PENN OCTANE CORPORATION/EXXON COMPANY, U.S.A.
SALE AGREEMENT
PENN NO. ___/EXXON NO. PEB221
* The Sale Agreement set forth below hereby replaces the Sale Agreement which
had an effective date of November 1, 1997, entered into by and between
Exxon Company, U.S.A. (a division of Exxon Corporation), hereinafter called
"Exxon" and Penn Octane Corporation, hereinafter called "Penn".
* The Sale Agreement (November 1, 1997) is revised effective November 1,
1998, to revise the volume and pricing and to extend the term through
September 30, 1999.
Penn and Exxon agree to a product sale as outline below:
1. TERM OF AGREEMENT
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* This Agreement shall begin with the first shipment to Penn in November 1998
and shall continue through September 30, 1999.
2. PRODUCT VOLUMES/PRICES
-----------------------
* Exxon agrees to deliver to Penn the approximate product volumes show on
Exhibit A during the term of this Agreement at the location and pricing
basis outlined in Exhibit A.
3. PRODUCT SPECIFICATIONS
-----------------------
Exxon shall deliver to Penn products that meets applicable federal, state
and local requirements, as shown below:
- Propane Butane Mix: 90 vol % Propane and 10 vol % Butane, meeting HD5
------------------
spec unodorized.
4. GENERAL PROVISIONS
-------------------
Exxon's General Provisions dated December 1996 and attached as Exhibit C
are incorporated herein by reference and made a part hereof.
5. EXPORTS/IMPORTS
---------------
This is a domestic transaction. Penn is responsible for obtaining export
licenses and/or export documentation required for any subsequent
exportation that may occur.
6. ACCOUNTING
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Forward all shipping documents, statements, and invoices, and demurrage
claims to:
PENN OCTANE CORPORATION
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Page 1 of 2
Send payments by wire transfer to:
CITIBANK, N.A.
ABA ▇▇▇▇-▇▇▇▇-▇
Credit to Exxon Company U.S.A.
Regular Account # ▇▇▇▇▇▇▇▇
7. INVOICE PAYMENT METHOD/TERMS
------------------------------
In accordance with Exhibit C, General Provisions, except that invoices
shall be issued weekly and shall be paid by wire transfer with payment due
twelve (12) working days from receipt of invoice and acceptable supporting
documentation. If the invoice and acceptable supporting documentation are
received at the billing address on or before 12:00 noon on a working day,
working day 1 begins on that day. If the invoice and acceptable supporting
documentation are received at the billing address after 12:00 noon (or on a
non-working day), working day 1 begins on the first working day following
receipt.
If the transaction if effected via book transfer, quantity to be exact
barrels. Payment due date shall be the effective book transfer date,
provided the invoice and book transfer confirmation have been received by
12:00 noon on the day preceding the effective book transfer date;
otherwise, the payment due date shall be the next business day following
receipt of invoice and book transfer confirmation.
8. CREDIT PROVISIONS
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Penn agrees to provide a letter of credit acceptable to Exxon. Credit
balances shall be monitored by Exxon, and amendments to the letter of
credit may be required when it appears that those balances may exceed
current security levels. Timely receipt by Exxon of acceptable security and
amendments is a condition precedent to Exxon's performance under this
Agreement. Any letter of credit provided to Exxon must be issued in a
format, for and amount, by a bank and for a time duration acceptable to
Exxon.
9. EXHIBITS
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The following Exhibits are attached and are a part of this Agreement. All
references herein to the Agreement shall include the applicable Exhibits.
Exhibit A - Product Volumes/Locations/Differentials
Exhibit B - Product Specifications - Note Used (see paragraph 3)
Exhibit C - General Provisions
EXXON COMPANY, U.S.A. PENN OCTANE CORPORATION
a division of Exxon Corporation
BY _________________________________ BY _____________________________
▇.▇. ▇▇▇▇▇▇▇▇▇▇
Manager, Products and Gas Liquids TITLE __________________________
DATE _________________________________ DATE ___________________________
Page 2 of 2
EXHIBIT A
PRODUCT VOLUMES/LOCATIONS/DIFFERENTIALS
PENN NO. _______/EXXON NO. PEB221
SALE AGREEMENT
EXXON DELIVERS
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*Quantity
Product Method Approximate *Exxon Receives
Location Description of Delivery Measurement Bbls/Daily Price
------------------ -------------- ---------------- --------------- ----------------- ---------------
Exxon's King Ranch Propane/Butane Into UCC By meter ticket 9,000 (Nov - Mar) (1)
Gas Plant. . . . . Mix ▇▇▇▇-Brownsville at origin 6,600 (Apr - Sep)
6" pipeline
* (1) Price - Mt. Belvieu, TX Oil Price Information Service (OPIS) NON TET price average for the
first business day for interim pricing less x.x xxxx per gallon for each product.
