Vertex Energy Operating LLC 8-K
Exhibit 2.1
CERTAIN
CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND REPLACED WITH “[***]”. SUCH IDENTIFIED INFORMATION HAS BEEN EXCLUDED
FROM THIS EXHIBIT BECAUSE IT IS (I) NOT MATERIAL AND (II) THE REGISTRANT CUSTOMARILY AND ACTUALLY TREATS THAT INFORMATION AS PRIVATE
OR CONFIDENTIAL.
| SALE
AND PURCHASE AGREEMENT |
By and Between
EQUILON
ENTERPRISES LLC d/b/a SHELL OIL PRODUCTS US and/or SHELL CHEMICAL LP and/or SHELL OIL COMPANY
(Collectively
Seller)
and
VERTEX ENERGY
OPERATING LLC
(Buyer)
Sale and Purchase
of the Shell Mobile Refinery
May 26, 2021
TABLE OF CONTENTS
SCHEDULES
| SCHEDULE |
DESCRIPTION
|
| 1.01A |
Seller
Knowledge Individuals |
| 1.01B |
Buyer
Knowledge Individuals |
| 1.01C |
Certain
Permitted Encumbrances |
| 1.01D |
Environmental
Fuel Credits |
| 2.01(b)(i) |
Refinery
Owned Real Property |
2.01(b)(ii)
201(b)(iii)
2.01(c)
2.01(f) |
Improvements
Easements
Refinery Leased Real
Property
Refinery Personal
Property |
2.01(g)
2.01(h) |
Refinery Contracts
Refinery Permits |
2.02(a)(iv)
2.03(a)(v) |
Excluded Contracts
Turnaround Contracts |
| 2.02(a)(xiv) |
Certain
Excluded Assets |
2.03(b)
2.06 |
Retained Liabilities
Specified Capital
Expenditures |
| 2.08(a)(1) |
Inventory
Determination Procedures |
| 2.08(a)(2) |
Inventory
Valuation Methodology |
| 2.08(b) |
List
of Approved Field Inspectors |
| 10.01 |
Employee
Matters |
10.02
11.10 |
Personal Data Protection
Required Licenses
and Contracts |
| 14.03 |
Tax
Allocation |
| |
|
Disclosure
Letter
| Section
|
Description
|
| 4.03 |
No Breach |
| 4.04 |
Ownership of Assets |
| 4.06 |
Ownership of the Assets |
| 4.07(a) |
Compliance with Law –
Seller |
| 4.07(b) |
Compliance with Law –
Assets |
| 4.08 |
Refinery Permits |
| 4.09 |
Proceedings; Judgments |
| 4.10(a) |
Material Contracts |
| 4.10(b) |
Material Contracts –
Non-Compliance or Termination |
| 4.11 |
Taxes |
| 4.12 |
Affiliate Agreements |
| 4.13(a) |
HSE Permits |
| 4.13(b) |
HSE Claims |
| 4.13(c) |
Compliance with HSE Laws |
| 4.13(d) |
HSE Judgments |
EXHIBITS
| EXHIBIT |
DESCRIPTION
|
| A |
Buyer’s Promissory Note |
| B |
Form of Deed for Refinery Owned
Real Property |
| C |
Form of Real Property Interest
Assignment and Assumption Agreement |
| D |
Form of Bill of Sale, Assignment
and Assumption Agreement |
| E |
Form of Shell Refinery Process
License Agreement |
| F |
Form of Shell Software License
Agreement |
| G |
Terms of Crude and Feedstock
Supply Agreement |
| H |
Form of Products Offtake Agreement |
| I |
Form of HOF Agreement |
| J |
Form of Terminalling
Services Agreement |
| K |
Swap Kit Agreement |
| L |
Form of N1450 |
M
|
Form of Shell Pipeline
Management Agreement
|
SALE AND PURCHASE
AGREEMENT
This SALE AND PURCHASE
AGREEMENT (this “Agreement”) is entered into as of May 26, 2021 (the “Execution Date”),
by and between EQUILON ENTERPRISES LLC d/b/a SHELL OIL PRODUCTS US, a Delaware limited liability company, SHELL OIL
COMPANY, a Delaware corporation, and/or SHELL CHEMICAL LP, a Delaware limited partnership (collectively “Seller”),
and VERTEX ENERGY OPERATING LLC, a Texas limited liability company and/or assigns (“Buyer”). Seller
and Buyer are referred to individually as a “Party,” and collectively, as the “Parties.”
W I T N E
S E T H:
WHEREAS,
Seller owns or leases certain refining assets and other related assets located at 400 Industrial Parkway, Saraland, AL 36571, which are
generally referred to as the “Mobile Refinery” and collectively, as the “Refinery”;
WHEREAS,
Seller, directly or through certain of its Affiliates, desires to sell, assign, transfer, convey and deliver to Buyer, and Buyer through
certain of its Affiliates desires to purchase, assume, acquire and accept from Seller (or Seller’s Affiliates, as applicable),
the Assets (hereinafter defined), on the terms and subject to the conditions of this Agreement;
WHEREAS,
the sale of the Refinery to Buyer is subject to Buyer’s assumption of the Assumed Liabilities (hereinafter defined) on the
terms and subject to the conditions of this Agreement.
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants, conditions and agreements set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which is hereby expressly acknowledged, the Parties agree as follows:
ARTICLE
I
DEFINITIONS AND INTERPRETATIONS
1.01
Definitions. As used in this Agreement, the following terms shall have the meanings set forth below:
“1031
Exchange” has the meaning set forth in Section 14.04.
“AAA”
means the American Arbitration Association.
“AAA
Rules” has the meaning set forth in Section 16.01.
“Affiliate”
means, with respect to any specified Person, any other Person that directly or indirectly through one or more intermediaries, controls,
or is controlled by, or is under common control with, such specified Person. For the purposes of this definition, “control”
(including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control
with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction
of the management or policies of such Person, whether through the
Sale and Purchase Agreement
Page 1 of 99
ownership of
voting securities, by agreement or otherwise. It is understood that (i) an entity (hereinafter referred to as the “parent
entity”) directly “controls” another entity (hereinafter referred to as the “controlled entity”) if the
parent entity holds shares or equivalent ownership interest or contractual rights carrying more than 50% of the votes exercisable at
a general meeting (or its equivalent) of the controlled entity or the right to appoint a majority of the members of the board of directors
(or its equivalent) of the controlled entity, and (ii) a parent entity indirectly “controls” a controlled entity if
a series of entities can be specified beginning with the parent entity and ending with the controlled entity such that each entity of
the series owns, either directly or through one or more entities in the series, more than a 50% interest in a later entity in the series
or otherwise holds (directly or indirectly) the rights with respect to the controlled entity.
“Agreement”
has the meaning set forth in the preamble and, for the avoidance of doubt, shall include all Exhibits and Schedules attached hereto.
“Anti-Corruption
Laws” means (i) the United States Foreign Corrupt Practices Act of 1977; (ii) the United Kingdom Bribery Act 2010; and
(iii) all applicable national, regional, provincial, state, municipal or local laws and regulations that prohibit tax evasion, money
laundering or otherwise dealing in the proceeds of crime or the bribery of, or the providing of unlawful gratuities, facilitation payments,
or other benefits to, any Government Official or any other Person.
“Antitrust
Authorities” has the meaning set forth in Section 8.01(a).
“Applicable
Data Protection Laws” means all laws, rules, regulations, governmental requirements, codes as well as international, federal,
state, provincial laws applicable to a Party when acting as a controller or processor of Personal Data.
“Applicable
Law” means any applicable statute, law (including common law), ordinance, code (including the Code), rule or regulation
promulgated, issued or enacted by any Governmental Authority having jurisdiction and any applicable Judgment or consent of or agreement
with any Governmental Authority having jurisdiction, including Anti-Corruption Laws, Trade Control Laws, HSE Laws and Applicable Data
Protection Laws.
“Arbitration
Notice” has the meaning set forth in Section 16.01.
“ACM”
means any material that contains asbestos in concentrations greater than 1%.
“Assets”
has the meaning set forth in Section 2.01.
“Assumed
Liabilities” has the meaning set forth in Section 2.03(a).
“Authorizations”
means any and all Permits, authorizations, certificates, private letter rulings or other governmental approvals, licenses, consents,
or restrictions, in whatever form, relating to compliance with any Applicable Law, including any HSE Permit, which are necessary to transfer
the Assets and to enable Buyer to own, maintain, and operate the Assets substantially in the same manner as they were operated prior
to the Closing Date. Authorizations shall not include Easements.
Sale and Purchase Agreement
Page 2 of 99
“Base
Amount” has the meaning set forth in Section 2.04.
“Benzene”
means any organic, aromatic hydrocarbon with a chemical formula of C6 H6.
“Bill
of Sale, Assignment and Assumption Agreement” has the meaning set forth in Section 3.02(a)(iii).
“Business”
means the Refinery with a nameplate capacity of approximately 91 (mbpd) processing various grades of sweet crude oil into gasoline, diesel,
vacuum gas oil, jet, benzene concentrate, LPG and other miscellaneous products for sale to customers via pipeline, marine transportation
and truck in the Mobile, Alabama area.
“Business
Day” means any day other than a Saturday, Sunday, public holiday or other day on which commercial banks in the State of
Texas are authorized by law to close.
“Business
Employees” has the meaning set forth in Section 10.01(a) of Schedule 10.01.
“Buyer”
has the meaning set forth in the preamble.
“Buyer
Indemnified Parties” has the meaning set forth in Section 13.02.
“Buyer’s
Promissory Note” means the promissory note attached hereto as Exhibit A.
“Buyer’s
Title Objections” has the meaning set forth in Section 7.07.
“Casualty”
means a damage or destruction of all or any material portion of the Assets by a Casualty Event.
“Casualty
Event” means any loss, damage or destruction of Assets as a result of any fire, explosion, collision, earthquake, windstorm,
flood or other casualty event or any condemnation by any Governmental Authority, but for the avoidance of doubt excluding any loss, damage
or destruction as a result of events that arise in the ordinary course, such as depreciation or ordinary wear and tear.
“CERCLA”
means 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.
“Change
in Control” means, and shall be deemed to have occurred upon any transaction, or series of related transactions, that results
or would be reasonably likely to result in the transfer, whether directly or indirectly including by operation of law, of more than 50%
of the Equity Interests of Buyer or its subsidiaries, including the transfer of more than 50% of the Equity Interests in any business
entity that owns or controls, directly or indirectly, more than 50% of the Equity Interests of Buyer.
“Claim”
means a dispute, claim, or controversy whether based on contract, tort, strict liability, statute or other legal or equitable theory
(including any claim of fraud, misrepresentation or fraudulent inducement or any question of validity or effect of an agreement).
Sale and Purchase Agreement
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“Claim
Notice” has the meaning set forth in Section 13.04(a).
“Closing”
means the closing of the Contemplated Transactions in accordance with the terms and conditions of this Agreement.
“Closing
Date” means the time and date established for the Closing pursuant to Section 3.01(a).
“Closing
Date Payment” has the meaning set forth in Section 2.09.
“Closing
Documents” means the agreements, documents, instruments and certificates executed and delivered by the Parties or their
Affiliates at the Closing pursuant to Section 3.02 and any other agreements, documents, instruments or certificates executed in
connection with or as required under this Agreement, including the Commercial Agreements.
“COBRA”
has the meaning set forth in Section 10.04(f) of Schedule 10.01.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Collective
Bargaining Agreement” has the meaning set forth in Section 10.02 of Schedule 10.01.
“Commercial
Agreements” means individually and collectively the Crude and Feedstock Supply Agreement, the Products Offtake Agreement,
the HOF Agreement, the Shell Pipeline Management Agreement and the N1450 Agreement.
“Confidential
Information” has the meaning set forth in Section 17.15(a).
“Confidentiality
Agreement” means that certain Confidentiality Agreement between Seller and Buyer dated, June 3, 2020.
“Consent
Decree” means all provisions of the Consent Decree entered on October 29, 2010 by the United States District Court for
the Southern District of Texas in the case captioned United States of America, State of Alabama, and State of Louisiana v. Shell Chemical,
LP, Civil Action Case No. 4:10cv1042 that pertain to the Refinery or to both the Refinery and the petroleum refinery located in St. Rose,
Louisiana, but specifically excluding any provisions that pertain solely to St. Rose, Louisiana.
“Consent
Order” means Alabama Department of Environmental Management – Consent Order No. CO 16-066-CAP (effective June 15,
2016); relating to High Pressure and Low-Pressure Flares compliance with requirements of NSPS Subpart Ja.
“Contemplated
Transactions” means all of the transactions contemplated by this Agreement, including: (i) the sale of the Assets to Buyer;
(ii) the execution and delivery of the Closing Documents; and (iii) the performance by the Parties of their respective covenants and
Obligations under this Agreement.
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“Contract”
means any contract, agreement, commitment, lease or other Obligation or arrangement (whether written or oral), but excluding any contract,
agreement, commitment, Obligation or arrangement relating to Intellectual Property, any employee benefit plan, and any Excluded Contract.
“Corrective
Action” means all activities, whether undertaken pursuant to judicial or administrative order or otherwise, reasonably
necessary to comply with applicable HSE Laws to investigate, test, monitor and, if required, clean up, abate, remove, dispose, treat,
cover, remediate (including by natural attenuation or bioremediation), protect from human or environmental exposure or in any other commercially
reasonably way address Hazardous Substances in the environment but in each case, only to the extent that any of the activities as described
herein is required under applicable HSE Laws.
“Corrective
Action Orders” means any order, decree, directive, settlement (including consent decree) or any other similar requirement
or demand issued by, or entered into with, any applicable Governmental Authority to perform Corrective Action pursuant to any HSE Law
relating to the ownership, operation or use of any of the Assets; provided, however, that the term “Corrective Action Order”
does not include any HSE Law in and of itself or recommendations by any Governmental Authority not required by Applicable Law.
“Covid-19
Response” means actions taken by the Seller Companies or their Affiliates at their reasonable discretion in order to comply
with any quarantine, “shelter in place”, “stay at home”, workforce reduction, social distancing, shut down, closure,
sequester, law, order, directive, guidelines or recommendations by any Governmental Authority in connection with or in response to COVID-19.
“Crude
and Feedstock Supply Agreement” means a Crude and Feedstock Supply Agreement, between the Parties, which shall be negotiated
in accordance with the agreed terms attached hereto as Exhibit G.
“Data
Controller” means the Person that alone or jointly with others determines the purposes and means of the Processing of Personal
Data.
“Data
Room” means the electronic data room(s) maintained by Intralinks, Inc. on behalf of Seller for the posting of documents
for review by Buyer in connection with the Contemplated Transactions.
“De
Minimis Amount” has the meaning set forth in Section 13.08(b)(i).
“Decommissioning
and Restoration Obligations” means all present (to the extent required to be performed in the
future) and future Obligations to:
(a)
close, decommission, dismantle and/or remove the Refinery and all Improvements, foundations, pipelines, piping, Equipment and other facilities
located on or within the Real Property;
(b)
assess, safely restore, remediate, and/or reclaim any Environmental Condition, and sustainably reuse the
Real Property;
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| (c) | any Obligations
under items (a) and (b) above that relate to Seller’s interests in the Easements, |
all
in accordance with generally accepted oil refining practices and terminal industry practices, as applicable, Applicable Law, and the
Contracts.
“Deed”
has the meaning set forth in Section 3.02(a)(i).
“Deposit”
has the meaning set forth in Section 2.05(a).
“Disclosure
Letter” means the disclosure letter delivered by Seller to Buyer (including any supplement or amendment thereto pursuant
to Section 6.03) setting forth certain disclosures pursuant to, and certain exceptions to, the representations and warranties
of Seller contained in Article IV.
“Dispute”
has the meaning set forth in Section 16.01.
“Easements”
means easements, licenses (that are in the nature of easements rather than in the nature of leases), rights-of-way, servitudes, surface
use agreements, leases, franchises, and similar agreements granting the right to use the Real Property
“Effective
Time” has the meaning set forth in Section 3.03.
“Electing
Party” has the meaning set forth in Section 14.04.
“Employee
List” has the meaning set forth in Section 10.01(a) of Schedule 10.01.
“Environmental
Condition” means any condition at, on, under, within or migrating to or from the Real Property, in each case arising out
of the presence of any Hazardous Substances or a Release on, at, or underlying the Real Property.
“Environmental
Fuel Credits” means all of those emissions credits, allowances, offsets, compliance instruments, allotments, renewable
identification numbers, low-carbon fuel standard credits, certificates, authorizations, and other credits (relating to applicable fuel
quality standards, renewable fuel and emissions standards, and other matters) as described in Schedule 1.01D.
“Environmental
Testing” means any environmental test, inspection or invasive investigation of the Assets for the purpose of creating new
data, such as taking environmental samples, analysis of samples, or drilling of groundwater wells, including but not limited to any ASTM
Phase II environmental site assessment.
“Equipment”
means all furnishings, furniture, computer hardware, telecommunications equipment, fittings, machinery, refining process units, tools,
apparatus, tanks, meters, pumps, engines, compressors, pipes, valves, connections, regulators, sewers, appliances, signs and all other
articles of Personal Property of every kind whatsoever (excluding Improvements and Refinery Non-Hydrocarbon Inventory), in all cases
owned by or leased to a Seller Company, that in the Ordinary Course of Business are located on the Real Property or are used in or held
for use
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by a Seller
Company for operation, repair, construction, improvement or maintenance of the Refinery.
“Equity
Interests” means capital stock, partnership or membership interests or units (whether general or limited), other equity
interests, and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of,
or distribution of assets of, the issuing entity.
“ERISA”
means the Employee Retirement Security Act of 1974, as amended or any successor law, and the rules, regulations, and forms promulgated
thereunder.
"ERISA
Affiliate" means any entity (whether or not incorporated) which is or was, at the relevant time, together with any Seller,
treated as a single employer under Section 414(b), (c), (m), or (o) of the Code.
“Execution
Date” has the meaning set forth in the preamble.
“Excluded
Assets” has the meaning set forth in Section 2.02(a).
“Excluded
Contracts” has the meaning set forth in Section 2.02(a)(iv).
“Excluded
Permits” has the meaning set forth in Section 2.02(a)(iv).
“Extended
Outside Date” has the meaning set forth in Section 15.02.
“Field
Inspector” has the meaning set forth in Section 2.08(b).
“Field
Inspector Report” has the meaning set forth in Section 2.08(b).
“Financial
Audit” has the meaning set forth in Section 4.14(c).
"Financial
Statements" means the audited annual financial statements in respect of the Purchased Assets, including the notes thereto,
as more particularly described in Section 4.14.
“Financing”
means the loans and other financing amounts to be provided for the purpose of Buyer’s purchase of the Assets or the Contemplated
Transactions on the Closing Date.
“Financing
Source Affiliate” has the meaning set forth in Section 13.15(b).
“Financing
Commitments” means the commitment letter(s) and fee letters (whether one or more) contemplated in such commitment letters
and any other loan documents or other letter agreements or other understandings to which Buyer is a party, in each case necessary for
the Financing, as the same may be amended pursuant to Section 5.09.
“Financing
Sources” means the Persons that have committed to provide or otherwise entered into agreements in connection with the Financing,
including the parties to the Financing Commitments and any joinder agreements or credit agreements relating thereto, together with their
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Affiliates,
officers, directors, employees, limited partners, stockholders, managers, members, agents and representatives involved in the Financing
and their successors and assigns.
"Fringe
Benefit Plan" means any fringe benefit plan under Code Sections 125, 127, 129, 132, or 137 and any bonus, incentive
compensation, deferred compensation, restricted stock, other stock-based incentive, salary continuation, bonus plan, employment-related
change in control benefit, retention agreement and any other payment or benefit which is not within the meaning of a Pension Plan or
Welfare Plan. The term "Fringe Benefit Plan" shall also include any terminated fringe benefit plan previously maintained,
sponsored or contributed to by any Seller or any ERISA Affiliate which, as of the date of this Agreement, has not distributed all of
its assets or satisfied all of its Liabilities.
“Fundamental
Representations” has the meaning set forth in Section 13.07.
“Governmental
Authority” means the United States and any foreign or domestic state, county, city or other political subdivision and any
department, commission, board, bureau, agency, commission, officer, official, court, tribunal, arbitrator, board or bureau or other instrumentality
thereof and any self-regulatory organization, such as a securities exchange.
“Government
Official” means an official or employee of any Governmental Authority, including any person acting in official capacity
for a Governmental Authority, regardless of rank or position; any official or employee of a company wholly or partially controlled by
a government (e.g., a state-owned oil company), but excluding employees seconded to such companies; a political party or any official
of one; any candidate for political office; any officer or employee of a public international organization, such as the United Nations
or World Bank; and immediate family members (spouse, dependent child, parent or household member) of any of the Persons listed above.
“Hazardous
Substance” means any: (i) such substance as defined by any HSE Law; (ii) petroleum product or additive (i.e., gasoline,
diesel fuel, motor oil, waste or used oil, heating oil, or kerosene, together with crude oil and any other fraction or derivative thereof);
(iii) asbestos, polychlorinated biphenyls, or perfluoroalkyl and polyfluoroalkyl substances; (iv) natural gas, natural gas liquids, liquefied
natural gas, and synthetic gas usable for fuel; (v) substance which is explosive, corrosive, reactive, flammable, infectious, radioactive,
carcinogenic, or mutagenic; (vi) urea formaldehyde foam insulation; (vii) transformers or other equipment which contain dielectric fluid;
(viii) freon and other chlorofluorocarbons; (ix) radon gas; (x) hazardous material, toxic substance, toxic pollutant, solid waste, municipal
waste, industrial waste, hazardous waste, pollutant or contaminant under any HSE law; and (xi) other chemical, material or substance
exposure to which or whose discharge, emission, disposal, or Release is prohibited, limited, or regulated under any HSE Law.
“HOF
Agreement” means an agreement pursuant to which the Buyer will purchase HOF from the Seller in accordance with the form
attached hereto as Exhibit I.
“HSE
Claim” means any administrative, regulatory or judicial action, suit, demand, directive, claim, lien, Information
Request or investigation, Proceeding or written notice of noncompliance (including liability or responsibility for the costs of enforcement
proceedings,
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Corrective Action,
governmental response, natural resource damages, property damages, personal injuries, medical monitoring, penalties, contribution, indemnification
and injunctive relief) arising out of, based on or resulting from: (i) exposure to any Hazardous Substances; (ii) any Release; or (iii)
the failure to comply with any HSE Laws in effect and as interpreted on or prior to the Execution Date or the Closing Date, as applicable.
“HSE
Laws” means any and all applicable local, state, and federal laws, statutes, ordinances, regulations, orders, Permits,
or requirements (including consent decrees, judicial decisions, judgments, injunctions and administrative orders issued or approved thereunder)
each as amended, together with all implementing regulations, each as amended, pertaining to or regulating
pollution, environmental protection, health and safety of persons, pipeline safety, natural resource damages, conservation of resources,
wildlife, waste management, the use, storage, generation, production, treatment, release, emission, discharge, remediation, removal,
disposal or transport or any other activity related to a Hazardous Substance or any other environmental matter, including: CERCLA; RCRA;
the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Federal Water
Pollution Control Act, 33 U.S.C. Section 1251 et seq. (also known as the “Clean Water Act”);
the Safe Drinking Water Act of 1974, 42 U.S.C. Section 3009f et seq.; the Emergency Planning and Community Right-to-Know Act of 1986,
42 U.S.C. Section 11001 et seq.; the Occupational Safety and Health Act of 1970, 29 U.S.C. Section 651 et seq.; the Hazardous Liquid
Pipeline Safety Act, 49 U.S.C. Section 60101 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801 et seq.; the
Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seq.; the Atomic Energy Act, 42 U.S.C. Sections 2011 et seq.; and the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seq.
“HSE
Liabilities” means any Loss, Obligation, Proceeding, or Claim (including HSE Claims) arising under or in connection with
any HSE Law (including HSE Permits) related to or arising out of the ownership, operation or use of the Assets or HSE Matters related
thereto, including any Obligation under HSE Law to take Corrective Action with respect to any Environmental Condition, or any Hazardous
Substances elsewhere which have emanated from or onto any Real Property or which have arisen from activities or non-performance related
to the Assets or for which any Seller Company may be legally responsible, and irrespective of whether the cause of the Obligation is
unknown, has been known or should have been known or understood by the Seller Companies or their Representatives prior to the Closing
Date. Without limiting the generality of the foregoing, “HSE Liabilities” shall include:
(a)
contamination, compromise or alteration of, or damage or impact to, any of the components of the
earth including underground, ambient air, surface, land (including all underground spaces and cavities and all lands submerged under
water), soil, water (including surface and ground water), organic and inorganic matter and living organisms and the natural systems that
include the components referred to herein and all personal and real property (including all improvements and appurtenances) within, upon,
under or over any of the foregoing;
(b)
Non-compliance with any HSE Law in effect at any time;
(c)
any Release, whether same has been contained to the Real Property or has emanated, migrated or escaped
to another property; and
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(d)
damages and losses suffered by Third Parties as a result of any of the occurrences in items (a)
through (c) of this definition.
“HSE
Matters” means matters relating to condition of or impacts to the environment including, deposits, Releases into air, water,
sewage systems and land from the manufacture, processing, distribution, use, treatment, storage, disposal, transport, transmission and
handling of Hazardous Substances or matters otherwise relating to the health and safety, including occupational health and safety, of
any Person or damage to the environment, property or assets.
“HSE
Permit” means any certificate, consent, Permit (including applications for renewal or modifications of the foregoing pending
as of Closing), plan, or other similar Authorization of any applicable Governmental Authority required by HSE Laws in effect on or prior
to the Execution Date or the Closing Date, as applicable, for the ownership, operation or use of the Assets as they are operated by an
applicable Seller Company as of the Execution Date or Closing Date, as applicable.
“HSR
Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
“Improvements”
means any and all buildings, structures, fixtures or other improvements owned by or leased to the Seller Companies that are attached
or affixed to the Assets, including process units, storage tanks, control houses, office buildings, laboratory facilities, warehouses,
boiler houses, wharf, dock, monitoring wells, power plants, waste water treatment facilities, all piping and pipelines, or portions thereof
and other similar facilities.
“Indemnified
Party” means the Person or Persons indemnified, or entitled to be indemnified, held harmless or defended pursuant to this
Agreement, including a Buyer Indemnified Party and a Seller Indemnified Party.
“Indemnifying
Party” means the Party having the Obligation to indemnify, defend and hold harmless pursuant to this Agreement.
“Information
Request” means a formal request for information issued pursuant to Section 114 of the Clean Air Act, Section 104(e)
of CERCLA, Section 3007 of RCRA, or Section 308 of the Clean Water Act.
“Inspector”
has the meaning set forth in Section 2.08(c).
“Intellectual
Property” means all rights in intellectual property of any type throughout the world, including rights arising from or
in respect of the following: (a) foreign or domestic patents, including design patents and utility patents; (b) trademarks, service marks,
trade names, trade dress, brand names, and other indicia of source of origin, whether or not registered, logos, Internet domain names,
web sites, URLs and goodwill associated therewith; (c) all published and unpublished works of authorship, copyrights (registered or unregistered),
databases, computer source code, object code, executable code, programs and other software (including machine readable code, printed
listings of code, software documentation and related property and information, whether embodied in software, firmware or otherwise);
(d) all trade secrets, inventions (whether patentable or unpatentable and whether or not reduced to practice) and all
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improvements
thereto, technology, formulas, know-how, goodwill, confidential information, tangible and intangible proprietary information or materials,
including, production processes and techniques, research and development information, technology, drawings, specifications, designs,
plans, proposals and technical data; and (e) without limitation, all applications filed, applications to be filed, renewals, reissues,
reexaminations, divisionals, continuations, continuations in part, extensions and registrations relating to any of the foregoing clauses
(a)-(d) above; and (f) the right and power to assert, defend and recover title to any of the foregoing and all rights to assert, defend,
and recover for any past, present and future infringement, misuse, misappropriation, impairment, unauthorized use or other violation
of any of the foregoing.
“Interim
Period” means the period from the Execution Date until the earlier of the Closing or the termination of this Agreement
pursuant to the terms and conditions herein.
“Inventory
Balance” has the meaning set forth in Section 2.08(d).
“Inventory
Deposit” has the meaning set forth in Section 2.08(a).
“Inventory
Notice Date” has the meaning set forth in Section 2.08(c).
“Inventory
Statement” has the meaning set forth in Section 2.08(c).
“Inventory
Value” has the meaning set forth in Section 2.08(a).
“IT”
means information technology.
“IT
Equipment” means Equipment used by Seller in connection with IT services for the Operations, including personal computers
and peripherals, printers, scanners, mobile computing devices, mobile telephones, desk phones and PBX systems, servers, storage, racks,
voice and data network devices, and other IT hardware.
“IT
System” means all networks, services, databases, IT infrastructure components or tools and any Intellectual Property that
is an integral part of any IT Equipment and Software, including Seller’s Software and Third-Party Software used in the Operations.
“Judgments”
means any judgments, orders, decisions, injunctions, decrees or awards of any federal, state, local or foreign court, arbitrator or administrative
or other Governmental Authority having jurisdiction.
“Known”
“Knowledge” or “To the Knowledge of” (or similar phrase) means, in the case of Seller,
the actual knowledge after reasonable independent investigation or inquiry of the individuals listed in Schedule 1.01A, and,
in the case of Buyer, the actual knowledge without after reasonable investigation or inquiry of the individuals listed in Schedule 1.01B.
“Lead”
means any form of lead or compound containing lead including but not limited to tetraethyl lead, lead chromate, lead oxide, and lead
carbonate.
“Liens”
means any and all liens, mortgages, charges, pledges, security interests, burdens, Easements, rights of way, zoning ordinances, mineral
exceptions, rights of first offer, rights of first refusal, purchase options or other encumbrances of any nature whatsoever, including
those arising under any Contracts.
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“Loss”
or “Losses” means any and all costs, losses (but excluding lost profits except to the extent awarded to a Third
Party), liabilities, fines, penalties, Obligations (including corrective and remedial obligations), damages (but excluding any indirect,
special, punitive, exemplary and consequential damages other than such damages as may be awarded to a Third Party), and expenses (including
reasonable legal fees and expenses and reasonable fees and expenses of other consultants, in each case as incurred in the investigation
or defense of any of the same or in asserting any of their respective rights hereunder, but excluding internal overhead expenses).
“Material
Adverse Effect” means an effect, event, fact, circumstance or development (“Effect”) that, individually
or in the aggregate, has had, or would reasonably be expected to have a material adverse effect on the business, properties, financial
condition or results of Operations, taken as a whole; provided, however, that in no event shall any Effect that results from any
of the following be deemed to constitute a Material Adverse Effect: (i) this Agreement or any actions required to be taken in compliance
with this Agreement, the Contemplated Transactions, or the pendency or announcement thereof; (ii) changes or conditions generally
affecting the petroleum refining, marketing, transportation or pipeline industry (including feedstock pricing, refining, marketing, transportation,
pipeline, terminaling and trading, generally or regionally); (iii) changes in general economic, capital market, regulatory or political
conditions in the United States or elsewhere (including interest rate and currency fluctuations); (iv) changes or proposed changes
in Applicable Law occurring after the Execution Date; (v) changes or proposed changes in accounting principles (including the generally
accepted accounting principles in the United States) occurring after the Execution Date; (vi) acts of war, insurrection, sabotage
or terrorism occurring after the Execution Date, other than such acts that are specifically directed towards the Assets; (vii) any epidemic,
pandemic, disease outbreak (including Covid-19) or other health crisis or public health event, or the worsening of any of the foregoing;
(viii) where the Effect derives from a Retained Liability under which Seller would be liable hereunder; or (ix) the Seller Companies’
failure, in and of itself, to meet operational or financial expectations or projections.
“Material
Contract” means any Refinery Contract (i) to which a Seller Company is a party or by which the Assets are bound and (ii)
that (A) involves payments to or from the Seller Companies in excess of $250,000 on an annual basis; or (B) is a Collective Bargaining
Agreement and including those Contracts listed on Section 4.10(a) of the Disclosure Letter.
“[***]”
means [***], Inc.
“[***]
Contract” means that certain [***] contract between Seller and [***] dated [***].
“Multi-Site
Framework Contracts” means those contracts or agreements (including global, regional or enterprise framework agreements
and any related call-offs thereto or workorders issued thereunder) between Seller, or any Affiliate of Seller, and a Third Party pursuant
to which Seller or its Affiliate also receives goods or services in respect of assets or locations other than the Refinery.
