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EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "AGREEMENT") is made and
entered
into as of the 25th day of September, 2008 (the "EXECUTION DATE"),
by and
between NUSTAR TERMINALS OPERATIONS PARTNERSHIP L.P., a Delaware
limited
partnership ("SELLER"), and BLACKWATER NEW ORLEANS, L.L.C., a
Louisiana limited
liability company ("PURCHASER"). Seller and Purchaser are sometimes
referred to
herein individually as a "party" and collectively as the "parties."
Capitalized
terms not otherwise defined herein shall have the meanings
specified or referred
to in EXHIBIT A hereto.
PRELIMINARY STATEMENT
Seller owns a terminal facility accommodating chemicals and
liquid
fertilizer at or near Westwego, Louisiana.
Seller is willing to sell, and Purchaser is willing to purchase,
the
Assets (as defined below) in accordance with the terms of this
Agreement.
NOW THEREFORE, in consideration of the matters set forth in the
Preliminary Statement, the mutual promises and covenants herein set
forth, and
subject to the terms and conditions hereof, the parties hereby
agree as follows:
PURCHASE AND SALE OF ASSETS
1.1 SALE OF
ASSETS. On the terms and subject to the conditions of this
Agreement and for the consideration stated herein, at the
Closing,
Purchaser shall purchase and receive from Seller, and Seller shall
sell
and deliver to Purchaser subject to the Permitted Liens, all of
Seller's right, title and interest in and to the following
assets
(collectively, the "ASSETS"):
1.1.1. The Land
described on SCHEDULE 1.1.1 hereto;
1.1.2. The
improvements located on the Land, including buildings,
facilities, fixtures, storage tanks, piping and related
on-site facilities and appurtenances (the "IMPROVEMENTS," and
together with the Land, the "REAL PROPERTY");
1.1.3. All
equipment and fixtures appurtenant to the Facility and
used by Seller as of the date of this Agreement primarily in
its operation of the Facility, together with any and all
licenses or other rights to use real property held in
connection with same (such licenses and rights being the
"LICENSES," and together with said equipment and fixtures, the
"APPURTENANT EQUIPMENT");
1.1.4. All
supplies, spare parts, tools, drawings, plats, equipment
manuals, books, furniture, machines, equipment, computers, and
records located at or relating to the Facility and all other
personal property located at the Facility, other than the
Excluded Personal Property set forth on SCHEDULE 1.2.6 hereto
(the "PERSONAL PROPERTY");
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1.1.5. All of
Seller's rights, interests and obligations arising or
accruing after the Closing Date under written contracts,
purchase orders, sales orders, licenses, leases and other
agreements, arrangements and understandings and set forth on
SCHEDULE 1.1.5 hereto ("CONTRACTS");
1.1.6. To the
extent transferable and relating to the Facility, all
of Seller's rights, interests and obligations arising or
accruing after the Closing Date under all permits and similar
authorizations from any Governmental Authority set forth on
SCHEDULE 1.1.6 hereto ("PERMITS");
1.1.7. To the
extent transferable, all manufacturer and seller
warranties of, or other claims directly related to, any goods
or services provided to Seller regarding the Assets; and
1.1.8. All
books, records, files or other embodiments of information
wherever located, hard copy or electronic format, whether
relating to past or current operations, in Seller's possession
and relating directly to the Facility (the "RECORDS").
1.2 EXCLUDED
PROPERTY. Notwithstanding anything else in this Agreement, the
Assets exclude the following (collectively, the "EXCLUDED
PROPERTY"):
1.2.1. All
Product Inventory;
1.2.2.
Intra-company accounts and contracts of Seller including any
accounts and contracts between Seller and any of its
Affiliates;
1.2.3. Cash or
bank accounts of Seller;
1.2.4. Accounts
receivable, notes receivable and employee
receivables;
1.2.5.