Invoices will be issued weekly. At the end of the month, pricing will be adjusted to the
Mt. Belvieu OPIS NON TET day weighted average for the delivery month for each product less
x.x xxxx per gallon.
Page 1 of 1
EXHIBIT C
EXXON COMPANY, U.S.A. (A DIVISION OF EXXON CORPORATION)
PETROLEUM PRODUCTS & NATURAL GAS LIQUIDS
----------------------------------------
DECEMBER 1996
INDEX TO GENERAL PROVISIONS
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Page Number
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1. Special Provisions Shall Govern . . . 1
2. Deliveries. . . . . . . . . . . . . . 1
3. Volumes . . . . . . . . . . . . . . . 1
4. Measurements. . . . . . . . . . . . . 1
5. Data Integrity. . . . . . . . . . . . 1
6. Inspection. . . . . . . . . . . . . . 2
7. Title . . . . . . . . . . . . . . . . 2
8. Importer/Exporter of Record . . . . . 2
9. Drawback. . . . . . . . . . . . . . . 2
10. Warranty. . . . . . . . . . . . . . . 2
11. Additional Equipment. . . . . . . . . 3
12. Safety Regulations. . . . . . . . . . 3
13. Safety and Health Information . . . . 3
14. Statements and Invoices (Exchanges) . 3
Payment (Purchases and Sales) . . . . 3
15. Taxes . . . . . . . . . . . . . . . . 4
16. Financial Responsibility. . . . . . . 4
17. Exchange Basis. . . . . . . . . . . . 4
Balances Products . . . . . . . . . . 5
Balances Natural Gas Liquids. . . . . 5
Exchange Imbalances . . . . . . . . . .5
18. Set-Off . . . . . . . . . . . . . . . 5
19. Continuing Obligation . . . . . . . . 5
20. Applicable Laws . . . . . . . . . . . 5
21. Compliance with Laws and Regulations. 5
22. Product Compliance and Documentation. 5
23. Indemnity . . . . . . . . . . . . . . 6
24. Claims. . . . . . . . . . . . . . . . 6
25. Waiver. . . . . . . . . . . . . . . . 6
26. Force Majeure and Contingencies . . . 6
27. Business Practices. . . . . . . . . . 7
28. Conflict of Interest. . . . . . . . . 7
29. Audit . . . . . . . . . . . . . . . . 7
30. Assignment. . . . . . . . . . . . . . 7
31. Odorization . . . . . . . . . . . . . 7
32. Quality . . . . . . . . . . . . . . . 8
33. Storage . . . . . . . . . . . . . . . 8
34. Demurrage on Tank Cars. . . . . . . . 8
PAGE ▇ ▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇.▇.
GENERAL PROVISIONS
EXXON COMPANY, U.S.A. (A DIVISION OF EXXON ORPORATION)
PETROLEUM PRODUCTS & NATURAL GAS LIQUIDS
GENERAL PROVISIONS FOR EXCHANGE, PURCHASE, AND SALE AGREEMENTS
1. Special Provisions Shall Govern - All provision of this Agreement
----------------------------------
(including amendments) other than the "General Provisions" and "Marine
Provisions" (if applicable) comprise the "Special Provisions". In the event
of any conflict between the Special Provisions and the General Provisions,
the Special Provisions shall govern. In the event of any conflict between
the Marine Provisions and the General Provisions, the Marine Provisions
shall govern.
2. Deliveries - Deliveries shall be made at such times within the contract
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delivery window, as may be required by Receiving Party provided that
reasonable advance notice of each delivery has been given by the Receiving
Party. At the time of giving notice, the Receiving Party shall furnish
Delivering Party all necessary shipping instructions. At the time of
delivery, the Delivering Party shall prepare and furnish the Receiving
Party with copies of bills of lading and other shipping papers. Deliveries
into trucks and/or tank cars shall be made within the delivering terminal's
usual business hours (See Exhibit "E" for Truck Loading Documentation /
Communications Requirements as applicable). Where applicable, Receiving
Party agrees to Delivering Party's Facility Access Agreement prior to
withdrawal of product from Delivering Party's truck loading rack.
