The second sentence of Section 5.9 of the Agreement is hereby
amended in its entirety as follows:
"Each contract, agreement, instrument and other obligation listed on
Exhibit C is to be assigned to Seller at Closing ("Assigned Contracts"), is
in full force and effect and is valid and enforceable in accordance with its
terms."
3.4 Conduct of Business Pending Closing. Section 7.1.2 shall be amended by
adding the phrase "Except as set forth in Section 7.1.2 of the Disclosure
Statement," before the word "Without" in the first line of said Section.
3.5 Third Party Negotiations. Section 7.5 shall be amended by adding the phrase
"Except as set forth in Section 7.5 of the Disclosure Statement," before the
word "Seller" in the first line of said Section.
3
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3.6 Title Insurance Policy. Section 9.6 of the Agreement is hereby amended so
that the requirement of the receipt of a title insurance policy commitment
as a condition to Buyer's closing is waived.
3.7 Representation Insurance. Article 9 is hereby amended by adding a new
Section 9.13 as follows:
"9.13 Representations and Warranties Insurance. An insurance company
reasonably acceptable to Buyer shall have committed to issue to Buyer, at
Closing, an insurance policy, insuring the representations and warranties of
Seller under the Agreement (other than the representations and warranties of
Seller set forth in Section 5.13 relating to Environmental Matters), such
policy to have limits of $5,000,000, with a deductible not exceeding
$100,000 and actual cost to Seller not exceeding $225,000, which shall be
paid by Seller at Closing. Without limitation of Seller's indemnity
obligations under this Agreement, Buyer agrees that it shall look first to
its Representations and Warranties coverage with respect to any breach by
Seller of Seller's representations and warranties covered under such policy,
and that any amounts recovered thereunder by Buyer shall, without limitation
or waiver of any subrogation rights of the Representations and Warranties
insurance carrier upon its payment of a claim under such Representations and
Warranties policy, reduce, on a dollar-for-dollar basis, Seller's indemnity
obligation to Buyer for such breach."
3.8 Environmental Indemnification by Seller. With respect to Seller's
indemnification obligations under Section 11.2 (a) arising with respect to
5.13(j) , such indemnification shall be governed by the following:
(a) Promptly upon Closing, but in no event later than sixty (60) days
following Closing, Seller shall, at its sole cost, risk and expense, begin
cost-effective remediation of all known PCB contamination on the Land at the
date of Closing that exceeds applicable federal and state standards and
allowed levels of contamination in effect at that time. Seller shall
complete such remediation within three (3) years of the date of Closing. The
attainment of such level of remediation and compliance will not, however,
limit Seller's indemnity obligations arising under Sections 5.13(j) or (1).
ARTICLE 4
MISCELLANEOUS
4.1 Governing Law. The last line of Section 14.13 shall be amended by adding
"AND TO ENVIRONMENTAL MATTERS." after the words "CONVEYANCING OF LAND".
4.2 Except as expressly set forth in this Amendment, the terms and conditions of
the Agreement continue in full force and effect.
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[SIGNATURES ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties to this Amendment have executed this
Amendment by their respective, duly authorized representatives as of the date
first above written.
SELLER: BUYER:
▇▇▇▇▇ ENERGY, INCORPORATED ▇▇▇▇▇▇▇▇ ENERGY VENTURES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
--------------------------------- ----------------------------
Title: Executive Vice President Title: Managing Director,
------------------------------ Terminal Services
-------------------------
Date: August 31, 2000 Date: 8/31/00
------------------------------ -------------------------
WYCO NEW HAVEN, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------------
Title: Executive Vice President
------------------------------
Date: August 31, 2000
------------------------------
WYM CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------------
Title: Executive Vice President
------------------------------
Date: August 31, 2000
------------------------------