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“N1450
Agreement” means a N1450 Agreement entered between the Parties in accordance with the form attached hereto as Exhibit L.
“New
Seller Information” has the meaning set forth in Section 6.03(a).
“Non-Group
IT Equipment” means IT Equipment which is not owned by a Seller Company or an Affiliate of a Seller Company.
“Obligations”
means any duties, responsibilities, liabilities and obligations, costs and expenses of whatever kind and nature, whether vested, absolute
or contingent, primary or secondary, direct or indirect, known or unknown, asserted or unasserted, accrued or unaccrued, liquidated or
unliquidated, due or to become due, and whether based in common law or statute or arising under contract or by action of any Governmental
Authority or otherwise.
“OFAC”
has the meaning set forth in Section 5.08(a).
“Offer”
has the meaning set forth in Section 10.01(b) of Schedule 10.01.
“Operations”
means those activities conducted by the Seller Companies in the Ordinary Course of Business of operating the Assets.
“Ordinary
Course of Business” means, with respect to a subject Party’s activities at a specified time, only those activities
(a) in the normal and routine course of the subject Party’s day-to-day business in all material respects consistent with the subject
Party’s custom and practice at such time (including with respect to nature, scope, quantity and frequency); (b) that do not require
authorization by the board of directors or shareholders of such Party (or by any Person or group of Persons exercising similar authority)
and do not require any other separate or special authorization of any nature; and (c) are similar in nature, scope, quantity and frequency
to activities customarily taken, without any separate or special authorization in the normal and routine course of the day-to-day operations
of other Persons that are in the same line of business as such Party, provided that, for purposes of this Agreement, “Ordinary
Course of Business” includes (i) any Covid-19 Response and (ii) all reasonably necessary actions taken in contemplation of, or
in preparation for the sale of, the Assets, the Closing, and any other Contemplated Transactions.
“Organizational
Documents” means the articles of incorporation, articles of organization, certificate of incorporation, charter, bylaws,
articles or certificate of formation, regulations, operating or company agreement, certificate of limited partnership, partnership agreement,
and all other similar documents, instruments or certificates executed, adopted, or filed in connection with the creation, formation,
or organization of a Person, including any amendments thereto.
“Outside
Date” has the meaning set forth in Section 15.01(b).
“Party”
and “Parties” has the meaning set forth in the preamble.
"Pension
Plan" means each "employee pension benefit plan" as defined in Section 3(2) of ERISA. The term "Pension
Plan" includes an "employee pension benefit plan" which is subject to an exemption under ERISA. The term "Pension
Plan" shall also include any terminated "employee pension benefit plan" previously maintained, sponsored, or contributed
to by any Seller or an ERISA Affiliate which, as of the date hereof, has not distributed all of its assets in full satisfaction of accrued
benefits or satisfied all of its Liabilities.
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“Permits”
means any permits (including temporary permits), Spill Prevention, Control
and Countermeasures Plans, Facility Response Plans, Emergency Response Action Plans, Stormwater Pollution Prevention Plans, licenses,
approvals, registrations, orders, waivers, variances or other authorizations issued, required or granted by any Governmental Authority
to construct or operate the Refinery. Permits shall not include Easements.
“Permitted
Encumbrances” means, with respect to the Assets, any of the following matters:
(i)
such items as set forth in Schedule 1.01C;
(ii)
any (A) undetermined or inchoate Liens constituting or securing the payment of expenses which were incurred incidental to the operation,
repair, construction, improvement or maintenance of the Assets and (B) materialman’s, mechanics’, repairman’s, employees’,
contractors’, operators’ or other similar liens, security interests or charges for liquidated amounts arising in the Ordinary
Course of Business incidental to the conduct of the Operations or the operation, repair, construction, improvement or maintenance of
the Assets, securing amounts the payment of which is not delinquent and that will be paid by the applicable Seller Company during the
course of Operations or, if delinquent, that are being contested in good faith in the Ordinary Course of Business with any action to
foreclose or attach any of the Assets on account thereof properly stayed;
(iii)
any Liens for Taxes not yet due and payable or that are being contested by the applicable Seller Company or its Affiliates in good faith
with any pending action to foreclose any of the Assets on account thereof properly stayed;
(iv)
any Liens created by Applicable Law or which arise from leases, Easements or other real property interests for rental or for compliance
with the terms of such leases, Easements or other real property interests, provided all payments by the applicable Seller Company
of the debt secured is not delinquent or, if delinquent, is being contested by the applicable Seller Company in good faith in the Ordinary
Course of Business with any action to foreclose or attach any of the Assets on account thereof properly stayed;
(v)
all reservations of record of minerals, oil and/or gas in and under or that may be produced from any of the lands constituting part of
the Real Property or on which any of the Assets are located, other than mineral, oil and/or gas reservations that materially interfere
with the Operations;
(vi)
all Easements and restrictive covenants, and all discrepancies, shortages in area, conflicts in boundary lines (including any gores,
gaps or strips separating any of the contiguous boundary lines of the various parcels comprising the Refinery Owned Real Property, encroachments
or protrusions, or overlapping of improvements, defects, irregularities and other matters affecting the Real Property or the Improvements,
including any of the foregoing reflected in the Survey, which individually or in the aggregate do not (A) have a Material Adverse Effect
on the Operations as conducted by the Seller Companies on a historical basis for the 36 months
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prior to the
Closing Date or (B) have a Material Adverse Effect on the value of the Assets taken as a whole as of the Closing Date;
(vii)
any defect that has been cured by the applicable statutes of limitations or statutes for prescription;
(viii)
any defect affecting (or the termination or expiration of) any Easement or other real property interest which has been replaced prior
to Closing at a Seller Company’s sole cost by an Easement or other real property interest constituting part of the Assets covering
substantially the same rights to use the land or the portion thereof used by a Seller Company in connection with the Operations;
(ix)
rights reserved to or vested in any Governmental Authority to control or regulate any of the Assets or the Operations and all Applicable
Laws of such authorities, including any building or zoning ordinances;
(x)
the terms and conditions of existing leases, licenses and similar agreements to the extent such constitute Assets or are assigned to
Buyer by a Seller Company in connection with the Contemplated Transactions;
(xi)
the limitations on use of certain parcels of the Real Property for, inter alia, residential, agricultural and day care uses, all
as more particularly described in the Deeds;
(xii)
acts done or suffered to be done by, and Judgments against, Buyer and those claiming by, through or under Buyer;
(xiii)
the terms and conditions of any agreement or contract entered into by the Parties in accordance with the terms of this Agreement or the
Closing Documents; and
(xiv)
reservations of water rights and/or rights to extract water, or lack of water rights.
“Person”
means any individual, corporation, partnership, association, trust, limited liability company or any other entity or organization, including
a Governmental Authority or instrumentality thereof.
“Personal
Data” means any information relating to an identified or identifiable individual, unless otherwise defined under Applicable
Laws, related to the protection of individuals, the processing of such information, and security requirements for and the free movement
of such information.
“Personal
Property” means any tangible property that is not Real Property or Improvements.
“PFAS”
means perfluoroalkyl substances, including but not limited to perfluorooctanoic acid.
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“Premium
CBOB Agreement” means the Premium CBOB Agreement between the Parties, in accordance with the form attached hereto as Exhibit
I.
“Primarily”
means that an asset is, as of the Execution Date, or during the six months prior to the Execution Date has been, used for more than 50%
of the time in the Operations.
“Proceeding”
has the meaning set forth in Section 4.09.
“Processing”
means any operation that is performed on Personal Data, whether or not by automatic means, such as collection, recording, storage, organization,
alteration, use, disclosure (including the granting of remote access), transmission or deletion of Personal Data.
“Property
Taxes” has the meaning set forth in Section 14.02.
“Purchase
Price” has the meaning set forth in Section 2.04.
“RCIP”
has the meaning set forth in Section 8.13(d)(i).
“RCRA”
means the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901.
“Real
Property” means the real property interests owned or leased by the Seller Companies and relating to the Assets, together
with all facilities or Improvements as of the Execution Date or hereafter located thereon prior to the Closing and all Easements, option
agreements, and similar land-related agreements or interests relating to the foregoing.
“Real
Property Interest Assignment and Assumption Agreement” has the meaning set forth in Section 3.02(a)(ii).
“Receiving
Party” has the meaning set forth in Section 17.15(e).
“Refinery”
has the meaning set forth in the recitals.
“Refinery
Books and Records” means all known operating records and data in the possession of the Seller Companies relating Primarily
to and necessary for the Operations and compliance with HSE Laws, subject to the applicable Seller Company’s record retention policy,
including all books, records, supplier lists and records, training materials and equipment, training records (including certifications),
maintenance and inspection reports, equipment lists, repair notes and archives, and technical drawings. Notwithstanding the preceding
sentence, “Refinery Books and Records” specifically excludes: (i) any of the Seller Companies’ or their respective
Affiliates’ business plans, strategies, cost and pricing information, accounting records, supplier lists and records, proprietary
training materials and equipment, equipment lists, technical drawings, and contracts and financial records that address or reflect activities
outside of the Operations; (ii) any of the Seller Companies’ or their respective Affiliates’ company minute books and
records, Tax Returns, Tax records that relate to a Seller Company’s or its Affiliates’ business generally or other materials
that do not pertain to the Assets or ongoing day-to-day operation of the Assets; (iii) training, personnel, and medical records (including
certifications) of employees, including Transferred Employees, except as specified in Section 10.03(f) of Schedule 10.01;
(iv) hiring exams for Transferred Employees; (v) any transfer pricing information; and (vi) materials that are
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subject to any
applicable legal privileges, including attorney work product and attorney-client communications. “Refinery Books and Records”
specifically includes any records (i) required to be maintained pursuant to the Consent Decree; (ii) necessary to obtain a Certificate
of Completion pursuant to the Consent Decree; and (iii) necessary to seek and obtain judicial termination of the Consent Decree.
“Refinery
Contracts” has the meaning set forth in Section 2.01(g).
“Refinery
Hydrocarbon Inventory” has the meaning set forth in Section 2.01(d).
“Refinery
Leased Real Property” has the meaning set forth in Section 2.01(a).
“Refinery
Non-Hydrocarbon Inventory” has the meaning set forth in Section 2.01(e).
“Refinery
Owned Real Property” has the meaning set forth in Section 2.01(a).
“Refinery
Permits” has the meaning set forth in Section 2.01(g).
“Refinery
Personal Property” has the meaning set forth in Section 2.01(f).
“Regular
CBOB Agreement” means the Regular CBOB Agreement, in the form attached hereto as Exhibit J.
“Release”
means any spilling, leaking, seeping, pumping, pouring, emitting, emptying, injecting, discharging, escaping, leaching, dumping, disposing
or releasing of a Hazardous Substance into the environment of any kind whatsoever.
“Repair
Costs” has the meaning set forth in Section 8.07(b).
“Repair
Cost Dispute” has the meaning set forth in Section 8.07(d).
“Representative”
means, with respect to a Person, such Person’s and its Affiliates’ respective owners, directors, officers, managers, employees,
agents, consultants, advisors (including such Person’s accountants, counsel, environmental consultants, financial advisors, lenders
and investment bankers) and other authorized representatives of such Person.
“Represented
Employee” has the meaning set forth in Section 10.02 of Schedule 10.01.
“Restricted
Party” means any Person (i) targeted by national, regional or multilateral trade or economic sanctions under Trade Control
Laws; or (ii) directly or indirectly owned or controlled or acting on behalf of such Persons, including their Affiliates and Representatives.
“Retained
Liabilities” has the meaning set forth in Section 2.03(b).
“Rolling
Stock” means all vehicles, trucks, tractors, and trailers, in each case whether owned, leased or subject to a contract
of purchase and sale, or lease commitment, that are Primarily used by the Seller Companies in the operation, repair, construction, improvement
or maintenance of the Assets, excluding trucks and trailers used for delivery of refined petroleum products to retail gasoline stations.
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“Seller”
has the meaning set forth in the preamble.
“Seller
Captive Insurer” has the meaning set forth in Section 8.13(a).
“Seller
Company” means each of the constituent companies comprising Seller and.
“Seller
Indemnified Parties” has the meaning set forth in Section 13.01.
“Seller
Insurance Policies” has the meaning set forth in Section 8.13(a).
“Seller’s
Intellectual Property” means any Intellectual Property owned by Seller or an Affiliate of Seller.
“Seller’s
Software” means any Software and online services in relation to which Seller or an Affiliate of Seller owns any applicable
Intellectual Property.
“Sena”
means Shell Energy North America (US), L.P.
“Shell
IP-address” means any internet protocol address assigned to Seller or Affiliate of Seller.
“Shell
Refinery Process License Agreement” means the Process License Agreement in the form attached as Exhibit E to this
Agreement.
“Shell
Pipeline Management Agreement” means an agreement entered between the Parties in the form attached hereto as Exhibit
M.
“Shell
Software License Agreement” means the Shell Software License Agreement between the Parties in the form attached hereto
as Exhibit F.
“SOFR”
means the arithmetic average of the Secured Overnight Financing Rate published by the Federal Reserve Bank of New York for each day from
and excluding the due date for payment through and including the date that is one day before the date that payment in full is made. In
the event the SOFR is not published on any day, the SOFR published on the preceding Business Day shall be used.
“Software”
means computer software including computer programs, applications and databases in any form, including source code and object code, operating
systems and specifications, firmware, data, databases, database management code, utilities, graphical user interfaces, menus, images,
icons, forms, methods of processing, software engines, platforms, data formats, internet web sites, web content and links, all versions,
updates, corrections, enhancements and modifications thereof, and all related documentation, developer notes, comments and annotations.
“Specified
Capital Expenditures” has the meaning set forth in Section 2.06.
“St.
Rose Refinery” means the refinery of that same name located in St. Rose Louisiana.
“Sum
Recovered” has the meaning set forth in Section 13.13(e).
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“Survey” means a survey of the Real Property conducted by a surveyor licensed by the American Land Title Association
and certified to Buyer.
“Swap
Kit Purchase Agreement” means the Swap Kit Purchase Agreement attached hereto as Exhibit M.
“Taking”
or “Taken” means taken by condemnation or eminent domain or by agreement in lieu thereof with any Person authorized
to exercise such rights.
“Tax
Allocation” has the meaning set forth in Section 14.03.
“Tax”
or “Taxes” means all United States federal, state, local or foreign income, profits, gross receipts, branch
profits, windfall profits, license, premium, escheat, environmental, capital stock, severance, real or personal property, ad valorem,
intangible property, occupation, production, franchise, capital gains, employment, withholding, social security (or similar), disability,
registration, stamp, payroll, goods and services, alternative or add-on minimum tax, or any other taxes, charges, fees, imposts, duties,
levies, withholdings or other assessments imposed by any Governmental Authority, including environmental taxes imposed pursuant to Chapter
38 of the Code, and similar state laws, excise taxes, customs duties, utility, property, sales, use, value added, transfer and fuel taxes,
or other like assessment or charge of any kind whatsoever, together with any interest, fines, penalties or additions to tax attributable
to or imposed on or in respect thereof imposed by any Governmental Authority, whether or not disputed, and including (i) any obligation
to indemnify or otherwise assume or succeed to the tax liability of any other Person and (ii) all applicable sales, use, excise, business,
occupation or other tax, if any, relating to this or any other service, supply or operating agreement.
“Tax
Benefit” means, with respect to any Losses subject to indemnity under Article XIII, an amount by which the net Tax
liability of the Indemnified Party (or a group filing a Tax Return that includes such Indemnified Party) is actually reduced in any Tax
period as a result of such Losses or the amount of Tax refund that is generated as a result of such Losses, and any related interest
received from the applicable Governmental Authority.
“Tax
Return” means any return, declaration, report or similar statement required to be filed with respect to any Taxes (including
any attached schedules) including any information return, claim for refund, amended return and declaration of estimated Taxes and any
amendment thereof.
“Terminaling
Agreement” means the form of Terminalling Agreement attached hereto as Exhibit J.
“Third
Party” means a Person other than Seller, Buyer, or any of their respective Affiliates.
“Third
Party Claim” has the meaning set forth in Section 13.05(a).
“Third
Party Estimate” has the meaning set forth in Section 8.07(d).
“Third
Party Intellectual Property” means Intellectual Property owned by a Third Party (other than in relation to the IT Systems)
which is used by a Seller Company in the Operations and
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which is necessary
to allow Buyer to carry on the Operations in substantially the same manner and to substantially the same extent as at the Closing Date
by Seller.
“Third
Party Software” means any Software, other than Seller’s Software, which is used by a Seller Company as of the Execution
Date, including as installed on IT Equipment owned or used by a Seller Company, and/or as licensed, sublicensed or otherwise provided
to a Seller Company by an Affiliate of the Seller Company.
“Title
Commitment” means that certain commitment for title insurance from the Title Company with respect to the Real Property,
as File No. NCS-984954-HOU1, with a commitment date of April 22, 2021, including any updates and bring downs thereto.
“Title
Company” means First American Title Company.
“Trade
Control Laws” means any applicable trade or economic sanctions or embargoes, Restricted Party lists issued by the respective
authorities, controls on the imports, export, re-export, use, sale, transfer, trade, or otherwise disposal of goods, services or technology,
anti-boycott legislation or similar laws or regulations, rules, restrictions, licenses, orders or requirements in force from time to
time, including without limitation those of the European Union, the United Kingdom, the United States of America or under Applicable
Laws.
“Trademarks”
means with regard to the Seller Companies and their respective Affiliates: (i) any and all trademarks, trademark registrations, trademark
applications, service marks, service mark registrations, service mark applications, trade dress, word marks, word mark registrations,
word mark applications and trade names owned by a Seller Company or any Affiliate of the Seller Companies, including the name “Shell”,
and the Shell emblem and logos used by or licensed to the Seller Companies in connection with any of the Assets; and (ii) the goodwill
of the Assets in connection with which such Trademarks have been used.
“Transfer
Taxes” has the meaning set forth in Section 14.01.
“Transferred
Employee” has the meaning set forth in Section 10.03(b) of Schedule 10.01.
“Turnaround”
means that certain planned performance of required maintenance and improvements to the Refinery, including asset integrity scheduled
to be completed in Q4 of 2021.
“Turnaround
Costs” has the meaning set forth in Section 2.03(a)(v).
“Turnaround
Contracts” has the meaning set forth in Section 2.03(a)(v).
“USW”
has the meaning set forth in Section 10.02 of Schedule 10.01.
“WARN
Act” means the Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101 et seq., and any similar state
or local law.
"Welfare
Plan" means each "employee welfare plan" as defined in ERISA Section 3(1), including medical reimbursement
benefits provided under a Fringe Benefit Plan subject to Code
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Section 125
and health reimbursement arrangements. The term "Welfare Plan" includes an "employee welfare plan" which is
subject to an exemption under ERISA. The term "Welfare Plan" shall include any terminated "employee welfare plan"
previously maintained, sponsored, or contributed to by any Company or any ERISA Affiliate which, as of the date hereof, has not distributed
all of its assets or satisfied all of its Liabilities.
“Willful
Breach” means, with respect to a Party, a breach that is a consequence of an act or omission by such Party with the knowledge
(actual or constructive) that such act or omission would, or would be reasonably expected to, cause a breach or default of any of such
Party’s Obligations under any provision of this Agreement.
1.02
Interpretation. Unless expressly provided for elsewhere in this Agreement, this Agreement shall be interpreted in accordance
with the following provisions:
(a)
All references herein to Articles, Sections, Exhibits and Schedules are to Articles and Sections of and Exhibits and Schedules
attached to and forming part of this Agreement, unless the contrary is specifically stated;
(b)
The headings of the Articles, Sections and subsections of this Agreement and the headings contained in the Exhibits and Schedules
hereto are inserted for convenience of reference only and shall not in any way define or affect the meaning, construction, or scope of
any of the provisions hereof or thereof;
(c)
If a word or phrase is defined, its other grammatical forms have a corresponding meaning. The defined terms are those set forth
as defined in Article I, which are identified by initial capitalization, and those terms defined in this Section 1.02 that
are uncapitalized. A defined term has its defined meaning throughout this Agreement and each Exhibit and Schedule to this Agreement,
regardless of whether it appears before or after the place where it is defined;
(d)
In the event of any conflict between the main body of this Agreement and the Exhibits and Schedules hereto (other than exceptions
and limitations on the representations and warranties in this Agreement that are set forth in the Disclosure Letter), the provisions
of the main body of this Agreement shall prevail;
(e)
Except where specifically stated otherwise, any reference to any law, statute, regulation, rule, or agreement shall be a reference
to the same as amended, supplemented or re-enacted from time to time and, with respect to a law, statute or regulation, shall include
any successor thereto and any rules and regulations promulgated thereunder; provided however, that any such references to any
law, statute, regulation, rule or agreement made in Article IV or Article V shall only include such amendments, supplements, rules, regulations
and agreements as in effect at the Effective Time, unless otherwise provided;
(f)
Whenever the words “include,” “including,” or “includes” appear in this Agreement, they shall
be read as if followed by the words “without limitation” or words having similar import;
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(g)
Whenever the context may require, any pronoun used in this Agreement shall include the corresponding masculine, feminine, or
neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa;
(h)
A reference to any agreement or document (including a reference to this Agreement) is to the agreement or document as amended,
varied, supplemented, novated or replaced, except to the extent prohibited by this Agreement or that other agreement or document;
(i)
A reference to any party to this Agreement or another agreement or document includes the party’s permitted successors and
assigns;
(j)
A reference to a writing includes a facsimile transmission or a portable document format (“.pdf”) or similar transmission
of it and any means of reproducing of its words in a tangible and permanently visible form;
(k)
The words “hereof,” “herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement;
(l)
The term “cost” includes expense and the term “expense” includes cost;
(m)
The phrase “and/or” when used in a conjunctive phrase, means any one or more of the Persons specified in or the existence
or occurrence of any one or more of the events, conditions or circumstances set forth in that phrase; provided, however, that
when used to describe the obligation of one or more Persons to do any act, it means that the obligation is the obligation of each of
the Persons but that it may be satisfied by performance by any one or more of them;
(n)
“Shall” and “will” have equal force and effect;
(o)
Unless otherwise specified, all references to a specific time of day in this Agreement shall be based upon Central Standard Time
or Central Daylight Savings Time, as applicable on the date in question in Houston, Texas;
(p)
References to “$” or to “dollars” means the lawful currency of the United States of America;
(q)
All references to “day” or “days” means calendar days unless specified as a “Business Day.”
No action shall be required of the Parties except on a Business Day, and in the event an action is required on a day which is not a Business
Day, such action shall be required to be performed on the next succeeding day which is a Business Day;
(r)
Time periods within or following which any payment is to be made or an act is to be done shall be calculated by excluding the
day on which the time period commences and including the day on which the time period ends and by extending the period to the next Business
Day following if the last day of the time period is not a Business Day;
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(s)
For purposes of Article IV, the words “delivered to,” “provided to,” “made available to”
or words of similar import mean posted to the Data Room or physically delivered to Buyer; and
(t)
The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question
of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden
of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.
ARTICLE
II
PURCHASE AND SALE OF THE ASSETS
2.01
Purchase and Sale. Subject to the terms and conditions of this Agreement, on the Closing Date, Seller shall (or shall
cause each applicable Seller Company to) sell, assign, transfer, convey and deliver (subject to Section 8.02 or Article IX,
as applicable) to Buyer as of the Effective Time, and Buyer shall purchase, assume, acquire and accept from Seller (and each other Seller
Company, as applicable) as of the Effective Time, all of the right, title and interest of each of the Seller Companies in and to the
following assets (other than the Excluded Assets) subject to the Permitted Encumbrances (the “Assets”):
(a)
The Refinery;
(b)
The Real Property owned in fee by the Seller Companies, including certain buffer and greenbelt properties and all subsurface mineral
rights owned by the Seller Companies, if any, associated with such real property, that is described in Schedule 2.01(b)(i) (collectively
the “Refinery Owned Real Property”) together with all of the Seller Companies’ right, title and interest
in and to all Easements, including the Easements described on Schedule 2.01(b)(ii), and all privileges, and appurtenances related
thereto and together with all Improvements located thereon whether such Improvements are owned or leased and whether such Improvements
are located on the Refinery Owned Real Property or the Easements and including those Improvements described on Schedule 2.01(b)(iii);
(c)
Any leasehold estates and related lease or sublease agreements, licenses that are in the nature of leases (rather than in the
nature of Easements) or other similar occupancy agreements with respect to the Real Property pursuant to which Seller is lessor, including
those described on Schedule 2.01(c) (collectively, the “Refinery Leased Real Property”);
(d)
All hydrocarbon inventory as of the Effective Time (including tank bottoms, heels, inventory below suction level and line fill
owned by the Seller Companies for use Primarily on behalf of or supplied to customers of the Refinery (subject to the location demarcation
outlined below) (collectively, the “Refinery Hydrocarbon Inventory”), including each of the following:
(i)
All crude oil, blendstock feedstock and intermediate petroleum products that are shipped by barge
or ship where such crude oil, blendstock and feedstock is located inside the Refinery fence line at the point of custody transfer, or
that is purchased by Seller on a FOB basis.
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(ii)
All crude oil, blendstock and feedstock that is not shipped by barge or ship that is in transit
to or from the Refinery or held in off-site storage, including hydrocarbons in process units or in interconnecting piping or other lines
at the Refinery;
(iii)
all refined and intermediate product inventories, including sulfur that are at the Refinery; and
(iv)
all additives held for use by the Refinery (excluding Seller or third-party branded additives used
in finished products)
provided,
that, in all cases (x) excluding all finished and unfinished products that have left the Refinery and are en route to any customer
to the extent title has passed to the customer, and (y) including the total contents of all applicable storage tanks and in line, propellant
and unit fill at the Refinery or off-site storage, regardless of whether above or below the off-take pipe, including bottom sediment
and water;
Buyer
understands that during the Interim Period STUSCO will sell crude to Seller in the ordinary course of Business pursuant to the prices
and terms set forth in existing crude agreements between the parties, and such crude may be delivered after the Effective Time. For any
such crude delivered after the Effective Time, Buyer will accept and pay for the crude at the price and on the terms of the existing
contracts between STUSCO and Seller.
(e)
All non-hydrocarbon inventories as of the Effective Time owned by the Seller Companies for use Primarily in the Operations consisting
of (collectively, the “Refinery Non-Hydrocarbon Inventory”):
(i)
chemicals, catalyst and precious metals located at the Refinery or are designated to be used at the Refinery (including catalyst
and precious metals located in process units) and other non-hydrocarbon inventories located at the Refinery, and
(ii)
stores inventories, including maintenance and capital spares, joints, valves and parts that are
located (A) at the Refinery and used or held for use Primarily in the Operations, (B) at any off-site storage facility and used exclusively
in the Operations, or (C) at the Seller Companies’ other facilities to the extent that such inventories stored off-site can be
allocated by Seller Companies among the Refinery and the Seller Companies’ other facilities;
(f)
The Equipment, Rolling Stock, and other Personal Property owned or leased by the Seller Companies exclusively used or held for
use in the ownership, operation or use of the Refinery (but excluding Refinery Hydrocarbon Inventory and Refinery Non-Hydrocarbon Inventory)
(collectively, the “Refinery Personal Property”) including the property described in Schedule 2.01(f);
(g)
The rights and Obligations of the Seller Companies under (i) the Contracts set forth in Schedule 2.01(g) and (ii) the Contracts
assigned to Buyer pursuant to Section 8.02(b) (collectively, the “Refinery Contracts”);
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(h)
The rights and obligations of the Seller
Companies in and to the Permits relating solely to the Refinery or the Operations, to the extent assignable from Seller to Buyer (collectively,
the “Refinery Permits”) that are described in Schedule 2.01(h);
(i)
The financial responsibility for Environmental Fuel Credits relating to the Refinery or the Operations accruing after the Effective
Time; and
(j)
The Refinery Books and Records.
2.02
Excluded Assets.
(a)
Without limiting the generality of the foregoing, Seller (or an applicable Seller Company) shall retain and not sell, convey,
transfer or deliver to Buyer, and Buyer shall not purchase or have any rights in, the following assets and properties (collectively,
the “Excluded Assets”):
(i) All cash, cash equivalents, cash deposits, bank accounts, certificates of deposit, savings and other
similar cash or cash equivalents;
(ii)
Any accounts receivable and other prepaid expenses or deposits;
(iii)
All Intellectual Property of the Seller Companies or any Third-Party Intellectual Property, other
than the Intellectual Property included in the Refinery Contracts and/or the Refinery Permits assigned to Buyer, and that which is expressly
and non-exclusively licensed to Buyer pursuant to the Shell Refinery Process License Agreement or the Shell Software License Agreement;
(iv)
All Contracts described in Schedule 2.02(a)(iv), including Multi-Site Framework Contracts, and any Contracts not assigned
to Buyer pursuant to Section 8.02 (collectively, the “Excluded Contracts”);
(v)
General books and records that comprise a Seller Company’s permanent accounting or Tax records;
(vi)
Actions, deposits, prepayments, refunds, causes of action, rights of recovery defenses, rights of
setoff, counterclaims or rights of recoupment of any kind or nature (including any such item relating to Taxes), in each case relating
to the Excluded Assets or the Retained Liabilities;
(vii)
Any Claim, right or interest in or to any refund, rebate, abatement or other recovery of Taxes that
are allocated to Seller pursuant to Article XIV or Taxes that are part of the Retained Liabilities;
(viii)
All the Seller Companies’ rights to causes of action, lawsuits, Judgments, Claims and demands of any nature, for Losses
suffered by any Seller Company during such Seller Company’s ownership, operation or use of the Assets, and for any Retained Liabilities;
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(ix)
All Permits of the Seller Companies that are not assigned to or otherwise transferable to Buyer pursuant to Section 2.01(h)
or Section 8.02 (the “Excluded Permits”);
(x)
Except as set forth in Section 8.12, Article IX or as expressly and non-exclusively licensed to Buyer pursuant to
the Shell Software License Agreement, Seller’s Software, the Third Party Software, IT Systems, IT Equipment, the Non-Group IT Equipment,
and any and all related Contracts, subscriptions, and licenses, including relating to IT maintenance, support, and services;
(xi)
The financial responsibility for Environmental Fuel Credits relating to the Refinery or the Operations (including the operation
of any Affiliate of Seller, as a fuel supplier, “mobile source” obligation or otherwise, whether or not relating to the Refinery)
accruing prior to the Effective Time, regardless of whether the reporting and compliance obligations are required by Applicable Law to
be performed by Buyer after the Effective Time;
(xii)
Any claim, right or interest in or to any Trademarks;
(xiii)
All ethanol owned or controlled by any of Seller’s Affiliates, whether located on the Assets
or otherwise, including any environmental RIN credits related to such ethanol. For the avoidance of doubt, Buyer is responsible for RVO
compliance in relation to any Obligations after the Effective Time and Seller will not remit any ethanol or ethanol credits, whether
banked or otherwise, to Buyer;
(xiv)
All the business of Seller or Seller’s Affiliates that operate independent of the Assets and the Operations which include,
but are not limited to: Retail Marketing; Trading and Supply; Chemicals; Aviation; Lubricants; LNG; Upstream; New Energies; and Integrated
Gas;
(xv)
Seller’s functional organizations which do not provide support Primarily to the Assets and
are not located at the Refinery Owned Real Property (e.g. Finance, Legal, Human Resources, etc.); and
(xvi)
All rights, interests, assets and properties described in Schedule 2.02(a)(xvi).
(b)
With respect to any Excluded Assets that the Seller Companies will remove from the Assets but which, as of the Closing Date, remain
located at or on the Assets or any other Real Property constituting part of the Assets, after the Closing Date, Buyer shall grant to
the Seller Companies and their respective Affiliates and their respective Representatives reasonable access to such property from and
after the Closing Date for a reasonable period not to exceed one hundred-eighty (180) days to permit the Seller Companies and their respective
Affiliates and their respective Representatives to review and remove such Excluded Assets and make any other appropriate arrangements
with respect thereto. Seller agrees that it will consult with Buyer in advance of taking any such actions following the Closing Date
with a view towards establishing a mutually agreeable plan for such review and removal so that these actions will not unreasonably interfere
with the normal operation of the Assets.
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2.03
Assumed Liabilities and Retained Liabilities.