Proprietary trade names, trademarks, service marks, logos,
trade dress, insignia, and imprints of Seller and all signs
whose purpose is to display any of the foregoing and all forms
and documents which incorporate any of the foregoing;
1.2.6. The items
of personal property that are listed on SCHEDULE
1.2.6 (collectively, the "EXCLUDED PERSONAL PROPERTY");
1.2.7. All
Intellectual Property;
1.2.8. All
rights to any of Seller's claims (whether or not filed)
for any federal, state, local, or foreign Income Tax or Tax
refunds or carrybacks;
1.2.9. The
following documents: (A) all minute books, tax returns,
partnership documents of Seller or any of its Affiliates as
well as other business records or related documents of Seller
or any of its Affiliates that are not related to the Assets;
and (B) all Records that (i) are proprietary in nature, (ii)
are covered by the attorney-client privilege or work product
doctrine (other than Records which relate to any Assumed
Liability), (iii) are not readily severable from Seller's
general records through diligent efforts, (iv) relate to
employment matters for any person other than employees of
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Seller employed in connection with the Assets within 30 days
prior to the date of this Agreement, or (v) are required by
applicable Law to be retained by Seller or any of Seller's
Affiliates in its care, custody, or control; provided,
however, to the extent the documents described in (v)
constitute Records, copies of such Records shall be delivered
to Purchaser;
1.2.10. All rights in
connection with and assets of any employee
benefit or similar plans;
1.2.11. All insurance
policies and rights thereunder;
1.2.12. The capital
stock of any Affiliate of Seller;
1.2.13. All Claims of
Seller and other rights to recover monies
against Third Parties, whether choate or inchoate, known or
unknown, contingent or non-contingent, arising prior to, on or
after the Closing Date that Seller or any of its Affiliates
may have and relating to or in connection with Seller's
ownership of the Assets prior to the Closing Date, including
without limitation Claims related to the cleaning and removal
of tank bottoms.
1.2.14. Any other
properties or assets of Seller not specifically
described herein as being part of the "Assets."
1.3 AS-IS
SALE. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT,
ALL ASSETS TO BE CONVEYED HEREUNDER WILL BE CONVEYED ON AN "AS
IS",
"WHERE IS", AND "WITH ALL FAULTS" BASIS AT THE CLOSING, INCLUDING
ANY
ENVIRONMENTAL CONDITION, AND SELLER MAKES NO, AND HEREBY DISCLAIMS
ALL
OTHER, REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY
OR
OTHERWISE, CONCERNING THE PHYSICAL CONDITION, UTILITY OR
OPERABILITY OF
ANY OF THE ASSETS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY
OF
MERCHANTABILITY OR OF FITNESS FOR PARTICULAR OR ORDINARY USES
OR
PURPOSES.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER HAS
INSPECTED, OR WAIVED (AND UPON CLOSING SHALL BE DEEMED TO HAVE
WAIVED)
ITS RIGHT TO INSPECT, THE ASSETS FOR ALL PURPOSES AND SATISFIED
ITSELF
AS TO THEIR PHYSICAL AND ENVIRONMENTAL CONDITION, BOTH SURFACE
AND
SUBSURFACE, INCLUDING, BUT NOT LIMITED TO, CONDITIONS
SPECIFICALLY
RELATED TO THE PRESENCE, RELEASE, OR DISPOSAL OF HAZARDOUS
MATERIALS
IN, ON, OR UNDER THE ASSETS. EXCEPT AS EXPRESSLY PROVIDED IN
THIS
AGREEMENT, PURCHASER IS RELYING SOLELY UPON ITS OWN INSPECTION OF
THE
ASSETS. WITHOUT LIMITATION OF THE FOREGOING, SELLER MAKES NO,
AND
HEREBY DISCLAIMS ANY, WARRANTY OR REPRESENTATION, EXPRESS,
IMPLIED,
STATUTORY, OR OTHERWISE, AS TO THE ACCURACY OR COMPLETENESS OF
ANY
DATA, REPORTS, RECORDS, PROJECTIONS, INFORMATION, OR MATERIALS
NOW,
HERETOFORE, OR HEREAFTER FURNISHED OR MADE AVAILABLE TO PURCHASER
IN
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CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
ANY AND ALL SUCH DATA, RECORDS, REPORTS, PROJECTIONS, INFORMATION,
AND
OTHER MATERIALS (WRITTEN OR ORAL) FURNISHED BY SELLER OR OTHERWISE
MADE
AVAILABLE OR DISCLOSED TO PURCHASER ARE PROVIDED TO PURCHASER AS
A
CONVENIENCE AND SHALL NOT CREATE OR GIVE RISE TO ANY LIABILITY OF
OR
AGAINST SELLER, AND ANY RELIANCE ON OR USE OF THE SAME SHALL BE
AT
PURCHASER'S SOLE RISK TO THE MAXIMUM EXTENT PERMITTED BY LAW.
