Frontier Products Offtake Agreement El Dorado Refinery, dated as of October 19, 1999 by and between Frontier Oil and Refining Company and Equiva Trading Company (now Shell Oil Products US, assignee of Equiva Trading Company) (the Agreement), and First Amendment to the Agreement dated September 18, 2000, Second Amendment to the Agreement dated September 21, 2000, Third Amendment to the Agreement dated December 19, 2000, Fourth Amendment to the Agreement dated February 22, 2001, Fifth Amendment to the Agreement dated August 14, 2001, Sixth Amendment to the Agreement dated November 5, 2001, Seventh Amendment to the Agreement dated April 22, 2002, Eighth Amendment to the Agreement dated May 30, 2003, Ninth Amendment to the Agreement dated May 25, 2004, Tenth Amendment to the Agreement dated May 3, 2005, Eleventh Amendment to the Agreement dated March 31, 2006, Twelfth Amendment to the Agreement dated May 11, 2006, Thirteenth Amendment to the Agreement dated September 30, 2007, Fourteenth Amendment to the Agreement dated May 1, 2008 and Fifteenth Amendment to the Agreement dated May 28, 2008

AGREEMENT dated as of October 19, 1999 by and between Frontier Oil and Refining Company, a Delaware corporation ("Frontier") and Equiva Trading Company, a Delaware general partnership ("ETCo"), but effective as of the Effective Time defined in the Asset Purchase and Sale Agreement dated even date herewith among Equilon Enterprises LLC, Frontier El Dorado Refining Company and Frontier Oil Corporation. Frontier and ETCo are sometimes referred to herein individually as a Party and collectively as the Parties.

Affiliate shall, with respect to ETCo, mean any of its members or owners, and their respective parents, subsidiaries, affiliates, or joint venturers, or any other Person directly or indirectly controlling, controlled by, or under common control with, ETCo; with respect to Frontier, the term shall mean any Person directly or indirectly controlling, controlled by, or under common control with, Frontier. For purposes of this definition, "control" shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities or interests or otherwise.

Person means an individual, corporation, partnership, association, trust, limited liability company or any other entity or organization, including a government or political subdivision or agency, unit or instrumentality thereof.

To the extent provided in and subject to the terms and conditions of this Agreement, ETCo shall buy from Frontier and Frontier shall sell to ETCo the products as listed below ("Products") which are produced at the Refinery during the term hereof on the terms and conditions in the attached Schedules, including volumes, price formulae, and other terms:

      (f) ETCo agrees that, upon termination of the Agreement, and written request from Frontier, ETCo shall, within sixty (60) days, remove the ETCo proprietary additive system in accordance with Frontier instructions, unless a transfer of ownership is negotiated.

(i)  Frontier shall issue a bill of lading to each ETCo designated transport truck driver stating that the gasoline loaded has been additized, unless Frontier determines in good faith that the gasoline does not comply with Additive Regulations. In this case, Frontier will prevent the gasoline from leaving the Facility, unless the Parties agree to an alternative.

(i) the other Party shall default, in any material respect, other than in accordance with (ii) below in the performance or observance of any term, covenant or agreement contained in this Agreement, and such default shall remain uncured three business days following receipt by the other Party of written notice from the non-defaulting Party of such default.

 (ii) the other Party shall fail to pay any amount owed hereunder on the due date for the payment, except for any amounts being disputed in good faith, and such amount (any interest accrued thereon) shall remain unpaid for ten days following receipt by the other Party of written notice from the non-defaulting Party of the failure to pay;

(iii) (a) the other Party shall commence any case, proceeding, or any other action (1) under any existing or future law of any jurisdiction relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up liquidation, dissolution, composition or other relief with respect to it or its debts, or (2) seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its assets or the other Party shall make a general assignment for the benefit of its creditors; or

Subject to the limits set forth in Section 13, Frontier warrants that the Products delivered shall meet the respective specifications designated in the applicable attached Schedule. NEITHER PARTY NOR THEIR AGENTS MAKES ANY OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND CONCERNING THE PRODUCTS, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; PRODUCT QUALITY AND CHARACTERIESTICS; OR THE ENVIRONMENTAL, HEALTH, OR SAFETY EFFECTS OF THE PRODUCTS.