3. Volumes - Unless otherwise specifically indicated, all quantities
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delivered shall be adjusted to net gallons at 60 deg F. in accordance with
ASTM D-1250 Petroleum Measurement Tables, or latest revisions thereof. A
barrel shall consist of 42 U.S. gallons and a U.S. gallon shall contain 231
cubic inches.
4. Measurements - Unless otherwise specified, quantities delivered:
------------
(A) into or from transport trucks shall be measured by calibrated meters,
or if such meters are unavailable, by applicable calibration tables;
(B) into or from tank cars shall be measured by calibrated meters, or if
such meters are unavailable, by applicable calibrated tank car tables;
(C) into or from private pipelines shall be measured by calibrated meters,
or if such meters are unavailable, by terminal tank gauges; and
(D) into or from common carrier pipeline shall be measured by carrier's
meter tickets.
Meters and temperature probes shall be calibrated according to applicable
API standards (but not less frequently than once every six (6) months).
Receiving Party given reasonable cause shall have the right at its expense
to independently certify and calibration. Each party to the Agreement shall
have the right to have one representative present, in addition to the
independent inspector, to witness all gauges, tests, meter calibration, and
measurements. Such representative must comply with any applicable dock,
terminal and/or pipeline facilities' safety procedures and/or requirements.
However, the gauges, tests, meter calibration, and measurements of the
independent inspector, when present, shall be deemed to be binding.
5. Data Integrity - Delivering Party shall be accountable for the integrity
---------------
of any product quality test performed by it, and the results of any product
quality test performed by a third party laboratory employed by it, in
connection with this Agreement, including the recording and retention of
such data. Delivering Party agrees as to any such test performed by it:
(A) Product quality test measurements shall be complete, accurate and
timely based upon unaltered samples collected in a manner which would
be expected to yield reasonably representative samples or which have
been collected in the manner specified by written agreement between
the Parties.
(B) Specified industry standard test methods and instrument calibration
procedures shall be used without modification, unless that
modification has been approved by industry standard or written
agreement between the Parties, or unless the certificates of analysis
of such data indicate such test method or procedure was altered. In no
event will any such alteration yield materially different test
results, unless approved in writing.
PAGE 2 OF 8
EXXON COMPANY, U.S.A.
GENERAL PROVISIONS
(C) A quality assurance system shall be in place for any laboratory
facility involved. This system shall be designed to aid in the
deterrence, detection and correction of any incorrect data generated
or communicated and shall also include the maintenance and calibration
of measurement instruments
(D) Testing and measurement personnel involved shall be trained in the
necessary skills involved in data generation and data management. This
shall include initial and ongoing personnel training, testing, and
verification of knowledge transfer.
(E) Delivering Party shall utilize a self-monitoring and assessment system
to determine the extent to which the requirements above are being met.
This system shall include the resolution of problems found in the
assessments, with plans and responsibilities for appropriate
follow-up.
6. Inspection - Unless otherwise agreed:
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(A) Quantity - For all deliveries into or from pipelines where terminal
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tank gauges must be used for measurement, and into or from marine
vessels, quantity shall be determined by independent licensed
petroleum inspector. Either party may arrange for the inspector, and
the cost of the inspection service shall be shared equally between
both parties.
(B) Quality - For all deliveries into or from pipelines where terminal
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tank gauges are required, and into or from marine vessels, quality
inspection by independent licensed petroleum inspector may be
requested with tests specified by the Receiving Party and the costs of
the inspection service shared equally.
7. Title - Title to, and all risk of loss of or damage to, any product
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delivered shall pass as follows:
(A) when into transport and tank cars as product enters the Receiving
Party's equipment;
(B) when into pipeline as product enters the receiving equipment;
(C) when into any storage (other than from marine vessels), when product
passes into the receiving facilities of the Receiving Party; and
(D) when by book, stock, and/or inventory transfer, on the effective date
of the transfer.
8. Importer/Exporter of Record - The party that is the Importer/Exporter of
---------------------------
Record of the petroleum products received/delivered under this Agreement
agrees to fulfill all requirements applicable to the Importer/Exporter of
Record, including but not limited to those of the U.S. Customs and shall
pay any applicable import duty or any other applicable fees and fines,
penalties or costs. The other party hereto shall provide all information
necessary for such importation/exportation in a timely manner.