1.4 USE OF
NAMES. Prior to Closing, Seller shall remove or cause to have
removed the names and marks used by Seller and Seller's
Affiliates
(including replacement of Seller's and their Affiliates name and
number
with Purchaser's name and designated number on any applicable
pipeline
markers located upon the Land) and all variations and
derivations
thereof and logos relating thereto from the Assets. Purchaser shall
not
make any use whatsoever of those names, marks, and logos.
1.5 ACCOUNTS
RECEIVABLE; REVENUE; EXPENSES. From and after the Closing,
Purchaser shall provide commercially reasonable assistance to
Seller
and its authorized representatives in collecting the amounts due
with
respect to the accounts receivable of Seller accruing from use of
the
Assets prior to the Closing, which efforts shall include receipt
of
funds billed by Seller for such accounts receivable and
reasonable
access to customer files and records with respect to such
accounts
receivable, but which efforts shall not include any obligation to
spend
any money or incur any out-of-pocket expense. Purchaser agrees that
it
will pay to Seller within thirty (30) days of receipt by Purchaser
(i)
any amounts received by Purchaser with respect to such accounts
receivable, and (ii) any revenues (including throughput fees)
attributable to the Assets prior to Closing to the extent same are
paid
to Purchaser. Seller agrees that it will promptly pay to
Purchaser
within thirty (30) days of receipt by Seller any amounts received
by
Seller with respect to Purchaser's use of the Assets at and
subsequent
to the Closing, including revenues and accounts receivable. All
amounts
so collected by Purchaser shall be applied to outstanding
accounts
receivable on a "first in, first out" basis, unless otherwise
directed
by the payor.
ARTICLE II
PURCHASE PRICE
2.1.
DEPOSIT. Purchaser shall pay to Seller, by wire transfer or
delivery of
other immediately available funds, a non-refundable deposit against
the
Purchase Price of the Assets in an amount equal to $150,000
(the
"DEPOSIT"). Seller hereby acknowledges receipt of one-half of
the
Deposit upon the signing of the Letter of Interest between the
parties
dated July 28, 2008 ("LOI"), and one-half of the Deposit upon
Purchaser
and Seller entering into this Agreement on the Execution Date. In
the
event the Closing should not occur for any reason (other than due
to
Seller's breach of this Agreement), Seller will retain the Deposit
as a
break-up fee. Seller and Purchaser hereby acknowledge and agree
that
the Deposit constitutes consideration for the exclusivity set forth
in
the Letter of Interest between the parties dated July 28, 2008, and
in
part reflects a fair and reasonable monetary estimate of the
substantial time, effort and resources Seller will expend in
connection
with the negotiation of the acquisition. In the event the
Closing
occurs, the Deposit shall be credited against the Purchase
Price
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2.2 PURCHASE
PRICE; PAYMENT.