(a)
As of the Effective Time, Buyer shall, without any further action on the part of Buyer or any Seller Company, assume and agree
to pay, perform and discharge when due, subject to the other provisions of this Agreement and the Closing Documents, each of the following
Obligations (collectively, the “Assumed Liabilities”) (provided that the Assumed Liabilities shall not
include the Retained Liabilities or reduce or obviate any of Seller’s indemnification, defense, save or hold harmless obligations
related to such Retained Liabilities under this Agreement):
(i)
All Obligations of the Seller Companies arising before, on or after the Effective Time in connection with the ownership or use
of the Assets or the Operations;
(ii)
all HSE Liabilities;
(iii)
all Decommissioning and Restoration Obligations;
(iv)
except for the Turnaround Contracts, all Obligations of the Seller Companies to the extent arising
out of, incurred in connection with or related to the Refinery Contracts or any other Contracts to the extent assigned to Buyer pursuant
to Section 8.02, but only such Obligations for goods or services received by or on behalf of Buyer or its Affiliates after the
Effective Time or are otherwise performable on or after the Effective Time;
(v)
in the event Closing occurs prior to Seller’s performance of the Turnaround, all Obligations to the extent arising out of,
incurred in connection with or related to the Turnaround and without regard to whether such Obligations are incurred prior to or after
the Effective Time, and in accordance with Schedule 2.06 (the “Turnaround Costs”), and all Obligations
arising out of the Contracts described in Schedule 2.03(a)(v), but only to the extent such Obligations are assignable and are
associated with the performance of the Turnaround (the “Turnaround Contracts”);
(vi)
all Obligations for Taxes assumed by Buyer as set forth in Article XIV; and
(vii)
all Obligations related to Transferred Employees to the extent assumed by Buyer as set forth in
Schedule 10.01.
(b)
Seller shall (or shall cause each applicable Seller Company to) retain, subject to the other provisions of this Agreement and
the Closing Documents, each of the following (collectively, the “Retained Liabilities”):
(i) all Obligations of the Seller Companies arising out of, relating to or otherwise in respect of the
items set forth in Schedule 2.03(b);
(ii)
all Obligations of the Seller Companies arising out of, relating to or otherwise in respect of the
Excluded Assets and the Excluded Contracts (to the extent 8.02(b) does not apply);
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(iii)
except for the Turnaround Contracts and Turnaround Costs, all Obligations of the Seller Companies
to the extent arising out of, incurred in connection with or related to any Contract assigned to Buyer from Seller pursuant to this Agreement,
but only such Obligations for goods or services received by or on behalf of any Seller Company prior to the Effective Time or are otherwise
performable prior to the Effective Time;
(iv)
all Obligations of the Seller Companies for Taxes for taxable periods ending at or prior to the
Effective Time, except to the extent such Taxes are allocated to Buyer pursuant to Article XIV;
(v)
all Obligations related to Transferred Employees to the extent retained by Seller as set forth in
Schedule 10.01 or as imposed on Seller by the applicable provisions of ERISA with respect to Pension Plans and Welfare Plans maintained
by Seller prior to Closing;
(vi)
all Obligations relating to any lawsuits or arbitrations pending against a Seller Company as of
the Closing Date (as evidenced by written service of process or commencement of arbitration proceedings), to the extent related to or
arising from the ownership, operation or use of the Assets by a Seller Company prior to the Closing Date, including any pending lawsuits
or arbitrations set forth in Section 4.09 of the Disclosure Letter;
(vii)
all Obligations with respect to any HSE Claims arising or accruing prior to the Closing Date, but
only to the extent such HSE Claim is (x) based on personal injury (whether resulting from a class action lawsuit or otherwise); and (y)
is attributable to ACM, Benzene, or PFAS;
(viii)
all Obligations with respect to any HSE Claims arising or accruing prior
to the Closing Date attributable to Lead
to the extent, and only to the extent, such Obligations become known on or before the expiration of eighteen
months from the Closing Date. (For the avoidance of doubt, Buyer will be responsible for all Obligations with respect to any HSE Claims
arising or accruing prior to the Closing Date attributable to lead to the extent such Obligation become known after the expiration of
eighteen months from the Closing Date); and
(ix)
all Obligations relating to the Consent Decree and the Consent Order
other than the Assumed Liabilities, including the obligation to expeditiously pursue the termination of
the Consent Decree.
2.04
Purchase Price. The aggregate purchase price for the Assets shall be: (a) $75,000,000.00 (the “Base
Amount”); plus (b) the purchase price for the Refinery Hydrocarbon Inventory which shall be determined and paid
pursuant to Section 2.08; plus (c) the amount of any Specified Capital Expenditures paid pursuant to Section 2.06
(such Base Amount, as finally adjusted pursuant to the foregoing and as further provided in Section 2.09 being the “Purchase
Price”).
2.05 Deposit.
(a)
Concurrently with the execution of this Agreement, and in exchange for the exclusivity set forth in Section 6.4 and for
other good and valuable consideration, Buyer shall
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issue the Promissory
Note, pursuant to which Buyer irrevocably agrees to pay to Seller an amount equal to ten million dollars in accordance with the terms
of such Promissory Note (the “Deposit”). Other than with respect to the exclusivity provided for in Section
6.4, this Agreement will not become a legally binding and enforceable Obligation of Seller until the Deposit is converted to cash.
The Parties agree that, upon the Execution Date, this Agreement shall become a legally binding and enforceable obligation of Buyer, and
such obligation includes the obligation to deliver the Deposit to Seller, without regard to whether Buyer completes any Third-Party transaction.
The Deposit shall be held by Seller pursuant to this Agreement and shall be disbursed as provided in Section 2.05(b) below. For
the avoidance of doubt, the amount of the Deposit refunded to Buyer, retained by Seller or applied to the Purchase Price at Closing shall
include any interest or other income earned thereon, if any.
(b)
The Parties’ rights and Obligations with respect to the Deposit shall be governed by this Agreement. Disbursal of the Deposit
shall occur in accordance with one of the following provisions, whichever shall apply:
(i)
if the Closing occurs, then the amount of the Deposit shall be credited towards the Purchase Price;
and
(ii)
if this Agreement is terminated for any reason, the Deposit shall be retained or disbursed as provided
in Section 15.04(b).
For the avoidance
of doubt, retention of the Deposit by Seller pursuant to Section 15.04(b) shall in no way limit Seller’s remedies for breach
of this Agreement.
2.06
Specified Capital Expenditures. The Base Amount shall be increased as a reimbursement to Seller in an amount equal
to the portion of any expenditures described on Schedule 2.06 expended by Seller Companies with respect to the Assets during the
Interim Period (collectively, the “Specified Capital Expenditures”), provided, however, if the Turnaround occurs
prior to the Closing Date Buyer shall be responsible for all Turnaround Costs up to a maximum of $13,000,000. Seller shall provide Buyer
with appropriate documentation supporting such capital expenditures, except with respect to the Turnaround Cost in the event the Turnaround
is performed by Seller prior to the Closing Date in accordance with Schedule 2.06. All Specified Capital Expenditures shall be determined
and expended at Seller’s sole discretion.
2.07
Method of Payment. All amounts to be disbursed or paid
pursuant to the terms of this Agreement shall be made in immediately available U.S. funds, by wire transfer (a) to a U.S. bank account
designated by Seller or by any other means acceptable to Seller if payable to Seller and (b) to a U.S. bank account designated by Buyer
or by any other means acceptable to Buyer if payable to Buyer.
2.08
Refinery Hydrocarbon Inventory.
(a)
Seller shall make a good faith estimate ten Business Days prior to the Closing Date of the estimated value of the Refinery Hydrocarbon
Inventory as of such date and provide a copy thereof to Buyer setting forth the ownership, types, characteristics, and volumes, on a
tank, truck, pipeline, site or other location basis, of all Refinery Hydrocarbon Inventory.
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Seller shall
measure the Refinery Hydrocarbon Inventory in accordance with the measurement procedures set forth in Schedule 2.08(a)(1) and
shall value the Refinery Hydrocarbon Inventory in accordance with the valuation procedures set forth in Schedule 2.08(a)(2). Buyer
shall be permitted to have Representatives present to observe any measurements taken by Seller. At the Closing, Buyer shall pay Seller
an amount (the “Inventory Deposit”) equal to 100% of such estimated Inventory Value as reasonably estimated
by Seller five Business Days prior to the Closing Date.
(b)
An independent inspector (the “Field Inspector”) shall be engaged by Seller from among the list of potential
Field Inspectors set forth on Schedule 2.08(b). The Field Inspector shall measure the Refinery Hydrocarbon Inventory as of the
Effective Time at the locations of the Refinery Hydrocarbon Inventory on the Closing Date. The Refinery Hydrocarbon Inventory shall be
measured by the Field Inspector in accordance with the procedures set forth in Schedule 2.08(a)(1). The Field Inspector shall
issue a written report (the “Field Inspector Report”) to both Buyer and Seller within 20 Business Days after
the Closing Date setting forth the volumes and quantities of the Refinery Hydrocarbon Inventory as of the Effective Time. The fees and
expenses of the Field Inspector shall be borne 50% by Seller and 50% by Buyer.
(c)
As soon as practicable, but in any event no later than 10 Business Days following receipt of the Field Inspector Report, Seller
shall cause to be prepared and delivered to Buyer a statement, together with supporting calculations and information setting forth the
volume of the Refinery Hydrocarbon Inventory as measured by the Field Inspector as of the Effective Time (the “Inventory
Statement”) and the value of the Refinery Hydrocarbon Inventory, which shall be determined in accordance with the procedures
set forth in Schedule 2.08(a)(2) (collectively, the “Inventory Value”). Buyer shall give Seller notice
of its acceptance of or objection to the computations in the Inventory Statement (and, if any objection, setting forth in reasonable
detail the amounts in dispute and the reasons therefor and solely on the basis that the Seller’s calculation of the Inventory Value
was not prepared in accordance with this Agreement or the methodology set forth on Schedule 2.08(a)(2)) no later than 20 days
following its receipt of the Inventory Statement (the date of Seller’s receipt of such acceptance or rejection, or the expiration
of such 20 day period with no notice having been given, shall be the “Inventory Notice Date”). If Buyer fails
to give such notice before the end of such 20-day period, then the Inventory Statement will be deemed final and binding upon the Parties.
If Buyer gives notice to Seller of Buyer’s objection within such 20 days, and Buyer and Seller are unable to resolve the issues
in dispute within seven days after Seller’s receipt of such notice of objection, then each of Buyer’s and Seller’s
positions with respect to the computation of the Inventory Value will be submitted to an independent and qualified party mutually selected
by the Parties such as an accounting firm or independent inspector (the “Inspector”), for final resolution.
If the computation of the Inventory Value is submitted to the Inspector for resolution, (x) each Party will furnish to the Inspector
such work papers and other documents and information relating to the disputed issues as the Inspector may request and are available to
that Party and will be afforded the opportunity to present to the Inspector any materials relating to such issues and to discuss the
same with the Inspector; (y) the Inspector’s determination or computation of the Inventory Value shall be binding and conclusive
on the Parties and will be deemed to be the final Inventory Value (and judgment thereupon may be entered in any court having jurisdiction
over the Party against which the same is sought to be enforced); and (z) the fees and expenses of the Inspector for such determination
will be borne 50% by Seller and 50% by Buyer.
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(d)
If the sum of the Inventory Value minus the Inventory Deposit (the “Inventory Balance”) is greater
than zero, then Buyer shall pay to Seller, without offset or deduction, an amount equal to the Inventory Balance by wire transfer of
immediately available funds to such account or accounts of Seller, as may be designated by Seller. If the amount of the Inventory Balance
is less than zero, then Seller shall pay to Buyer, without offset or deduction, an amount equal to the Inventory Balance by wire transfer
of immediately available funds to such account or accounts of Buyer, as may be designated by Buyer. All undisputed amounts of the Inventory
Balance shall be paid by the relevant Party to the other Party within five Business Days of the Inventory Notice Date. All disputed amounts
of the Inventory Balance shall be paid by the relevant Party to the other Party within five Business Days of the resolution of such disputed
amounts. All amounts payable pursuant to this Section 2.08(d) (both disputed and undisputed amounts) shall bear interest
from and including the date payment is scheduled to be made to, but excluding, the date of payment at a rate
per annum equal to the lesser of (i) SOFR plus 3%, or (ii) the maximum rate permitted by Applicable Law. Such interest shall be payable
at the same time as the payment to which it relates and shall be calculated on the basis of a year of 365 days and the actual number
of days for which due.
(e)
Each Party agrees that, following the Closing, it shall not take any actions with respect to the accounting books, records, policies
and procedures of itself or its Affiliates that would obstruct or prevent the preparation of the Inventory Statement as provided in this
Section 2.08. From the Closing through the final determination of the Inventory Value in accordance with this Section 2.08,
(i) Seller shall provide Buyer with access at all reasonable times to the personnel and working papers utilized in determining the Inventory
Statement for purposes of confirming Seller’s calculation of same, and (ii) Seller and Buyer shall provide one another access at
all reasonable times to the personnel, properties, and books and records of the Refinery for purposes of determining the Inventory Value,
including permitting the Parties and their respective advisors to participate in the taking of the physical inventory. The Parties shall
cooperate with each other in the preparation of the Inventory Statement if and as requested by the other Party.
(f)
Except as expressly set forth in this Section 2.08, Buyer and Seller shall each bear its own expenses incurred in connection
with the preparation and review of the Inventory Statement.
2.09
Closing Adjustments. At the Closing, Buyer shall pay to Seller (or Seller’s designee), in immediately available
funds by wire transfer to an account designated by Seller, an amount (the “Closing Date Payment”) equal to
the Base Amount, as adjusted by the following:
(a)
Increased by an amount equal to the Inventory Deposit pursuant to Section 2.08(a);
(b)
Increased by an amount equal to the Specified Capital Expenditures as set forth on and in accordance with Schedule 2.06;
(c)
Increased by an amount equal to any prepaids made by Seller or any Seller Company on behalf of the
Assets;
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(e)
Reduced by an amount equal to the credit, if any, payable in connection with a Casualty pursuant to Section 8.07(e);
(f)
Increased or reduced, as applicable, by an amount, if any, equal to the pro-ration of lease and rental payments pursuant to Section 8.08(a);
(g)
Reduced by an amount, if any, equal to the pro-ration of Property Taxes to Seller pursuant to Section 14.02;
(h)
Increased by any amount paid by Seller for all audits performed after the Execution Date at the
request of Buyer, including the Financial Audit less one million dollars which will be paid by Seller;
(i)
Increased by the amount of the Swap Kit which shall be deemed fully paid upon receipt of the wire
transfer; and
(j)
Increased or reduced, as applicable, by any other amounts agreed to in writing by the Parties.
ARTICLE
III
CLOSING
3.01
Place and Time.
(a)
Subject to the Parties’ satisfaction or waiver of the conditions precedent set forth in Article XI and Article
XII, the Closing shall take place at 10:00 a.m. local time, at the offices of Seller at 150 N. Dairy Ashford Road, Houston, Texas
77079, on the fifth Business Day following the satisfaction or waiver of all such conditions that are contemplated by this Agreement
to be satisfied or waived at or prior to the Closing (other than conditions which, by their nature, are to be satisfied on the Closing
Date, but subject to the satisfaction or waiver of such conditions) or on such other date, place or time on or prior to the Outside Date
as the Parties may otherwise mutually agree in writing (the “Closing Date”); provided, however,
that, if such fifth Business Day is after the first day of a calendar month, then the Closing Date shall be the first day of the calendar
month next following the month in which such fifth Business Day occurs, provided that the first day in such calendar month is a
Business Day, failing which the next calendar month in which the first day is a Business Day shall be the month in which Closing will
occur. The Parties shall, prior to the Closing Date, utilize such procedures and agreements which are mutually agreeable to all Parties
to provide for the Closing Date Payment and executed originals of the Closing Documents and joint written instructions or other assignment
documents as are required by the Parties to be held in escrow.
(b)
The Parties shall use First American Title Insurance Company to act as escrow agent for the Contemplated
Transactions. The Parties shall utilize such procedures and agreements which are reasonable and mutually agreeable to the Parties to
provide for the release of, as of 10:01 a.m. Central Time on the Closing Date, (i) the Closing Date Payment, (ii) executed originals
of the Closing Documents, and (iii) joint written instructions or other assignment documents as are required by the Parties, which will
all be held in escrow by the escrow agent.
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(c)
Upon release of the documents and receipt of payments as contemplated by and in accordance with Section 3.02, the Closing
shall be deemed to have occurred and legal title to and beneficial ownership of the Assets shall be deemed to have passed to Buyer as
of the Effective Time and all right, title and interest in and to the Closing Date Payment shall be deemed to have passed to Seller.
(d)
Buyer shall assume operational control of the Assets at the Effective Time upon Seller’s written notification to Buyer of
Seller’s receipt of the Closing Date Payment by wire transfer. On the Closing Date, the Seller Companies shall conduct the Operations
in all material respects in the Ordinary Course of Business, without additional consideration and without liability, for the benefit
of Buyer until Buyer assumes operational control of the Assets as provided in the preceding sentence.
3.02
Transactions and Deliveries at or Prior to Closing.
(a)
At the Closing, Seller (or other Seller Companies, as applicable) shall execute (as applicable) and deliver to Buyer the following:
(i)
one or more deed(s) for the Refinery Owned Real Property substantially in the form attached hereto as Exhibit B (the “Deed”),
pursuant to which each applicable Seller Company grants and conveys its right, title and interest in and to the Refinery Owned Real Property
to Buyer;
(ii)
one or more assignment and assumption agreement(s), substantially in the form attached hereto as Exhibit C (the “Real
Property Interest Assignment and Assumption Agreement”), pursuant to which each applicable Seller Company conveys its right,
title and interest in and to the Easements, Refinery Leased Real Property and other real property rights and interests constituting the
Assets (other than the Refinery Owned Real Property);
(iii)
one or more bills of sale, assignment and assumption agreement(s) substantially in the form attached hereto as Exhibit D
(the “Bill of Sale, Assignment and Assumption Agreement”), pursuant to which each applicable Seller Company
grants and conveys its right, title and interest in and to the Assets (other than the Assets to be conveyed pursuant to Sections 3.02(a)(i)
and 3.02(a)(ii);
(iv)
a certificate dated as of the Closing Date and signed by an authorized officer of Seller, certifying
as to the fulfillment by Seller of the conditions set forth in Sections 11.01 and 11.02 (except to the extent of any waiver
thereof);
(v)
a certificate certifying to the adoption of resolutions of each Seller Company authorizing the execution
of this Agreement (only in the case of Seller) and the Closing Documents to which it is a party and the consummation of the Contemplated
Transactions and the Closing Documents to which it is a party (in each case to the extent required by such Seller Company’s Organizational
Documents);
(vi)
incumbency certificates, duly executed by an authorized officer of each Seller Company attesting
to the due appointment and authorization of individuals signing this
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Agreement (only
in the case of Seller), any Closing Document to which it is a party or any agreement related to the Contemplated Transactions to which
it is a party;
(vii)
a certificate of good standing in respect of each Seller Company, in each case issued by the Secretary
of State of its state of formation;
| (viii) | a current certificate of Seller’s
qualification to do business in the State of Alabama; |
(ix)
a certificate of non-foreign status in accordance with U.S. Treasury Regulations Section 1.1445-2(b)
from each Seller Company conveying Real Property or an Easement;
| (x) | the Shell Refinery Process License Agreement; |
| (xi) | the Crude and Feedstock Supply Agreement; |
| (xii) | the Shell Software License Agreement; |
| (xiii) | the Terminaling Agreement; |
| (xiv) | the Swap Kit Purchase Agreement; |
the Products
Offtake Agreement
| (xv) | the Shell Pipeline Management Agreement
and |
(xvi)
any other documents, instruments or agreements contemplated hereby or reasonably necessary to consummate
the Contemplated Transactions (it being expressly understood by the Parties, however, that such instruments shall not require a Seller
Company or any other Person to make any additional representations, warranties or covenants, express or implied, not contained in or
as expressly contemplated by this Agreement or the Closing Documents).
(b)
At the Closing, Buyer shall execute (as applicable) and deliver to Seller the following:
| (i) | the Closing Date Payment; |
| (ii) | the Real Property Interest Assignment
and Assumption Agreements; |
| (iii) | the Bill of Sale, Assignment and
Assumption Agreements; |
(iv)
a certificate dated as of the Closing Date and signed by an authorized officer of Buyer, certifying
as to the fulfillment of the conditions set forth in Sections 12.01 and 12.02;
(v)
a certificate certifying to the adoption of resolutions of Buyer, authorizing the execution of this
Agreement and the Closing Documents to which it is a party, and
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the consummation
of the Contemplated Transactions to which it is a party (in each case to the extent required by Buyer’s Organizational Documents);
(vi)
an incumbency certificate, duly executed by authorized officers of Buyer attesting to the due appointment
and authorization of individuals signing this Agreement on behalf of Buyer, any Closing Document to which it is a party or any agreement
related to the Contemplated Transactions to which it is a party;
| (vii) | a certificate of good standing issued
by the Secretary of State of its state of formation; |
| (viii) | current certificates of Buyer’s
qualification to do business and good standing in the State of Alabama; |
| (ix) | the Shell Refinery Process License Agreement; |
| (x) | the Crude and Feedstock Supply Agreement; |
| (xi) | the Shell Software License Agreement; |
| (xii) | the Terminaling Agreement; |
| (xiii) | the Swap Kit Purchase Agreement; |
the Products
Offtake Agreement
| (xiv) | the Shell Pipeline Management Agreement; |
(xv)
a resale certificate and any other certificates or instruments necessary for the sale and transfer
of the Refinery Hydrocarbon Inventory and the Refinery Non-Hydrocarbon Inventory without any sales, excise or use Taxes of any Governmental
Authority all to be in form reasonably satisfactory to Seller; and
(xvi)
any other documents, instruments or agreements contemplated hereby or reasonably necessary to consummate
the Contemplated Transactions (it being expressly understood by the Parties, however, that such instruments shall not require Buyer or
any other Person to make any additional representations, warranties or covenants, express or implied, not contained in or as expressly
contemplated by this Agreement or the Closing Documents).
(c)
All of the transactions identified in this Section 3.02 shall occur simultaneously, and none shall be deemed completed
until all are completed. Unless otherwise expressly provided for herein, all transfers of assets and liabilities, as well as all other
actions related to the Closing, shall be deemed to have occurred at the Effective Time.
3.03
Possession and Control. Unless otherwise expressly provided for herein, possession and control of the Operations, and
transfer of title and risk of loss to the Assets from Seller to Buyer shall be effective as of 12:00:01 a.m. Central Standard Time on
the Closing Date (the “Effective Time”).
ARTICLE
IV
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SELLER’S
REPRESENTATIONS AND WARRANTIES
Except
for matters set forth in the Disclosure Letter and subject to Section 17.08, Seller hereby represents and warrants to Buyer as
follows as of the Execution Date and as of the Closing Date:
4.01
Organization and Good Standing. Each Seller Company is duly organized and validly existing under the Applicable Laws
of the jurisdiction of its formation. Each Seller Company is duly qualified or licensed to conduct business and is in good standing under
the Applicable Laws of each jurisdiction where such license or qualification is necessary and required, except where the failure to be
so qualified or licensed would not reasonably be expected to result in a Material Adverse Effect. Each Seller Company has the requisite
power and authority to carry on its business and to own or lease and to operate its properties in the places where such business is conducted
and such properties are owned, leased or operated by it.
4.02
Authority. Each Seller Company has full power and authority to execute and deliver the Closing Documents to which it
is a party and to perform its obligations thereunder, and the execution and delivery of the Closing Documents to be delivered by each
Seller Company and the performance of its obligations thereunder have been duly and validly authorized by such action, corporate or otherwise,
necessary on behalf of the applicable Seller Company. This Agreement constitutes and, upon delivery, the Closing Documents will constitute,
legal, valid and binding agreements of each applicable Seller Company enforceable against each applicable Seller Company in accordance
with its respective terms and conditions, except as such enforceability may be limited by general principles of equity and applicable
provisions of bankruptcy, insolvency, moratorium, reorganization or similar laws (regardless of whether enforceability is considered
in a Proceeding at law or in equity).
4.03
No Breach. Except for the HSR Act and other antitrust statutes, rules or regulations applicable
to the Contemplated Transactions and consents and waivers that are customarily obtained following the closing in transactions of this
nature and subject to obtaining the consents and waivers set forth in Section 4.03 of the Disclosure Letter, the execution, delivery
and performance of this Agreement, the Closing Documents and the consummation of the Contemplated Transactions and the compliance by
an applicable Seller Company with any of the provisions hereof and thereof does not and will not (a) violate any provision of the Organizational
Documents of such Seller Company, (b) violate, or result in a breach of, any provision of, or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default) under, or result in termination of, or accelerate the performance required
by, or, except for this Agreement, result in the creation of any Lien upon the Assets owned by it under any of the terms, conditions
or provisions of any Material Contract to which such Seller Company is a party, or by which the Assets owned by it are otherwise bound,
(c) violate any Applicable Law to which a Seller Company is subject, or by which a Seller Company or its assets or properties may be
bound, or (d) require the consent or approval of any Third Party, other than, in the cases of clauses (b) through (d) as would not reasonably
be expected to result, individually or in the aggregate, in a Material Adverse Effect.
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4.04
Real Property. Subject to the Permitted Encumbrances:
(a)
(i) the Refinery Owned Real Property, (ii) the Refinery Leased Real Property and (iii) the Easements constitute all the fee and
leasehold interests in Real Property used by the Seller Companies in connection with the ownership, operation and use of the Assets;
(b)
there are no unexercised options, rights of first offer or rights of first refusal to purchase any portion or interest in the
Refinery Owned Real Property or the Refinery Leased Real Property;
(c)
other than as set forth on Schedule 2.01(c), none of the Seller Companies has leased, licensed,
subleased or granted occupancy rights to any Third Party in any portion of the Real Property;
(d)
there are no pending, or to Seller’s Knowledge, threatened condemnation or eminent domain proceedings against any Seller
Company involving a partial or total Taking of any of the Refinery Owned Real Property or the Refinery Leased Real Property;
(e)
to Seller’s Knowledge, all electric, gas, water, sewage, communications
and other utilities necessary and sufficient for the Ordinary Course of Business at the Refinery are available; and
(f)
none of the Seller Companies has received or sent any written notice of termination, cancellation,
breach, or default to any party or from any party with respect to any Refinery Leased Real Property and, to Seller’s Knowledge,
there are no existing defaults, and there is no event which, with the giving of notice or the passage of time or both, would result in
a default with respect to any Refinery Leased Real Property; and
(g)
Seller has delivered to Buyer true and complete copies of the Real Property Interests attached to
the Real Property Interest Assignment and Assumption Agreement. Except as set forth in Section 4.04
of the Disclosure Letter, Seller has full legal power and authority to sell, assign, transfer and convey its rights under
the Real Property Interests to Buyer in accordance with this Agreement, and such assignment will not affect the validity, enforceability
or continuity of any of the Real Property Interests.
4.05
Brokers. None of the Seller Companies has retained any broker or finder or incurred any
liability or obligation for any brokerage fees, commissions, finder’s fees or similar compensation with respect to this Agreement,
the Closing Documents or the Contemplated Transactions for which Buyer or any Affiliate of Buyer will have any liability or obligation.
4.06
Ownership of the Assets and Use of Assets. Except as set
forth in Section 4.06 of the Disclosure Letter and except for the Intellectual Property, the Seller Companies have good and valid
title to, or a valid leasehold interest in, or otherwise own the rights to possess, use and obtain the benefits of all of the Assets,
free and clear of any Liens, other than Permitted Encumbrances. The Assets, taken as a whole, are adequate
for the uses to
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which they
are operating as of the Execution Date and the same will be true as of the Closing Date.
4.07
Compliance with Laws.
(a)
Except as set forth in Section 4.07(a) of the Disclosure Letter, in connection with this Agreement, Seller (i) is in compliance
with all Applicable Laws, except where the failure to so comply would not have a Material Adverse Effect, and (ii) has not (within the
4 year period prior to the Execution Date) received any written notification from any applicable Governmental Authority that it is not
in compliance with any Applicable Laws.
(b)
To Seller’s Knowledge and except as set forth in Section 4.07(b) of the Disclosure Letter,
the Assets are in compliance with all Applicable Laws, except for violations, non-compliances or other matters, if any, that would not
reasonably be expected to result in a Material Adverse Effect.
(c)
Notwithstanding the foregoing, Seller makes no representations or warranties in this Section 4.07 with respect to Taxes,
employment related matters or HSE Laws (including HSE Permits) for which the sole and exclusive representations and warranties of Seller
are set forth in Section 4.11, Schedule 10.01, and Section 4.13, respectively.
4.08
Refinery Permits. Except (i) as set forth in Section 4.08
of the Disclosure Letter, (ii) where the failure to have a Permit would not reasonably be expected to result in a Material Adverse
Effect, and (iii) with respect to HSE Permits, which are addressed in Section 4.13(a), the Refinery Permits are in full force
and effect, and the applicable Seller Company is in material compliance with the Refinery Permits, and the Refinery Permits together
with the HSE Permits described in Section 4.13(a), comprise all the permits, licenses and approvals necessary for operating the
Refinery in the Ordinary Course of Business.
4.09
Proceedings; Judgments. Except as set forth in Section 4.09 of the Disclosure Letter
and except with respect to Tax matters, which are addressed in Section 4.11, and HSE Claims, which are addressed in Section
4.13(b), there are no actions, lawsuits, arbitrations, or other proceedings before any Governmental Authority (each a “Proceeding”)
pending, or to Seller’s Knowledge, threatened in writing and there are no Judgments that remain unsatisfied (excluding Judgments
related to HSE Laws) in either case, (i) against any Seller Company with respect to the Assets, (ii) that are binding on any Seller Company,
or (iii) that are seeking to restrain or prohibit this Agreement, the Closing Documents or any agreement, instrument or transaction contemplated
hereby or thereby, or to obtain damages, a discovery order or other relief in connection with this Agreement, the Closing Documents or
the Contemplated Transactions.
4.10
Contracts and Commitments.
(a)
Section 4.10(a) of the Disclosure Letter sets forth a true, correct and complete list of all Material Contracts that
exist as of the Execution Date. Seller has delivered to Buyer true and complete copies of all Material Contracts set forth in Section 4.10(a)
of the Disclosure Letter.
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(b)
Except as set forth in Section 4.10(b) of the Disclosure Letter and except for matters that would not reasonably be expected
to result in a Material Adverse Effect, each Material Contract listed in Section 4.10(a) of the Disclosure Letter is in full
force and effect and is a legal, valid and binding obligation of a Seller Company, enforceable against such Seller Company in accordance
with its terms (and to Seller’s Knowledge, against each counterparty thereto), except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally
and general principles of equity (regardless of whether enforceability is considered in a Proceeding at law or in equity). Except as
set forth in Section 4.10(b) of the Disclosure Letter and the applicable Seller Company is not, nor, to Seller’s Knowledge,
is any other party thereto, in default under any of the Material Contracts set forth in Section 4.10(a) of the Disclosure
Letter, and the applicable Seller Company has not received written notice of any actual or threatened cancellation or termination of
any such Material Contract from any party thereto. Seller shall be permitted to supplement and amend Sections 4.10(a) and
4.10(b) of the Disclosure Letter prior to the Closing with respect to Material Contracts (or amendments thereto) that, in the
Ordinary Course of Business during the Interim Period, (i) a Seller Company has entered into or (ii) have expired or been terminated.
4.11
Taxes. Except as set forth in Section 4.11 of the Disclosure Letter, (a) all material
Tax Returns required to be filed by or on behalf of a Seller Company related to the Seller Companies’ ownership, operation or use
of the Assets have been duly and timely filed with the appropriate Governmental Authorities in all jurisdictions in which such Tax Returns
are required to be filed (after giving effect to any valid extensions of time in which to make such filings), and all such Tax Returns
are true, complete and correct in all material respects; (b) all material Taxes payable by or on behalf of a Seller Company (whether
or not shown on a Tax Return) related to the Seller Companies’ ownership, operation or use of the Assets have been fully and timely
paid; (c) other than extensions made in the Ordinary Course of Business, no agreement, waiver, or other document or arrangement extending
or having the effect of extending the period for assessment or collection of Taxes (including, but not limited to, any applicable statute
of limitation) has been executed or filed with the Internal Revenue Service or any other taxing authority by or on behalf of a Seller
Company related to the Seller Companies’ ownership, operation or use of the Assets; (d) no claim has ever been made in writing
by any Governmental Authority in a jurisdiction where a Seller Company does not file Tax Returns related to such Seller Company’s
ownership, operation or use of the Assets owned or operated by it that such Seller Company is or may be subject to Taxes in that jurisdiction
with respect to such Assets; (e) the applicable Seller Companies have complied with all Applicable Laws relating to the payment and withholding
of Taxes in connection with any amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other Third
Party, including all information reporting, backup withholding, and maintenance of required records with respect thereto, in each case
related to such Seller Companies’ ownership, operation or use of the Assets; (f) all deficiencies asserted or assessments made
as a result of any examinations by the Internal Revenue Service or any other Governmental Authority of the Tax Returns related to a Seller
Company’s ownership, operation or use of the Assets owned or operated by it have been fully paid; and (g) to Seller’s Knowledge,
there are no pending Tax audits or investigations by any Governmental Authority in progress with respect to a Seller Company’s
ownership,
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operation
and use of the Assets, nor has Seller received any written notice from any Governmental Authority that it intends to conduct such an
audit or investigation.