9. Drawback - Unless otherwise negotiated and confirmed in writing, the
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Delivery Party retains the right to claim, receive, and retain drawbacks on
imported duty-paid products and whenever such products are exported, the
exporting party shall promptly notify the Delivering Party and shall
execute drawback claim forms and assignments in favor of the Delivering
Party to enable it to establish its drawback rights under U.S. Customs
Regulations.
10. Warranty - The Delivery Party warrants:
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(A) that the product conforms to the product specifications set forth in
the Agreement;
(B) that the Delivering Party has free and clear title to the product
delivered under the Agreement;
(C) that such product shall be delivered free from lawful security
interests, liens, taxes, and encumbrances;
(D) that to the best of Delivering Party's knowledge, the product in the
form delivered is free from any valid claim for patent infringement;
and
(E) that the Delivering Party has or shall obtain, at its expense, all the
necessary registrations, certificates, permits, licenses and
authorizations to deliver the product pursuant to this Agreement.
THE DELIVERING PARTY MAKES NO OTHER WARRANTIES, EXPRESSED OR IMPLIED,
INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY AND THAT OF FITNESS FOR A
PARTICULAR PURPOSE, IN NO EVENT, REGARDLESS OF NEGLIGENCE, SHALL EITHER
PARTY BE LIABLE FOR PUNITIVE DAMAGES.
All warranties made under the Agreement shall survive acceptance of or
payment for the products by Receiving Party.
PAGE 3 OF 8
EXXON COMPANY, U.S.A.
GENERAL PROVISIONS
11. Additional Equipment - Both parties agree that either party may elect to
---------------------
install additional equipment at the other party's terminal provided that
the engineering and installation of any fixture, equipment, or appurtenance
placed at the terminal(s) shall be subject to terminal operator's approval
and supervision. The terminal operator shall obtain necessary permits or
licenses for such equipment. Unless parties agree in writing to the
contrary, such additional equipment shall be the property of requesting
party, and requesting party shall pay for, operate, and maintain such
additional equipment, and upon termination of this Agreement, remove
additional equipment and restore the terminal to its condition prior to the
installation of such additional equipment. Should aforementioned equipment
be observed by the terminal operator to be deficient in operation, terminal
operator will notify the equipment owner immediately.
12. Safety Regulations - Each party agrees that its agents, representatives,
-------------------
and employees will comply with all applicable safety regulations of the
other's facilities when such agents, representatives, or employees are upon
the facilities of the other in connection with the performance of this
Agreement. For either party desiring written copies of these regulations,
copies may be obtained by request to the local office operating the
facility.
13. Safety and Health Information - The Delivering Party will furnish to the
------------------------------
Receiving Party information (including Material Safety Data Sheet(s)
concerning the safety and health aspects of product(s) delivered to the
Receiving Party hereunder, including safety and health warnings. The
Receiving Party agrees to communicate such warnings and information to all
persons whom the Receiving Party can reasonably foresee may be exposed to
or may handle such products, including, but not limited to, the Receiving
Party's employees, agents, contractors, and customers.
14. Statementsand Invoices (Exchanges) - Unless otherwise provided in the
----------------------------------
Special Provisions of this Agreement, each party shall render to the other,
at the end of each calendar month, statements, reconciliations of exchange
balances, as well as invoices for any differentials, charges, and taxes
payable or reimbursable to it, with respect to its deliveries during the
month. Each invoices shall be paid (without discount) with fourteen (14)
days after receipt. Unless otherwise specified, in the event the payment
due date falls on a Sunday or Monday banking holiday, payment will be due
on the next succeeding business day. In the event the payment due date
falls on a Saturday or bank holiday other than a Monday, payment will be
due on the first, preceding business day.
Payment (Purchases & Sales) - Unless otherwise provided in the Special
-----------------------------
Provisions of this Agreement, each invoice will be paid net three (3)
working days by wire transfer from receipt of invoice and acceptable
supporting documents. If the invoice and acceptable supporting
documentation are received at the billing address on or before 12:00 noon
(Central Standard Time) on a working day, working day one (1) begins on
that day. If the invoice and acceptable supporting documentation are
received at the billing address after 12:00 noon (Central Standard Time)
(or on a non-working day), working day one (1) begins on the first working
day following receipt. Unless otherwise specified, in the event the payment
due date falls on a Sunday or Monday banking holiday, payment will be due
on the next succeeding business day. In the event the payment due date
falls on a Saturday or bank holiday other than a Monday, payment will be
due on the first preceding business day. If Receiving Party fails to comply
with the terms of payment, Delivering Party may, at its option: a) change
the terms of payment; b) without notice to Receiving Party, defer or divert
shipments until payments are made; and c) cancel this Agreement in which
event, Delivering Party shall not be required to make further shipments
hereunder. In the event of a, b, or c, Receiving Party will reimburse
Delivering Party for all actual collection and legal fees incurred to
affect Receiving Party's payment and interest incurred on unpaid amounts
and said fees. The exercise by either party of any right reserved under
this paragraph shall be without prejudice to any claim for damages or any
other right under this Agreement or any other agreement or applicable law.