2.2.1. The
purchase price to be paid by Purchaser for the transfer,
sale and assignment by Seller of the Assets shall be the sum
of Four Million Eight Hundred Thousand and No/100 Dollars
($4,800,000) minus (i) the amount of any Prepaid Storage Fees
as of the Closing minus (ii) Seller's prorated share of the
Expenses minus (iii) the Third Party Inventory Shrinkage (such
net consideration shall hereinafter be referred to as the
"PURCHASE PRICE"), payable at the Closing.
a) For
purposes of this Agreement, "PREPAID STORAGE
FEES" means the aggregate amount of all fees and
other amounts paid to Seller prior to the Closing by
Third Parties storing Product Inventory at the
Facility as of the Closing to the extent and for the
period such fees and other payments entitle the payor
to storage or similar services at, or use of some
portion of, the Assets on and subsequent to the
Closing Date prorated for the period such storage or
special services are
to be provided subsequent to the
Closing. All Prepaid Storage Fees in Seller's
possession as of the date of this Agreement are
listed in SCHEDULE 2.1.1(A). Seller shall provide
Purchaser with an updated list of Prepaid Storage
Fees at least within two (2) business days prior to
Closing.
b)
Seller shall provide to Purchaser an estimate of the
Third Party Inventory Shrinkage at least two (2)
business days prior to Closing, and shall cooperate
with Purchaser's reasonable requests to participate
in the reconciliation process. After such estimate is
delivered, Seller shall not remove additional product
inventory from the Facility without providing
reasonably detailed notice of same to Purchaser. At
Purchaser's option, Purchaser may contact Seller's
customers reflected by such inventory records and
request
confirmation of the accuracy of such records.
2.2.2. As soon
as reasonably practical, but in no event later than
two (2) business days prior to the Closing Date, Seller shall
in good faith cause to be prepared and delivered to Purchaser
a statement (the "CLOSING STATEMENT") setting forth the
Purchase Price, calculated in conformity with Section 2.1.1
above.
2.2.3. At the
Closing, Purchaser shall pay the Purchase Price (as
properly reflected in the Closing Statement) to Seller by wire
transfer of immediately available funds to the account of
Seller, written notice of which account shall have been
provided to Purchaser not less than one (1) business day prior
to the Closing.
2.3 ALLOCATION
OF PURCHASE PRICE FOR TAX PURPOSES. Seller and Purchaser
agree that the proper allocation for purposes of IRS Form 8594
of
amounts paid in connection with the transactions contemplated
hereunder
is as set forth in SCHEDULE 2.2, and the parties shall file IRS
Form
8594 consistently with the terms of same.
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ARTICLE III
RETAINED LIABILITIES; ASSUMED LIABILITIES; PURCHASER'S RELEASE
3.1 SELLER'S
RETAINED LIABILITIES. Seller shall retain and shall pay and
discharge when due only the following Liabilities (collectively,
the
"RETAINED LIABILITIES"):
3.1.1. any
Liability for: (i) salary, wages and benefits for any
current or former employees of Seller pertaining to their
employment by Seller at the Facility prior to the Closing
Date, including any accrued and unused vacation entitlement
for the Employee, or (ii) any violations of law by Seller
relating to the hiring, employment or termination of
employment of any current or former employees of Seller
pertaining to their employment by Seller at the Facility prior
to the Closing Date;
3.1.2. all costs
for property furnished or services rendered to or
for the benefit of the Assets prior to the Closing Date;
3.1.3. any (1)
Liability of Seller and its Affiliates for Income
Taxes and (2) Liability of Seller for Taxes arising during, or
relating to, any period (or portion thereof), through and
including the Closing Date and which result from Seller's
operation of the Facility or ownership of the Assets prior to
the Closing Date; provided, however, that Purchaser shall
assume responsibility for payment of those Taxes set forth in
Section 4.4.2;
3.1.4. any
Liability arising out of or related to the Excluded
Property;
3.1.5. any
Liability arising out of or related to Pre-Closing Offsite
Disposal;
3.1.6. any
Liability, other than Liability described in Section 3.1.5
above, arising out of or related to any enforcement action
brought by a Governmental Authority that shall have commenced
on or before the two (2) year anniversary of the Closing Date
to the extent the same relate to, result from or arise out of
the Facility's non-compliance with Environmental Laws prior to
the Closing Date;
3.1.7. any
Liability arising out of or related to the exposure of any
Employee at any time to any Hazardous Materials to the extent
existing at or released from the Facility prior to the Closing
Date;
3.1.8. any
Liability arising under any of the Contracts or Permits to
the extent such
Liability has accrued prior to the Closing
Date;
3.1.9. any
Liability sounding in tort or any statutory Liability,
other than Liability described in Section 3.1.5, Section 3.1.6
or
Section 3.1.7 above, pursuant to a Proceeding brought by a
Third Party that shall have commenced on or before the five
(5) year anniversary of the Closing Date to the extent arising
out of or related to any occurrence or event happening prior
to the Closing Date;
3.1.10. any Liability,
other than Liability described in Section
3.1.5, Section 3.1.6 or Section 3.1.7 above, with respect to
litigation pending against Seller as of the Closing Date
related in any manner to the Facility or the Assets or
defending or prosecuting the same.