No failure of a Party to exercise, no delay in exercising, and no course of dealing with respect to any right, power, or privilege under this Agreement shall operate as a waiver of that or any other right, power, or privilege, nor shall any single or partial exercise of any right, power, or privilege under this Agreement preclude any other or further exercise of that right, power, or privilege nor the exercise of any other right, power, or privilege. - -

All notices, requests and other communications to any Party shall be in writing (including a facsimile or similar writing) and shall be given to a Party at the address or facsimile number specified for that Party below or any other address or number as that Party shall at any time otherwise specify by like notice to the other Party. Each notice, request or other communication shall be effective (i) if given by facsimile, at the time the facsimile is transmitted and the appropriate confirmation is received (or, if that time is not during a Business Day, at the beginning of the next Business Day), (ii) if given by mail, five Business Days after the communication is deposited in the United States mail with first-class postage prepaid, addressed as aforesaid, or (iii) if given by any other means, when delivered at the address specified pursuant hereto during business hours or otherwise at the beginning of the next Business Day.

Neither this Agreement nor any right or obligation hereunder is assignable or transferable by either Party, in whole or in part, without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Any purported assignment without consent shall be void; provided, however, nothing contained herein shall prevent ETCo or Frontier from assigning its rights and obligations to any Affiliate; and provided further, any assignment or transfer in whole or in part by ETCo or Frontier shall be permissible only if (i) the transferee is a reputable and financially responsible party generally recognized as such in the industry, (ii) the assignee or successor entity agrees in writing to be bound by all of the terms and conditions of this Agreement, and (iii) the non-transferring Party is reasonably satisfied with the capability and qualification of the transferee to perform its obligations hereunder. Upon the effectiveness of an assignment or other transfer pursuant to this section, the assignee or transferee shall be deemed a Party for all purposes of this Agreement.

In connection with the performance of this Agreement, Frontier shall permit ETCo's agents, servants, and employees full right of ingress and egress to the Refinery, subject to the usual and customary safety and security restrictions developed, observed, and enforced in the ordinary course at the facilities.

This Agreement may not be modified or altered orally or in any manner other than by an express agreement in writing signed by all Parties at such time. No statements or agreements, oral or written, made prior to or at the signing hereof, shall vary or modify the written terms hereof, and neither Party shall claim any amendment, modification, or release from any provision hereof by reason of a course of action or mutual agreement unless the agreement is in writing signed by the other Party. No amendment shall be binding upon a Party unless signed by the duly authorized representative of the Parties. No modification or addition to this Agreement or any Schedule or Exhibit shall be effected by the acknowledgment or acceptance by a Party of any invoice, purchase order, acknowledgment, release or other form submitted by the other Party containing other or different terms or conditions.

This Agreement shall be interpreted and the rights, obligations and liabilities of the Parties determined in accordance with the laws of the State of Texas without giving effect to the principles of conflicts of laws.

IN NO EVENT SHALL EITHER PARTY EVER BE LIABLE TO THE OTHER PARTY FOR ANY LOST OR PROSPECTIVE PROFITS OR ANY OTHER SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT LOSSES OR DAMAGES FORM THE SALE OF PRODUCTS UNDER THIS AGREEMENT OR FOR ANY FAILURE OF PERFORMANCE HEREUNDER OR RELATED HERETO, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE.

Frontier shall abide by the version of the ETCo GENERAL PROVISIONS Purchase and Sale of Refined Products. attached hereto as same may be hereafter revised by mutual agreement of Frontier and ETCo attached hereto as Exhibit 3.

Frontier will designate either Denver or, depending on availability of product in excess of ETCo's needs, Colorado Springs for those volumes indicated as the Denver/Colorado Springs market.

Frontier retained volumes for Denver/Colorado Springs will be delivered by ETCo into tank trucks at a charge no higher than the public tariff for the Chase pipeline, any additional costs or credits for Colorado Springs deliveries, plus cost of terminalling and additives.

Frontier and ETCo may agree, within three months prior to the beginning of each calendar year, to a redistribution of the volumes as shown above. Frontier also has the right, within three months prior to the beginning of each calendar year, to unilaterally reduce the volumes shown for Denver/Colorado Springs and/or for Kansas City Pipeline and increase by the same amount the volumes shown for Kaneb and Williams Pipeline.