4.12
Affiliate Agreements. Except as set forth in Section 4.12 of the Disclosure Letter
and except for Contracts for hydrocarbons or Contracts for administrative services provided by Shell Oil Company or its Affiliates in
the areas of human resources, benefits management, legal, finance, risk and insurance, public and governmental affairs, and other similar
administrative functions, no Seller Company is a party to any Contract with any Affiliate of such Seller Company that provides for the
purchase or sale of goods to or from, or the provision of services to or from, the Refinery.
4.13
HSE. To Seller’s Knowledge:
(a)
HSE Permits. Except as set forth in Section 4.13(a) of the Disclosure Letter, the HSE
Permits are in full force and effect, and the applicable Seller Company is in material compliance with the HSE Permits, and the HSE permits,
together with the Refinery Permits described in Section 4.08, comprise all the permits, licenses and approvals necessary for operating
the Refinery in the Ordinary Course of Business.
(b)
HSE Claims. Except as set forth in Section 4.13(b) of the Disclosure Letter, there are no HSE Claims pending or
threatened in writing against a Seller Company related to the ownership, operation or use of the Assets.
(c)
Compliance with HSE Laws. Except as set forth in Section 4.13(c) of the Disclosure Letter, each Seller Company is
substantially in compliance with all applicable HSE Laws related to the ownership, operation or use of the Assets.
(d)
HSE Judgments. Except as set forth in Section 4.13(d) of the Disclosure Letter, no
Seller Company and none of the Assets are the subject of any pending Judgment that remains unsatisfied under any HSE Laws requiring any
material Corrective Action or the payment of a material monetary fine or penalty or restricting or limiting in any material respect the
Operations.
(e)
Consent Decree/Consent Order. Seller is in full and
complete compliance with all requirements imposed by the Consent Decree and the Consent Order with the exception to those requirements
applicable exclusively to the St. Rose Refinery.
Notwithstanding
anything to the contrary, the representations and warranties in this Section 4.13 and 4.16 are Seller Company’s sole
and exclusive representations with regard to HSE matters and Hazardous Substances for purposes of Section 13.02(a).
4.14
Financial Statements.
(a)
The Financial Statements have been prepared in accordance with US GAAP consistently applied throughout
the periods to which they relate. The balance sheets contained in the Financial Statements fairly present, in all material respects,
the financial position of the Business as of their respective dates and the statements of earnings and retained earnings contained in
the Financial Statements fairly present, in all material respects, the revenues, earnings and results of operations of the Assets for
the periods indicated. The Financial Statements are accurate and complete in all material respects.
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(b)
Historically, financial statements have not been prepared for the Business as the Business has not operated as a separate, stand-alone
enterprise. The Financial Statements have been prepared from the historical accounting records of Seller in anticipation of a potential
transaction to separate the Assets from the other business activities of Seller and its other Affiliates as though the Assets had been
managed as a separate, stand-alone enterprise for all periods presented. As the Assets have been historically managed and financed as
part of a larger group, its accounts reflect certain charges for functions provided by Sellers that have been identified as related party
transactions. It is possible that the terms of the related party transactions are not the same as the terms that might otherwise result
from transactions between unrelated parties. All adjustments have been reflected that are necessary for a fair presentation of the financial
statements for the Business as of their respective dates. The allocations have been made on a reasonable basis and have been consistently
applied for each period presented. The Financial Statements may not necessarily reflect the financial position, results of operations
or cash flows that the Business might have had in the past, or might have in the future, if it had existed as a separate, stand-alone
enterprise.
(c) The
representations set forth in Section 4.14(a) and Section 4.14(b) shall only apply with respect to the audited financial
statements for fiscal years ending on December 3, 2018 and December 31, 2019. The Parties agree that Seller will cooperate with Buyer
to prepare audited financials, at Buyer’s sole cost, for 2020 and Q1 and Q2 of 2021 (the “Financial Audit”),
and the representations and warranty in this Section 4.14(a) and Section 4.14(b) shall apply to such audited financials upon completion.
4.15
Gifts and Benefits. No employee or agent of Seller
acting on the behalf of Seller has directly or indirectly, given or agreed to give, to any customer, supplier, governmental employee
or any actual or purported agent of any of the foregoing who is or may be in a position to help or hinder Seller or the Business (or
assist Seller in connection with any actual or proposed transaction relating to the Business): (a) any illegal gift or benefit or
(b) any gift or similar benefit which if not continued or repeated in the future, would have a Material Adverse Effect on the relationship
of the Business with such Person.
4.16 Disclaimer.
EXCEPT FOR (AND WITHOUT LIMITING) THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE BY SELLER IN THIS ARTICLE IV (INCLUDING THE RELATED
PORTIONS OF THE DISCLOSURE LETTER), THE ASSETS ARE SOLD “AS IS, WHERE IS” AND ALL REPRESENTATIONS AND WARRANTIES WHETHER
EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, AS TO SELLER, THE ASSETS, THE ASSUMED LIABILITIES, THE OPERATIONS AND THE BUSINESS ASSOCIATED
WITH THE ASSETS ARE EXCLUDED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN SELLER’S REPRESENTATIONS
AND WARRANTIES IN ARTICLE IV (INCLUDING THE RELATED PORTION OF THE DISCLOSURE LETTER), SELLER AND THE SELLER COMPANIES MAKE NO REPRESENTATIONS
OR WARRANTIES OF ANY KIND OR NATURE (WHETHER EXPRESS OR IMPLIED), AT LAW OR IN EQUITY, WITH RESPECT TO THE ASSETS, THE OPERATIONS, OR
THE ASSUMED LIABILITIES, AND EACH
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SELLER COMPANY
EXPRESSLY DISCLAIMS ANY SUCH OTHER WARRANTIES (EXPRESS OR IMPLIED), INCLUDING AS TO THEIR (A) TITLE, (B) ABSENCE OF PATENT OR LATENT
DEFECTS, (C) SAFETY, (D) STATE OF REPAIR, (E) QUALITY, (F) MERCHANTABILITY, (G) FITNESS FOR BUYER’S INTENDED USE OR PURPOSE OR
A PARTICULAR USE OR PURPOSE OR ANY USE OR PURPOSE WHATSOEVER, (H) COMPLIANCE WITH APPLICABLE LAWS, (I) ENVIRONMENTAL OR PHYSICAL CONDITION
(SURFACE AND SUBSURFACE), (J) FEDERAL, STATE OR LOCAL INCOME OR OTHER TAX CONSEQUENCES, AND (K) CONTRACTUAL, ECONOMIC OR FINANCIAL INFORMATION
AND DATA, OR FINANCIAL VIABILITY, INCLUDING PRESENT OR FUTURE VALUE OR ANTICIPATED INCOME OR PROFITS. THE SELLER COMPANIES DISCLAIM ALL
LIABILITY AND RESPONSIBILITY FOR ANY OTHER REPRESENTATION, WARRANTY, STATEMENT OR INFORMATION MADE OR COMMUNICATED (WHETHER ORALLY, IN
WRITING, ELECTRONICALLY OR BY OR THROUGH ANY OTHER MEDIUM) TO BUYER OR ITS REPRESENTATIVES, INCLUDING WITH RESPECT TO THE SELLER COMPANIES,
THE ASSETS (INCLUDING ANY LIABILITIES, OWNERSHIP, LEASE, MAINTENANCE, OR OPERATION THEREOF), OR THE ASSUMED LIABILITIES. FURTHER, THE
QUALITY, ACCURACY OR COMPLETENESS OF ANY FILES, RECORDS, BOOKS AND RECORDS (INCLUDING REFINERY BOOKS AND RECORDS) OR OPERATING MANUALS
CONVEYED AS PART OF THE ASSETS, AND BUYER’S SUBSEQUENT USE OF SUCH MATERIALS SHALL BE AT BUYER’S OWN RISK. WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, THE SELLER COMPANIES MAKE NO REPRESENTATION OR WARRANTY REGARDING ANY THIRD PARTY BENEFICIARY RIGHTS
OR OTHER RIGHTS WHICH BUYER MIGHT CLAIM UNDER ANY STUDIES, REPORTS, TESTS OR ANALYSES PREPARED BY ANY THIRD PARTIES FOR THE SELLER COMPANIES
OR ANY OF THEIR AFFILIATES, EVEN IF THE SAME WERE MADE AVAILABLE FOR REVIEW BY BUYER OR ITS AGENTS, REPRESENTATIVES OR CONSULTANTS.
MOREOVER, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE SELLER COMPANIES MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING
OR WITH RESPECT TO INTELLECTUAL PROPERTY IN THIS AGREEMENT. ANY REPRESENTATIONS OR WARRANTIES REGARDING OR WITH RESPECT TO INTELLECTUAL
PROPERTY ARE SET FORTH IN THE SHELL REFINERY PROCESS LICENSE AGREEMENT.
ARTICLE
V
BUYER’S
REPRESENTATIONS AND WARRANTIES
Buyer
hereby represents and warrants to Seller as follows as of the Execution Date and as of the Closing Date:
5.01
Organization and Good Standing. Buyer is a limited liability company duly organized, validly existing and in good standing
under the laws of the State of Texas. Buyer is duly qualified or licensed to conduct business and is in good standing under the Applicable
Laws of each jurisdiction where such license or qualification is necessary and required, except where the failure to be so qualified
or licensed would not reasonably be expected to result in a Material Adverse Effect. Buyer has the requisite power and authority to carry
on
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its business
and to own or lease and to operate its properties as and in the places where such business is conducted and such properties are owned,
leased or operated.
5.02
Authority. Buyer has full company power and authority to execute, deliver and enter into this Agreement and the Closing
Documents to which it is a party and to perform its obligations hereunder and thereunder and to consummate the Contemplated Transactions.
The execution, delivery and performance of this Agreement, the Closing Documents to which it is a party and the Contemplated Transactions
have been duly and validly authorized by all requisite company action on behalf of Buyer. This Agreement, and upon delivery, the Closing
Documents will constitute legal, valid and binding agreements of Buyer enforceable against Buyer in accordance with their respective
terms, except as such enforceability may be limited by general principles of equity and applicable provisions of bankruptcy, insolvency,
moratorium, reorganization or similar laws (regardless of whether enforceability is considered in a Proceeding at law or in equity).
5.03
No Waiver. No investigations, inspections, surveys or tests made by or on behalf of Buyer at any time shall affect,
mitigate, waive, diminish the scope of, or otherwise affect any representation or warranty made by Seller in or pursuant to this Agreement.
5.04
No Breach. Except for the HSR Act and other antitrust statutes, rules or regulations applicable to the Contemplated
Transactions and consents and waivers that are customarily obtained following the closing in transactions of this nature, the execution,
delivery and performance of this Agreement, the Closing Documents and the consummation of the Contemplated Transactions and the compliance
by Buyer with any of the provisions hereof and thereof does not and will not (a) violate any provision of the Organizational Documents
of Buyer, (b) violate any Applicable Law to which Buyer is subject, or by which Buyer or its assets or properties
may be bound, or (c) require the consent or approval of any Third Party, other than, in the cases of clauses (b) and (c) as would not
reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect.
5.05
Compliance with Laws. In connection with this Agreement, Buyer (i) is in compliance with all Applicable Laws, except
where the failure to so comply would not have a Material Adverse Effect; and (ii) has not received any written notification from any
applicable Governmental Authority that it is not in compliance with any Applicable Laws.
5.06
Proceedings; Judgments. There are no Proceedings pending, or to Buyer’s Knowledge, threatened in writing seeking
to restrain or prohibit this Agreement, the Closing Documents or any agreement, instrument or transaction contemplated hereby or thereby,
or to obtain damages, a discovery order or other relief in connection with this Agreement, the Closing Documents or the Contemplated
Transactions, and there are no Judgments that remain unsatisfied that would reasonably be expected to have a material and adverse impact
on the ability of Buyer to consummate the Contemplated Transactions.
5.07
Brokers. Buyer has not retained any broker or finder or incurred any liability or obligation for any brokerage fees,
commissions, finders’ fees or similar compensation with respect to this Agreement, the Closing Documents or the Contemplated Transactions
for which Seller or any Affiliate of Seller will have any liability or obligation.
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5.08
OFAC.
(a)
Neither Buyer nor any of its partners, members, shareholders or other direct or indirect owners
or holders of Equity Interests of Buyer nor any Person who controls (directly or indirectly through intermediaries) Buyer is identified
on (a) the U.S. Department of Treasury’s Office of Foreign Assets Controls’ (“OFAC”) List of Specially
Designated Nationals and Blocked Persons, (b) the Bureau of Industry and Security of the United States Department of Commerce’s
“Denied Persons List,” “Entity List” or “Unverified List,” (c) the Office of Defense Trade Controls
of the United States Department of State’s “List of Debarred Parties” or (d) any other similar list maintained by OFAC
pursuant to any authorizing statute, executive order or regulation.
(b)
Buyer is not and is not controlled by a “foreign person” as that term is defined under
§800.216 of 31 C.F.R. Part 800 on “Regulations Pertaining to Mergers, Acquisitions, and Takeovers by Foreign Persons.”
5.09
Financing. Buyer has delivered to Seller true and complete copies of the executed Financing Commitments in connection
with the Financing. As of the Execution Date, none of the Financing Commitments have been amended or modified, no such amendment or modification
is contemplated and the respective commitments contained in the Financing Commitments have not been withdrawn or rescinded. The Financing
Commitments are in full force and effect and constitute the legal, valid and binding obligation of Buyer, and, to Buyer’s Knowledge,
the other parties thereto (except to the extent that enforceability may be limited by the applicable bankruptcy, insolvency, moratorium,
reorganization or similar Applicable Laws affecting the enforcement of creditors’ rights generally or by general principles of
equity). There are no conditions precedent related to the funding of the full amount of the Financing other than those set forth in the
Financing Commitments. There are no side letters or other contracts or arrangements (oral or written) related to the Financing (except
for customary fee letters and engagement letters, a complete copy of each of which has been provided to Seller, with only the fee amounts
and certain other terms (none of which would adversely affect the conditions, amount or availability of the Financing) redacted, relating
to the Financing between Buyer and the providers of the Financing) other than the Financing Commitments. To Buyer’s Knowledge,
no event has occurred that (with or without notice or lapse of time, or both) would constitute a breach or default under the Financing
Commitments. Buyer is not aware of any fact or occurrence that makes any of the representations or warranties of Buyer relating to Buyer
in any of the Financing Commitments inaccurate in any material respect. Buyer has no reason to believe that it will be unable to satisfy
on a timely basis any term or condition to be satisfied by it and contained in the Financing Commitments. Buyer has fully paid all commitment
fees or other fees required by the terms of the Financing Commitments to be paid on or before the Execution Date. Subject to the conditions
set forth in the Financing Commitments and subject to the satisfaction of the conditions contained in Article XI, the aggregate
proceeds contemplated by the Financing Commitments, together with other financial resources of Buyer including unrestricted cash, cash
equivalents and marketable securities (net of any applicable Tax liabilities) of Buyer on the Closing Date, will be sufficient for Buyer
to consummate the Contemplated Transactions and to pay all related fees and expenses.
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5.10
No Knowledge of Misrepresentations or Omissions. As of the Execution Date, Buyer has no Knowledge that any representation
or warranty of Seller in this Agreement is not true and correct in all material respects, and Buyer has no Knowledge of any material
errors in, or material omissions from, the Schedules or the Disclosure Letter.
5.11
Independent Decision. Buyer acknowledges that Buyer has made its own independent investigation, analysis, verification
and judgment of the commercial potential, condition and usefulness of the Assets, taking into consideration all current Applicable Laws
and the likelihood that such laws and requirements will change in the future, and is not relying upon any information provided in the
data room or any projections from Seller regarding prospective Operations. Buyer has such knowledge and experience in business and financial
affairs in general as to be capable of evaluating the merits and risks of purchasing the Assets. EXCEPT AS EXPRESSLY PROVIDED IN SELLER’S
EXPRESS REPRESENTATIONS AND WARRANTIES IN ARTICLE IV (INCLUDING THE RELATED PORTIONS OF THE DISCLOSURE LETTER), BUYER ACKNOWLEDGES
THAT THE assets (including the operations THEREOF) and assumed liabilities are sold TO and ASSUMED
AND accepted BY Buyer “as is, where is” and “with all faults”, in their present condition and state of repair,
with no representations or warranties whatsoever, express or implied, of their merchantability, fitness for a particular purpose, condition,
design, operation, capacity, quality, value or otherwise. Additionally, in no event shall any projection as to the financial condition,
financial results, status of assets, projects, availability of feedstock or markets, capital or operational expense projections or any
other projections made by or on behalf of Seller to Buyer be relied upon by Buyer, and Buyer acknowledges that Seller makes no representation
or warranty and specifically disclaims any representation or warranty with regard to same.
ARTICLE
VI
COVENANTS AND AGREEMENTS
OF SELLER
Seller
covenants and agrees as follows:
6.01
Access and Information. Subject to the provisions of Section 7.03, Section 17.15 and Section 10.03(f)
of Schedule 10.01 and upon reasonable notice, Seller shall grant, or cause to be granted, to Buyer and its Representatives
access during normal business hours throughout the Interim Period to the Refinery Books and Records (subject to any confidentiality agreements,
applicable legal restrictions (including employee consents) and any applicable legal privileges). Subject to the provisions of Section
10.03(e) and Section 10.03(f) of Schedule 10.01, during the Interim Period, Seller shall use commercially reasonable
efforts to furnish, or cause to be furnished, to Buyer and its Representatives data and information concerning the Assets and the Operations
that may reasonably be requested by Buyer for the purposes of business separation or other transition related
activities. Notwithstanding the preceding sentences to the contrary, nothing in this Agreement shall be construed to permit Buyer or
its Representatives to have access to, and the Refinery Books
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and Records
shall not include, any files, records, contracts or documents of the Seller Companies or their respective Affiliates relating to (a)
a Seller Company’s or its Affiliate’s inter-company or intra-company feedstock and product pricing information, internal
transfer prices, hedging activity records and hydrocarbon inventory valuation procedures and records; (b) the negotiation or execution
of this Agreement; (c) any information the disclosure of which would result in a violation of Applicable Law; or (d) any information
the disclosure of which would jeopardize any privilege available to Seller or its Affiliates relating to such information or would cause
Seller or its Affiliates to breach a material confidentiality obligation or other material contractual obligation to any Third Party;
provided, that, in the case of subsection (d), in the event Seller determines that the provision of any requested access to Buyer
would cause Seller or its Affiliates to breach a material confidentiality obligation or other material contractual obligation to any
Third Party, Seller will take all reasonable steps within its control to obtain the requisite waivers or other relief from such obligations
in order to provide Buyer with the requested access.
6.02
Conduct of Business.
(a)
During the Interim Period, Seller shall conduct (and shall cause the Seller Companies to conduct) the Operations consistent with
the applicable Seller Company’s customary practices, including routine maintenance and routine preventive maintenance activities,
and capital expenditures and projects as are in the applicable Seller Company’s operational plans for such period, subject in each
case to any amendments or alterations by Seller or its Affiliates in response to changing market conditions and opportunities. Seller
shall (and shall cause the Seller Companies to use commercially reasonable efforts to maintain satisfactory relationships with employees,
suppliers, distributors, customers, collective bargaining units and others having business relationships with respect to the Assets.
Without limiting the generality of the preceding provisions, Seller shall not (and shall cause the Seller Companies not to) during the
Interim Period, without the prior written consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed
(i)
sell, lease, exclusively license to others or otherwise dispose of a material portion of any assets
that would constitute Assets if held as of the Effective Time, except for the Refinery Hydrocarbon Inventory sold in the Ordinary Course
of Business consistent with past practice, or acquire any asset other than in the Ordinary Course of Business, consistent with past practice;
(ii)
except as made in the Ordinary Course of Business with respect to a Seller Company’s compensation
program, plan, policy, or practice (including annual consideration for increases in base salary and bonus pay), or as otherwise required
by contract or Applicable Law, make any material change in the rate of compensation, commission, bonus or other direct or indirect remuneration
payable, or paid or agreed or orally promised to pay, conditionally or otherwise, any bonus, incentive, retention or other compensation,
retirement, welfare, fringe or severance benefit or vacation pay, to or in respect of any Business Employee (excluding retention and
related bonuses paid or payable by the applicable Seller Company in connection with the transition activities contemplated herein and
except for the case whereby a Seller Company, in the Ordinary Course of Business, amends, waives or terminates an employee benefit plan
for such Seller Company’s US employee population, in which case Seller will inform Buyer within 30 days of such planned change
to such employee benefit plan);
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(iii)
enter into any settlement of any pending or threatened litigation, or enter into any amendment of
any existing settlement agreement, where the provisions thereof will have a Material Adverse Effect on the Assets or the Operations as
conducted by the Seller Companies as of the Execution Date and the Closing Date (Seller shall provide Buyer with reasonable prior notice
in the event a Seller Company enters into any settlement of any pending or threatened litigation related to the Assets, unless such settlement
solely involves the settlement of an employment-related claim or has no Material Adverse Effect on the Assets or the Operations); or
(iv)
consent to the entry of (or amendment to) any decree or order by, or enter into (or amend) any other
agreements with, any Governmental Authority that will have a Material Adverse Effect on the Assets or the Operations as conducted by
the Seller Companies as of the Execution Date or the Closing Date.
(b)
Notwithstanding any provision to the contrary contained in this Agreement, Buyer acknowledges on behalf of itself and its Affiliates
that nothing in this Section 6.02 shall be construed to restrict or limit the Seller Companies’ or their respective Affiliates’
ability, (i) to conduct their own business and operate the Assets as determined by the Seller Companies and their respective Affiliates
in their sole and absolute discretion, or (ii) to implement any reasonably required Covid-19 Response.
6.03
Disclosure Letter.
(a)
Seller may from time to time prior to the Closing, by written notice to Buyer, supplement or amend the Disclosure Letter (including
adding new Sections to the Disclosure Letter related to provisions of this Agreement that do not contemplate qualification by the Disclosure
Letter) with new or updated information with respect to matters that occur or arise after the Execution Date to correct any disclosed
item or matter that would constitute a breach of any representation or warranty of Seller in Article IV as of the Closing Date
(such new or additional information being “New Seller Information”). For purposes herein “New Seller
Information” shall not include information that is updated in the Ordinary Course of Business during the Interim Period (e.g.,
updated Employee Lists) and is provided to Buyer prior to the Closing.
(b)
For purposes of determining whether Buyer’s conditions set forth in Section 11.02 have been fulfilled, the Disclosure
Letter shall be deemed to exclude the New Seller Information.
(c)
Notwithstanding Section 6.03(b), if Buyer receives New Seller Information from Seller and
Buyer has a right to terminate this Agreement pursuant to Section 15.01(b) as a result of the conditions set forth in Section
11.02 not being satisfied but Buyer elects to proceed with the Closing a the Closing does occur, then the New Seller Information
shall be deemed to be accepted by Buyer and Buyer shall be deemed to have waived and not be entitled to make a Claim thereon under this
Agreement (including pursuant to Article XIII) or otherwise. If Buyer receives
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New Seller information
and Buyer does not have a right to terminate this Agreement pursuant Section 15.01(b) as a result of the conditions set forth
in Section 11.02 not being satisfied, then the Disclosure Letter shall be updated to include the New Seller Information and Buyer
shall be entitled to make a Claim thereon under this Agreement, subject to the Indemnification limitations.
6.04
Exclusivity. In consideration of the substantial expenditures
of time and expense to be undertaken by Buyer in connection with the consummation of the transactions contemplated by this Agreement,
for a period ending on the earlier of (a) December 31, 2021, (b) the Closing Date, and (c) the termination of this Agreement Seller shall
deal exclusively with Buyer with respect to the sale of the Assets or the Business. In addition, during such time period, Seller shall
not, and shall direct its officers, directors, financial advisors, accountants, attorneys, and other Affiliates (collectively, together
with Seller, the "Selling Group") not to (a) solicit submission of proposals or offers from any Person other than Buyer (or
their Affiliates) relating to any acquisition or purchase of all or any substantial part of the Refinery, the sale or issuance of any
equity interests of Seller or any entity formed by Seller or any Affiliate thereof to which any of the equity interests or any assets
or properties of the Business may be contributed, or any merger or consolidation of any Seller or of any entity formed by the Seller
or its Affiliates to which any assets or properties of the Business may be contributed (each an "Acquisition Proposal"), (b)
participate in any discussions or negotiations regarding, or furnish any information to any Person other than Buyer (and its representatives),
or otherwise cooperate in any way or assist, facilitate, or encourage any Acquisition Proposal by any Person other than Buyer, or (c)
enter into any agreement or understanding, whether oral or written, that would prevent the consummation of the transactions contemplated
hereby. Seller agrees to (w) notify Buyer immediately if any member of the Selling Group receives any indication of interest, request
for information, or offer in respect of an Acquisition Proposal, (x) inform the persons sending such indication, request, or offer that
Seller is bound by an exclusivity arrangement (without any reference to Buyer or its respective Affiliates), (y) communicate to Buyer
in reasonable detail the terms of any such indication, request, or proposal, and (z) provide to Buyer copies of all written communications
relating to any such indication, request, or proposal. Except as provided in the proviso contained in this paragraph above, Seller represents
that no member of the Selling Group is a party to or bound by any agreement with respect to an Acquisition Proposal other than under
this Agreement.
6.05
Appropriate Action; Consents; Filings. Buyer,
on the one hand, and Seller, on the other hand, shall use all commercially reasonable efforts to: (i) take, or cause to be taken, all
appropriate action, and do, or cause to be done, all things necessary, proper, or advisable under applicable Law to consummate and make
effective the transactions contemplated by this Agreement; (ii) obtain all consents, licenses, Permits, waivers, approvals, authorizations,
or Orders required under Law (including all foreign and domestic (federal, state, and local) governmental and regulatory rulings and
approvals and parties to Contracts) in connection with the authorization, execution, and delivery of this Agreement and the consummation
of the transactions contemplated hereby; and (iii) make all necessary filings, and thereafter make any other required submissions, with
respect to this Agreement and the transactions contemplated hereby required under applicable Law; provided, however, that Buyer and Seller
shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to
the non-filing party and its
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advisors prior to filing and, if
requested, to accept all reasonable additions, deletions, or changes suggested in connection therewith. Buyer, on the one hand, and Seller,
on the other hand, shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations
of any applicable Law in connection with the transactions contemplated by this Agreement. Prior to the Closing Date, Buyer and Seller
shall use commercially reasonable efforts and cooperate to (i) respond at the earliest practicable date to any requests for additional
information made by any Governmental Authority with respect to all filings made under applicable Laws, (ii) take all actions reasonably
necessary to cause the waiting periods for all filings made under applicable Laws to terminate or expire as soon as practical and (iii)
take or cause to be taken all actions reasonably necessary to obtain any appropriate approvals of any Governmental Authority, all to
the end of expediting consummation of the transactions contemplated hereby. Buyer and Seller each agree to promptly inform each other
of any material communication from any Governmental Authority regarding any of the transactions contemplated hereby and shall permit
each other to review in advance any proposed communication to any Governmental Authority, subject to applicable Law, and provided that
neither Party shall be required to provide the other with any documents or other materials related to a Party's valuation of the transactions
contemplated by this Agreement.
6.06
Notification of Certain Matters.
Each Party shall promptly provide the other Party (after they have notice thereof) with written
notice of, and keep such other Party advised as to, the existence of any Material Adverse Effect, or of any condition, circumstance or
event that is reasonably likely to result in a Material Adverse Effect, and (b) Buyer, on the one hand, and Seller, on the other hand,
shall promptly provide the other party (after such Person has notice thereof) with written notice of, and keep the other party advised
as to any pending or threatened Claim that challenges the transactions contemplated hereby.
Each Party shall promptly notify the other Party in writing with respect to any matter hereafter arising or discovered that, if existing
or known on the date hereof, would have been required to be set forth or described in the applicable Schedule or Disclosure Letter on
the date hereof or would cause the representations and warranties of such Party, made pursuant to this Agreement not to be correct and
complete as of the date hereof or the date on which such matter arose or was discovered. Should any such matter require any change to
the Disclosure Letter or any Schedule, Seller shall promptly deliver a supplement to the Disclosure Letter specifying such change. To
the extent such matter existed as of or before the date hereof and causes or constitutes a breach of any of the representations or warranties
made hereunder, such notice shall not be deemed to amend or replace any part of the Disclosure Letter and at the election of the other
Party: (i) the other Party shall be entitled to continue to hold its rights under this Agreement and seek indemnification from the Party
giving notice after the Closing Date in respect of the substance of the matter of the written notice made pursuant to this Section
6.06, or (ii) be deemed to have amended the Schedules or Disclosure Letter, as applicable, to have qualified the representations
and warranties contained in Section 4 or 5, as applicable, and to have cured any misrepresentation or breach of warranty that
otherwise might have existed hereunder by reason of such development, provided, however, if any such amendment to a Schedule or Disclosure
Letter involves a Material Adverse Effect, any resulting breach of a representation or warranty shall not be deemed cured, and the applicable
Party shall continue to hold all its rights under this Agreement resulting from such breach. To the extent such matter did not exist
as of or before the date hereof or did not cause or
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constitute a breach of any of the
representations or warranties made hereunder, unless the non-breaching Party has the right to terminate this Agreement by reason of such
development and exercises that right, subject to the proviso below, the written notice pursuant to this Section 6.06 shall be
deemed to have amended the Schedule or Disclosure Letter, as applicable, to have qualified the representations and warranties contained
in Section 4 or 5, as applicable, and to have cured any misrepresentation or breach of warranty that otherwise might have existed
hereunder by reason of such development.
ARTICLE
VII
COVENANTS AND AGREEMENTS OF BUYER
Buyer
covenants and agrees as follows:
7.01
Confidentiality. Buyer acknowledges that all information provided to it and any of its Affiliates and Representatives
by the Seller Companies and their respective Affiliates and Representatives is subject to the terms of Section 17.15.
7.02
Notification. From the Execution Date through and including the Closing Date, Buyer shall promptly notify Seller if
Buyer obtains Knowledge that any representation or warranty of Seller or any other Seller Company in the Agreement or any agreement contemplated
hereby or information set forth in the Schedules or the Disclosure Letter is not true and correct, or if Buyer obtains Knowledge of any
errors in, or omissions from, the Schedules or the Disclosure Letter.
7.03
Pre-Closing Access and Inspections.
(a)
During the Interim Period, Buyer shall not contact or communicate with any of Seller’s or any other Seller Company’s
employees, contractors, customers, suppliers or distributors of the Assets except as expressly provided in this Agreement or with Seller’s
prior written consent provided at Seller’s sole discretion.
(b)
Any inspection or investigation conducted by Buyer or its Representatives prior to the Closing: (i) shall be conducted in
accordance with Applicable Laws, including any applicable HSE Laws and antitrust laws and in such manner as not to interfere with the
Operations or the Assets; (ii) shall not entitle Buyer to conduct Environmental Testing, including any sampling or testing of soil
or ground or surface water at, or under, any Real Property associated with the Assets. Buyer being limited to the onsite physical inspection
of the Assets and Real Property and review of the Seller Companies’ or their respective Affiliates’ records or any other
publicly available materials or information with regard to these matters; and (iii) shall be conditioned upon Buyer’s compliance
with all of Seller’s site-specific requirements, including those regarding health, safety, security and the environment.