If the transaction is effective via book transfer, quantity to be exact
barrels and due date shall be the effective book transfer date, provided
the invoice and book transfer confirmations have been received by 12:00
noon (Central Standard Time) on the day preceding the book transfer date;
otherwise, the due date shall be the next business day following receipt of
the invoice and book transfer confirmation.
PAGE 4 OF 8
EXXON COMPANY, U.S.A.
GENERAL PROVISIONS
15. Taxes - Unless otherwise specifically provided elsewhere in this Agreement,
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or required by law, the Receiving Party shall pay (or reimburse) the
Delivering Party for its payment of taxes, fees, or other similar levies
which are levied or assessed upon the purchase, exchange, use, resale,
withdrawal, transportation, or handling of the products if levied or
assessed at the time of or after delivery to the Receiving Party. Such
taxes, fees, or other similar levies include, but are not limited to,
federal manufacturers excise taxes, environmental taxes (which are not
based on alternative minimum taxable income of the Delivering Party), state
and local motor fuel taxes, state and local sales and use taxes, "oil
company" gross receipts or franchise taxes (which are not based on or
measured by the net income or net worth of the Delivering Party), business
and occupation taxes (except business and occupation taxes levied by the
State of Washington or any political subdivision thereof, which shall be
paid by the Delivering Party without reimbursement from the Receiving
Party), state and local inspection fees, and state and local oil spill
taxes or fees. If gasoline, diesel, or aviation fuel is sold, purchased, or
exchanged hereunder, each party represents that it is a registered producer
of gasoline, diesel, or aviation fuel for the purpose of the federal
manufacturers excise tax.
The receiving party represents that it holds the applicable state tax
registrations to purchase, exchange, use, resale, transport or handle the
products. Such receiving party must furnish the delivering party with the
appropriate state registration number(s) for all state in which business is
conducted. In addition, the receiving party must furnish their federal
employer identification number to delivering party. These notifications
must be received by the delivering party within thirty (30) days of
contract execution or applicable state taxes will be invoiced. Receiving
party is also required to notify delivering party of any change in
registration status in states where business is conducted. Notification of
state registration numbers or changes in registration status must be mail
to Exxon Company, U.S.A., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇.
If the Receiving Party claims exemption from any of the aforesaid taxes,
then Receiving Party must furnish the Delivering Party with a properly
completed and executed exemption certificate in the form prescribed by the
appropriate taxing authority in lieu of payment of or reimbursement of such
taxes to the Delivering Party. Receiving Party shall promptly notify
Delivering Party in writing of any change in the status of its exemption
certificate.
16. Financial Responsibility - If, during the term of this Agreement and any
-------------------------
liquidation thereof, the financial responsibility (including, but not
limited to, either party's ability to perform under any warranty of title
provided thereunder) of either party becomes impaired or unsatisfactory to
the other party, advance cash payment, properly endorsed negotiable bills
of lading, or satisfactory security reasonably acceptable to the demanding
party shall be given upon demand, and performance under this Agreement or
any other agreement may be withheld until such payment, bills of lading, or
security reasonably acceptable to the demanding party is received. If such
payment, bills of lading, or security reasonably acceptable to the
demanding party is not received within fifteen (15) calendar days from
demand therefore, the party demanding such payment, ▇▇▇▇ of lading, or
security may cancel this Agreement. In the event either party makes an
assignment for the benefit or creditors or any general arrangement with
creditors, the other party may cancel this Agreement without notice. The
exercise by either party of any right reserved under this paragraph shall
be without prejudice to any claim for damages or any other right under this
Agreement or any other agreement or applicable law.
17. Exchange Basis - Except for the differentials, taxes, governmental fees, or
--------------
other payments expressly provided in the Special Provisions, the Agreement
shall be on a barrel-for-barrel basis without the payment of money by one
party to the other party.
Balances - Unless otherwise specified in the Special Provisions, both
--------
parties will keep the volumes exchanged under the Agreement in approximate
balance at all times. Upon termination of this Agreement and after the
reconciliation and agreement of balances, all remaining balances shall be
settled within ninety (90) calendar days as follows:
PAGE 5 OF 8
EXXON COMPANY, U.S.A.