If Frontier's production of #1 Fuel Oil and Premium Diesel is insufficient to meet ETCo's nomination, the volume of #1 Fuel Oil and Premium Diesel shall be pro-rated to the total product volumes (equal to the total of the volume delivered to ETCo and the volume retained by Frontier) over the previous ninety (90) days activity.

Product Measurement ETCo's purchases of the Diesel produced at the Frontier El Dorado Refinery shall be calculated pursuant to material balance receipts from the Kaneb, Kansas City, Chase, and Williams Pipelines and the El Dorado truck rack.

Product Pricing - ETCo will pay Frontier the mean of the prior week's weekly average low and high price for the grades of Low Sulfur and High Sulfur Diesel published by Platt's Oil Service for Group 3, in cents per gallon FOB the custody transfer point, plus 0.15 cents per gallon. The previous week's mean shall be calculated as the arithmetic average of the Platt's effective low and high quotes for Diesel for Monday through Friday of the previous week and shall be effective for deliveries from Tuesday of the current week through Monday of the next week.

Premium Diesel - ETCo will pay Frontier the mean of the prior week's weekly average low and high price for the grade of Low Sulfur Diesel published by Platt's Oil Service for Group 3, in cents per gallon FOB the custody transfer point, plus 1.25 cents per gallon.

ETCo will pay Frontier an additional 0.40 cents per gallon for deliveries to the El Dorado truck rack, for all diesel, including Low Sulfur Diesel, High Sulfur Diesel, and Premium Diesel.

Product Measurement - ETCo purchases of the Avjet produced at the Frontier El Dorado Refinery shall be calculated pursuant to material balance receipts from the Kaneb, Kansas City, Chase, and Williams Pipelines and the El Dorado truck rack.

Product Quality -  Avjet shall meet the Domestic Jet A specifications as per ASTM 1655. Product must be capable of meeting requirements for deliveries to airports as defined by ATA-103. Additionally, Product must meet specifications for Williams, Kaneb, Kansas City, and Chase pipelines.

Volume Commitments -  Frontier commits to supply and ETCo commits to purchase 100% of the quantity of Avjet without regard to the MPF, for the initial five years of the agreement. Due to the long-term nature of commercial jet fuel sales contracts, Frontier shall provide to ETCo a monthly forecast of Avjet production for the following twelve months.

Product Pricing -  ETCo will pay Frontier the mean of the prior week's weekly average low price for Avjet published by Platt's Oil Service for Group 3, in cents per gallon FOB custody transfer point, plus 0.35 cents per gallon for the first 90,000 BBLs per month. ETCo will pay Frontier for additional deliveries over 90,000 BBLs per month at the mean of the prior week's weekly average low price for Avjet published by Platt's Oil Service for Group 3, in cents per gallon FOB custody transfer point, plus 0.25 cents per gallon. The previous week's mean shall be calculated as the arithmetic average of the Platt's effective low quotes for Avjet for Monday through Friday of the previous week and shall be effective for deliveries from Tuesday of the current week through Monday of the next week.

Contingency Operations and Economics for off-spec product -  Not withstanding subsection 5(b) of the Agreement, if Avjet is off-spec, ETCo shall have the option to reject the product or receive a credit to compensate ETCo for reblending or for other costs or losses on a case by case basis with approval by ETCo prior to delivery by Frontier.

Other Provisions -  ETCo reserves the right to receive up to 100% of Avjet deliveries that are available as an FTZ-designated product. Should Frontier terminate this Agreement or reduce the quantity of product purchased for any reason, including a Force Majeure Event, Frontier shall provide access to Frontier facilities for ETCo to ship the volume of Avjet which Frontier has committed to deliver until alternative arrangements are in place.

Product Measurement   ETCo's purchases of the Diesel produced at the Frontier El Dorado Refinery shall be calculated pursuant to material balance receipts from the Kaneb, Kansas City, Chase, and Williams Pipelines and the El Dorado truck rack.

Product Pricing - ETCo will pay Frontier a mutually agreeable pricing mechanism negotiated thirty (30) days prior to the month of delivery. If a mutually agreeable price is not determined for the month of delivery, ETCo shall not take delivery of #1 Fuel Oil during that month. ETCo will pay Frontier an additional 0.40 cents per gallon for deliveries to the El Dorado truck rack. If the Parties do not agree on price, Frontier may dispose of the #1 Fuel Oil as it sees fit. Volumes for that month are not included in retained volumes. Failure to agree for any month does not alter the obligation to negotiate in good faith for subsequent months.