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3.2
PURCHASER'S ASSUMED LIABILITIES. Upon the Closing, Purchaser,
without
any further action by Purchaser or Seller, shall assume and be
solely
liable for the following Liabilities (collectively, the
"ASSUMED
LIABILITIES"):
3.2.1. any
Liability under any and all of the Contracts, Licenses and
Permits arising after the Closing Date (but excluding any
Liability arising out of or relating to any such instrument or
a breach thereof that has accrued prior to the Closing Date);
3.2.2. any
Liability under Environmental Law to perform Corrective
Action of any Environmental Condition;
3.2.3. any
Liability arising out of or related to any enforcement
action brought by a Governmental Authority that shall have
commenced after the two (2) year anniversary of the Closing
Date to the extent the same relate to, result from or arise
out of the Facility's non-compliance with Environmental Laws
prior to the Closing Date;
3.2.4. any
Liability arising out of or related to a Release of
Hazardous Materials pursuant to a Proceeding brought by a
Third Party to the extent the same relate to, result from, or
arise out of Seller's ownership or operation of the Facility
prior to the Closing Date, but excluding any such Liability to
the extent
expressly set forth in Section 3.1.5, Section 3.1.6
or Section 3.1.7;
3.2.5. any
Liability arising out of or related to the exposure of any
natural person at any time to any Hazardous Material to the
extent existing at or released from the Facility prior to, on
or after the Closing Date, but excluding any such Liability to
the extent expressly set forth in Section 3.1.7;
3.2.6. any
Liability arising out of or related to Title Claims;
3.2.7. any
Liability arising out of or related to the operation of
the Facility or the ownership of the Assets, whether arising
prior to or after the Closing, including any Liability arising
out of or related to the condition of the Assets prior to or
at the time of Closing, but excluding the Retained
Liabilities.
3.3 RELEASE.
Upon the terms and subject to the conditions of this
Agreement, without any further action by Purchaser or Seller,
(i)
Purchaser agrees from and after the Closing that Purchaser shall
pay,
perform and discharge when due, whether based in whole or in part
on
violation of Laws, strict liability, contract, willful
misconduct,
ordinary or gross negligence of Seller, the Assumed Liabilities;
and
(ii) Seller agrees from and after the Closing that Seller shall
pay,
perform and discharge when due, whether based in whole or in part
on
violation of Laws, strict liability, contract, willful
misconduct,
ordinary or gross negligence of Purchaser, the Retained
Liabilities.
Effective as of the Closing, Purchaser hereby unconditionally
releases
and discharges Seller, Seller's Affiliates, and the partners,
employees, officers and directors of Seller and Seller's
Affiliates,
from all of the Assumed Liabilities, and Seller hereby
unconditionally
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releases and discharges Purchaser, Purchaser's Affiliates, and
the
partners, members, managers, employees, shareholders, officers
and
directors of Purchaser and Purchaser's Affiliates, from all of
the
Retained Liabilities.
ARTICLE IV
CLOSING
4.1 TIME AND
PLACE. The closing of the transaction contemplated hereby (the
"CLOSING") shall be held on October 31, 2008 at the offices of
Milling
Benson Woodward LLP, 909 Poydras Street, Suite 2300, New
Orleans,
Louisiana, unless another time, place or date is agreed to in
writing
by the parties hereto (the day of the Closing being referred to
herein
as the "CLOSING DATE"). If the Closing does not occur by October
31,
2008, a party that is not then in material default under this
Agreement
may, by written notice to the other party, terminate this
Agreement
without further obligation to the other party in accordance
with
Section 15.1 below.