(c)
Buyer and Seller (or another Seller Company) may meet prior to the Closing to plan for business separation or other transition
related activities. If Buyer and Seller (or another Seller Company) conduct any pre-Closing business separation, transition, or other
similar activities at the Refinery or on or at the Assets, Buyer bears the risk of injury to any of its Representatives during such activities
at the Refinery, the other Assets or the Operations and shall indemnify, defend and hold the Seller Indemnified Parties harmless for
all Losses to the extent caused by, arising from or related to the acts or omissions of Buyer and its Representatives in conducting any
such activities.
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7.04
Post-Closing Access. From and after the Effective Time, Buyer will, and will cause its Affiliates to, afford to Seller
and its Representatives (i) reasonable access during normal business hours to personnel and to such properties and records, including
personnel and medical records, that were transferred to Buyer, (ii) permission to take from the Assets and/or Buyer copies of any books,
records, or accounts relating to the Assets and/or relating to the employees who were employed in the Operations by Seller or its Affiliates
through and including the Closing Date, and (iii), if requested, will furnish to Seller such additional information and cooperate with
Seller in such other respects, including making the Transferred Employees available to Seller at Seller’s expense as witnesses
or deponents as Seller may reasonably request for each of the following to the extent such matter does not involve a Dispute between
Buyer and Seller: (a) financial reporting; (b) Tax or similar purposes; (c) purposes of investigating claims; or conducting litigation
or administrative proceedings with Third Parties or Governmental Authorities; or (d) any other proper purpose; provided that Seller
shall indemnify, defend and hold the Buyer Indemnified Parties harmless (subject to Article XIII) for all Losses to the extent
caused by, arising from or related to the acts or omissions of Seller and its Representatives from such access. Buyer will, and will
cause its Affiliates to, keep and maintain the records that Seller and its Representatives have access to pursuant to this Section
7.04, such records to be maintained for a period of seven years from the Closing Date or such longer periods as may be required by
Applicable Laws; provided, further, that if Buyer desires to destroy or dispose of such records during such period, then Buyer
will first offer to Seller in writing at least 60 days before such destruction or disposition to surrender them to Seller and, if Seller
does not accept such offer within 20 days after receipt of such offer, then Buyer may take such action. Seller’s right to post-Closing
access to the Assets shall include the right to access Excluded Assets that remain located at the Assets pursuant to Section 2.02.
7.05
Litigation. With respect to all litigation and other matters set forth in the Disclosure Letter and any other matters
that constitute Retained Liabilities and for so long as a Seller Company is contesting or defending such matter, Buyer shall cooperate
to the extent commercially reasonable with such Seller Company and its Affiliates and their respective counsel, at such Seller Company’s
expense, in their efforts to conduct or resolve such litigation, including by making available to them such documents and witnesses as
may be deemed necessary or useful therefor in such Seller Company’s sole but reasonable discretion.
7.06
Trademarks. No license to any of the Trademarks is granted to Buyer by this Agreement, the Closing Documents, or by
the transfer of the Assets to Buyer, and Buyer is precluded from any use and agrees not to make any use of Trademarks on or in connection
with the sale of any of its products or services as a means of identity or in any of its communications or in connection with Buyer’s
operation of the Assets. Buyer acknowledges and agrees with Seller that the Trademarks, and all rights to which and the goodwill represented
thereby and pertaining thereto, are being retained by the Seller Companies and their respective Affiliates. Without limiting the generality
of the preceding, Buyer will not be entitled to use the name “Shell” or any variations or derivations thereof (including
any
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logo, trademark
or design containing such name) or any logo, service mark, trade name or trademark that constitutes an Excluded Asset. Accordingly, as
soon as reasonably practical after the Closing, but in any event within 90 days after the Closing Date with regards to Assets that are
visible to the public, and within 180 days after the Closing Date with regards to Assets that are not visible to the general public,
Buyer shall remove from, or paint or cover over as appropriate, any logo, service mark, trade name or trademark indicating that such
assets were owned or operated by a Seller Company or any of its Affiliates (including signs displaying such Seller Company’s or
its Affiliates’ emergency contact telephone number(s) or otherwise using or displaying the name “Shell”, in whole or
in part). As promptly as practicable after the Closing but in any event within 20 days, Buyer shall post Buyer’s emergency contact
telephone number in place of any Seller Company’s or its Affiliates’ emergency contact telephone number(s). In the event
that Buyer breaches this Section 7.06, Seller shall be entitled to specific performance of this Section 7.06 and to injunctive
relief against further violations, as well as any other remedies at law or in equity available to Seller.
7.07
Title Policies; Surveys. Buyer acknowledges that Seller has delivered at Seller’s expense, a copy of the Title
Commitment committing the Title Company to issue title insurance under an ALTA
extended coverage policy of owner’s insurance (ALTA2006 Extended Owner’s Policy) to the Buyer in the amount of the Purchase
Price allocated to Seller’s fee owned Real Property (“Buyer’s Title Policy”), providing for a deletion of the
standard exceptions and bearing a date later than the Effective Date, together with copies of all recorded documents referenced therein
and a copy of the Survey. Seller shall pay the premium for Buyer’s Title Policy, but any endorsements
to the Buyer’s Title Policy shall be Buyer’s responsibility. As of the Execution Date
Buyer has notified Seller in writing of all of Buyer’s objections to the title exceptions set forth in the Title Commitment which
(a) are not Permitted Encumbrances or (b) in Buyer’s reasonable determination, would result in a Material Adverse Effect on Buyer’s
ownership or operation of the Refinery Owned Real Property (“Buyer’s Title Objections”). Seller agrees
to use commercially reasonable efforts to mitigate, cure or remove Buyer’s Title Objections prior to the Closing Date. Seller’s
inability to mitigate, cure or remove any or all of Buyer’s Title Objections, (1) shall not provide Buyer with a right to terminate
this Agreement, (2) shall not cause any delay in the Closing, and (3) shall deem any such remaining Buyer’s Title Objections as
permitted title exceptions and thus Permitted Encumbrances upon Closing. Buyer shall have the right to update Buyer’s Title Objections
within fifteen (15) Business Days prior to the Closing Date. Immediately upon receipt of the updated Title Commitment, Buyer shall notify
Seller in writing if Buyer objects to any new title exceptions set forth in the Updated Title Commitment which (a) are not Permitted
Encumbrances or (b) in Buyer’s reasonable determination, would result in a Material Adverse Effect on Buyer’s ownership or
operation of the Refinery Owned Real Property (“Buyer’s Updated Title Objections”). Seller agrees to
use commercially reasonable efforts to mitigate, cure or remove Buyer’s Updated Title Objections prior to the Closing Date, or
as soon thereafter as is reasonably practicable. Notwithstanding the foregoing, Seller shall cause all monetary liens, including any
mortgages or deeds of trust, affecting the Refinery Owned Real Property and the Refinery Owned Leased Property to be released and/or
satisfied at or prior to Closing.
Seller
shall not be required to remove or cure any other matter whether contained in the Title Commitment or the Updated Title Commitment. Seller
shall not be obligated to bring any
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Proceedings,
convey or acquire any interest in real property, incur any expense or liability with respect to the removal or cure of any matter contained
therein or encumbering the Refinery Owned Real Property, provided that Seller shall be obligated to perform each and every one of the
foregoing actions if and to the extent it is within Seller’s reasonable capability to do so without imposing undue expense or other
allocation of resources. Nothing in this Section 7.07 shall relieve Seller from a remedy Buyer may have from Seller’s breach
of any representation or warranty contained in Article IV.
7.08
Reserved.
7.09
Financing.
(a) Obligations
of Buyer.
(i)
Buyer shall use its reasonable best efforts to arrange the Financing on the terms and conditions
described in the Financing Commitments, including using reasonable best efforts to (A) negotiate definitive documentation for and consummate
the Financing contemplated by the Financing Commitments at or prior to the Closing, and (B) enforce its rights under the Financing Commitments
in the event of a breach by the Financing Sources of their Obligations thereunder (including by bringing, and pursuing in good faith,
appropriate legal Proceedings against the Financing Sources party to the Financing Commitments). In the event any portion of the Financing
becomes unavailable on the terms and conditions described in the Financing Commitments, Buyer shall use it reasonable best efforts to
obtain alternative Financing from alternative sources in the aggregate in an amount sufficient to consummate the Contemplated Transactions;
provided, that any such alternative Financing shall not be reasonably expected to prevent, impede or delay the consummation of
the Contemplated Transactions. Buyer shall keep Seller informed on a reasonably current basis and in reasonable detail with respect to
all material activity and developments concerning the status of its efforts to arrange the Financing. In addition, Buyer shall promptly
provide Seller with copies of all executed definitive agreements with respect to the Financing. Buyer shall refrain from taking, directly
or indirectly, any action that would result in a failure of any of the conditions contained in the Financing Commitments or in any definitive
agreement related to the Financing. Buyer shall have the right from time to time to amend, supplement or otherwise modify, or waive any
of its rights under, the Financing Commitments; provided, that any such amendment, supplement or other modification to or waiver
of any provision of the Financing Commitments that amends the Financing shall not, without the prior written consent of Seller, be reasonably
expected to prevent, impede or delay the consummation of the Contemplated Transactions.
(ii)
Without limiting the generality of the foregoing, Buyer shall notify Seller promptly, and in any
event within five (5) Business Days after it becomes aware thereof, (A) of any termination of the Financing Commitments or any definitive
agreement related to the Financing, (B) of any breach or default by any party to any Financing Commitments or definitive agreements related
to the Financing, (C) of the receipt by Buyer of any written notice or other communication (other than negotiations of the definitive
agreements with respect to the Financing) from any Financing Source with respect to any breach, default, termination or repudiation by
any party to any Financing Commitment or any definitive agreement related to the Financing or (D) if for any reason, including, for the
avoidance of doubt, because Buyer believes that one or more
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conditions to
the closing of the Financing will not be satisfied at or prior to Closing, Buyer no longer believes in good faith that it will be able
to obtain all or any portion of the Financing contemplated by the Financing Commitments and the related fee letters on the terms described
therein. In such event, Seller may, in its sole discretion, terminate this Agreement in accordance with Section 15.01(c).
(iii)
For purposes of this Agreement, references to “Financing” shall include any alternative
financing required to be obtained in the circumstances provided in this Section 7.08, and references to “Financing Commitments”
shall include such documents as related to such alternative Financing.
(iv)
In connection with any Financing, (A) no Seller Company shall be required to become subject to any Obligations with respect to
such agreements or documents except as set forth in the Financing Commitments approved by Seller, and (B) nothing shall obligate any
Seller Company to provide a solvency certificate or any similar certificate or to provide any information that would violate any applicable
obligations of confidentiality or result in a violation of Applicable Law or loss of any attorney-client communication, attorney work
product privilege or any other legal privilege. Buyer acknowledges and agrees that no Seller Company nor any of their respective Affiliates
or Representatives shall have any responsibility for, or incur any Obligation to any Person under or in connection with, the arrangement
of any Financing that Buyer may raise in connection with the Contemplated Transactions. Buyer shall indemnify, defend, save and hold
harmless the Seller Indemnified Parties from and against all Claims and Losses to the extent caused by, arising from or incurred in connection
with or related to any Financings or Financing Commitments.
7.10
One-Call; Utilities.
(a)
No later than 20 days after Closing, Buyer will contact every appropriate one-call agency in the vicinity of any of the Assets
and have the contact information for one-calls changed from any applicable Seller Company’s name to Buyer’s name. Buyer shall
also provide revised maps to the one-call agencies where appropriate or required. Buyer shall promptly notify Seller that all such notices
and revised maps have been provided.
(b)
No later than 20 days after Closing, Buyer will contact the utility provider(s) for the Assets and have the billing and contact
information for utility services changed from the name of any applicable Seller Company’s name to Buyer’s name. Buyer shall
promptly notify Seller that all such notices have been provided to the applicable utility providers. Buyer shall bear the costs associated
with any new utility connections or meters that may be required for Buyer's assumption of utility services.
7.11
Notification of Transfer of Equity Interests.
(a)
Buyer shall notify Seller if at any time prior to the Closing Date:
(i)
Equity Interests representing 5% or more of the fully diluted Equity Interests of Buyer (or any
Affiliate of Buyer that is a party to a Closing Document) have been sold, transferred, assigned, conveyed, exchanged or otherwise disposed
of to any Person, including any Person that already holds Equity Interests in Buyer; or
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(ii)
To Buyer’s Knowledge, Equity Interests of a Person have been sold, transferred, assigned,
conveyed, exchanged or otherwise disposed of that represent 5% or more of such Person and such Person, directly or indirectly, holds
5% or more of the fully-diluted Equity Interests of Buyer (or any Affiliate of Buyer that is a party to a Closing Document).
(b)
Should either of the actions occur as described in Section 7.11(a), then Buyer shall provide
Seller with such information as Seller shall request as is necessary for Seller to complete its required integrity due diligence screening
on Buyer or such Affiliate of Buyer (as applicable).
7.12
Rights in Respect of Documents and Records.
(a)
BUYER RELEASES THE SELLER COMPANIES AND THEIR RESPECTIVE AFFILIATES FROM ANY LOSS, LIABILITY, OR
DAMAGE ARISING FROM, ASSOCIATED WITH, OR RELATED TO BUYER’S USE OF ALL FILES, RECORDS, BOOKS AND RECORDS (INCLUDING THE REFINERY
BOOKS AND RECORDS) OR OPERATING MANUALS CONVEYED AS PART OF THE ASSETS.
(b)
EXCEPT TO THE EXTENT BUYER HAS RECEIVED RELIANCE LETTERS FROM THIRD PARTIES, BUYER EXPRESSLY ACKNOWLEDGES
AND AGREES THAT BUYER SHALL INDEMNIFY, DEFEND AND HOLD THE SELLER INDEMNIFIED PARTIES HARMLESS AGAINST ALL CLAIMS AND LOSSES CAUSED BY
BUYER’S CLAIMING OR ATTEMPTING TO EXERCISE ANY RIGHTS (WHETHER AS A THIRD PARTY BENEFICIARY OR OTHERWISE) UNDER, ANY STUDIES, REPORTS,
TESTS OR ANALYSES PREPARED BY ANY THIRD PARTIES FOR THE SELLER COMPANIES OR ANY OF THEIR AFFILIATES.
(c)
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT NONE OF THE DOCUMENTS, INFORMATION
OR OTHER MATERIALS PROVIDED TO BUYER AT ANY TIME OR IN ANY FORMAT BY THE SELLER COMPANIES OR ANY OF THEIR AFFILIATES CONSTITUTES LEGAL
ADVICE, AND BUYER (i) WAIVES ALL RIGHTS TO ASSERT THAT IT RECEIVED ANY LEGAL ADVICE FROM ANY SELLER COMPANY OR ANY OF THEIR RESPECTIVE
AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES OR COUNSEL, OR THAT IT HAD ANY SORT OF ATTORNEY-CLIENT RELATIONSHIP WITH ANY OF SUCH PERSONS,
AND (ii) AGREES TO INDEMNIFY, DEFEND AND HOLD THE SELLER INDEMNIFIED PARTIES AGAINST ANY SUCH ASSERTION MADE BY OR ON BEHALF OF
ANY OF BUYER’S AFFILIATES.
ARTICLE
VIII
COVENANTS AND AGREEMENTS
OF SELLER AND BUYER
Buyer
and Seller covenant and agree as follows:
8.01
Antitrust Approvals.
(a)
Within 30 days after Execution Date or as otherwise mutually agreed by the Parties, Buyer and Seller shall file or cause to be
filed with the Federal Trade Commission, the
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United States
Department of Justice, any State Attorney General (collectively, “Antitrust Authorities”) any notifications
required to be filed under the HSR Act or any other antitrust laws, statutes, rules or regulations applicable to the Contemplated Transactions.
Buyer and Seller shall consult with each other as to the appropriate time for filing such notifications and shall agree upon the timing
of such filings. Buyer shall pay the filing fees under the HSR Act and any comparable state laws and regulations. Buyer and Seller shall
each bear their respective costs (including legal fees) for the preparation of any filing.
(b)
Buyer and Seller shall respectively use commercially reasonable efforts to: (i) respond promptly to any requests for additional
information and documentary materials made by any Antitrust Authority; (ii) make any further filings or submissions that may be necessary,
proper or advisable in connection therewith; and (iii) obtain all required antitrust approvals at the earliest possible date so as to
enable the Parties to close the Contemplated Transactions. Buyer and Seller shall consult with each other prior to any meetings, by telephone
or in person, with the staff of any Antitrust Authority, and each Party shall have the right to have a Representative present at any
such meeting (subject to the approval of the relevant Antitrust Authority). Buyer and Seller shall give each other reasonable advance
notice of any notification, submission or other communication which it proposes to make or submit to any Antitrust Authority and to provide
each other with copies of a draft notification, submission or correspondence and any supporting documentation or information reasonably
requested by the other Party, provided that no Party shall be required to disclose any Confidential Information under this subsection.
Each Party agrees to consider in good faith any comments of the other Parties to any such notification, submission or communication.
(c)
Buyer agrees to use its best efforts and to promptly take any and all steps to avoid or eliminate each and every impediment under
any antitrust law, statute, rule or regulation that may be asserted by any Antitrust Authority or any other Person with respect to the
Contemplated Transactions, including providing information; and proposing, negotiating,
committing to, and effecting (by consent decree, hold separate orders, or otherwise) any remedy, including the sale, divestiture, disposition,
or holding separate of any of its own assets or the Assets to be directly or indirectly acquired
in the Contemplated Transactions as are required to be divested in order to avoid
the entry of, or to effect the dissolution of, any decree, temporary restraining order, injunction,
Judgment, or other order in any suit or Proceeding which would otherwise have the effect of materially
delaying or preventing the Closing of the Contemplated Transactions. In addition,
Buyer shall defend through litigation on the merits any
Claim asserted before any Governmental Authority that would restrain or prevent the Closing of the Contemplated
Transactions by the Outside Date.
8.02
Assignments.
(a)
With respect to any Contract or Permit that is not a Refinery Contract or a Refinery Permit that (i) (A) Buyer would like to be
assigned to it as of Closing, (B) Seller has agreed to such assignment, and (C) requires consent by a Third Party for the assignment
thereof to Buyer, or (ii) Seller desires to assign to Buyer as of Closing and requires consent by a Third Party for the assignment thereof
to Buyer, then, in each case, Seller shall take such actions as are commercially reasonable and necessary, and Buyer shall cooperate
with Seller in all commercially reasonable respects, to effect assignment thereof to Buyer as of the Closing Date. It is understood
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that such actions
by Seller shall not include any requirement of the Seller Companies or their Affiliates to expend money, commence any litigation or offer
or grant any accommodation (financial or otherwise) to any Third Party. Seller shall initiate termination procedures on any Contracts
mutually agreed by the Parties to be effective upon the Closing provided that such terminations do not require the Seller Companies
or their Affiliates to expend money or grant any accommodation (financial or otherwise) to the counterparties to such Contracts.
(b)
In the event that a Seller Company is unable to obtain the requisite approval for assignment of any Contract or Permit that is
not a Refinery Contract or Refinery Permit, or in the event a Refinery Contract or Refinery Permit is required to be amended or supplemented
to effect such assignment and is not so amended or supplemented as of the Closing Date, and such assignment is reasonably necessary to
operate the Assets in the Ordinary Course of Business as conducted by such Seller Company or its Affiliates on a historical basis for
the 12 months prior to the Closing Date without giving rise to a Material Adverse Effect on the Assets, at the written request of Buyer
on or before the Closing Date or within 90 days after the Closing Date (except where such action would be unlawful, prohibited by the
terms of such Refinery Contract or Refinery Permit, or requires the payment of termination fee or any other damages), Seller shall (x)
retain any such Refinery Contract or Refinery Permit and shall enter into an arrangement with Buyer to provide Buyer with the economic
and functional benefits of such Refinery Contract or Refinery Permit, provided, that Buyer shall perform the Seller Companies’
and their Affiliates’ Obligations thereunder arising on or after the Closing Date (and indemnify, defend and hold the Seller Companies
and their Affiliates harmless against all Losses suffered in the event Buyer breaches any Obligations thereunder) until such Refinery
Contract or Refinery Permit is assigned to Buyer or expires at the earliest opportunity in accordance with its terms, or is properly
amended or supplemented, and (y) take all commercially reasonable and necessary actions required to assign to Buyer, or amend or supplement,
any such Refinery Contract or Refinery Permit as soon as practicable after the Closing Date.
(c)
Notwithstanding Seller’s obligations pursuant to Section 8.02(a), the assignment to Buyer of any Refinery Contract,
Turnaround Contract or Refinery Permit to be transferred to Buyer that requires consent for assignment, or amendment or supplement, may
be effected after the Closing Date. Except as otherwise provided in this Agreement, the Purchase Price shall not be subject to adjustment,
and the Closing of the Contemplated Transactions shall not be delayed, by reason of any inability to obtain consent for assignment of
any Refinery Contract or Refinery Permit or any such amendment or supplement. Buyer acknowledges that certain consents to the Contemplated
Transactions may be required from parties to Refinery Contracts or Refinery Permits (written or otherwise) to which any of the Seller
Companies or their Affiliates is a party, and such consents may not be obtained (provided that Seller has complied with its Obligations
under Section 8.02 (b). Except as otherwise provided in this Agreement, Buyer agrees that the Seller Companies and their Affiliates
shall not have any liability whatsoever to Buyer arising out of or relating to the failure to obtain any consents that may have been
or may be required in connection with the Contemplated Transactions by this Agreement or because of the default, acceleration or termination
of any such agreement, contract, license, lease, Easement or Permit as a result thereof (provided that Seller has complied with
its obligations under Section 8.02(b)). Buyer further agrees that no representation, warranty or covenant of Seller contained
herein shall be breached or deemed breached and no condition of Buyer shall be deemed not to be satisfied as a result of the failure
to obtain any consent or as a result of any such default,
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acceleration
or termination or any Claim or Proceeding commenced or threatened by or on behalf of any Persons arising out of or relating to the failure
to obtain any consent or any such default, acceleration or termination (provided that Seller have complied with its obligations
under Section 8.02(b)).
8.03
Transition Plan.
(a)
Promptly following the execution of this Agreement, Representatives of Buyer and Seller shall meet
to develop a transition plan identifying resources, timelines, and other milestones needed for operation of the Assets after the Closing;
provided, however, that, nothing in this Section 8.03 or such transition plan shall restrict or limit the Seller Companies’
or their respective Affiliates’ ability to conduct their own business and operate the Assets prior to Closing.
(b)
During the Interim Period, Seller shall provide Buyer with contact information for Seller’s
or any Seller Company’s counterparties under any existing Multi-Site Framework Contracts or other Contracts that are not Refinery
Contracts that Buyer desires to be in effect as of or after the Closing Date. Buyer shall be solely responsible for negotiating and effecting
any such replacements, and no Seller Company shall be obligated to allow “call-offs” to Buyer under such Multi-Site Framework
Contract at any time.
8.04
Other Governmental Approvals. Buyer and Seller shall cooperate with each other and take all reasonable steps necessary
to obtain Authorizations for the sale of the Assets from all applicable Governmental Authorities.
8.05
Other Actions. Buyer and Seller shall otherwise use their respective commercially reasonable efforts to cause (a) the
satisfaction of all covenants and agreements in this Article VIII and all conditions precedent in Article XI and Article
XII, in each case, applicable to it, and (b) the Closing, to occur as soon as reasonably practicable after the Execution Date.
8.06
Collection of Amounts Owed to a Party. In the event any Party receives any funds or other property that belongs to
another Party pursuant to the terms of this Agreement, the receiving Party shall receive and hold such funds and/or property in trust
for the benefit of the rightful Party and shall promptly forward such funds and/or property to the rightful Party. It is the intention
of the Parties that, as between the Parties, Seller shall be entitled to all income attributable to the Operations conducted prior to
the Effective Time and Buyer shall be entitled to all income attributable to the Operations conducted after the Effective Time. Each
Party shall pay to the other Party, promptly after receipt thereof, any amount received by said Party from any Third Party with respect
to rentals, fees or other revenues relating to the Operations and attributable to the ownership period of the other Party; and products
delivered, services performed or other obligations performed by the other Party and attributable to the ownership period of such other
Party.
8.07
Casualty and Condemnation.
(a)
In the event there is an occurrence of a Casualty prior to the Closing Date, Seller shall notify Buyer
thereof as soon as reasonably practicable.
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(b)
In the event a Casualty occurs prior to the Closing Date, then Seller shall elect, at its option, to either (i) subject to Buyer’s
right of termination outlined in (c), repair or replace the affected Asset at Seller’s cost prior to the Closing, in which case
Buyer’s
Obligation to effect the Closing shall not be affected,
but the Closing Date shall be deferred until 10
Business Days after repairs or replacement have been completed and the affected Asset has been restored to a similar grade, quality and
condition, (ii) terminate this Agreement if the costs to repair or replace the affected Assets exceeds the Base Amount, at Seller’s
reasonable discretion, or (iii) negotiate with Buyer to
reduce the Purchase Price by an amount agreed to by Seller
and Buyer to reflect the cost to repair or replace the
affected Asset(s) (the “Repair Costs”), in which case, the Closing Date shall not be deferred.
(c)
If Seller elects to proceed with clause (i) of Section 8.07(b) Buyer shall have the
option of terminating this Agreement in the event the repairs or replacements are not substantially completed within three hundred sixty
five days (365) days after the date of such Casualty, unless Seller has made commercially reasonable efforts to replace or repair the
affected Assets and such delay is due to circumstances outside of Seller’s reasonable control.
(d)
If Seller elects to proceed with clause (iii) of Section 8.07(b) and the Parties do not agree on the Repair Costs
within 15 days of Buyer’s receipt of Seller’s notice of Casualty (a “Repair Cost Dispute”), either
Party may request an engineering company mutually agreed to by the Parties to evaluate the affected Assets and deliver to the Parties
its written estimate of the Repair Costs (the “Third Party Estimate”) within 15 days of the engineering company’s
engagement. The fees and expenses to obtain the Third-Party Estimate shall be borne 50% by Seller and 50% by Buyer.
(i)
If the Third Party Estimate is less than or equal to 40% of the Base Amount, then Buyer’s
Obligation to proceed to Closing in accordance with the terms of this Agreement shall not
be affected (provided however, the Closing Date shall not occur prior to 10 Business Days after the receipt of the Third Party Estimate)
and the Purchase Price shall be reduced by the Third Party Estimate and if the Parties do not agree to the amount of the Repair Costs
within 5 Business Days after Closing, then the Parties shall submit the Repair Cost Dispute to binding arbitration under the dispute
resolution procedures in Article XVI for resolution after Closing with a post-Closing adjustment to the Purchase Price equal
to the finally-determined Repair Costs.
(ii)
If the Third Party Estimate is greater than 40% of the Base Amount, then either
Party may elect, by giving written notice to the other of its election within 15 days of receipt of the Third Party Estimate, to terminate
this Agreement without further obligation under this Agreement (other than those Sections which expressly survive termination which shall
continue in effect). If neither Party elects to terminate as provided in this Section 8.07(d)(ii), then, Buyer’s Obligation
to proceed to Closing in accordance with the terms of this Agreement shall not be affected and if the Parties do not agree to the amount
of the Repair Costs within 5 Business Days after Closing, then the Parties shall submit the Repair Cost Dispute to binding arbitration
under the dispute resolution procedures in Article XVI for resolution after Closing
with a reduction of the Purchase Price at Closing by the Third Party Estimate and a post-Closing
adjustment to the Purchase Price equal to the finally-determined Repair Costs.
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(e)
Any adjustment of the Purchase Price pursuant to Section 8.07(d) which is necessary to reflect a final determination of
Repair Costs after the Closing shall be made as follows: (i) an adjustment in favor of Buyer
shall be paid in immediately available funds by Seller
to Buyer; and (ii) an adjustment in favor of Seller shall
be paid in immediately available funds to the extent the Purchase Price had been reduced pursuant to this Section 8.07. Any such
reduction, refund or payment shall be made within 10
Business Days after such final determination.
(f)
If prior to the Closing Date, any portion of the Refinery Owned Real Property shall be Taken, which
individually or in the aggregate (a) have a Material Adverse Effect on the Operations as conducted by the Seller Companies on a historical
basis for the 36 months prior to the Closing Date or (b) have a Material Adverse Effect on the value of the Assets taken as whole as
of the Closing Date, then Buyer may terminate this Agreement. Unless
Buyer elects to terminate this Agreement in accordance with the foregoing, Buyer and Seller shall nonetheless complete the Contemplated
Transactions in accordance with this Agreement, and the Purchase Price shall not be reduced; provided, however, that Seller’s
rights to any award resulting from such taking of any portion of the Refinery Owned Real Property
shall be assigned by Seller to Buyer at the Closing.
8.08
Payment of Certain Expenses Due and Payable After the Closing Date.
(a)
The Closing Date Payment shall be increased by the pro-rated amount of all lease and rental payments made by the Seller Companies
or their Affiliates prior to the Closing Date in respect of the Assets but that are attributable to periods after the Effective Time.
The Closing Date Payment shall be decreased by the pro-rated amount of all lease and rental payments in respect of the Assets to be made
by Buyer after the Effective Time but that are attributable to periods prior to the Effective Time. The Parties shall share information
among themselves prior to the Closing Date to identify and pro-rate such amounts.
(b)
If Buyer receives invoices for emissions fees, permit fees and utility bills in connection with the Operations, for any period
prior to the Effective Time, then Buyer will promptly forward such invoices to Seller. If any Seller Company receives invoices for emissions
fees, permit fees and utility bills for any period on or after the Effective Time, Seller shall promptly forward the invoices to Buyer.
(c)
Buyer shall pay, as and when due, all emissions fees, permit fees and utility bills due and payable
after the Effective Time, and Seller shall reimburse Buyer within 30 days after invoice for any amounts under such bills attributable
to any period prior to the Effective Time.
(d)
If a Party makes any payment to a Third Party pursuant to any assigned Contract and such payment is made in respect of work performed,
services provided or goods delivered during a period that includes the Effective Time, or the Effective Time intervenes between the making
of such payment and the performance of the work or services or delivery of goods, then the Parties will allocate the burden of such payment
in a manner that reflects the relative benefit of such work performed, services provided or goods delivered to each Party; provided,
however, it shall be presumed that any work performed, services provided or goods delivered prior to the Effective Time are for the
benefit of a Seller Company and any work performed, services provided or goods delivered after the Effective Time are for the benefit
of Buyer or its Affiliates.
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(e)
Notwithstanding anything to the contrary set forth in this Section 8.08, if Buyer performs the Turnaround and Seller receives
any invoice(s) in relation to the Turnaround that is not otherwise reimbursed as a Closing Adjustment in accordance with Schedule
2.06, Seller will promptly forward such invoice(s) to Buyer, and Buyer shall pay such invoice(s) when due. If any invoice is paid
by Seller, Buyer shall reimburse Seller for such expense upon notice.
8.09
Relationship of the Parties. Nothing in this Agreement or the Closing Documents shall be construed to create any joint
venture, partnership, agency or other similar fiduciary relationship between the Parties or the parties thereto. Under this Agreement
and the Closing Documents, the Parties and their respective Affiliates are nothing other than independent contractors for the sale or
purchase of specific property, goods or services. The Parties acknowledge that, for purposes of this Agreement and the Closing Documents,
none of the Parties or their respective Affiliates shall be considered to be the agent, representative, employee, master, or servant
of the others for any purpose. Except as expressly provided in this Agreement, none of the Parties or their respective Affiliates shall
have any Obligation to manage or operate any of their respective businesses with any duty or standard of care to the other Party or their
respective Affiliates, and none of the Parties or their respective Affiliates have any authority, right or power to enter into a contract
or commitment, assume any Obligation or make any representation or warranty on behalf of the others (except as expressly specified in
this Agreement or the Closing Documents). The Parties agree and acknowledge that, except as expressly provided herein or in the Closing
Documents, none of the Parties or their respective Affiliates shall owe duties, fiduciary or otherwise to the other. The Parties and
their respective Affiliates are, and will be after Closing, competitors with the right to pursue any business opportunity for their respective
individual benefit and make no representation or warranty regarding the manner in which they will conduct their respective businesses
and operations. None of the Parties or their respective Affiliates shall have any Obligation to refrain from (a) engaging in the
same or similar activities or lines of business as the Parties or their respective Affiliates, (b) developing or marketing any products
or services that compete, directly or indirectly with those Parties or their respective Affiliates, (c) investing or owning any
interest publicly or privately in, or developing a business relationship with, any Person engaged in the same or similar activities or
lines of business as, or otherwise in direct or indirect competition with, the Parties or their respective Affiliates, or (d) doing
business with any client or customer of the Parties or their respective Affiliates. None of the Parties or their respective Affiliates
shall have any Obligation to offer any business opportunity (except as expressly specified in this Agreement or the Closing Documents)
and may modify or otherwise change any of their respective businesses or operations at any time.