Product Measurement    ETCo's purchases of Other Products produced at the Frontier El Dorado Refinery shall be calculated pursuant to material balance receipts from the Kaneb, Kansas City, Chase, and Williams Pipelines, the El Dorado truck and rail rack.

 

Product Quality -  Frontier Products must meet the mutually agreed specifications.

 

Volume Commitments -  To the extent that it is mutually agreed, Frontier commits to supply and ETCo commits to purchase additional quantities of Frontier products for the term of the agreement If the MPF volume should change by more than five percent during the delivery month, Frontier will provide ETCo with a volume estimate adjustment no later than the first business day of the delivery month..

 

Alternatively - To the extent that it is mutually agreed, ETCo will pay Frontier, ETCo 's sale value less transportation, storage, terminalling, related taxes, and a commission fee of 0.5 cents for each gallon of Other Products (excess) delivered to the custody transfer point. The sale value shall include all costs involved with the movement of product to ETCo's buyer including freight, rail car rental, terminalling, and related taxes. Further, Frontier and ETCo may agree from time to time on a different pricing for Other Products.

 

For clarification purposes, it is understood by the Parties that Frontier has the right to sell any production volume in excess of the MPF to third parties if agreement to sell to ETCo is not reached.

Any controversy or claim ("Claim"), whether based on contract, tort, statute or other legal or equitable theory (including but not limited to any claim of fraud, misrepresentation or fraudulent inducement or any question of validity or effect of this Agreement including this section) arising out of or related to this Agreement (including any amendments or extensions), or the breach or termination thereof, shall be settled by mediation and consultations between the Parties initiated upon the Notice of any Party. In the event of failure of such mediation and consultations to settle such Claim in a manner acceptable to all Parties within thirty (30) days following the Notice, then any such Claim shall be settled by binding arbitration in accordance with this provision and the then current CPR Institute for Dispute Resolution Rules for Non- Administered Arbitration of Business Disputes. The arbitration shall be governed by the United States Arbitration Act, 9 U.S.C. Sections 1-16, to the exclusion of any provision of state law inconsistent therewith or which would produce a different result, and judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction.

There shall be three (3) independent and impartial arbitrators of whom ETCo appoints one (1) and Frontier appoints one (1) and the third of which shall be appointed by the two (2) Party-appointed arbitrators in accordance with the arbitration rules. The arbitrators shall determine the Claims of the Parties and render a final award in accordance with the substantive law of the State of Texas, excluding the conflicts provisions of such law. The arbitrators shall specified the reasons for the award in writing.

 

 

Any Claim by a Party shall be time-barred if the asserting Party commences arbitration with respect to such Claim later than two (2) years after the cause of action accrues. All statutes of limitations and defenses based upon passage of time applicable to any Claim of a defending Party (including any counterclaim or setoff) shall be tolled while the arbitration is pending.

 

The arbitrator shall order the Parties to promptly exchange copies of all exhibits and witness lists, and, if requested by a Party, to produce other relevant documents, to answer up to ten (10) interrogatories (including subparts), to respond to up to ten (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 and up to four (4) other persons within such Party's control. Any additional discovery shall only occur by agreement of the Parties or as ordered by the arbitrator upon a finding of good cause.

 

Each Party shall bear its own costs, expenses and attorneys' fees; provi ded that if court proceedings to stay litigation or compel arbitration are necessary, the Party who unsuccessfully opposes such proceedings shall pay all reasonable associated costs, expenses, and attorneys' fees in connection with such court proceeding.

 

 

The Parties recognize that irreparable injury will result from a breach of any provision of this Agreement and that money damages will be inadequate to fully remedy the injury. hi order to prevent such irreparable injury, the arbitrator shall have the power to punt temporary or permanent injunctive or other equitable relief. Prior to the appointment of an arbitrator a Party may, notwithstanding any other provision of this Agreement, seek temporary injunctive relief from any court of competent jurisdiction; provided that the Party seeking such relief shall (if arbitration has not already been commenced) simultaneously commence arbitration. Such court ordered relief shall not continue more than ten (10) days after the appointment of the arbitrator (or in any event for longer than sixty (60) days).

