Exhibit 10.1
SALE AGREEMENT BETWEEN THE COMAPNY AND UNION OIL
COMPANY OF CALIFORNIA, DATED JUNE 4, 1999
June 4, 1999
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Able Oil Company
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CONTRACT NO.: 99120
We are pleased to confirm a sale agreement reached June 4, 1999 between UNOCAL,
hereafter called "Seller" and Able Oil Co., hereinafter called "Buyer" under the
following terms and conditions. In any future correspondence concerning this
agreement, please refer to UNOCAL contract number above.
Seller: Union Oil Company of California d.b.a UNOCAL
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Buyer: Able Oil Co.
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PRODUCT:
No. 2 Heating Oil meeting NYMEX grade summer specifications.
QUALITY:
Approximately 12,000bbls adjusted to 60 degrees F.
LOCATION:
For Able Oil Terminal, Rockaway, NJ
DELIVERY TIMING:
During June 1999 as mutually scheduled.
SALES SCHEDULE: Buyer agrees to purchase product according to the following
schedule.
MONTH BARRELS
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Nov 99 1,000
Dec 99 3,000
Jan 00 4,000
Feb 00 4,000
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12,000
PRICE:
The purchase price for FOB delivered basis Buyer's terminals listed in the
delivery clause herein shall be set when Buyer notifies UNOCAL by phone on a
business day during normal NYMEX trading hours (9:50am - 3:10pm est.) to
purchase, in minimum 1,000 barrel increments, the delivery month NYMEX Heating
oil contract prior to it expiration will be used. This price minus the
differential of USD -.0100 per gallon shall be the established price for this
contract for all barrels delivered in accordance with the schedule below.
Buyer has the option to purchase and lift barrels prior to the delivery month
listed below, provided that the quantities, as broken down below, are priced
based on the corresponding NYMEX delivery month listed below, and that the
product is available.
PRICING/SALES SCHEDULE:
DELIVERY MONTH NYMEX CONTRACT FIXED DIFF/$GAL QUANTITY (BBLS)
PRICING MONTH
Nov 99 Nov 99 -0100 1,000
Dec 99 Dec 99 -0100 3,000
Jan 00 Jan 00 -0100 4,000
Feb 00 Feb 00 -0100 4,000
Buyer has the option to set prices, beyond the current delivery month subject to
the maximum exposure hereunder. If, on a ▇▇▇▇-to-market basis, Seller's total
exposure on the forward-priced barrels plus accounts receivable exceeds the
credit limit Buyer shall, within two (2) business days of UNOCAL's written
request, either prepay, open an irrevocable letter of credit acceptable to
Seller or deposit with UNOCAL such collateral as UNOCAL may request as security
for the payment of amounts due or that may become due by Buyer to UNOCAL under
this agreement.
Buyer is required to purchase at least the minimum monthly quantities listed
above. Therefore any barrels no previously priced and invoiced will be priced on
the settlement price on the last trading day at the expiration of the relevant
delivery month contract on the NYMEX plus the fixed differential.
ROLLING OPTION:
Unpurchased barrels may be rolled to the following month. A time value of money
charge of $.0045 per gallon plus the gain or loss on the NUMEX roll will be
added to the differential.
DELIVERY:
F.O.B. delivered into Buyer's stock inventory at Able Oil terminal in Rockaway,
NJ per the schedule shown in the price clause herein. Prior to sale product will
be stored under the terms of the Throughput/Storage Agreement between Able and
UNOCAL.
Upon completion of delivery of UNOCAL's product into Buyer's storage terminal
per the terms of the above referenced Throughput/Storage Agreement, the volumes
delivered into the terminal will be confirmed in writing by telex or telecopy by
Seller to Buyer and this confirmation will serve to identify the quantities sold
under the terms of this sales agreement.
INSPECTION:
Loading rack meter ticket at Motiva, Newark, NJ truck rack to Able Oil trucks.
TITLE:
Title to the oil delivered hereunder shall pass to buyer on effective date of
the in-tank stock transfer/release.
All product volumes delivered into Buyers terminal and to be purchased by Buyer
based on as determined by Rack meter tickets and adjusted to 60 degrees F.
PAYMENT:
As pre-payment terms, payment due prior to release of product.
For volumes being priced in the current delivery month:
Within one (1) working day of the time product is priced, Seller will telefax
invoice to Buyer. Payment is due in US dollars prompt upon receipt of invoice.
For volume priced in previous months:
On the first working day of the delivery month, Seller will invoice prepriced
barrels with payment due prompt upon receipt of invoice.
For any miscellaneous charges, other than product invoices, payment shall be
paid prompt upon receipt of invoice.
Should Buyer lift any product prior to reaching price agreement with Seller, it
will be considered breach of contract and all funds due hereunder shall become
immediately due and payable.
Payment without deduction, offset, or counterclaim, is to be made by wire
transfer, free of all charges that Seller's account is credited in same day
(usable) funds to:
Payment Instructions: Wire transfer to:
Union Oil Company of California
Northern Trust Company
Chicago, Illinois
ABA Routing No.: ▇▇▇▇▇▇▇▇▇
For credit to Account No.: 54356
Location Code in first text field NGL-0225
Buyer shall identify by number Union Oil invoices being paid in the wire
transfer comments.