8.10
Further Assurances. From time to time, as and when reasonably requested by any Party, each Party shall execute and
deliver, or cause to be executed and delivered, all such documents and instruments and shall take, or cause to be taken, all such further
actions which are consistent with, and customary and necessary for, the consummation of the Contemplated Transactions. Without limiting
the generality of the preceding and subject to Section 8.02 and Section 8.03, Seller and Buyer shall contact all Third
Parties which as of
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the Closing
Date have contractual arrangements with a Seller Company and its Affiliates in respect of the Assets or the Operations and which are
anticipated to have commercial arrangements with Buyer following the Closing to establish transition matters to be effective as of the
Effective Time.
8.11
Compliance Matters.
(a) Buyer
shall operate the process equipment in accordance with the requirements of the Consent Decree
after the Effective Time and cooperate with Seller until such time as Buyer is substituted for Seller by court order or the Consent Decree
is terminated whichever occurs first;
(b) Nothing
in this Agreement shall require Buyer or Seller to perform any part of this Agreement or take any actions if, by doing so, Buyer or Seller
would not comply with any Applicable Law. The Obligations in this paragraph shall survive the termination or expiry of this Agreement.
Subject to Applicable Laws or the preservation of legal privilege, in the event a Party has a reasonable belief that the other Party
has breached its Obligations under Section 4.07 or Section 5.05, the Party shall have a right, at its expense, and the
other Party shall take reasonable steps to enable this right, to audit the other Party’s relevant books and records to determine
whether such a breach has occurred.
8.12
Information Technology.
(a)
The Parties acknowledge that Seller and the Seller Companies may use certain Seller’s Software,
IT Systems, Third Party Software, IT Equipment and Non-Group IT Equipment in connection with the Assets and the Operations.
(b)
Seller or an Affiliate of Seller will grant to Buyer a license to continue to use copies of certain
Seller’s Software pursuant to the Shell Software License Agreement.
(c)
The Parties shall cooperate to identify, as soon as reasonably practical following the Execution Date, any relevant and material
Third Party Software and Non-Group IT Equipment. If Buyer proposes to continue using any Third Party Software or any Non-Group
IT Equipment on and following the Closing Date (including where Buyer uses such Third Party Software or Non-Group IT Equipment under
licenses or leases granted to Seller or an Affiliate of Seller), then, at the request and cost of Buyer, Seller and Buyer shall cooperate
with a view to contacting relevant Third Parties to obtain, before Closing, any licenses, leases or consents that may be required to
allow such continued use. For the avoidance of doubt, Buyer acknowledges that:
(i)
Seller gives no warranty or representation that any such license, lease or consent will be granted;
and
(ii)
neither Seller nor any Affiliate of Seller is obliged to grant or continue (and Seller and any Affiliate
of Seller may without liability terminate) any sub-license or lease to allow Buyer to use Third Party Software or Non-Group IT Equipment
on or following the Closing Date.
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(d)
Buyer undertakes with Seller, for the benefit of Seller and Seller’s Affiliates, that, subject to Section 8.12(e),
Buyer will have no rights in Seller’s Software, the Third Party Software, IT Systems, IT Equipment, or the Non-Group IT Equipment
whatsoever, and Buyer shall ensure that:
(i)
Buyer does not use any Seller’s Software (including, for the avoidance of doubt, Seller infrastructure
desktop operational software as provided by other Affiliates of Seller to the Seller Companies, which will not be licensed or otherwise
transferred to Buyer for use on or after the Closing Date), IT Systems, Third Party Software, IT Equipment or Non-Group IT Equipment
on or after the Closing Date; and
(ii)
within thirty (30) Business Days after the Closing Date:
(A)
any Seller’s Software or Third Party Software remaining on the IT Systems and IT Equipment of the Assets is permanently removed
or deleted from such system and any copies and archives of such Software and data are permanently destroyed and Buyer shall confirm such
permanent deletion in writing to Seller or, at Seller’s request, returned to Seller or another Affiliate of Seller identified by
Seller to Buyer; and
(B)
Seller or its nominee are permitted to enter the Refinery to remove any IT Equipment and Non-Group IT Equipment.
(e)
Section 8.12(d) does not apply:
(i)
to Seller’s Software to the extent that Buyer is permitted to use such Software under the
Shell Software License Agreement, the Shell Process License Agreement, the Swap Kit Purchase Agreement, or any other related Closing
Document; or
(ii)
to Third Party Software, IT Systems, IT Equipment or Non-Group IT Equipment to the extent that Buyer
is permitted to use that Software or Equipment under a consent, license or lease obtained under Section 8.12(c) or otherwise granted
by the owner of the Intellectual Property rights in that Third Party Software, IT Systems or by the owner of that IT Equipment or Non-Group
IT Equipment.
(f)
Except to the extent otherwise provided for under any Closing Document, on or before the Closing
Date, the Assets will no longer be operational through the IT Systems or IT Equipment of Seller and its Affiliates, or through Seller’s
Software and neither Seller nor any Affiliate of Seller shall have any liability whatsoever after the Closing Date in relation to the
provision to, or supply to Buyer or the Assets of:
(i)
any IT related hardware, Software, components, data, databases and/or services; or
(ii)
any access to the IT Systems or IT Equipment of Seller or any Affiliate of Seller, or any Software.
(g)
Buyer shall ensure that:
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(i)
before the six-month anniversary of the Closing Date, all Shell IP-addresses, and all references
to Shell, Seller, Seller Companies and other Affiliates of Seller, have been removed from all IT System names and identifiers of, the
IT network of the Assets and Buyer; and
(ii)
until the Shell IP-addresses and all references to Shell, Seller, Seller Companies and other Affiliates
of Seller have been removed from all IT System names and identifiers of, the IT networks of Buyer and the Assets, the Shell IP-addresses
shall only be used internally and shall not be used for communication with other parties via the internet without the use of a device
or application that dynamically changes the Shell IP address into an IP address authorized for use on the internet and owned by Buyer.
(h)
Buyer acknowledges that, to the extent that the Assets receive infrastructure or other IT related
services, prior to the Closing Date and such services are rendered pursuant to an agreement between Seller or an Affiliate of Seller
and the relevant service provider, Buyer shall not be entitled to receive such services after Closing, and Buyer shall be solely responsible
(at its own cost) for ensuring that Buyer has access to such infrastructure and other IT related services as it requires after Closing
(including by concluding such new agreements with relevant service providers as may be necessary). Notwithstanding the foregoing, any
post-Closing rights and obligations with respect to infrastructure or other IT related services that s Seller is obligated to perform
pursuant to that certain (i) Shell Software License Agreement, (ii) Shell Process License Agreement, and (iv) Swap Kit Purchase Agreement
shall govern any matters between the Parties set forth in such agreements.
(i)
Subject to standard security measures and applicable Laws, Buyer shall allow Seller or its nominee
access to the relevant premises to verify compliance with the provisions of this Section 8.12, and shall, if so requested by Seller,
provide (at Seller’s sole cost and expense) confirmation of an independent auditor (selected by Seller in its sole discretion)
of Buyer’s compliance with this Section 8.12.
(j)
Buyer shall, at its sole cost and expense, indemnify, defend and hold harmless Seller and Seller’s Affiliates from and against
any actions, Claims, Losses, and payments incurred or suffered by Seller or such Affiliates of Seller as a result of, or relating to,
the failure of Buyer to comply with its Obligations under this Section 8.12. In particular, but without limitation to the foregoing,
Buyer shall pay directly to any Third Party, or reimburse Seller (and any Affiliate of Seller) in respect of, any costs, fees or expenses
payable in connection with the possession, or use, or access, on or following the Closing Date, of Third Party Software, Third Party
Intellectual Property, IT Systems, IT Equipment or Non-Group IT Equipment by Buyer (including any monies payable from Seller (or an Affiliate
of Seller) or Buyer (or an Affiliate of Buyer) to the owner of the Intellectual Property rights in the Third Party Software, IT Systems,
IT Equipment or of the Non-Group IT Equipment, whether in relation to the transfer of existing licenses, subscription services or leases,
pursuant to existing or new licenses or leases or otherwise) save and except to the extent otherwise provided in the Shell Software License
Agreement, Shell Process License Agreement, the Swap Kit Purchase Agreement and any other agreement governing these matters between the
Parties.
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8.13
Insurance.
(a)
Buyer acknowledges that each Seller Company maintains worldwide programs of property and liability
insurance coverage for itself and its Affiliates. In connection therewith, there exist insurance policies related to the Assets issued
directly or indirectly to the Seller Companies by an Affiliate wholly owned, directly or indirectly, by Royal Dutch Shell plc (the “Seller
Captive Insurer”). In addition, there exist insurance policies issued directly or indirectly to the Seller Companies by
Third Parties relating to the Assets (such policies being collectively, with the polices issued by the Seller Captive Insurer, the “Seller
Insurance Policies”).
(b)
Seller acknowledges and agrees that as of the Closing:
(i)
no insurance coverage shall be provided under the Seller Insurance Policies to Buyer, any Affiliate
of Buyer, the Assets or with respect to any Assumed Liabilities;
(ii)
Seller Insurance Policies shall also provide a Waiver of Subrogation in favor of Buyer regarding
any claims made under Seller Insurance Policies up to the Closing Date;
(iii)
any and all policies insured or reinsured by the Seller Captive Insurer or any other provider of
the Seller Insurance Policies which, but for this provision, would have insured the Assets, shall be deemed terminated, commuted and
cancelled as of the Effective Time;
(iv)
Buyer shall be responsible for securing the insurance it considers appropriate for the operation
of the Assets after the Closing; and
(v)
Buyer has no right, title or interest in any unearned premiums on any policies maintained by or
for the benefit of Seller or an Affiliate of Seller.
(vi)
In the event that the Seller shall become aware of any fact, event or circumstance (other than a
fire or other casualty loss, which the Seller shall have the right to address arising after the date of this Agreement and prior to the
Closing Date in respect of which a claim may be made under the Seller Insurance Policies, the Seller shall use reasonable endeavours
to (a) file a claim in respect of such event or circumstance and (b) to have such claim paid prior to the Closing Date. In the
event that such a claim is not paid prior to the Closing Date, the Seller shall use reasonable endeavours to pursue payment in respect
of such a claim on behalf of the Buyer and the Buyer shall have the right to receive any payment made in respect of any such claim made
prior to the Closing Date as, when and to the extent such claim shall be paid.
(c)
Buyer acknowledges and agrees that as of the Closing:
(i)
no insurance coverage shall be provided under the Seller Insurance Policies to Buyer, any Affiliate
of Buyer, the Assets or with respect to any Assumed Liabilities;
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(ii)
any and all policies insured or reinsured by the Seller Captive Insurer or any other provider of
the Seller Insurance Policies which, but for this provision, would have insured the Assets, shall be deemed terminated, commuted and
cancelled as of the Effective Date save and except for open and pending and IBNR claims which shall continue to be covered by these policies;
(iii)
no Claims regarding any matter whatsoever, whether arising from events occurring prior to the Closing,
shall be made by Buyer against or with respect to any of the Seller Insurance Policies regardless of their date of issuance;
(iv)
Buyer shall be responsible for securing the insurance it considers appropriate for the operation
of the Assets after the Closing; and
(v)
Buyer has no right, title or interest in any unearned premiums on any policies maintained by or
for the benefit of Seller or an Affiliate of Seller.
(d)
Buyer acknowledges that:
(i)
As part of the Seller Insurance Policies program, Seller maintains a Rolling Contractor Insurance Program (“RCIP”)
for the Refinery, which provides certain Refinery contractors (and their subcontractors) enrolled in the RCIP with workers compensation,
employer’s liability and general liability insurance; and
(ii)
as of the Closing Date and in accordance with Section 8.13(c)(ii) above, the RCIP program
coverage provided by Seller (or an Affiliate of Seller) shall terminate and cease.
(iii)
thereafter the risk and any liability associated with any gap in or lack of coverage that was previously
provided by Seller’s RCIP shall be the responsibility of Buyer.
ARTICLE
IX
INTELLECTUAL PROPERTY
9.01
Licensed Intellectual Property. Except as expressly granted on a non-exclusive basis in the Shell Refinery Process
License Agreement, Shell Software License Agreement, the Swap Kit Purchase Agreement and any other agreement governing these matters
between the Parties, Buyer will have no rights or licenses in any Intellectual Property of Seller or its Affiliates or otherwise. In
the event of a conflict between the provisions of this Agreement and the provisions of the Shell Refinery Process License Agreement,
the Shell Software License Agreement, the Swap Kit Purchase Agreement and any other agreement governing these matters between the Parties,
the applicable provisions of the Shell Refinery Process License Agreement, Shell Software License Agreement, the Swap Kit Purchase Agreement
and any other agreement governing these matters between the Parties shall prevail.
9.02
Third Party Intellectual Property.
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(a)
Seller agrees to use commercially reasonable efforts to assign
to Buyer all of Seller’s rights to Third Party Intellectual Property used in the Operations, provided, however, Seller shall have
no obligation to procure such assignment if such assignment would result in Seller or its Affiliates losing any rights to use Third Party
Intellectual Property at any asset owned or operated by Seller or its Affiliates.
(b)
Buyer shall reimburse Seller for any expense incurred by Seller (including any monies due from
Seller or Affiliate to the licensor of the Third-Party Intellectual Property) in connection with the assignment of the Third-Party Intellectual
Property to Buyer.
(c)
Nothing herein shall require Seller to breach (or procure the breach of) any obligation it or
any of its Affiliates owe to any Third Party.
ARTICLE
X
EMPLOYEES AND PERSONAL
DATA PROTECTION
10.01
Employee Matters. Seller and Buyer agree to the provisions concerning Employee Matters as set forth in Schedule
10.01.
10.02
Personal Data Protection. Seller and Buyer agree to the provisions concerning Personal Data as set forth in Schedule
10.02.
ARTICLE
XI
BUYER’S
OBLIGATION TO CLOSE
Subject
to the limitation in 11.07, Buyer’s obligation to close the Contemplated Transactions is subject to the fulfillment, or waiver
by Buyer, on or prior to the Closing of each of the following:
11.01
Compliance with Agreement. Seller shall have performed and complied in all material respects with all covenants, agreements
and conditions required by this Agreement to be performed or complied with by Seller prior to the Closing Date.
11.02
Representations and Warranties. (i) The representations and warranties of Seller made in Article IV of this
Agreement (as may be amended by Seller in accordance with Section 6.03) that are qualified by a Material Adverse Effect shall
be true and correct in all respects on and as of the Closing Date, with the same force and effect as though such representations and
warranties had been made or given on and as of the Closing Date (except for those representations and warranties that speak only as of
a specific date or time, which need only be true and correct on and as of such specified date or time) and (ii) representations and warranties
of Seller made in Article IV of this Agreement (as may be amended by Seller in accordance with Section 6.03) that are not
qualified by a Material Adverse Effect shall be true and correct in all respects on and as of the Closing Date, with the same force and
effect as though such representations and warranties had been made or given on and as of the Closing Date (except for those representations
and warranties that speak only as of a specific date or time, which need only be true and correct on and as of such specified date or
time), to the extent any failure of such representations and warranties to be true and correct individually or in the aggregate, has
not had a Material Adverse Effect.
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11.03
Closing Deliverables. The Seller Companies shall be willing and able to enter into, and shall have executed and delivered
or caused to be executed and delivered, at the Closing the items set forth in Section 3.02 to which any Seller Company is to be
a signatory or is required to deliver.
11.04
Litigation. There shall not be any judicial restraining order or injunction, preliminary or otherwise, in effect prohibiting
the Closing of the Contemplated Transactions. There shall not be pending or threatened in writing any Proceeding instituted by any Governmental
Authority to restrain, prohibit or otherwise interfere with or obtain substantial monetary damages in connection with the consummation
of the Contemplated Transactions, or operation of the Assets by Buyer after the Closing Date.
11.05
Governmental ConsentsA.. All (i) applicable waiting periods under any
Law, Order or administrative or judicial doctrine that is designed or intended to prohibit, restrict or regulate investment or actions
having the purpose or effect of monopolization or restraint of trade or lessening of competition applicable to the transactions contemplated
hereby shall have expired or been terminated, and (ii) all actions, Permits and approvals by or in respect of, and all registrations
and filings with, any Governmental Authority that are required to permit the consummation of the transactions contemplated hereby and/or
the operation of the Assets post-Closing, including all actions, permits, approvals, registrations and filings necessary under any such
regulatory Law, Order or administrative or judicial doctrine, shall have been taken, made or obtained and shall remain in full force
and effect.
11.06
No Material Adverse Effect. Since the date of this Agreement
no event, change, effect, condition, fact or circumstance shall have occurred which can reasonably be expected to have a Material Adverse
Effect on the Business or the Refinery, provided, however, no Material Adverse Effect shall be deemed to have occurred for purposes of
this Section 11.06 unless: (i) the financial impact of such Material Adverse Effect equals or exceeds [***]% of the Base Amount,
(ii) such Material Adverse Effect is not covered by Section 8.07 or otherwise contemplated by this Agreement, including subject
to the limitations regarding items not required to be true and correct upon the Closing Date as set forth in Section 11.02; and
(iii) Buyer has given Seller the reasonable opportunity to cure any such Material Adverse Effect. For the avoidance of doubt, and for
purposes of this Section 11.06, Seller’s inability to obtain insurance shall not be considered a Material Adverse Effect.
11.07
Financing. The financing reflected in the Financing Commitment(s) shall have fully funded
on or before the Closing Date substantially in accordance with the terms and conditions set forth in the Financing Commitment(s). Notwithstanding
that the Buyer is not obligated to close the Contemplated Transaction in the event the Financing Commitment(s) are not fully funded on
or before the Closing Date in accordance with this Section 11.07, if Buyer is unable to close the Contemplated Transaction due
to such failure, Seller shall nevertheless be obligated to reimburse Buyer for the Audit and the
Swap Kit, and Seller shall be entitled to retain the Deposit and such retention shall be deemed liquidated damages, both in accordance
with Section 15.04.
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11.08
Permits. Except for approvals and consents customarily
obtained after Closing, all material consents from and filings with any Governmental Authority necessary for the valid assignment of
the Permits shall have been received or obtained.
11.09 [***]
Contract. Seller will have secured [***] to assign the [***] contract, or Buyer will have
entered into a new [***] with [***] which will provide for the continued [***] to the Refinery immediately
following the Effective Time and, in such case, Seller must have secured [***] with respect to the [***] Contract.
11.10
Required Licensees and Refinery Contracts. Either: (x) the Seller will have obtained
any third party consent required to assign the Refinery Contracts and the licenses set forth on Schedule 11.10; or (y) in the
event Seller is unable to obtain such consent then Buyer, using reasonable diligence, will have entered into an agreement effective contemporaneously
with the Effective Date for each of the services previously provided pursuant to such contracts or licenses, if such services are reasonably
necessary to run the Refinery after the Effective Time (collectively, the “Required Licenses and Contracts”).
ARTICLE
XII
SELLER’S OBLIGATION
TO CLOSE
Seller’s
obligation to close the Contemplated Transactions is subject to the fulfillment, or waiver by Seller, on or prior to the Closing of each
of the following:
12.01
Compliance with Agreement. Buyer shall have performed and complied in all material respects with all covenants, agreements
and conditions required by this Agreement to be performed or complied with by Buyer prior to the Closing Date, including by way of example
and not limitation payment of the amount due in accordance with Buyer’s Promissory Note on or before the due date.
12.02
Representations and Warranties. (i) The representations and warranties of Buyer made
in Article V of this Agreement that are qualified by a Material Adverse Effect shall be true and correct in all respects on and
as of the Closing Date, with the same force and effect as though such representations and warranties had been made or given on and as
of the Closing Date (except for those representations and warranties that speak only as of a specific date or time, which need only be
true and correct on and as of such specified date or time) and (ii) representations and warranties of Buyer made in Article V
of this Agreement that are not qualified by a Material Adverse Effect shall be true and correct in all respects on and as of the Closing
Date, with the same force and effect as though such representations and warranties had been made or given on and as of the Closing Date
(except for those representations and warranties that speak only as of a specific date or time, which need only be true and correct on
and as of such specified date or time), to the extent any failure of such representations and warranties to be true and correct individually,
or in the aggregate, has not had a Material Adverse Effect.
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12.03
Closing Deliverables. Buyer shall be willing and able to enter into, and shall have executed and delivered or caused
to be executed and delivered, at the Closing the items set forth in Section 3.02 to which Buyer is to be a signatory or is required
to deliver.
12.04
Litigation. There shall not be any judicial restraining order or injunction, preliminary or otherwise, in effect prohibiting
the Closing of the Contemplated Transactions. There shall not be pending or threatened any Proceeding instituted by any Governmental
Authority to restrain, prohibit or otherwise interfere with or obtain substantial monetary damages in connection with the consummation
of the Contemplated Transactions, or the operation of the Assets by Buyer after the Closing Date.
12.05
Governmental Consents. The waiting period (and any extension thereof) applicable to the
consummation of the Contemplated Transactions shall have expired or been terminated under the HSR Act and any mandatory waiting period
or required consent under any applicable foreign, domestic, or state competition or antitrust law, statute, rule or regulation shall
have expired or been obtained except where the failure to observe such waiting period or to obtain such a consent would not reasonably
be expected to delay or prevent the consummation of the Contemplated Transactions or have a Material Adverse Effect on the expected benefits
of the Contemplated Transactions to Seller.
12.06
Integrity Due Diligence. Seller has completed and cleared to its satisfaction, its integrity due diligence on Buyer
(or such Affiliate of Buyer), and Seller shall confirm its determination as of the Effective Date, that Buyer continues to satisfy Seller’s
policies in the event any of the following transactions described in (a)-(c) below occur on or before the Closing Date:
(a)
Equity Interests representing 5% or more of the fully-diluted Equity Interests of Buyer (or any
Affiliate of Buyer that is a party to a Closing Document) have been sold, transferred, assigned, conveyed, exchanged or otherwise disposed
of to any Person, including any Person that already holds Equity Interests in Buyer;
(b)
Equity Interests of a Person or Persons in Control of Buyer immediately prior to the Execution Date,
directly or indirectly have been sold, transferred, assigned, conveyed, exchanged or otherwise disposed of (i) that represents 5% or
more of such Person and such Person, directly or indirectly, holds 5% or more of the fully-diluted Equity Interests of Buyer (or any
Affiliate of Buyer that is a party to a Closing Document), or (ii) whereby any new Person, after such transaction, increased its Equity
Interests to 5% or more); or
(c)
Subject to Section 17.05, any assignment or transfer of this Agreement by Buyer other than
any such assignment or transfer to a wholly owned subsidiary of Buyer.
Notwithstanding
anything to the contrary set forth above, Seller shall not unreasonably, withhold, condition or delay its consent to close the transactions
contemplated in this Agreement by reason of the occurrence of any of the foregoing transactions described in (a) – (c) above; and
12.07 [***]
Contract. Seller will have secured [***] to assign the [***] Contract or Buyer will have
entered into a new [***] with [***] which will provide for the continued [***] to the Refinery immediately
following the
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Effective
Time and, in such case, Seller must have secured [***] with respect to the [***] Contract.
ARTICLE
XIII
INDEMNIFICATION
13.01
Buyer’s Indemnification of Seller Companies. Except
as otherwise provided herein and subject to the provisions of this Article XIII, from and after the Closing, Buyer shall
(i) indemnify and hold harmless, each Seller Company, its Affiliates, and their respective directors, officers, employees, shareholders,
partners, counsel, auditors, accountants, agents, advisors and other Representatives and each of the heirs, executors, successors and
permitted assigns of any of the foregoing (collectively, the “Seller Indemnified Parties”), from and against
any and all Losses, and (ii) defend, save and hold harmless the Seller Indemnified Parties, from and against any and all Claims, in each
case, to the extent caused by, arising from or incurred by:
(a)
Buyer’s breach of any representation or warranty in this Agreement or the Closing Documents (excluding the Commercial Agreements);
provided, however, that Buyer shall not have any liability under this clause (a) for any breach of a representation or warranty
contained in this Agreement or the Closing Documents if Seller had Knowledge of such breach at the time of Closing and failed to notify
Buyer in writing of such breach prior to the Closing;
(b)
Buyer’s breach of or failure to perform any covenant or agreement in this Agreement (excluding
Section 2.03(a) which is addressed in Section 13.01(c)) or the Closing Documents (excluding the Commercial Agreements);
(c)
the Assumed Liabilities, but excluding such Losses to the extent caused by the post-Closing acts or omissions of the Seller Indemnified
Parties or their contractors, licensees and invitees;
(d)
Buyer’s modification of any Software licensed to Buyer pursuant to the Shell Software License Agreement or Intellectual
Property licensed under the Shell Refinery Process License Agreement, which modification was not made under the direction of Seller or
its Affiliates, but only to the extent that the Claim or Loss would not have arisen but for such modification;
(e)
(i) any Transfer Taxes chargeable to or reimbursable by Buyer pursuant to Section 14.01,
and (ii) any Property Taxes that are the responsibility of Buyer pursuant to Section 14.02;
(f)
Buyer’s use of any Seller’s Intellectual Property licensed to Buyer other than as provided in Shell Refinery Process
License Agreement;
(g)
Buyer’s use of any Seller’s Software licensed to Buyer other than as provided in the
Shell Software License Agreement; and
(h)
any and all Claims, in each case arising out of or in consequence of any Claim made after the Closing
against any of the Seller Insurance Policies (including in respect of
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the RCIP) by
Buyer or its Affiliates or any Person claiming any right to coverage on behalf of or for the benefit of Buyer or its Affiliates under
the Seller Insurance Policies, including all costs and expenses (including attorneys’ fees) related thereto. Such indemnity shall
cover, without limitation, any Claim by an insurer for reinsurance, retrospective premium payments or prospective
premium increases attributable to any such Claim.
13.02
Seller’s Indemnification of Buyer. Except as otherwise provided herein and subject to the provisions of this
Article XIII, from and after the Closing, Seller shall (i) indemnify and hold harmless, Buyer, its Affiliates and their respective
directors, officers, employees, shareholders, partners, counsel, auditors, accountants, agents, advisors and other Representatives and
each of the heirs, executors, successors and permitted assigns of any of the foregoing (collectively, the “Buyer Indemnified
Parties”) from and against any and all Losses, and (ii) defend, save and hold harmless, the Buyer Indemnified Parties from
and against any and all Claims, in each case, to the extent caused by, arising from or incurred by:
(a)
Seller’s breach of any representation or warranty in this Agreement or the Closing Documents; provided, however,
that Seller shall not have any liability under this clause (a) for (i) any breach of a representation or warranty contained in the Commercial
Agreements, or (ii) any breach of a representation or warranty contained in this Agreement or the Closing Documents if Buyer had Knowledge
of such breach at the time of Closing and failed to notify Seller in writing of such breach prior to the Closing;
(b)
Seller’s breach of or failure to perform any covenant or agreement in this Agreement (excluding Section 2.03(b) which
is addressed in Section 13.02(d) below) or the Closing Documents (excluding the Commercial Agreements);
(c)
any Property Taxes that are the responsibility of Seller Companies pursuant to Section 14.02; and
(d)
the Retained Liabilities but excluding such Losses to the extent caused by the post-Closing acts or omissions of the Buyer Indemnified
Parties or their contractors, licensees and invitees.
13.03
Exclusive Remedy. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IF THE CLOSING OCCURS
AND EXCEPT (A) AS PROVIDED IN SECTION 7.03(c), SECTION 7.04, SECTION 7.06, SECTION 7.09(iv), SECTION 7.11(b),
SECTION 7.12, SECTION 8.02(b), SECTION 8.12(j), SECTION 13.01(h), THIS ARTICLE XIII, OR SECTION 10.06
OF SCHEDULE 10.01, (B) IN THE CASE OF FRAUD, OR (C) IN THE CASE OF INJUNCTIVE OR PROVISIONAL
RELIEF, NO PARTY SHALL HAVE ANY LIABILITY, AND NO PARTY SHALL MAKE ANY CLAIM, FOR MONETARY PAYMENT OF ANY LOSS (AND THE PARTIES HEREBY
WAIVE ANY RIGHT OF CONTRIBUTION AGAINST EACH OTHER AND THEIR RESPECTIVE INDEMNIFIED PARTIES), UNDER, ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER CLOSING DOCUMENT (EXCLUDING THE COMMERCIAL AGREEMENTS) WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, ENVIRONMENTAL
OR OTHER APPLICABLE LAWS OR OTHERWISE.
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13.04
Procedures Relating to Indemnification Between Buyer and Seller.
(a)
Following the discovery of any facts or conditions that could reasonably be expected to give rise to (i) a Loss for which indemnification
is provided under this Agreement, or (ii) a Claim for which defending, saving and holding harmless is provided under this Agreement,
the Indemnified Party shall, as promptly as reasonably possible thereafter, provide written notice (a “Claim Notice”)
to the Indemnifying Party setting forth:
(i)
the specific facts and circumstances, in reasonable detail, relating to such potential Loss, including material documents, notices,
correspondence and other relevant information relating to the matter or circumstance giving rise to the Claim or Loss;
(ii)
the amount of such Claim or Loss (or a good faith estimate thereof if the actual amount is not known
or not capable of reasonable calculation); and
(iii)
a detailed explanation of the Indemnified Party’s understanding as to why such matter constitutes
or could reasonably be expected to give rise to a Claim or Loss for which indemnification, defending, saving and/or holding harmless
is provided under this Agreement, including under what provisions of this Agreement such Claim or Loss may arise;
A
notice setting forth a speculative, prospective, unspecified or possible future Claim shall not constitute an adequate or timely Claim
Notice. If any potential Claim arises as a result of a contingent or unquantifiable Loss of any of the Indemnified Parties, no Indemnified
Party will be obliged to pay any such amount in respect of the potential Claim until the Loss ceases to be contingent and is quantifiable.
(b)
Notwithstanding the foregoing Section 13.04(a) and subject to the provisions of Section
13.08:
(i)
a Buyer Indemnified Party shall not be entitled to indemnity, defending, saving, or holding harmless hereunder by Seller unless
and until (A) such Indemnified Party shall have provided Seller a Claim Notice; and (B) Seller shall have failed to cure such Claim,
if curable, within 30 days after Seller’s receipt of a Claim Notice;
(ii)
a Seller Indemnified Party shall not be entitled to indemnity, defending, saving, or holding harmless hereunder by Buyer unless
and until (A) such Indemnified Party shall have provided Buyer a Claim Notice; and (B) Buyer shall have failed to cure such Claim, if
curable, within 30 days after Buyer’s receipt of a Claim Notice; and
(iii)
without prejudice to the time periods specified in the foregoing Sections 13.04(b)(i) and
13.04(b)(ii), upon receipt of a Claim Notice, the Party receiving such notice shall, within 20 Business Days of receipt thereof,
send written notice to the notifying Party of its understanding as to whether or not the relevant matter in the notifying Party’s
notice is indemnifiable, defendable, savable, or has the ability to be held harmless by the receiving Party under this Agreement. Should
the receiving Party fail to respond to the notice delivered by the notifying Party within 20 Business Days of receipt thereof, the receiving
Party shall be deemed to have rejected the notifying Party’s assertion that such matter is indemnifiable, defendable, savable,
or has the ability to be held harmless by the receiving Party under this Agreement. In case the
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receiving Party
rejects the notifying Party’s assertion that the relevant matter in the notice is indemnifiable, defendable, savable, or has the
ability to be held harmless by the receiving Party under this Agreement, the Parties may discuss the subject of the Claim Notice to clarify
any open issues and respond to their respective inquiries, and if the receiving Party maintains its aforementioned rejection, then the
notifying Party may resort to the dispute resolution procedures of ARTICLE XVI.
13.05
Procedures Relating to Indemnification for Third Party Claims.