The Parties hereby consent to the non-exclusive jurisdiction of the state or federal courts of Texas for the enforcement of any award rendered by the arbitrators.

 

In connection with the purchase by Frontier El Dorado Refining Company ("Buyer") of certain assets from Equilon Enterprises LLC ("Seller") pursuant to that certain Asset Purchase and Sale Agreement dated October 19, 1999, Seller or Equiva Trading Company has entered into certain agreements with Buyer or Frontier Oil and Refining Company including (1) that certain Foreign Crude Supply Agreement dated as of October 19, 1999 between Frontier Oil and Refining Company and Equiva Trading Company; (2) that certain Frontier Products Offiake Agreement dated as of October 19, 1999, between Frontier Oil and Refining Company and Equiva Trading Company; and (3) that certain Sub-Sublease Cogeneration dated as of October 19, 1999, between Equilon Enterprises LLC and Frontier El Dorado Refining Company, the agreements in (1), (2) and (3) being herein referred to as the "Set-Off Agreements".

 

In the event that a party to any of the Set-Off Agreements fails to make a payment or payments under such Set-Off Agreement (the "Subject Set-Off Agreement") which individually or in the aggregate total a minimum of One Million Dollars ($1,000,000) when due and after the expiration of any applicable cure periods under the Subject Set-Off Agreement (a "Defaulting Party"), either the non-defaulting party under the same agreement or its affiliate under one of the other Set-Off Agreements (the "Non-Defaulting Party") may, but shall not be required to, set-off or apply any and all payments it then owes (the "Set-Off Amount") under such Subject Set-Off Agreement or any of the other Set-Off Agreements against the amount owed by the Defaulting Party and unpaid under the Subject Set-Off Agreement.

 

This right of set-off may be exercised by the Non-Defaulting Party irrespective of whether any demand has been made under any Set-Off Agreement; provided that the Non-Defaulting Party shall give the Defaulting Party not less than three (3) business days prior written notice thereof, which notice shall be made in the manner required under the procedures set forth in the Agreement to which this Right of Set-Off is attached and shall specify the amount of such claimed set-off and, in reasonable detail, the basis therefor; provided further that, during such three (3) business day period, the Non-Defaulting Party's failure to pay such Set-Off Amount to the Defaulting Party shall not constitute a breach or default under the relevant Set-Off Agreement. The Non-Defaulting Party shall be entitled to exercise such right of set-off unless the Defaulting Party objects thereto by written notice to the Non-Defaulting prior to the expiration of such three (3) business day period, which notice shall specify, in reasonable detail, the basis for such objection. If the Defaulting Party so objects and the Non-Defaulting Party elects to continue to assert its right to set-off or apply such Set- Off Amount, the Non-Defaulting Party and the Defaulting Party or its Affiliates shall proceed to resolve such dispute pursuant to the dispute resolution provisions of the appropriate Set-Off Agreement; provided that, if the Non-Defaulting Party shall have deposited into an Approved Escrow (as hereinafter defined), in immediately available funds, an amount equal to such Set-Off Amount, the Non-Defaulting Party's failure to pay such Set-Off Amount to the Defaulting Party shall not constitute a breach or default under any of the Set-Off Agreements or any other agreements between the parties prior to the resolution of such dispute. For purposes of this Schedule, an "Approved Escrow" shall mean an escrow account maintained with a financial institution, and subject to an escrow agreement, which escrow agreement shall grant to the Non-Defaulting Party a valid, perfected first priority security interest in all amounts deposited pursuant thereto to secure payment of the Defaulting Party's obligations.

 

Meter Specifications - - All meters used shall comply with the latest edition of API Manual of Petroleum Measurement Standards (API MPMS). The calibration and maintenance frequencies must comply with the latest edition of API's Custody Transfer Measurement Manual Volume 2 - Dynamic Measurement Standards. Flow meters shall at all times be accurate allowing a margin of error of one half of one percent. The meter data will be recorded at a minimum of two-minute intervals to determine the total flow per billing period.

 

Volumes determined by truck weigh scale shall be determined by weighing before and after loading. Truck scales used to determine the volume of products sold by truck must be maintained in accordance with the latest edition of NIST Handbook 44. Truck scale calibration shall be done no less than every six months by a certified company or state agency.

 

Railcar metering shall be by magnetic meter, compensated by temperature of contents at completion of loading.