4.2 SELLER'S
DELIVERIES. At the Closing, Seller shall deliver to Purchaser
the following:
4.2.1. Deliver
to the Title Company a quitclaim deed for Seller's
right, title and interest in and to the Real Property in the
form attached hereto as EXHIBIT B ("DEED"), executed by
Seller;
4.2.2. an
assignment and bill of sale for the Appurtenant Equipment
and Personal Property substantially in the form attached as
EXHIBIT C ("ASSIGNMENT AND BILL OF SALE"), executed and
acknowledged by Seller;
4.2.3. an
assignment and assumption of Permits and Contracts
substantially in the form attached as EXHIBIT D ("ASSIGNMENT
AND ASSUMPTION OF PERMITS AND CONTRACTS"), executed by Seller;
4.2.4. an
assumption and release agreement substantially in the form
attached as EXHIBIT E ("ASSUMPTION AND RELEASE AGREEMENT"),
executed by Seller;
4.2.5.
possession of the Assets, subject to the Permitted Liens;
4.2.6. certified
copies of appropriate partnership action by Seller
authorizing the transactions contemplated by this Agreement
and authorizing the person(s) executing the documents
referenced in this Section 4.2 to enter into this Agreement
and such other documents on behalf of Seller;
4.2.7. a
certificate that the representations and warranties made by
Seller in this Agreement are true and correct in all material
respects as of the Closing Date, as though made at and as of
the Closing Date.
4.3
PURCHASER'S DELIVERIES. At the Closing, Purchaser shall deliver
to
Seller the following:
4.3.1. the
Purchase Price in immediately available funds in
accordance with Section 2.1, together with the reimbursement
to Seller in immediately available funds for Purchaser's share
of any applicable Transfer Taxes as provided in Section 4.4.2;
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4.3.2. the
Assignment and Bill of Sale substantially in the form
attached as EXHIBIT C, executed by Purchaser;
4.3.3. the
Assignment and Assumption of Permits and Contracts
substantially in the form attached as EXHIBIT D, executed by
Purchaser;
4.3.4. the
Assumption and Release Agreement substantially in the form
attached as EXHIBIT E, executed by Purchaser;
4.3.5. the
Guaranty substantially in the form attached as EXHIBIT F,
executed by Blackwater Midstream Corp., as guarantor;
4.3.6. certified
copies of appropriate corporate action by Purchaser
authorizing the transactions contemplated by this Agreement
and authorizing the person(s) executing the documents
referenced in this Section 4.3 to enter into this Agreement
and such other documents on behalf of Purchaser;
4.3.7. a
certificate that the representations and warranties made by
Purchaser in this Agreement are true and correct in all
material respects as of the Closing Date, as though made at
and as of the Closing Date.
4.4
APPORTIONMENT OF TAXES, UTILITIES AND OTHER EXPENSES.
4.4.1. The
following items relating to the Assets: (i) general real
estate ad valorem taxes for the then current fiscal year, (ii)
personal property taxes, (iii) charges for utilities or
municipal charges, and (iv) other prepaid expenses related to
the Assets and their operations (collectively, "EXPENSES"),
shall be prorated as of the Closing Date and shall be adjusted
at the Closing. Subject to such pro-ration, Seller shall pay
all Expenses assessed against the Assets for periods on or
before the Closing Date; provided, however, that if any
Expenses are payable in installments, Seller shall be
responsible for paying only that portion of such installments
to the extent applicable to periods prior to the Closing Date.
Subject to such pro-ration, Purchaser shall pay all Expenses
assessed against the Assets for all periods after the Closing
Date. Notwithstanding the foregoing, Seller shall pay all
special assessments levied prior to the Closing, but only to
the extent Seller received notice of same prior to the Closing
and to the extent such assessments are attributable to
pre-Closing ownership and operation of the Facility.