GENERAL PROVISIONS
(A) Products
1. Any product balances equal to or greater than 5,000 barrels will
be settled by either a physical delivery or a book transfer to
another agreement as mutually agreed in writing before such
settlement is made.
2. Any product balance less than 5,000 barrels will be settled by
either a book transfer to another agreement or be bought or sold
based on a price as mutually agreed in writing before such
settlement is made. If not other basis has been agreed upon, the
price for the product will be the month average contract price
for the date of last activity.
(B) Natural Gas Liquids
1. Any product balance equal to or greater than 1,000 barrels will
be settled by either a physical delivery or a book transfer to
another agreement as mutually agreed in writing before such
settlement is made.
2. Any product balance less than 1,000 barrels will be settled by
either a book transfer to another agreement, a stock transfer, or
be bought or sold based on a price as mutually agreed in writing
before such settlement is made.
Exchange Imbalances - In the event an exchange imbalance arises as a result
-------------------
of one party delivering prior to or more than the other party, subsequent
deliveries shall be applied first to such exchange imbalance, and then to
further delivery obligations, if any, under this Agreement.
18. Set-off - In the event either party shall fall to make timely deliver of
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any product(s) due and owing to the other party, or in the party, or in the
event either party shall fail to make timely payment or reimbursement of
any monies due and owing to the other party, the other party may set-off
any deliveries or payments or reimbursements due under this Agreement or
any other agreement between the parties during the term of this Agreement
any liquidation thereof with prior written notice.
19. Continuing Obligation - The parties do not intend to create a continuing
----------------------
obligation to buy, sell, or exchange petroleum products other than as
specified in the Special Provisions. Accordingly, each party expressly
waives any right it may have under any existing or future, state or federal
government regulations to insist upon the continued purchase, sale, or
exchange of petroleum products provided in this Agreement.
20. Applicable Laws - THIS AGREEMENT SHALL BE INTERPRETED IN ACCORDANCE WITH
----------------
THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO ANY CHOICE OF LAW RULES,
NOTWITHSTANDING ANYTING TO THE CONTRARY, THIS AGREEMENT SHALL NOT BE
INTERPRETED OR APPLIED SO AS TO REQUIRE EITHER PARTY TO DO, OR TO REFRAIN
FROM DOING, ANYTHING WHICH WOULD CONSTITUTE A VIOLATION OF ANY U.S. LAWS OR
REGULATIONS.
21. Compliance With Laws and Regulations - Each party shall be responsible and
-------------------------------------
liable for and agrees to indemnify and hold the other party harmless
against all costs, expenses, losses, claims, damages, assessments
(including without limitation professional fees, penalties, and interest),
causes of action, judgements, fines, settlements, penalties and liabilities
(joint and several), without regard to amount, arising out of, caused by,
or resulting from the indemnifying party's failure to comply, or
indemnifying party's products failure to comply, with all applicable
federal, state, and local laws, ordinances, orders, rules and regulations,
including but not limited to, those governing ▇▇▇▇ Vapor Pressure, low
sulfur diesel, reformulated gasoline, and additives. The Delivering Party
certifies that he product(s) it delivers under the Agreement will be
produced and delivered in full compliance with all applicable governmental
laws, regulations, and orders including, but not limited to, the Clean Air
Act and the EPA regulations promulgated thereunder, the Equal Opportunity
Clause contained in 41 C.F.R. 60-1.4 relating to race, color, religion,
sex, or national origin, the Affirmative Action Clause contained in 41
C.F.R. 60-250.4 relating to disabled veterans and to veterans of the
Vietnam Era, and the Affirmative Action Clause contained in 41 C.F.R.
60-741.4 relating to handicapped workers are incorporated herein by
reference.
22. Product Compliance and Documentation -
---------------------------------------
(A) Gasoline - Each party agrees to comply with all federal, state, and
local volatility regulations for gasoline and alcohol blends (including,
but not limited to, 40 C.F.R. 80.27 and 80.28) and to comply with all
federal and state
PAGE 6 OF 8
EXXON COMPANY, U.S.A.