 

Measurement Standards For purpose of measurement and computations, atmospheric pressure shall be assumed to be fourteen and seven-tenths pounds per square inch absolute and correction temperature to be 60 degrees Fahrenheit.

 

A dial thermometer shall determine the loaded temperature of truck or railcar products. The thermometer shall be calibrated monthly or at more frequent intervals as may be necessary.

 

Specific gravity used will be calculated from a liquid composition analysis.

 

All truck and railcar volumes of products shall be Net Standard Volume (as defined in the API standards) in accordance with the latest edition of the API standards.

 

The term (barrel) means 42 US gallons.

 

ETCo shall, at all reasonable times, have access to all metering operations and gauging equipment for inspection and checking. Only the employees or agents of Frontier shall do the reading, calibration, and adjustment. Upon request from ETCo, Frontier shall submit to ETCo records from all measurement systems, together with calculations therefrom, for ETCo's inspection and verification and copying, if desired, subject to return by ETCo within thirty days after receipt. Frontier shall, however, only be required for the purposes, to retain the records for a period of ninety (90) days from the date of the records creation.

The Refinery transfers Gasoline and Distillates via the four pipelines and a loading rack located on the west boundary of the Refinery. The custody transfer points for the pipelines are the product meters located at the pipeline pump station and the loading rack meters located on the east side of the loading bays for the loading rack. Each pipeline has a meter prover in place, which is used on each batch and the loading rack has meter provings on a six months basis.

Kaneb Pipeline takes custody of Mogas and all distillates at their pump station located on the north side of the Southwest Trafficway. Kaneb has two meters on individual lines from the Refinery with a prover for each meter. These are known as the gasoline meter and the oil meter. There are no equipment number assigned to the gasoline meter and the oil meter.

Williams Pipeline has lines and meters connected to the Refinery with the meters and the pump station adjoining the Refinery at the northeast corner of South Douglas Road and the Southwest Trafficway. The meters and lines are identified as follows:

KCPL takes product custody at the pump station identified as the sunset Station. The station is located on the north side of the refinery and is the only station inside of the refinery fence. The pipeline has two meters, using one at a time on a single line and pumping one product. The primary meter is identified as #9681, and the backup meter is #9682. These are positive displacement meters.

 

Chase Pipeline shares (uses) the pump station identified as the Sunset Station, which is located on the north Side of the KCPL station. Chase takes custody of products at this station through two pipelines identified as the Colorado system and the Kansas system. The Colorado meter is identified as ELBC#1 and the Kansas meter system is identified as ELBK #1. There are two booster pumps associated with each system that can be run together or one at a time, depending on the line rate required.

 

For Frontier delivery and ETCo purchase of Avjet into Chase pipeline delivered via Boyer Terminal, title and risk of loss shall pass upon delivery into the Chase Pipeline.

1. SCOPE: These General Provisions shall apply to agreements for the purchase and sale of bulk and truck volumes of refined intermediate petroleum products and refined petroleum products (Products) entered into by Equiva Trading Company (Equiva) (the Specific Terms) to which these General Provisions have been attached or specifically incorporated by reference, In the event of any conflict between the Specific Terms and the Marine Provisions, if any, and the General Provisions, the Specific Terms shall prevail. In the event of any conflict between the Marine Provisions, if any, and the General Provisions, the Marine Provisions shall prevail. The Specific Terms, the Marine Provisions, if any, and the General Provisions are referred to collectively as the "Contract".

 

 

A. Liftings or deliveries shall be conducted during the usual business horns of the terminal and at other times as the parties may mutually agree. The Buyer shall furnish the Seller with reasonable advance notice of each lifting or delivery.

 

B. Buyer warrants to Seller that Buyer's employees and the employees of contract/common carriers, or others hired by Buyer to receive the Products, are fully qualified to load and operate vehicles used in the transportation of Products and shall procure all permits and licenses required for the performance of the Contract; shall comply with all applicable federal, state, and local transportation requirements; and shall meet all reasonable requirements of the terminal.

 

C. Seller will from time to time issue current delivery procedures and safety precautions to Buyer. Buyer shall make known to its employees, and employees of the contract/common carriers hired by Buyer to lift or receive the Products, all information furnished by Seller to Buyer relating to safety and procedures to be followed at the delivery point. Buyer shall be fully responsible for any failure of those employees to follow safe practices and to observe Sellers rules and regulations while on the premises of Seller or at its designated delivery point.