4.4.2. Purchaser
shall pay and assume all Liabilities for any
applicable sales tax, documentary or other similar transfer
tax, real property filing fees and any other similar Taxes
(other than Income Taxes) (collectively, "TRANSFER TAXES"),
whether imposed on Seller or Purchaser, and whether paid with
a return or imposed by a Governmental Authority upon audit or
otherwise, arising from the transfer of Assets contemplated by
this Agreement.
4.4.3. If any of
the Expenses to be apportioned in Section 4.4.1 are
not readily ascertainable as of the time of Closing, such
apportionments shall, to the extent necessary, be based on the
parties' reasonable estimate thereof. The parties shall
cooperate with each other in making the calculations upon
which any Expenses are to be allocated in favor of Seller or
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Purchaser, as the case may be. Such apportionments made on the
basis of
estimates shall be recalculated promptly after the
availability of required information, but in any event within
six (6) months of the Closing Date, and any overpayments or
underpayments due a party shall be adjusted by suitable
payment from the applicable party.
4.4.4. After the
Closing Date, if either Purchaser or Seller (as
applicable, the "RECEIVING PARTY") receives a bill for
Expenses that covers periods both before and after the Closing
Date, the Receiving Party shall either (a) pay such bill in
its entirety and invoice the other party (the "SHARING PARTY")
for the portion of the Expenses payable by such other party in
accordance with the principles of proration set forth in
Section 4.4.1, in which event the Sharing Party shall promptly
reimburse the Receiving Party receiving such invoice, or (b)
if the Sharing Party is primarily responsible for payment as
prorated pursuant to Section 4.4.1, forward a copy of such
bill to the Sharing Party within 10 days of receipt and pay
that portion of the Expenses payable by it in accordance with
the principles of proration set forth in Section 4.4.1, in
which event the Sharing Party shall timely pay its portion of
the bill directly. After the Closing Date, if a Receiving
Party receives a bill for Expenses that covers only a period
for which the Receiving Party is not responsible under the
terms of this Agreement, then the Receiving Party shall
forward the bill to the party who is responsible for such
Expenses in accordance with the terms of this Agreement (the
"OBLIGATED PARTY") for payment directly by the Obligated
Party. The Obligated Party shall pay such bill in timely
fashion (except to the extent that it is being protested
through proper procedures and the Obligated Party uses
reasonable best efforts to cause the Governmental Authority or
other person issuing such bill to correct the name on the
account, and the Obligated Party shall pay any amount found to
be its responsibility).
4.4.5. Any
refunds received in respect of Expenses apportioned
pursuant to this Section 4.4 shall be paid to the party to
whom such Expenses are apportioned pursuant to this Section
4.4 if received from the payor by another party.
4.4.6. Seller
and Purchaser will provide each other with such
cooperation and information as each may reasonably request of
the other with regard to the preparation and filing of
returns, or the conduct of an audit or other proceeding in
respect of Taxes.
ARTICLE V
CONDITIONS PRECEDENT TO CLOSING
Subject to the terms hereof, the obligations of Seller and
Purchaser at
the Closing are subject to the satisfaction or waiver at or prior
to the Closing
of each of the respective conditions set forth below.
5.1.
CONDITIONS TO PURCHASER'S OBLIGATIONS. The obligations of Purchaser
at
the Closing are subject to the satisfaction prior to or at the
Closing
of each of the following conditions:
5.1.1. Seller
shall have performed (a) in all respects those
covenants required by this Agreement to be performed by it at
or prior to the Closing that are not qualified by materiality,
and (b) in all material respects those covenants required by
this Agreement that are qualified by materiality to be
performed by it at or prior to the Closing;
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5.1.2. Seller
shall have delivered, or caused to be delivered, to
Purchaser all agreements, instruments, certificates and
documents required to be so delivered under this Agreement,
including those listed in Section 4.2;
5.1.3. There
shall not have been any material adverse change with
respect to the
condition of the Assets, and all of Seller's
representations and warranties set forth in Article VI shall
remain true and correct in all material respects as at the
Closing;
5.1.4. There
shall not be in effect any Order barring the
consummation of the transactions contemplated by this
Agreement;
5.1.5. Purchaser
shall have obtained a firm commitment for the
financing of the Purchase Price, on terms and conditions
reasonably satisfactory to Purchaser; and
5.1.6. There
shall not have been issued any notice of violations of
city, county, state, federal, building, land use, fire,
health, safety, environmental, hazardous materials or other
governmental or public agency codes, ordinances, regulations,
or orders with respect to the Facility that are individually
or in the aggregate material to the continued operation of the
Business.