GENERAL PROVISIONS
laws for oxygenated gasoline. Delivering party hereby certifies that any
product delivered pursuant to this Agreement is in compliance with the
standards(s) applicable to the delivery location when delivered to the
receiving party. Delivering party agrees to provide to receiving party for
each delivery of certificate of analysis, a ▇▇▇▇ of lading, a delivery
ticket, or a loading ticket that certifies and correctly states the maximum
Ried Vapor Pressure (RVP) of the product at the time of delivery during the
government mandated season for RVP and that certifies that the product is
in compliance with all applicable regulations during the control period for
oxygenated gasoline. Receiving party agrees to sell, offer for sale,
dispense, supply, offer for supply, and transport said product in
compliance with all federal state, and local volatility and other
applicable regulations.
(B) Low Sulfur Diesel - Each party agrees to comply with all federal,
state, and local regulations for low sulfur diesel fuel (including, but not
limited to, 40 C.F.R. 80.29 and 80.30) and hereby certifies and warrants
that any products delivered pursuant to this Agreement complies with the
applicable standards when delivered to the receiving party. Receiving party
agrees to sell, offer for sale, dispense, supply, offer for supply, and
transport in compliance with all said federal, state, and local
regulations.
(C) Reformulated Gasoline - Each party agrees to comply with all federal,
state, and local regulations for reformulated gasoline (including, but not
limited to, 40 C.F.R., Part 80, Subpart D) and hereby certifies and
warrants that any product delivered pursuant to this Agreement complies
with the applicable standards when delivered to the receiving party.
Receiving party agrees to sell, offer to sale, dispense, supply, offer for
supply, and transport in compliance with all said federal, state, and local
regulations.
(D) Additives - Each party agrees to comply with all federal, state, and
local regulations for gasoline additives (including, but not limited to, 40
C.F.R., Part 80, Subpart G) and hereby certifies and warrants that any
product delivered products to this agreement complies with the applicable
standards when delivered to the other party. Receiving party agrees to
sell, offer for sale, dispense, supply, offer for supply, and transport in
compliance with all said federal, state, and local regulations.
23. Indemnity - EACH PARTY TO THIS AGREEMENT SHALL INDEMNIFY, DEFEND, AND HOLD
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THE OTHER HARMLESS FROM CLAIMS, DEMANDS, AND CAUSES OF ACTION ASSERTED
AGAINST THE OTHER BY ANY OTHER PERSON (INCLUDING WITHOUT LIMITATION
EMPLOYEES OF EITHER PARTY) FOR PERSONAL INJURY, FOR LESS OF OR DAMAGE TO
PROPERTY, OR FOR ALLEGED VIOLATIONS OF LAW (INCLUDING, BUT NOT LIMITED TO,
THE LAWS REFERENCED IN PARAGRAPHS 19 AND 20, ABOVE) RESULTING FROM THE
WILLFUL OR NEGLIGENT ACTS OR OMISSIONS OF THE INDEMNIFYING PARTY. WHERE
PERSONAL INJURY, DEATH, OR LOSS OF OR DAMAGE TO PROPERTY IS THE RESULT OF
THE JOINT NEGLIGENCE OR MISCONDUCT OF THE PARTIES HERETO. THE PARTIES
EXPRESSLY AGREE TO INDEMNIFY EACH OTHER IN PROPORTION TO THEIR RESPECTIVE
SHARE OF SUCH JOINT NEGLIGENCE OR MISCONDUCT.
24. Claims - Claims as to shortage in quantity or defects in quality shall be
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made by written notice to the other party within ninety (90) days after the
delivery in questions or shall be deemed to have been waived. NO CLAIMS FOR
SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY NATURE SHALL BE MADE BY
EITHER PARTY UNDER THIS AGREEMENT.
25. Waiver - No waiver by either party of any breach by the other party of any
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of the convenants or condition herein contained shall be construed as a
waiver of any succeeding breach of the same or of any other covenant or
condition thereof.
26. Force Majeure and Contingencies - Neither party shall be liable to the
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other for failure or delay in making or accepting deliveries hereunder the
extent that such failure or delay is excused by law or is the result of (1)
action of the elements resulting in failure or delay beyond the reasonable
control of the party, or (2) a disruption or breakdown of production or
transportation facilities beyond the reasonable control of the party, or
(3) any other cause, whether or not of the same class or kind, that is
beyond the reasonable control of such party.
In addition, either party shall be excused from making or accepting
deliveries to the extent making or accepting deliveries is prevented by (1)
compliance, whether voluntary or involuntary, with acts, orders,
PAGE 7 OF 8
EXXON COMPANY, U.S.A.