 

D. Seller shall promptly furnish to Buyer all properly issued and endorsed product transfer documents, including bills of lading, invoices, shipping papers, and any other documents, including of title or custody, applicable to the ProdUcts. Seller shall comply with all requirements of Department of Transportation and Environmental Protection Agency regulations, as well as those of any other local, state, or federal agency, as applicable, pertaining to product transfer documents, including the federal reformulated gasoline regulations contained in 40 CFR Part 80.

 

3. TITLE-RISK: If the Product is purchased on an FOB Origin price basis, title to and risk of loss of or damage to or by the Product shall pass to Buyer upon completion of loading of tank truck, or upon delivery of tank car containing the Product to the railroad, or when the Product passes the flange between the vessel's permanent hose connection and the shoreline when loading a tanker or barge, or when the product enters Buyer's or its carrier's pipeline facilities, as the case may be; or if the Product is purchased on a delivered destination price basis, title to and all risk of loss of or damage to or by the Product shall pass to Buyer upon completion of -unloading of tank truck, or upon delivery of tank car from the railroad, or when the Product passes the flange between the vessel's permanent hose connection and the shoreline when unloading a tanker or barge, or when the Product leaves the Seller's or its carriers pipeline facilities, as the case may be, into Buyer's plant facilities or into other facilities designated by Buyer.

 

4. MEASUREMENTS: Quantities delivered shall be measured as provided in the Specific Terms of the Contract and, unless otherwise there specified, corrected for temperature to 60° F in accordance with Tables No. 6 and No.24 of ASTM­IP Petroleum Measurement Table (Designated as ASTM D-1250 and IP-200), as in effect at the time of measurement. A barrel shall consist of 42 U.S. gallons. A U.S. gallon shall consist of 231 cubic inches. Seller's quantity determinations at the delivery point shall govern unless proven to be in error.

 

5. PAYMENT: Buyer shall pay Seller for delivered Product(s) in U.S. dollars without any adjustments, discounts, or setoffs, immediately upon Buyer's receipt of Seller's invoice and necessary supporting documents, if any. Buyer shall pay Seller the maximum lawful rate of interest on all past due payments.

9. CLAIMS: (a) Any claim for loss, damage, or delay against a carrier pursuant to the Contract must be filed by the Buyer in writing with the concerned carrier, whether or not a Party to the Contract, within the time specified by the carrier. If the carrier is not a Party to the Contract, a copy of the claim as filed shall be submitted to the Seller as soon as practicable. Failure of the Buyer to file a claim for loss, damage, or delay with the appropriate carrier in a timely manner shall release the Seller from liability with respect to the claim. (b) Any claim for any shortages in quantity or defects in quality must be made by written notice to the Seller within ninety days after the delivery giving rise to the claim or, in the case of non-delivery,. from the date fixed for delivery; otherwise, any claim is waived. Any action for breach of the Contract must be commenced within one year after the cause of action has occurred.

10. INDEMNITY: Each Party (the Indemnifying Party) shall defend, indemnify, and hold harmless the other Party, its parent, affiliate, and subsidiary companies, and their respective officers, employees, and agents (Indemnified parties), against all claims, demands, causes of action, suits, damages, liabilities, judgments, losses, and expenses (including, without limitation, attorneys fees and costs of litigation, whether incurred for an Indemnified Party's primary defense or for enforcement of its indemnification rights) which may be incurred by an Indemnified Party or asserted by the Indemnifying Party (including, without limitation, the Indemnifying Party's employees, contractors, and agents) or by any third Party on account of (i) any personal injury, disease, or death of any person(s); damage to or loss of any property or money damages or specific performance owed to any third Party (by-contract or operation of law), and any fines, penalties, assessments, environmental response costs, or injunctive obligations caused by the negligence or fault of the Indemnifying Party (including; without limitation, its employees, contractors, and agents); and (ii) any breach of any representation, warranty, or covenant of the Indemnifying Party contained in the General Provisions or the Specific Terms.

11. FORCE MAJEURE: Either Party shall be excused from performance if and to the extent that its performance is delayed or prevented by any circumstance reasonably beyond the Party's control, or by any of the following circumstances:

Notwithstanding the provisions of this section, nothing contained in the Contract shall relieve either Party of the obligation to pay in full any amounts which accrued prior to the event of Force Majeure.