In the event payment is not received when due it shall bear interest at 1.5% per
month for each month or portion of a month thereafter during which such amount
remains unpaid.
CREDIT:
Buyer to satisfy UNOCAL's credit requirements as per price clause above. Buyer
to have $50,000 credit unless notified by Seller upon UNOCAL's credit department
review that Buyer shall either prepay or establish a letter of credit through a
first class bank and in a format acceptable to Seller.
FORCE MAJEURE:
Seller shall not be obligated to deliver or Buyer obligated to received product
hereunder when, while and to the extent that seller is prevented from obtaining
or making deliveries or Buyer is prevented from receiving it in the customary
manner, due to events caused by acts of God; fires, strikes, or other labor
disturbances; war; declared or undeclared, embargoes; perils of the sea;
accident; acts, requests or orders of civil or military authorities; or any
cause whatsoever beyond the control of Seller or Buyer, whether or not similar
to the causes herein specified.
Where the shipment is by pipeline, Seller shall also have the same rights under
force majeure as granted to the pipeline carrier by the relevant tariff, in any.
In any event, if the goods are lost in-transit, Seller shall be entitled to
allocate the volume remaining among all customers on a prorata basis.
Notwithstanding the foregoing provisions, Buyer shall not be relieved of any
obligation to make payments, in US dollars, for the oil/product delivered
hereunder or any other payment obligations already incurred.
TAXES:
All taxes, fees, and dues (except for New York State Spill Tax), now or
hereafter imposed by federal, state or local governments, in respect to or
measured by the products delivered hereunder or the manufacture, storage,
delivery, receipt, exchange or inspection thereof, shall be for the account of
Buyer. Upon receipt of invoice thereof, Buyer shall reimburse Seller for any
such taxes fees or dues legally required to be paid. Each party respectively
warrants that he is properly licensed to Buy/Sell this product in the state of
tile transfer exempt of tax and, if required, shall furnish a valid federal and
state license and/or registration number to the requesting party.
If this transaction results in payment of New York, Connecticut, or New Jersey
gross receipt taxes or any other state taxes by supplier, then these taxes shall
appear as a separate item on the invoice and will be due and payable to supplier
in accordance with the payment terms of this contract.
LIQUIDATION CLAUSE:
Without limiting any other rights that may be available to the liquidating
party, in the event that a party hereto (the defaulting party) shall (A) become
bankrupt or insolvent, however evidenced, or (B) file a petition or otherwise
commence a proceeding under any bankruptcy, insolvency or similar law, or have
any such petition filed or proceeding commenced against it, or (C) have a
liquidator, administrator, receiver or trustee appointed with respect to it or
any substantial portion of its property or assets, or (D) fail to give adequate
security for, or assurances of its ability to perform, its obligations - then in
any such event the performing party shall have the right to liquidate any or all
forward contracts when outstanding at anytime or from time to time thereafter by
declaring any and all such contracts terminated (whereupon they shall
automatically be declaring any and all such contracts terminated (whereupon they
shall automatically be terminated, except for the payment obligation referred to
below), calculating the difference, if any, between the price specified therein
and the market price for relevant commodity (as determined by the liquidating
party in a commercially reasonable manner at a time or times reasonably
determined by the liquidating party), and aggregating or netting such market
damages to a single liquidated settlement payment that will be due and payable
upon demand thereof. The non-performing party shall indemnify and hold the
performing party harmless from all costs and expenses of collection, including
reasonable attorneys fees, incurred in the exercise of any remedies hereunder.
The parties hereto acknowledge that this contract constitutes a forward contract
for purposes of Section 556 of the USA Bankruptcy Code.
ASSIGNMENT:
Neither Seller nor Buyer shall assign the whole or any part of its rights and
obligations hereunder directly or indirectly without prior written consent of
the other party. Assignor remains responsible for non-performance.
OTHER:
Buyer will give UNOCAL a no cost Throughput Agreement at inventory terminal
locations.
UNOCAL will file UCC-1's for product stored at inventory terminals.
UNOCAL will supply barrels at Motiva, Newark, NJ truck rack. Able Oil will enter
into an exchange agreement whereby Able gives UNOCAL the FOB load
quantity/quality at Able inventory location that UNOCAL supplies at Motiva
rack.
At UNOCAL's expense, independent inspectors will be allowed to gauge the
inventory at Able Oil terminal.
There are no guarantees or warranties, express or implied, of merchantability,
fitness, suitability of the oil/product for any particular purpose, or
otherwise, which extend beyond the description of the face hereof. Under no
conditions shall any claim be made under this contract for prospective profits
of special, indirect, or consequential damages resulting from a breach of
warranty herein. The foregoing limitations on damages shall not apply to claims
of property damage, death, or personal injury.
Our coordinators is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Our financial contact is: ▇▇▇ ▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
This instrument contains the complete agreement of both parties and cannot be
modified unless in writing. Any other amendments received shall be deemed
proposals to this contract unless confirmed in writing by seller.
Able Oil Company Union Oil Company of California
By:_________________________________ By:___________________________________
Title:______________________________ Title:________________________________
Date:_______________________________ Date:_________________________________