GENERAL PROVISIONS
regulations, or requests of any federal, state, or local civilian or
military authority, or any person purporting to act therefore, or (2)
insurrections, wars, rebellions, or riots, or (3) strikes or labor
difficulties, even through the labor difficulty or strike could be settled
by acceding to the demands of a labor group or others. Where mode of
delivery is by or to pipeline the Delivering Party shall also have the same
rights under force majeure as granted to the pipeline carrier by the
relevant tariff, if any.
If, by reason of the causes enumerated above, making or accepting
deliveries under the terms and conditions of this Agreement is curtailed in
part, the prevented party shall allocate the volumes otherwise meeting the
terms of the Agreement that it can deliver or accept in the ordinary course
of business among its suppliers or customers in manner which is fair and
reasonable. The prevented party may include its own requirements and
contractual obligations in allocating any volumes. In the event of such
curtailments, neither party is required to deliver or receive volumes that
do not otherwise meet the terms and conditions of this Agreement in all
respects including, but not limited to, time of delivery and description.
In the even a party is unable to perform hereunder, such party shall
promptly notify that other party in writing of the underlying circumstances
and the expected duration.
27. Business Practices -
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(A) Each party hereto agrees to comply with all laws and lawful
regulations applicable to any activities carried out in the name of or
on behalf of the other party under the provisions of this Agreement
and/or any amendments to it.
(B) Each party hereto agrees that all financial settlements, billing, and
reports rendered to the other party as provided for in this Agreement
and/or any amendments to it will to the best of its knowledge and
belief reflect properly the facts about all activities and
transactions related to this Agreement, which data may be relied upon
as being complete and accurate in any further recording and reporting
made by such other party for whatever purpose.
(C) Each party hereto agrees to notify the other party promptly upon
discovery of any instance where the notifying party fails to comply
with provision (A) above, or where the notifying party has reason to
believe data covered by (B) above is not longer accurate and complete.
28. Conflict of Interest - Each party, in performing its obligations under this
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Agreement, shall establish and maintain appropriate business standards,
procedures, and control, including those necessary and avoid any real or
apparent impropriety or adverse impact on the interest of the other party.
Each party shall review with reasonable frequency during the term of this
Agreement such business standards and procedures including, without
limitation, those related to the activities of its employees and agents in
their relations with the other party's employees, agents, and
representatives, and other third parties.
29. Audit - Each party and its duly authorized representatives shall have the
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right to witness custody transfer measurement procedures. In addition, each
party and its duly authorized representatives shall access to the
accounting records, laboratory test records, and other documents maintained
by the other party or subcontractors which relate to any performance under
this Agreement, and shall have the right to audit at their own expense such
records at any reasonable time or times during the term of this Agreement
or within three (3) year after the termination of this Agreement. Each
party shall preserve and shall cause all subcontractors to preserve all of
the above referenced documents regarding each delivery for a period of at
least three (3) years after such delivery is made under this Agreement. any
costs (including but not limited to, employee time, office space/overhead,
photocopying pulling records, etc.) incurred by the audited party during
the audit shall be borne by the audited party.
30. Assignment - Neither party shall assign this Agreement without the prior
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written consent of the other.
In addition to the above paragraphs (1-30), the following paragraphs (31-34) are
applicable to Natural Gas Liquid agreements only:
PAGE 8 OF 8
EXXON COMPANY, U.S.A.
GENERAL PROVISIONS
31. Odorization - Unless otherwise provided in the Special Provisions,
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Delivering Party shall odorize with 68cc of ethyl mercaptan per 1,000
gallons any delivery of propane in trucks or tank cars. Receiving party
shall not accept delivery until Receiving Party has ascertained that this
has been done properly.
32. Quality - The product corrected to sixty (60) degrees Fahrenheit delivered
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hereunder shall conform to the specifications now prescribed, or later
adopted or revised, for said product by the Gas Processors Association (GPA
Publication 2140, as revised) unless otherwise indicated in the Special
Provision.
33. Storage - If, as a result of the Receiving Party's failure to take
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according to schedule, the storage herein provided is exceeded, the
Delivering Party shall not be obligated to change the operation of its
plant but shall have the right to dispose of the product by sale to third
parties; with the sold barrels being deemed delivered under the Agreement
and Receiving Party being credited with the net proceeds of the sale less
8% to cover marketing fees unless otherwise agreed.
34. Demurrange On Tank Cars - Receiving Party shall pay all demurrage charges
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direct to the applicable party on all tank cars not loaded and returned to
the railroads within the applicable demurrage-free time.
END OF GENERAL PROVISIONS