5.2.
CONDITIONS TO SELLER'S OBLIGATIONS. The obligations of Seller at
the
Closing are subject to the satisfaction prior to or at the Closing
of
each of the following conditions:
5.2.1. Purchaser
shall have performed (a) in all respects those
covenants required by this Agreement to be performed by it at
or prior to the Closing that are not qualified by materiality,
and (b) in all material respects those covenants required by
this Agreement to be performed by it at or prior to the
Closing that are qualified by materiality;
5.2.2. Purchaser
shall have delivered to Seller the Purchase Price
and all agreements, instruments, certificates and documents
required to be so delivered under this Agreement or any
related agreement between the parties, including those listed
in Section 4.3;
5.2.3. Seller
and Purchaser shall have entered into one or more
terminal services agreements on terms substantially similar to
the existing Contracts in respect of any such Contract
requiring Third Party consent to assign for which consent has
not been obtained at Closing for the sole purpose of enabling
Seller to provide Purchaser with the benefits of such Contract
until such time as consent has been obtained in accordance
with Article XIV; and
5.2.4. There
shall not be in effect any Order barring the
consummation of the transactions contemplated by this
Agreement.
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ARTICLE VI
SELLER'S REPRESENTATIONS AND WARRANTIES
Seller hereby warrants and represents to Purchaser that, except as
set
forth on the schedules attached hereto:
6.1
ORGANIZATION. Seller is a limited partnership, duly organized,
validly
existing and in good standing under the laws of the state of
Delaware.
6.2 AUTHORITY;
ENFORCEABILITY. Seller has the power and authority to
execute and deliver this Agreement and each agreement and
instrument
delivered or to be delivered by Seller pursuant hereto, and to
carry
out its obligations hereunder and thereunder. The execution,
delivery
and performance of this Agreement and each agreement and
instrument
delivered or to be delivered pursuant hereto by Seller, and the
consummation of the transactions provided for hereby and thereby,
have
been duly authorized and approved by all requisite partnership
action
of Seller, and no other act or proceeding on the part of Seller or
its
Affiliates is necessary to authorize the execution, delivery or
performance of this Agreement or of such other agreements and
instruments, or the transactions contemplated hereby or thereby;
and
each of this Agreement and such agreements and instruments is, or
upon
its execution and delivery will be, legal, valid, binding and
enforceable against Seller in accordance with its respective
terms,
subject to the effects of bankruptcy, insolvency,
reorganization,
moratorium, and other laws of general application relating to
creditors' rights and equitable remedies.
6.3 TITLE TO
ASSETS. During the Seller Ownership Period, Seller has not
granted any interest in the Real Property to any Third Party.
Except as
otherwise provided in Article VIII, Seller has good and
marketable
title to the Assets, free and clear of all Liens other than
Permitted
Liens.
6.4 NO BREACH.
The execution and delivery of this Agreement and each
agreement and instrument delivered or to be delivered pursuant
hereto
by Seller, and the consummation of the transactions provided for
hereby
and thereby and the compliance by Seller with any of the
provisions
hereof or thereof does not and will not violate, or conflict with,
or
result in a breach of, any provisions of the constituent documents
of
Seller
6.5 CONTRACTS.
SCHEDULE 1.1.4 sets forth a list of Contracts in effect on
the date of this Agreement to which Seller is a party or is bound
that
relate to the Assets. To Seller's knowledge, neither Seller nor
any
other pa