(a)
Subject to Section 13.04 above, with respect to any indemnification, defending, saving and holding harmless provided for
under this Agreement in respect of, arising out of or involving a Claim or demand made by any Third Party against an Indemnified Party
(a “Third Party Claim”), such Indemnified Party must provide a Claim Notice to the Indemnifying Party of the
Third Party Claim as promptly as reasonably practicable after receipt by such Indemnified Party of notice of the Third Party Claim. Thereafter,
the Indemnified Party shall promptly deliver to the Indemnifying Party copies of all notices and documents (including court papers) received
by the Indemnified Party relating to the Third Party Claim; provided, however, that the failure to provide a Claim Notice, or
deliver copies of all notices and documents, in a reasonably timely manner shall not affect the indemnification, defending, saving and
holding harmless provided hereunder, except to the extent the Indemnifying Party shall have been actually and materially prejudiced as
a result of such failure.
(b)
If a Third Party Claim is made against an Indemnified Party, the Indemnified Party shall permit the Indemnifying Party to participate
in the defense thereof (it being understood that the Indemnified Party shall control such defense unless the Indemnifying Party assumes
such defense as provided herein); provided, however, if the Indemnifying Party acknowledges its obligation to indemnify, defend, save
and hold harmless the Indemnified Party therefor, then the Indemnifying Party may choose to assume the defense of such Third Party Claim
with counsel selected by the Indemnifying Party provided that such counsel is reasonably satisfactory to the Indemnified Party. Notwithstanding
any acknowledgment made pursuant to the immediately preceding sentence, the Indemnifying Party shall continue to be entitled to assert
any limitation on its indemnification, defending, saving and holding harmless responsibility contained in Sections 13.07 and 13.08.
Should the Indemnifying Party so elect to assume the defense of such Third Party Claim, the Indemnifying Party shall not be liable to
the Indemnified Party for legal expenses incurred by the Indemnified Party in connection with the defense thereof, provided that, the
Indemnifying Party does not seek to assert any limitation on its indemnification, defending, saving and holding harmless responsibility
to the Indemnified Party. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in
the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being
understood, however, that the Indemnifying Party shall control such defense subject to the agreement of the Indemnifying Party and the
Indemnified Party to cooperate in the defense of such Third Party Claim as provided in Section 13.05(c).
(c)
If the Indemnifying Party chooses to defend any Third-Party Claim:
(i)
the Parties shall reasonably cooperate in the defense or prosecution of such Third-Party Claim.
Such cooperation shall include the retention and (upon the
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Indemnifying
Party’s request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third
Party Claim and that can be obtained without unreasonable effort and expense,
and making employees available on a mutually convenient basis to provide additional information and explanation of any material
provided hereunder; and
(ii)
the Indemnifying Party shall keep the Indemnified Party fully and timely informed as to the progress
of the Third Party Claim, and the defense thereof, and provide the Indemnified Party with copies of all correspondence relating to such
Third-Party Claim within five Business Days of receiving or sending such correspondence and otherwise keep the Indemnified Party fully
and timely informed of the status of such Third-Party Claim.
(d)
Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, the
Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or consent to the entry of any Judgment
with respect to such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably
withheld, conditioned or delayed). The Indemnifying Party shall not
consent to the entry of any Judgment or enter into any settlement with respect to the Third Party Claim without the Indemnified Party’s
prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, such consent
of the Indemnified Party shall not be required in the event of the entry of such Judgment or entering into a settlement with respect
to such Third Party Claim (i) does not include (x) the admission of any liability or responsibility (including
any admission of any violation of Law) on behalf of the Indemnified Party, (y) any financial obligation
to be paid by the Indemnified Party or (z) any sanction or restriction upon the conduct of any business of the Indemnified Party,
and (ii) provides as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of an irrevocable
release from all Liability in respect of such Third Party Claim in form and substance satisfactory to the Indemnified Party.
13.06
Losses Net of Insurance and Tax Benefits. The amount of any and all Losses under this Article XIII and elsewhere
under this Agreement shall be determined net of any amounts that are recovered by an Indemnified Party under insurance policies with
respect to such Losses. Each Party hereby waives, or will procure the waiver of, any subrogation rights that its insurer may have with
respect to any indemnifiable Losses. The amount of any and all Losses under this Article XIII and elsewhere in this Agreement
shall be determined net of any Tax Benefit realized by the Indemnified Party arising from the incurrence or payment of such amounts.
If the Indemnified Party receives any net Tax Benefit after an indemnification payment by the Indemnifying Party, then such Indemnified
Party shall promptly pay to the Indemnifying Party the amount of such net Tax Benefit. Notwithstanding anything herein to the contrary,
no Indemnified Party shall be required to commence any legal proceeding, or otherwise threaten to commence any legal Proceeding, in connection
with the requirements under this Section 13.06.
13.07
Survival. Subject to the limitations and other provisions of this Agreement, the representations and warranties of
the Parties contained in this Agreement shall survive the Closing and shall remain in full force and effect until the 18 month anniversary
of the Closing Date, except for those representations and warranties (a) contained in Sections 4.01 and 5.01 (Organization
and Good Standing), Sections 4.02 and 5.02 (Authority), Sections
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4.05
and 5.07 (Brokers), Section 4.06 (Ownership of the Assets and Use of Assets), Section 4.13(c) (HSE Laws), and
Section 4.11 (Taxes) (the foregoing representations hereinafter referred to as the “Fundamental Representations”),
which Fundamental Representations shall survive the Closing until the earlier of (i) the 30th day following the expiration
of the applicable statute of limitation; and (ii) seven years from the Closing Date until the resolution
of the indemnification Claims received by the Indemnifying Party in accordance with the provisions hereof prior to the expiration of
the relevant time period). All covenants and obligations contained in this Agreement that by their terms are to be performed at or prior
to the Closing shall terminate 180 days after the Closing Date, and all covenants and obligations contained in this Agreement that by
their terms are to be performed after the Closing shall survive the Closing until performed in accordance with their terms.
A
Claim shall be deemed to have been properly brought only upon delivery of a proper Claim Notice to the other Party within the applicable
time periods provided above at the notice address set forth in Section 17.01. For the avoidance of doubt, the initial date of
delivery of a Claim Notice, and not the expiration of any cure period, shall be deemed to be the date a Claim is made. Any Claim required
to be made within an applicable time period provided above that is not so timely made shall be forever barred.
13.08
Limitations on Indemnification.
(a)
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NO PARTY SHALL BE LIABLE FOR AND NO PARTY SHALL SEEK,
AND AN ARBITRATOR APPOINTED UNDER ARTICLE XVI MAY NOT AWARD, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR INDIRECT LOSSES
(INCLUDING LOST PROFITS), WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OTHER LAW OR OTHERWISE; PROVIDED, HOWEVER, THAT THIS
SECTION 13.08(a) SHALL NOT LIMIT A PARTY’S RIGHT TO INDEMNIFICATION UNDER THIS ARTICLE XIII FOR (i) ANY SUCH
LOSSES TO THE EXTENT SUCH PARTY IS REQUIRED TO PAY SUCH LOSSES TO A THIRD PARTY THAT IS NOT AN AFFILIATE OR REPRESENTATIVE OF SUCH PARTY
IN CONNECTION WITH A MATTER FOR WHICH SUCH PARTY IS OTHERWISE ENTITLED TO INDEMNIFICATION UNDER THIS ARTICLE XIII, OR (ii) BREACHES
OF SECTION 17.15, OR (iii) ANY LIABILITY OR OTHER OBLIGATION OF BUYER IN RESPECT OF THE DEPOSIT OR ANY LIABILITY OF BUYER OR SELLER
THAT IS ATTRIBUTABLE TO WILLFUL BREACH.
(b)
Notwithstanding any provision to the contrary contained in this Agreement, the following limitations shall apply with regard to
Seller’s obligations to indemnify the Buyer Indemnified Parties pursuant to Section 13.02:
(i)
No Claim may be made against Seller for indemnification pursuant to Section 13.02(a), Section 13.02(b) or Section
4.13(c) with respect to any individual action, occurrence or event subject to the indemnifications thereunder unless (A) Losses for
such individual action, occurrence or event that are recoverable from Sellers under this Agreement exceed $150,000 (the “De
Minimis Amount”) (and in such case, no Loss below the De Minimis Amount may be applied to or considered for purposes of
calculating the aggregate amount of the
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Buyer Indemnified
Parties’ Losses) or (B) such Claim relates to the breach of a Fundamental Representation by Seller (except for with respect to
the Fundamental Representations set forth in Section 4.13(c) for which this limitation shall apply).
(ii)
No Claim may be made against Seller for indemnification pursuant to Section 13.02(a) or Section 13.02(b) unless
the aggregate amount of all Losses of the Buyer Indemnified Parties with respect to Section 13.02(a) and Section 13.02(b),
(excluding individual Losses which do not exceed the De Minimis Amount) exceeds an amount equal to 5% of the Base Amount (the
“Basket”), after which point Seller shall be obligated to indemnify the Buyer Indemnified Parties from and
against such aggregate Losses incurred that are recoverable from Seller under this Agreement (excluding individual Losses which do not
exceed the De Minimis amount), which shall be fully payable without deductible. By way of clarification, for
purposes of the limitations to indemnification and hold harmless
obligations in this Section 13.08(b), the Indemnifying Party shall collectively mean Seller
and its successors and assigns, on the one hand, or Buyer and its successors and assigns, on the other hand, and the application of the
Basket (and whether it is met) shall be done separately with respect to Seller and its successors and assigns, on the one hand, or Buyer
and its successors and assigns, on the other hand.
(iii)
Except with respect to claims for inaccuracies of the Fundamental Representations (but excluding the Fundamental Representation
in Section 4.13(c) for which this limitation shall apply), the aggregate amount of all Losses paid by an Indemnifying Party shall
not exceed 15% of the Base Amount. The limitations on Seller’s indemnification obligations set forth in the preceding sentence
shall not apply to Losses resulting from any breach by Seller or inaccuracy of Seller’s Fundamental Representations (except for
the Fundamental Representation set forth in Section 4.13(c)); provided, however, that Seller’s liability to indemnify
pursuant to Section 13.02 (including for breaches or defaults of Seller’s Fundamental Representations) shall never exceed,
in the aggregate, an amount equal to the Base Amount.
(iv)
Any Claim for indemnity hereunder shall be limited to the amount of actual out-of-pocket damages
Losses sustained by the Indemnified Party.
13.09
Mitigation. The indemnification obligations of an Indemnifying Party shall be appropriately reduced to the extent an
Indemnified Party does not use reasonable steps and use commercially reasonable efforts to mitigate provided that the reasonable costs
of such mitigation shall be deemed to be Losses for which an Indemnified Party may, subject to the terms hereof, seek indemnification
hereunder from the indemnifying Parties.
13.10
Subrogation. In the event that an Indemnified Party has a right of recovery against any Third Party non-insurers with
respect to any Losses in connection with which a payment is made to such Indemnified Party by an Indemnifying Party, then (a) such Indemnifying
Party shall, to the extent of such payment, be subrogated to all of the rights of recovery of such Indemnified Party against such Third
Party with respect to such Losses; and (b) such Indemnified Party at the cost and expense of the Indemnifying
Party shall execute all papers reasonably required and take all commercially reasonable action necessary to secure such rights, including
the execution of such documents as are necessary to enable such Indemnifying Party to bring suit to enforce such rights. In the event
that an Indemnified Party recovers any amount from such other Third Party, the amount of the Claim against the
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Indemnifying
Party shall be reduced by the amount recovered, less all reasonable costs, charges and expenses incurred by Indemnified Party recovering
that sum from such Third Party
13.11
Payments by an Indemnifying Party. Payments of all amounts owing by an Indemnifying Party
under this Agreement shall be paid in United States dollars by wire transfer to a U.S. bank account to be designated in writing by the
Indemnified Party within 60 Business Days after the earliest of (a) mutual agreement by the Parties in writing resolving a Claim, (b)
the expiration of any period for appeal of a final adjudication of a Claim, or (c) the expiration of any period for appeal of a final
adjudication or arbitration of the Indemnifying Party’s liability to the Indemnified Party under this Agreement in respect of a
Claim.
13.12
Tax. All indemnification payments made under this Agreement shall be treated by the Parties as an adjustment to the
Purchase Price for Tax purposes, unless otherwise required by Applicable Law.
13.13
No Liability if Loss is Otherwise Compensated For.
(a)
Buyer agrees that:
(i)
neither it nor any of the Buyer Indemnified Parties shall be entitled to recover Losses or otherwise
claim reimbursement or restitution more than once in respect of any individual Claim or Loss; and
(ii)
Seller shall not be liable for any Claim in either case to the extent that the subject of the Claim
has been or is made good or compensation is otherwise paid to Buyer.
(b)
In calculating the liability of Seller for any Claim or Loss, there shall be taken into account the amount by which any Tax for
which any of the Buyer Indemnified Parties is now or in the future accountable or liable to be assessed, is reduced or extinguished as
a result of the matter giving rise to such liability and any Claim or Loss shall be reduced by the amount of Tax which any of the Buyer
Indemnified Parties has a right to obtain on any Claim or Loss suffered (regardless of the actual relief obtained), which relief shall
be an amount equal to the product of the Claim or Loss and higher of the statutory or marginal Tax rate.
(c)
If, in respect of any matter which would give rise to a Claim or Loss, any of the Buyer Indemnified
Parties is entitled to claim under any policy of insurance, then no such matter shall be the subject of a Claim or Loss whether by contribution
or indemnity unless and until:
(i)
any of the Buyer Indemnified Parties shall have made such Claims against its insurers; and
(ii)
in the event that such Claims under such policies of insurance are agreed by such insurers to be
valid claims, the relevant payment has been made to any of the Buyer Indemnified Parties by the insurer, in which case, the amount
(if any) payable by Seller in respect of the relevant Claim or Loss shall be reduced by the amount of the payment described in
Section 13.13(b).
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(d)
RESERVED.
(e)
If Buyer or any member of the Buyer Indemnified Parties recovers from any Person (other than an Indemnifying Party) an amount
which forms the basis of a Claim, Buyer shall notify Seller of the same, and:
(i)
if Seller has already paid to a Buyer
Indemnified Party an amount in satisfaction of the subject Claim and the amount paid by Seller in respect of the Claim is more than the
Sum Recovered, Buyer shall immediately pay to Seller the Sum Recovered;
(ii)
if Seller has already paid to a Buyer Indemnified Party an amount in satisfaction
of the subject Claim and the amount paid by Seller in respect of the Claim is less than or equal to the Sum Recovered, Buyer shall immediately
pay to Seller an amount equal to the amount paid by Seller; or
(iii)
if Seller has not already paid to a Buyer Indemnified Party an amount in satisfaction
of the subject Claim, the amount of the Claim of which Seller would have been liable shall be reduced by, and to the extent of, the Sum
Recovered.
In
this Section 13.13(e), “Sum Recovered” means an amount equal to the total of the amount recovered or
recoverable from the other Person .
(f)
For the avoidance of doubt, Buyer
shall not be entitled under any circumstances to Losses or any other amount in respect of any Claim unless and until such Claim has become
an actual liability and is due and payable, it being understood and agreed that if the enforceability
of such Claim is subject to a Judgment or settlement, due and payable shall mean that such Judgment or settlement has been rendered and
is not legally subject to further appeal.
13.14
Time Limits for Bringing Claims(a). No Claim shall be brought against Seller under
or in connection with this Agreement, whether in tort, contract, under statute or otherwise, and Seller shall not be liable in respect
of any such Claim, unless:
(a)
Buyer shall have given to Seller the Claim Notice as soon as reasonably practicable after Buyer
has become aware of the underlying facts that might give rise to a possible Claim, and in any event within ten (10) Business Days of
becoming aware of those facts; and
(b)
to the extent applicable, Buyer shall have complied with its Obligations under Section 13.04.
13.15
Exclusion of Remedies Against Financing Sources.
(a)
NOTWITHSTANDING ANYTHING ELSE CONTAINED HEREIN, BUT SUBJECT TO THE LAST SENTENCE OF THIS SECTION,
THE PARTIES FURTHER AGREE THAT THE SOLE AND EXCLUSIVE REMEDY OF SELLER AND ITS AFFILIATES AGAINST THE FINANCING SOURCES, AND ANY OF THEIR
RESPECTIVE PARTNERS,
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EQUITY HOLDERS,
CONTROLLING PERSONS, MANAGEMENT COMPANIES, REPRESENTATIVES, ASSIGNEES OR AFFILIATES AND ANY AND ALL FORMER, CURRENT OR FUTURE HEIRS,
EXECUTORS, REPRESENTATIVES, ADMINISTRATORS, TRUSTEES, SUCCESSORS OR ASSIGNS OF THE FOREGOING ARISING FROM OR RELATING TO THIS AGREEMENT
AND THE CONTEMPLATED TRANSACTIONS, INCLUDING FOR ANY FAILURE OF BUYER TO EFFECT THE CLOSING OR OTHERWISE TO PERFORM ITS OBLIGATIONS UNDER
THIS AGREEMENT (WHETHER NEGLIGENTLY, WILLFULLY, INTENTIONALLY, UNINTENTIONALLY OR OTHERWISE), WHETHER IN CONTRACT, TORT OR OTHERWISE,
SHALL BE THE RIGHTS AND REMEDIES AGAINST BUYER DESCRIBED IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
UNDER SECTION 2.05, ARTICLE XIII AND ARTICLE XV OF THIS AGREEMENT.
(b)
Notwithstanding anything that may be expressed or implied in this Agreement or any document, agreement,
or instrument delivered contemporaneously herewith, and notwithstanding the fact that any Party may be a partnership or limited liability
company, each Party, by its acceptance of the benefits of this Agreement, covenants, agrees and acknowledges that no Financing Source
shall have any obligation hereunder and that it has no rights of recovery hereunder against, and no recourse hereunder or under any documents,
agreements, or instruments delivered contemporaneously herewith or in respect of any oral representations made or alleged to be made
in connection herewith or therewith shall be had against, any Financing Source Affiliate (or any of their successors or permitted assignees),
or any Affiliate thereof or against any former, current or future Financing Source, but in each case not including the Parties (each,
but excluding for the avoidance of doubt, the Parties, a “Financing Source Affiliate”), whether by or through
attempted piercing of the corporate veil, by or through a Claim (whether in tort, contract or otherwise) by or on behalf of such party
against the Financing Source Affiliates, by the enforcement of any assessment or by any legal or equitable Proceeding, or by virtue of
any statute, regulation or other Applicable Law, or otherwise; it being expressly agreed and acknowledged that no personal liability
whatsoever shall attach to, be imposed on, or otherwise be incurred by any Financing Source Affiliate, as such, for any obligations of
the applicable Party under this Agreement or the transactions contemplated hereby, under any documents or instruments delivered contemporaneously
herewith, in respect of any oral representations made or alleged to be made in connection herewith or therewith, or for any Claim (whether
in tort, contract or otherwise) based on, in respect of, or by reason of, such obligations or their creation. Each Financing Source Affiliate
is expressly intended as a third-party beneficiary of this Section 13.15.
ARTICLE
XIV
TAXES
14.01
Transfer Taxes. All transfer, stamp, documentary, sales, use, business, occupation, motor vehicles, fuel, registration,
value added, environmental and other similar Taxes (including all applicable Real Property and Personal Property transfer Taxes, all
environmental Taxes on any petroleum products transferred, and all costs to record any deeds), assessed or imposed in each case on the
transfer or sale of the Assets (collectively, “Transfer Taxes”) will be borne by Buyer (regardless of whether
such Transfer Taxes are levied on Seller or Buyer). Buyer shall be responsible for, and will file, all necessary Tax Returns and other
documentation with respect to all Transfer Taxes and remit, upon the
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request
of Seller, copies of the portions of such Tax Returns relevant to this Agreement and any necessary documentation to Seller. Seller agrees
to use commercially reasonable efforts to cooperate with Buyer in taking advantage of any applicable exemptions that will eliminate or
minimize any otherwise applicable Transfer Taxes imposed in connection with the purchase and sale of the Assets. Buyer shall promptly
reimburse Seller for any Transfer Taxes paid by Seller upon receipt of a written notice from Seller that shows the amount of Transfer
Taxes that were remitted by Seller.
14.02
Real and Personal Property Taxes. For purposes of this Agreement, all ad valorem, Real Property and Personal
Property Taxes arising from the ownership or use of the Assets for the calendar year (or taxable period) in which the Effective Time
occurs (collectively, “Property Taxes”) shall be prorated between Buyer and Seller as of the Effective Time
regardless of when Property Taxes are actually billed and payable, based on the most recent statement of Property Taxes which is available
at the time of Closing. The Seller Companies shall be responsible for paying their pro rata share of all such Property Taxes relating
to the period prior to the Effective Time. Buyer shall be responsible for such Property Taxes relating to the period after the Effective
Time. If there are any special or general assessments on the Assets which are payable in installments, Buyer shall be responsible for
all installments which become due after the Effective Time. To the extent possible, prorations shall be made on and as of the day before
the Closing Date; otherwise, the Parties shall make prorations within 90 days following the Closing Date. Buyer shall file, or cause
to be filed, all required Tax Returns incident to all Property Taxes, which Tax Returns are due after the Closing Date and shall pay
or cause to be paid to the Governmental Authorities all such Property Taxes reflected on such reports or returns even if some are for
periods prior to the Closing Date. If a Party pays a Property Tax that is allocable to the other Party pursuant to this Section 14.02
and such Property Tax is not otherwise borne by the non-paying Party through a proration of Taxes at or after Closing or by way of
an adjustment to the Purchase Price, the non-paying Party shall reimburse the paying Party within ninety (90) days after invoice for
any such Property Taxes allocable to the non-paying party per this Section 14.02.
14.03
Tax Allocation. Seller and Buyer shall negotiate in good faith within thirty (30) days after the Closing Date and agree
upon an allocation of the Base Amount in the form of Schedule 14.03, in accordance with Section 1060 of the Code (and any
similar provision of state, local or foreign law, as appropriate) (the “Tax Allocation”). The Parties shall
treat and report (and, if necessary, to cause each of their respective Affiliates to so treat and report) the sale and purchase of the
Assets for all federal, state and local Tax purposes in a manner consistent with the Tax Allocation and shall not take any position on
their respective Tax Returns that is inconsistent with the Tax Allocation; provided, however, that nothing contained herein shall
prevent the Parties from settling any proposed deficiency or adjustment by any Governmental Authority based upon or arising out of the
Tax Allocation, and no Party shall be required to litigate before any court any proposed deficiency or adjustment by any Governmental
Authority challenging such Tax Allocation. The Parties recognize that the Tax Allocation does not include Buyer’s acquisition expenses
and that Buyer will allocate such expenses appropriately.
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14.04
Tax Election. Either Party may elect to structure the conveyance, transfer or assignment of all or an applicable portion
of the Refinery Real Property as a tax-free exchange pursuant to Section 1031 of the Code (a “1031 Exchange”);
provided that (a) such Party gives notice of such election to the other Party in writing reasonably in advance of the Closing
Date, (b) Buyer shall not be required to take title to any other property, and (c) such structure does not have any adverse effect on
the other Party (including, but not limited to, delaying or affecting the Closing Date). If such an exchange is elected by such Party
(the “Electing Party”), then the Parties will use commercially reasonable efforts to execute all necessary
1031 Exchange documents that shall be in a form mutually acceptable to the Parties (provided, that any costs and expenses incurred shall
be borne by the Electing Party). The Electing Party will indemnify (subject to Article XIII) the other Party and its Affiliates,
employees and agents against Losses that may be sustained by them on account of or in connection with such election to structure the
transaction as a 1031 Exchange. Neither Party, by its consent to a 1031 Exchange, shall be responsible in any way for the Electing Party’s
compliance with such 1031 Exchange.
14.05
Tax Assistance. After the Closing Date, each Party shall provide such assistance as the other Party may from time to
time reasonably request in connection with the preparation of Tax Returns required to be filed, any Tax audit or other examination by
any Governmental Authority, any judicial or administrative Proceeding relating to liability for Taxes, or any Claim
for refund in respect of such Taxes or in connection with any litigation and Proceedings or liabilities related to the Assets, including
making available employees for interviews, litigation preparation and testimony.
The requesting Party shall reimburse the assisting Party for the out-of-pocket costs incurred by the assisting Party. Seller
and Buyer shall reasonably cooperate with each other in
the conduct of any audit or other Proceeding related to Taxes involving the Assets and each shall execute and deliver such documents
as are necessary to carry out the intent of this Article XIV.
Furthermore, Buyer
and Seller agree that for a period of five years after
the Closing Date or until six months after the expiration
of the statute of limitations on assessment or refund, if longer than five
years, not to destroy or otherwise dispose of any information provided by Seller
to Buyer, in each case insofar as each constitutes or pertains
to Tax records, unless such Party shall first offer in writing
to surrender such books, records and other data to the other Party and such other Party shall agree in writing to take possession thereof
during the 30-day period after such offer
is made.
14.06
Operating Taxes. Except as provided in this Article XIV, Buyer shall be liable for and pay all Taxes that arise
as result of the sale, rental, lease, storage, use, consumption or operation of the Assets by Buyer after the Effective Time.
14.07
Confidential Tax Information. Except as specifically required pursuant to this Article XIV, notwithstanding
anything to the contrary in this Agreement, neither Party shall be required at any time to disclose to the other Party, or to any other
Person, absent legal constraint, any Tax Return or other confidential Tax information.
14.08
Payments. Any payments made to any Party pursuant to this Article XIV shall constitute an adjustment of the
Purchase Price for Tax purposes and shall be treated as such by Buyer and Seller on their Tax Returns to the extent permitted by Applicable
Law.
ARTICLE
XV
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TERMINATION RIGHTS
15.01
Termination. This Agreement may be terminated at any time prior to the Closing Date as follows and in no other manner:
(a)
by mutual written consent of Buyer and Seller;
(b)
by Buyer in the event the Closing shall not have occurred or shall have become incapable of occurring as of the date that is after
the 12-month anniversary of the Execution Date or such later date as the Parties agree in writing (as it may be extended pursuant to
Section 15.02, the “Outside Date”) (including due to non-satisfaction or fulfillment of the conditions
set forth in Article XI which would constitute a breach by Seller of this Agreement), but provided that such failure to close
or being capable of closing is not due to (i) Buyer breaching any representation, warranty or covenant of Buyer contained in this Agreement
or (ii) the failure to satisfy Section 11.05 as of the Outside Date;
(c)
by Seller in the event the Closing shall not have occurred or shall have become incapable of occurring as of the Outside Date
(including due to non-satisfaction or fulfillment of the conditions set forth in Article XII which would constitute a breach by
Buyer of this Agreement), but provided that such failure to close or being capable of closing is not due (i) to Seller breaching any
representation, warranty or covenant contained in this Agreement or (ii) to the failure to satisfy Section 12.05 as of the Outside
Date;
(d)
by Seller (so long as Seller is not then in material breach of any of its representations, warranties, covenants or agreements
contained in this Agreement), if there has been a breach of any of Buyer’s representations, warranties, covenants or agreements
contained in this Agreement that would result in the failure of a condition set forth in Section 12.01 or Section 12.02
(which would constitute a breach by Buyer of this Agreement), and which breach has not been cured or cannot be cured within the earlier
of the Outside Date or 30 days following the delivery to Buyer by Seller of a written notice of such breach; or
(e)
by Buyer (so long as Buyer is not then in material breach of any of its representations, warranties, covenants or agreements contained
in this Agreement), if there has been a breach of any of Seller’s representations, warranties, covenants or agreements contained
in this Agreement that would result in the failure of a condition set forth in Section 11.01 or Section 11.02 (which would
constitute a breach by Seller of this Agreement), and which breach has not been cured or cannot be cured within the earlier of the Outside
Date or 30 days following the delivery to Seller by Buyer of a written notice of such breach; or
(f)
by Seller if Buyer fails to remit payment of the Deposit on the date due in accordance with the
terms of the Promissory Note and, in such an event, Seller shall remain entitled to pursue collection under the terms of the Promissory
Note, plus interest, if any, and to retain any amounts thereby collected.
The
Party desiring to terminate this Agreement pursuant to this Section 15.01 shall give notice of such termination to the other Party
in the manner set forth in Section 17.01.
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15.02
Extended Outside Date. If all conditions to Closing set forth in Article XI and Article XII are satisfied
other than the conditions set forth in Sections 11.05 and 12.05, then the Outside Date shall be extended to such date as
the Parties mutually agree; provided, however, in the event the Parties do not mutually agree, then the Outside Date shall be
automatically extended to the date that is the 24-month anniversary of the Execution Date (the “Extended Outside Date”);
provided, further, that after the Extended Outside Date either Party may terminate this Agreement by giving written notice in
the event the Closing conditions set forth in this Agreement, including under Sections 11.05 and 12.05 have not been satisfied
by such Extended Outside Date and that such failure to close is not due to any breach by the Party seeking to terminate this Agreement
of any of its representations, warranties or covenants contained in this Agreement.
15.03
Effect of Termination. In the event of termination by Buyer or Seller pursuant to Section 15.01, the Contemplated
Transactions shall be terminated, without further action by any Party. If the Contemplated Transactions are terminated as provided herein,
then:
(a)
Buyer shall return to Seller all documents and copies and other materials received from, or on behalf
of, Seller or its Representatives relating to the Contemplated Transactions, whether so obtained before or after the Execution Date and
whether received by Buyer or a Representative of Buyer; and
(b)
all Confidential Information received by Buyer or a Representative of Buyer with respect to the
Assets and the Assumed Liabilities shall be treated in accordance with the terms and conditions of Section 17.15.
15.04
Survival upon Termination.
(a)
If this Agreement is terminated and the Contemplated Transactions are abandoned as described in this Article XV, this Agreement
shall have no further force and effect, and there shall be no liability on the part of any Party with respect thereto, except for the
provisions of:
(i)
Section 15.04(b), 2.05(a) and 11.07 related to the Deposit;
(ii)
Sections 4.05 and 5.07 relating to finder’s fees and broker’s fees;
(iii)
Section 7.01 relating to the obligation of Buyer to keep confidential certain information
and data obtained by it;
(iv)
Section 7.03 relating to indemnification in connection with the matters contemplated thereby;
(v)
this Section 15.04;
(vi)
Article XVI;
(vii)
Section 17.02 relating to governing law;
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(viii)
Section 17.03 relating to publicity;
(ix)
Section 17.07 relating to certain expenses; and
(x)
Section 17.15 related to confidentiality;
each of which
shall remain in full force and effect and survive in perpetuity. Nothing in this Article XV shall (i) be deemed to release any
Party from any liability for any Losses related to any breach by such Party prior to the Closing of any representation, warranty, covenant
or agreement contained in this Agreement except as expressly provided in Section 15.04(b), or (ii) relieve any Party from any
liability for any Losses pursuant to this Agreement that is attributable to Willful Breach by such Party.
(b)
In the event this Agreement is terminated by mutual consent between the Parties (where Seller’s termination of this Agreement
for failure of the condition precedent set forth in Section 12.06 shall be deemed mutual consent), Buyer shall
be entitled to a return of the Deposit less one half of: (i) the cost of the Swap Kit, and (ii) the cost of any audit requested by the
Buyer to be performed on behalf of the Buyer, including the Financial Audit and Seller shall be entitled to retain the remainder of the
Deposit. In the event (x) this Agreement is terminated by Buyer pursuant to Section 15.01(b), or Section 15.01(e); or (y)
the Closing has not occurred on or before the Outside Date or Extended Outside Date, as applicable, due to Seller’s failure to
close the Contemplated Transactions when all conditions precedent to Seller’s closing obligations set forth in Article XII shall
have been satisfied or waived in writing by Seller, then Buyer shall be entitled to a return of the Deposit and shall
not be obligated to pay to Seller the cost of the Swap Kit or the Audit. In the event (x) this Agreement is terminated By Seller pursuant
to Section 15.01(c), or Section 15.01(d), or (y) the Closing has not occurred on or before the Outside Date or Extended
Outside Date, as applicable, due to Buyer’s failure to close the Contemplated Transactions when all conditions precedent to Buyer’s
closing obligations set forth in Article XI shall have been satisfied or waived in writing by Buyer (where the condition precedent set
forth in Section 11.07 shall be deemed automatically waived for purposes of this Section 15.04(b)), then Seller shall be
entitled to retain the Deposit and Buyer shall pay to Seller the cost of the Swap Kit and the Audit, and Buyer shall make such payment
to Seller prior to the expiration of thirty (30) calendar days from the termination date. For the avoidance of doubt, if Buyer cannot
close due to its failure to secure financing, Buyer shall remain obligated to pay for the Swap Kit and the Audit, and Seller shall be
entitled to retain the Deposit. The Deposit is not a penalty, but is liquidated damages in a reasonable amount that will compensate Seller
in the circumstances in which such fee is payable for the efforts and resources expended and opportunities foregone while negotiating
this Agreement, reputational damage suffered as a result of the Parties not completing the transaction, the time and expense in undergoing
the process of marketing the Assets and in reliance on this Agreement and on the expectation of the consummation of the Contemplated
Transactions, which amount would otherwise be difficult to calculate with any precision. Retention of the Deposit shall be Seller’s
sole and exclusive remedy for default by Buyer hereunder
15.05
Remedies. Subject to the provisions of Section 15.04(b), each of the Parties acknowledges and agrees that the
other Party would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their
specific terms
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or otherwise
are breached. Accordingly, each of the Parties shall be entitled to seek remedies in accordance with Section 16.09 and 16.10.
ARTICLE
XVI
ARBITRATION
16.01
Dispute Resolution. Any Claim arising out of or relating to this Agreement, the Closing Documents (excluding the Commercial
Agreements, which shall be governed by the terms thereof), or the performance, breach, validity, interpretation, application, or termination
thereof (a “Dispute”), whether based on contract, tort, statute or other legal or equitable theory (including
any Claim of fraud, misrepresentation or fraudulent inducement or any question of validity or effect of this Agreement including this
Section 16.01) shall be settled by binding arbitration initiated upon the written notice of any Party (the “Arbitration
Notice”). The arbitration shall be conducted in accordance with this Agreement and the then current AAA Commercial Arbitration
Rules including Procedures for Large, Complex Commercial Disputes (collectively, the “AAA Rules”), and administered
by the AAA and judgment on the award may be entered in any court having jurisdiction thereof.
16.02
Seat of the Arbitration and Governing Law.
(a)
The seat of the arbitration shall be Houston, Texas.
(b)
The language of the arbitration shall be English.
(c)
Upon agreement of the Parties and the arbitrators, pre-hearing conferences and evidentiary hearings may be held in other locations,
however the seat of the arbitration will be deemed to remain unchanged and any awards or orders will be deemed to have been made at the
seat of the arbitration.
(d)
The arbitrator(s) shall decide the issues submitted as arbitrators at law only and the arbitral panel shall base its award, and
any interim awards, upon the terms of this Agreement and the substantive laws of the State of Texas, excluding the conflicts provisions
of such law. The arbitral panel is not empowered to and shall not act as amiable compositeurs or ex aequo et bono.
16.03
Selection and Appointment of Arbitrator(s).
(a)
All Disputes shall be heard and determined by three arbitrators. All arbitrators shall be independent and impartial.
(b)
The Parties shall, within 20 days after the Arbitration Notice, each select one person to act as arbitrator. The two arbitrators
so selected shall, within 20 days of their appointment, select a third arbitrator who shall serve as the chairperson of the arbitral
panel.
(c)
If there are more than two claimants or respondents, then unless the Parties agree otherwise, the AAA shall appoint all three
arbitrators.
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(d)
If three arbitrators are to be appointed and a Party fails to appoint an arbitrator as provided herein, or if the arbitrators
selected by the Parties are unable or fail to agree upon a third arbitrator within 20 days of their appointment, then that arbitrator
shall be selected and appointed by the AAA.
(e)
Should an arbitrator die, resign, refuse to act, or become incapable of performing his or her functions as an arbitrator, the
AAA may declare a vacancy on the arbitral panel. The vacancy shall be filled by the method by which that arbitrator was originally appointed.
(f)
The arbitrators shall be bound by and shall follow the then current ABA/AAA Code of Ethics for Arbitrators in Commercial Disputes.
(g)
The arbitrators shall have the power to rule on their own jurisdiction and to decide any issues
of arbitrability.
16.04
Pre-Hearing Procedure and Disposition.
(a)
At the request of a Party, the arbitral panel may take such interim measures and make such interim orders as it deems necessary,
including measures for the preservation of assets, the conservation of goods, or the sale of perishable goods. The arbitral panel may
require appropriate security as a condition of ordering such measures.
(b)
At any time after the arbitral panel is constituted and upon motion of any Party, the arbitral panel may hear and determine any
preliminary issue of law asserted by a Party to be dispositive, in whole or in part, of any claim or defense, pursuant to such procedures
as the arbitral panel deems appropriate.
(c)
At any time after the arbitral panel is constituted and upon motion of any Party, the arbitral panel may summarily determine and
dismiss, in whole or in part, any Claim or issue in dispute (i) if the Party asserting it has failed to state a Claim as a matter
of law, or (ii) if the pleadings and evidence show that no genuine issue of material fact exists with respect to any element of
the Claim or defense and that the moving Party is entitled to disposition of the Claim or defense as a matter of law.
(d)
If the arbitral panel deems it appropriate, keeping in mind the expedited nature of arbitration proceedings, the arbitral proceedings
may be bifurcated according to Claims or issues, and Claims or issues may be heard and determined separately as may be appropriate.
16.05
Discovery.
(a)
The Parties shall exchange copies of all exhibits and witness lists at a time to be determined by the arbitral panel. A Party
may request the other Party to produce relevant documents, to answer up to 10 interrogatories (including subparts), to respond to up
to 10 requests for admissions (which shall be deemed admitted if not denied), and to produce for deposition and, if requested, at the
hearing all witnesses that such Party has listed. Any additional discovery shall only occur by agreement of the Parties or as ordered
by the arbitral panel upon a finding of good cause.
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(b)
The arbitral panel shall take into account applicable principles of legal privilege and related protections, such as those involving
the confidentiality of communications between a lawyer and a client and the work product of a lawyer, and no Party or witness may be
required to waive any privilege recognized at law. The arbitral panel shall issue orders as reasonably necessary to protect the confidentiality
of proprietary information, trade secrets, and other sensitive information disclosed.
16.06
Awards and Relief.
(a)
All awards shall be in writing, shall state the reasoning upon which the award rests, and shall be final and binding on the Parties.
Any award shall be made and signed by at least a majority of the arbitrators. The Parties undertake to carry out the award without delay.
(b)
The arbitral panel is not empowered to and shall not award any of the Losses expressly disclaimed in Section 13.08(a).
(c)
The arbitral panel is expressly empowered to grant any remedy or relief not expressly prohibited
herein available under Applicable Law, including specific performance of this Agreement to the extent allowed by Applicable Law, declaration
of the validity, meaning, and effect of this Agreement and the rights or duties of the Parties hereunder, and, to the extent allowed
by Applicable Law, prohibiting or mandating actions by a Party with respect to the performance of this Agreement or matters arising out
of or in connection therewith.
(d)
In its award, the arbitral panel may apportion the costs of arbitration, including attorneys’ fees and expert costs between
or among the Parties in such manner as it deems reasonable, taking into account the circumstances of the case, the conduct of the Parties
during the proceedings, and the result of the arbitration, including requiring one Party to bear all or the majority of such costs.
(e)
If any Party fails or refuses to participate in arbitration as provided herein, the arbitral panel may award to the other Party
or Parties all costs associated with the arbitration, including attorneys’ fees and costs, arbitrator’s fees, and administrative
fees.
(f)
Unless otherwise ordered by the arbitral panel as part of its award, each Party shall bear its own costs and expenses and the
costs of arbitration, and the fees and expenses of the arbitrators and of any expert or other assistance engaged by the arbitral panel
shall be borne by the Parties to the arbitration in equal shares.
16.07
Effect of Failure to Participate or to Pay Advances of Costs and Fees.
(a)
The failure or refusal of any Party, having been given notice thereof pursuant to Section 17.01, to participate at any
stage of the arbitration shall not prevent the proceedings from continuing, nor shall such failure or refusal impair the validity of
the award or cause the award to be void or voidable, nor shall it be a basis for challenge of the validity or enforceability of the award
or of the arbitration proceedings.
(b)
If any Party fails to timely pay an advance on fees and costs ordered by the arbitral panel or the
AAA within twenty (20) days after the date set for such deposit, that Party
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shall be deemed
to be in default. The arbitral panel or the AAA shall then determine whether the funds on deposit are sufficient to satisfy the anticipated
estimated expenses for the proceeding to continue on an expedited basis without the participation of the defaulting Party. If so, the
proceeding will continue without the participation of the defaulting Party, and the Panel may enter an award on default. Prior to entering
an award on default, the arbitral panel shall require the non-defaulting Party to produce such evidence and legal argument in support
of its contentions as the arbitral panel may deem appropriate. The arbitral panel may receive such evidence and argument without the
defaulting Party’s presence or participation. If the funds on deposit are deemed insufficient to satisfy the estimated costs of
continuing as provided herein, the non-defaulting Party may make all or part of the requested deposit in an amount sufficient to allow
the proceeding to continue without the participation of the defaulting Party. If the non-defaulting Party chooses not to make the requested
deposit, the arbitral panel may suspend or terminate the proceedings.
16.08
Adherence to Time Limits.
In
accepting appointment, the arbitrator(s) shall commit that their schedules permit them to devote the reasonably necessary time and attention
to the arbitration proceedings and to the prompt and efficient resolution of the Dispute.
16.09
Interim Measures from the Courts in Aid of Arbitration.
Before
the constitution of the arbitral panel, any Party may request a court of competent jurisdiction to grant interim measures of protection:
(i) to seek an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement
and the terms and provisions hereof; (ii) to preserve the status quo pending resolution of the Dispute; (iii) to prevent the
destruction of documents and other information or things related to the Dispute; (iv) to prevent the transfer, dissipation, or hiding
of assets; and/or (v) to aid the arbitral proceedings and the award. A request for such interim measures to a judicial authority
shall not be deemed incompatible with or a waiver of a Party’s right to arbitrate a Dispute.
16.10
Consent to Jurisdiction. The Parties hereby consent to the jurisdiction of the state and federal courts located in
Houston, Texas for the enforcement of any award rendered by the arbitral panel and for assistance in aid of arbitration.
16.11
Confidentiality. Unless the Parties agree otherwise via a prior written agreement, the Parties, the arbitrator(s),
and the AAA shall treat the dispute resolution proceedings provided for herein, any related disclosures, and the decisions of the arbitral
panel, as confidential, except in connection with judicial proceedings ancillary to the dispute resolution proceedings, such as a judicial
challenge to, or enforcement of, the arbitral award, and unless otherwise required by law to protect a legal right of a Party.
ARTICLE
XVII
MISCELLANEOUS
17.01
Notices.
(a)
All notices or other communications required or permitted to be given hereunder shall be in writing and shall be delivered by
hand or sent by facsimile or other similar means of electronic communication (with a transmission confirmation), or sent, postage prepaid,
by certified or express mail, or reputable overnight courier service as follows:
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If to Buyer:
Vertex Energy
Operating LLC
1331 Gemini
Street, #250
Houston, Texas
77058
Attn: Ben Cowart,
CEO/President
With a copy
(which shall not constitute notice) to:
Ruddy Gregory
PLLC
44 Cook Street,
#640
Denver, Colorado
80206
Attn: James
P. Gregory, Esq.
If to
Seller:
Equilon
Enterprises LLC d/b/a Shell Oil Products US
Shell Chemical
LP
150 N. Dairy
Ashford Rd.
Houston, Texas
77079
Attn: Vice President,
Americas Downstream Acquisition and Divestments
With a copy
(which shall not constitute notice) to:
Shell Chemical
LP
150 N. Dairy
Ashford Rd.
Houston, Texas
77079
Attn: Associate
General Counsel, Downstream Portfolio
Any
Party may change the address to which such communications are to be directed to it by giving written notice to the other in the manner
above.
(b)
Any such communication so given or made shall be deemed to have been given or made and to have been received on the day of delivery
if delivered, or on the day of faxing or sending by other means of recorded electronic communication, provided that such day in
either event is a Business Day and the communication is so delivered, faxed, emailed or sent before 4:30 p.m. on such day. Otherwise,
such communication shall be deemed to have been given and made and to have been received on the next following Business Day. Any such
communication sent by mail shall be deemed to have been given and made and to have been received upon the earlier of the third Business
Day after deposit in the mail and the date of delivery as shown by the
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return receipt
therefor; provided, however that no such communication shall be mailed during any actual or apprehended disruption of postal services.
Any such communication given or made in any other manner shall be deemed to have been given or made and to have been received only upon
actual receipt.
17.02
Governing Law; Submission to Jurisdiction.
(a)
This Agreement and the Closing Documents (unless expressly provided otherwise therein) and the obligations of the Parties hereunder
and thereunder shall be governed by and construed and enforced in accordance with the substantive and procedural laws of the State of
Texas, without regard to rules on choice of law.
(b)
Subject to and without limiting the provisions of Article XVI, any action to enforce this Agreement or the Closing Documents
(unless expressly provided otherwise therein) may be properly venued in, and shall be brought in, the federal or state courts located
in Houston, Texas. Each Party agrees that it shall irrevocably submit to the jurisdiction of such courts for purposes of actions to enforce
the terms of this Agreement and the Closing Documents (unless expressly provided otherwise therein) and to service of process by certified
mail, delivered to the applicable Party at the address indicated herein. Each Party hereby irrevocably waives (on its own behalf and
on behalf of its other Indemnified Parties), to the fullest extent permitted by Applicable Law, any objection to personal jurisdiction,
whether on grounds of venue, residence or domicile. The Parties agree that a final judgment in any such claim shall be conclusive and
may be enforced in any other jurisdiction by suit on the judgment or in any other manner provided by Applicable Law.
(c)
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, EACH PARTY HEREBY IRREVOCABLY WAIVES AND COVENANTS THAT
IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING IN WHOLE OR IN PART UNDER, RELATED TO, BASED ON, OR IN CONNECTION WITH, THIS AGREEMENT, THE
CLOSING DOCUMENTS OR THE SUBJECT MATTER HEREOF, WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER SOUNDING IN TORT OR CONTRACT OR
OTHERWISE. ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 17.02(c) WITH ANY COURT AS WRITTEN EVIDENCE
OF THE CONSENT OF EACH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
17.03
Publicity. No Party shall issue any press release or public announcement concerning this Agreement or the Contemplated
Transactions without obtaining the prior written approval of the other Party hereto, which approval will not be unreasonably withheld,
conditioned or delayed, unless, in the sole judgment of the issuing Party disclosure is otherwise required by Applicable Law or the rules
or regulations of any securities exchange, whether in the United States or elsewhere (or upon advice of counsel such release or announcement
is appropriate or desirable under or in light of such laws and regulations), in which case the Party intending to make such release shall
use commercially reasonable efforts consistent with such Applicable Law to (a) consult in good faith with, and with
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appropriate
notice to, the other Party with respect to the timing and content thereof (including giving due consideration to all reasonable additions,
deletions or changes suggested in connection therewith) and (b) provide a copy thereof to the other Party prior to such issuance. Notwithstanding
the foregoing, Buyer and Seller shall cooperate to prepare a joint press release to be issued on the Closing Date and, upon the request
of either Buyer or Seller, at the time of the signing of this Agreement, such joint press release shall be transmitted by a Party to
the other Party for review and comment not less than seventy-two (72) hours (exclusive of Saturdays, Sundays, and holidays) before being
issued by the Party. Both Parties should use their best efforts to align on disclosure timing for release to take into consideration
earnings calls and/or black out periods.
17.04
Entire and Integrated Agreement.
(a)
This Agreement, the Schedules, the Disclosure Letter and Exhibits and the Closing Documents set
forth the entire agreement and understanding of the Parties in respect to the Contemplated Transactions and supersede all prior agreements,
arrangements and undertakings, whether written or oral, relating to the subject matter hereof (including the Confidentiality Agreement
which shall terminate and be of no further force or effect as of the Execution Date).
(b)
The Parties have agreed to enter into or deliver the Closing Documents contemporaneously with the
Closing. The Parties would not have executed this Agreement had the Parties not also agreed to execute or deliver, as applicable, the
Closing Documents at the Closing. The Parties acknowledge and agree that the Closing Documents are not stand-alone agreements but are
rather interrelated agreements that are inextricably intertwined. The Parties agree that if the Closing occurs and subsequent thereto
a Party or its Affiliates, as applicable, becomes a debtor or debtor-in-possession in a case under the Bankruptcy Code, the Closing Documents
will be assumed or rejected under 11 U.S.C. §365 as one integrated whole and the Closing Documents shall not be severable for purposes
of assumption or rejection, unless the Parties agree otherwise. The Parties’ rights under 11 U.S.C. §365 are preserved.
17.05
Assignment.
(a)
This Agreement and the Closing Documents (excluding the Commercial Agreements which shall be governed as provided therein) and,
except as otherwise provided in Article IX with respect to the Seller Intellectual Property, any rights and Obligations hereunder
or thereunder shall not be assignable or transferable by Buyer or Seller without the prior written consent of the other Party and any
purported assignment without such consent shall be automatically null and void and without effect. Without limiting the generality of
the preceding, the indemnification Obligations of Seller and Buyer pursuant to this Agreement and the Closing Documents (excluding the
Commercial Agreements) shall not be transferable or assignable in whole or in part without the other Party’s prior written consent
and any purported or attempted transfer or assignment by an Indemnifying Party shall be automatically null and void without the prior
written consent of the Indemnified Party. Notwithstanding the foregoing, Seller may assign or transfer any or all of its rights hereunder
to any qualified intermediary to complete a 1031 Exchange as contemplated in Section 14.04.
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(b)
The indemnification Obligations of Seller pursuant to this Agreement and the Closing Documents (excluding the Commercial Agreements)
shall automatically terminate and be of no further force or effect in the event and to the extent Buyer sells, transfers, assigns, conveys,
exchanges or otherwise disposes or leases to a Third Party any of the Assets (whether directly, indirectly, by operation of law or otherwise,
including in the event of a Change in Control of Buyer after the Closing) without Seller’s prior written consent (in which case
such indemnification Obligations shall terminate only with respect to those Assets and Claims related thereto that are sold, transferred,
assigned, exchanged or leased and shall otherwise remain in full force and effect), provided, however, Seller shall not unreasonably
withhold, condition or delay its consent.
(c)
Without limiting the provisions of Sections 17.05(a) and 17.05(b), following
the Closing, in the event Buyer, in any transaction or series of transactions, sells, transfers, assigns, conveys, exchanges or otherwise
disposes or leases to a Third Party all or substantially all of the Assets, then, in connection with, as a condition to, and no later
than the consummation of such transaction, Buyer shall cause the applicable acquirer to expressly assume Buyer’s Obligations under
this Agreement (including with respect to the Assumed Liabilities) and the Closing Documents (excluding the Commercial Agreements) by
joinder or other documentation reasonably satisfactory to Seller.
17.06
Amendment and Waiver. This Agreement may be amended, modified, superseded or canceled, and any of the terms, covenants,
representations, warranties or conditions hereof may be waived, only by a written instrument executed by the Parties, or, in the case
of a waiver, by or on behalf of the Party waiving compliance. The failure of any Party at any time or times to require performance of
any provision hereof shall in no manner affect the right at a later time to enforce the same. No waiver by any Party of any condition,
or of any breach of any term, covenant, representation or warranty contained in this Agreement, in any one or more instances, shall be
deemed to be or construed as a further or continuing waiver of any such condition or breach or a waiver of any other condition or of
any breach of any other term, covenant representation or warranty.
17.07
Expenses. Whether or not the Contemplated Transactions are consummated, and except as otherwise specifically provided
in this Agreement, all costs and expenses incurred in connection with this Agreement and the Contemplated Transactions, including legal,
due diligence, accounting and investment banking fees and expenses, shall be paid by the Party incurring such costs or expenses.
17.08
Schedules and Disclosure Letter. Matters listed once on the Schedules or the Disclosure Letter shall be deemed disclosed
with reference to all sections of the Schedules or the Disclosure Letter (including any disclosures made in amendments made pursuant
to Section 6.03 to the extent the applicability of such information is readily apparent. The listing (or inclusion of a copy)
of a document or other item in the Disclosure Letter shall be adequate to disclose an exception to a representation or warranty made
herein if the nature and relevance of such exception is readily apparent from the listing (or inclusion of a copy) of such document.
In addition, the posting of any document or other item in the Data Room prior to the Execution Date shall be deemed to be a disclosure
of such document or other item in any section of the Disclosure Schedules to which such document or other item is clearly relevant. The
inclusion of information in the Schedules or the Disclosure
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Letter
shall not be construed as an admission that such information is material to the Assets, the Assumed Liabilities or Seller. In addition,
matters reflected in the Schedules or the Disclosure Letter are not necessarily limited to matters required by this Agreement to be reflected
in such Schedules or the Disclosure Letter. Such additional matters are set forth for informational purposes only and do not necessarily
include other matters of a similar nature.
17.09
Legal Representation. Buyer and Seller acknowledge that each of them has been represented by counsel in connection
with this Agreement and the Contemplated Transactions. Accordingly, any rule of law or any legal decision that would require interpretation
of any claimed ambiguities in this Agreement against the Party that drafted it has no application and is expressly waived.
17.10
Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be valid
and effective under Applicable Law, but if any provision of this Agreement or the application of any such provision to any Person or
circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality
or unenforceability shall not affect any other provision hereof.
17.11
Bulk Transfer Laws. Buyer hereby waives compliance by Seller with the provisions of any so-called bulk transfer laws
of any jurisdiction in connection with the purchase and sale of the Assets. Seller shall indemnify, defend and hold Buyer harmless (subject
in all respects to Article XIII) from any Losses that Buyer may incur due to failure to so comply in accordance with Section
13.02(d).
17.12
No Third-Party Beneficiaries. Except as provided with respect to indemnification for Indemnified Parties as set forth
in Article XIII and elsewhere in this Agreement, nothing in this Agreement shall confer any rights upon any Person other than
the Parties and their respective permitted successors and assigns.
17.13
Binding Effect. Subject to the provisions hereof restricting assignment, this Agreement shall be binding upon and shall
inure to the benefit of the Parties and their respective successors and permitted assigns.
17.14
Time of Essence. Time is of the essence with regard to all dates and time periods set forth or referred to in this
Agreement.
17.15
Confidentiality.
(a)
Each of Seller and Buyer (on behalf of themselves and each of their respective Affiliates and Representatives) acknowledges that
the information and material, in whatever form, including this Agreement and the Closing Documents (collectively, the “Confidential
Information”) disclosed or made available to it by, and relating to, the other (and its Affiliates) prior to the Effective
Time is confidential. Each of Seller and Buyer (on behalf of themselves and each of their respective Affiliates and Representatives)
further agrees that it shall use commercially reasonable efforts not to make or permit disclosure of the Confidential Information to
any Person, other than their Affiliates and their respective Representatives (including collective bargaining representatives) to whom
such disclosure is necessary or
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convenient for
the completion of the Contemplated Transactions (including compliance with the terms and condition of any Material Contract), and except
in an arbitration proceeding as described in Article XVI or as may be required by Applicable Law or a court of competent jurisdiction.
Each of Seller and Buyer (and their respective Affiliates) shall appropriately notify each Representative to whom any such disclosure
is made that such disclosure is made in confidence and shall be kept in confidence and shall not be used in any capacity except for the
operations of the Assets by Buyer. During the Interim Period, Seller and Buyer will cooperate in establishing “clean teams”
where required or advisable in order to facilitate the review of Confidential Information that is competitively sensitive and that may
be reasonably necessary for due diligence, transition, or integration purposes.
(b)
Each of Seller and Buyer (and their respective Affiliates and Representatives) agrees to use diligent efforts in accordance with
customary and reasonable commercial practice, and at least with the same degree of skill and care that it would manifest in protection
of its own confidential information, to protect the Confidential Information.
(c)
Each of the Parties (on behalf of themselves and each of their respective Affiliates and Representatives) agrees to notify the
other Party promptly, in the event that it becomes aware of the unauthorized possession or use of the Confidential Information (or any
part thereof) by any Third Party, including any of its Representatives. Each of Seller and Buyer (and their respective Affiliates and
Representatives) agrees to cooperate with the other Party in connection with the other Party’s efforts to terminate or prevent
such unauthorized possession or use of its Confidential Information.
(d)
Each of Seller and Buyer (on behalf of themselves and each of their respective Affiliates and Representatives) acknowledges that
the other will suffer injury for which the other will not have an adequate remedy at law, in the event of a breach of the provisions
of this Section 17.15, and that the other shall be entitled to injunctive relief as is reasonably necessary to prevent or
curtail such breach, whether actual or threatened; provided, that, in no event (including a Willful Breach of this Agreement by
Seller or Buyer, respectively) shall Seller or Buyer (or their respective Affiliates and Representatives) be prevented from exercising
all of the rights granted to it hereunder.
(e)
Notwithstanding any provision to the contrary contained in this Agreement, the Obligations of each of Seller and Buyer (and their
respective Affiliates and Representatives) to maintain the confidentiality of the Confidential Information it receives (each in such
capacity a “Receiving Party”) shall not apply to any portion of the Confidential Information that:
(i)
is or becomes generally available to the public through no fault of the Receiving Party, including
information in the public domain;
(ii)
the Receiving Party receives from a Third Party without any requirement to keep such information
secret;
(iii)
the Receiving Party can prove was in its possession without any obligation of secrecy at the time
of its disclosure; or
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(iv)
the Receiving Party develops independently of and without reference to or use of the Confidential
Information.
(f)
Buyer shall not use (and shall be responsible in the event any of its Representatives use) the Confidential Information prior
to the Closing for any other purpose other than the evaluation of the Contemplated Transactions.
(g)
In the event of any inconsistency between the provisions of this Section 17.15 and the confidentiality provisions
of any Closing Document, the provisions of any Closing Document shall control with respect to any matters addressed by such Closing Document.
(h)
In the event this Agreement is terminated for any reason, at the request of Seller, Buyer shall within 20 days after receiving
such request return to Seller all written Confidential Information, including all photocopies of the same.
(i)
The provisions of this Section 17.15 shall remain in force for a period of five years from the later of the Execution
Date or the Closing Date. The terms of this Section 17.15 shall survive the termination or expiration of this Agreement.
(j)
If the Closing occurs, Seller agrees to treat information it possesses concerning the historical operation of the Assets as Confidential
Information.
(k)
Seller and Buyer do not intend for any obligations of confidentiality contained herein to limit disclosure of the transaction
in any way that would cause it to be treated as a “confidential transaction” under Treasury Regulation 1.6011-4(b)(3).
17.16
Electronic Signatures. Notwithstanding the Electronic Signatures in Global and National Commerce Act (15 U.S.C. Sec.
7001 et. seq.), the Uniform Electronic Transactions Act, or any other Applicable Law relating to or enabling the creation, execution,
delivery, or recordation of any Contract or signature by electronic means, and notwithstanding any course of conduct engaged in by the
Parties, no Party shall be deemed to have executed this Agreement or other document contemplated thereby (including any amendment or
other change thereto) unless and until such Party shall have executed this Agreement or other document on paper by a handwritten original
signature or any other symbol executed or adopted by a Party with current intention to authenticate this Agreement or such other document
contemplated. Delivery of a copy of this Agreement or such other document bearing an original signature by facsimile transmission (whether
directly from one facsimile device to another by means of a dial-up connection or whether mediated by the worldwide web), by electronic
mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original
graphic and pictorial appearance of a document, shall have the same effect as physical delivery of the paper document bearing the original
signature. “Originally signed” or “original signature” means or refers to a signature that has not been mechanically
or electronically reproduced.
17.17
Anti-Corruption; Trade Controls.
(a)
Notwithstanding Section 4.07(a), Seller:
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(i)
is aware of, during the Interim Period will comply with and has not violated Anti-Corruption Laws
or Trade Control Laws and is not a Restricted Party;
(ii)
whether directly or indirectly, has not made, offered, authorized or accepted and will not make,
offer, authorize, or accept any payment, gift, promise, or other advantage, to or for the use or benefit of any Government Official or
any other Person where that payment, gift, promise, or other advantage would comprise a facilitation payment or otherwise violate the
Anti-Corruption Laws or any other Applicable Law, or which would cause Buyer to be in breach of any Anti-Corruption Laws;
(iii)
has maintained and will maintain adequate written policies and procedures to comply with Anti-Corruption
Laws;
(iv)
has maintained and will maintain adequate internal controls, including but not limited to using
reasonable efforts to ensure that all transactions are accurately recorded and reported in its books and records to reflect truly the
activities to which they pertain, such as the purpose of each transaction, with whom it was entered into, for whom it was undertaken,
or what was exchanged;
(v)
will, to its knowledge, retain such books and records for the period required by Applicable Law
or Seller’s own retention policies, whichever is longer;
(vi)
is not a Governmental Official, and to the best of its knowledge exercising reasonable diligence, no officer, agent or employee
engaged by Seller or acting on Seller’s behalf is a Government Official;
(vii)
will, in the event Seller becomes aware it has breached an obligation in this paragraph, promptly
notify Buyer, subject to the preservation of legal privilege; and
(viii)
shall make payments to Buyer, except with Buyer’s prior written consent.
(b)
Notwithstanding Section 5.05, Buyer:
(i)
is aware of, during the Interim Period will comply with and has not violated Anti-Corruption Laws
or Trade Control Laws and is not a Restricted Party;
(ii)
whether directly or indirectly, has not made, offered, authorized, or accepted and will not make,
offer, authorize, or accept any payment, gift, promise, or other advantage, to or for the use or benefit of any Government Official or
any other Person where that payment, gift, promise, or other advantage would comprise a facilitation payment or otherwise violate the
Anti-Corruption Laws or any other Applicable Law, or which would cause Seller to be in breach of any Anti-Corruption Laws;
(iii)
has maintained and will maintain adequate written policies and procedures to comply with Anti-Corruption Laws or, alternatively,
has made itself aware of and shall adhere to the Shell General Business Principles and the Shell Code of Conduct (www.shell.com/about-us/our-values);
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(iv)
has maintained and will maintain adequate internal controls, including but not limited to using
reasonable efforts to ensure that all transactions are accurately recorded and reported in its books and records to reflect truly the
activities to which they pertain, such as the purpose of each transaction, with whom it was entered into, for whom it was undertaken,
or what was exchanged;
(v)
will, to its knowledge, retain such books and records for the period required by Applicable Law
or Buyer’s own retention policies, whichever is longer;
(vi)
is not a Governmental Official, and to the best of its knowledge exercising reasonable diligence,
no officer, agent or employee engaged by Buyer or acting on Buyer’s behalf is a Government Official;
(vii)
will, in the event it becomes aware it has breached an obligation in this paragraph, promptly notify
Seller, subject to the preservation of legal privilege;
(viii)
has used and will use reasonable efforts to require any subcontractors, agents, or any other Third
Parties to also comply with the foregoing requirements in this Section;
(ix)
and any Person who has acted on its behalf in connection with this Agreement has not been and is
not now involved in internal or external investigations or discussions with any Government Authority related to potential or actual breaches
of Trade Control Laws or Anti-Corruption Laws;
(x)
warrants that all information provided by Buyer to Seller in connection with Seller’s integrity
due diligence is accurate; and
(xi)
shall make payments to Seller, except with Seller’s prior written consent.
(c)
Prior to Closing and notwithstanding any other provision of this Agreement, if a Party becomes a
Restricted Party, is listed on the Restricted Party list, or is held liable for violation of Anti-Corruption Laws or Trade Control Law,
in each case, in connection with the Contemplated Transactions, then this Agreement shall terminate upon a notice of termination being
provided by the other Party to such Party.
17.18
Counterparts. This Agreement may be executed simultaneously in one or more counterparts (including by means of signature
pages delivered by facsimile transmission or electronic mail), all of which shall be considered one and the same agreement, and shall
become effective when one or more such counterparts have been signed by each of the Parties and delivered to the other Party. Facsimile
or scanned and emailed transmission of any signed original document or retransmission of any signed facsimile or scanned and emailed
transmission will be deemed the same as delivery of an original. At the request of any Party, the Parties will confirm facsimile or scanned
and emailed transmission by signing a duplicate original document.
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IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers or representatives of Buyer and
Seller as of the day and year first above written.
| SELLER: |
SHELL CHEMICAL
LP
By: /s/ Sean Clarry
Name: Sean Clarry
Title: President
|
BUYER: |
EQUILON ENTERPRISES
LLC d/b/a SHELL OIL PRODUCTS US
By: /s/ Patrick F. Southwick
Name:
Patrick F. Southwick
Title:
Vice President - Portfolio
SHELL OIL COMPANY
By: /s/ Keith Probyn
Name: Keith Probyn
Title: Vice President
Real Estate
VERTEX ENERGY
OPERATING LLC
By: /s/ Benjamin Cowart
Name: Benjamin
Cowart
Title: President/CEO |
| |
|
Sale and Purchase Agreement
Signature Page