Upon the occurrence of any of the Force Majeure events described in this section, the Party claiming Force Majeure shall notify the other Party promptly in writing of the event and, to the extent possible, inform the other Party of the expected duration of the Force Majeure event and the volumes of Product(s) to be affected by the suspension or curtailment of performance under the Contract.

 

Seller's ability to supply Products under the Contract is dependent on continued availability of necessary raw materials and petroleum products from its usual and anticipated suppliers and continued availability of energy supplies. If raw materials, petroleum products, or energy supplies are not readily available in sufficient quantities to permit Seller to meet its total commitments for Products, then Seller shall have the right to allocate, in a fair and reasonable manner, among its customers and its own requirements, the Products as are available. In addition, the Seller shall not be obligated to make up deliveries of Products which have been prevented by a Force Majeure event.

 

If a Party asserts a claim of Force Majeure, the other Party shall have the right to suspend its performance in proportion to the quantity of receipts or deliveries not made by the Party claiming Force Majeure. If the Force Majeure event is forecast to (or actually) last(s) sixty days or more, the Party not claiming Force Majeure shall have the right to cancel the Contract by giving written notice.

 

Upon cessation of the event of Force Majeure performance shall be resumed, but the excuse shall not operate to extend the term of the Contract nor obligate either Party to make up deliveries or receipts, as the case may be.

 

 

A. It is understood by and between the Parties that each is entering this Contract in reliance on the laws, rules, and regulations (the Regulations) in effect on the date the Contract is entered.

 

B, If , at any time or from time to time during the term of the Contract, any Regulations are changed or new Regulations become effective whether by law, decree, or regulation or in response to the insistence or request of any governmental authority or person purporting to act therefor and the effect of the changed or new Regulation : (i) is not expressly covered by other provisions of this Contract which specifies the effect of changed or new Regulations and (ii) has an adverse economic effect upon either Party, then the affected Party shall have the option to request renegotiations of the terms and conditions of the Contract. The option may be exercised by written notice from the affected Party to the other at any time after the changed or new Regulations are promulgated.

Seller agrees to provide to Buyer, for each delivery of gasoline, a certificate of analysis, delivery ticket, loading ticket, bill of lading, or other product transfer document which (1) states the maximum Reid Vapor Pressure requirement in effect at the time of delivery, and certifies that the Product is in compliance with the requirements, (2) states the applicable range of oxygen content requirements, and (3) contains all of the information required by the EPA's reformulated gasoline and deposit control additive regulations.

Additionally, the Seller will comply with the Federal Trade Commission's requirements for gasoline octane certification under the Petroleum Marketing Practices Act and certifies the accuracy of the octane rating(s) of any automotive gasoline(s) described in the Specific Terms.

19. INSPECTION AND AUDIT: (a) Unless otherwise provided in the Specific Terms, Seller will provide gauging, sampling, and testing at no charge to Buyer. Each Party shall accord the other the right to inspect the other Party's terminal and transportation facilities, during regular business hours and at the expense of the Party conducting the inspection, for the purpose of verifying compliance with the Contract and with applicable laws, rules, and regulations. (b) Each Party and its authorized representatives shall have access to the books and records of the other Party relating to performance of the Contract. Each Party shall have the right to audit those records at any reasonable time, but not more than two times per year, during the term of the Contract and for two year thereafter. The audited Party shall fully cooperate with the auditing Party to accomplish the audit as expeditiously as possible. (c) Either Party may retain outside auditors or inspectors whose costs and fees shall be borne by the Party employing the outside auditor or inspector. Each Party agrees to be bound by and shall cause any independent auditors or inspectors to be bound by the confidentiality obligations contained herein. Either Party may witness any inspection at its own expense.

 

20. MATERIAL SAFETY DATA SHEETS: Seller shall furnish to Buyer Material Safety Data Sheets which provide warnings and safety and health information concerning the Product(s). Buyer agrees to disseminate the information so as to warn of possible hazards to all persons whom Buyer can reasonably foresee may be exposed to the hazards including, without limitation, Buyer's employees, agents, contractors, and customers. Buyer agrees to defend, indemnify, and hold harmless Seller against all liability arising out of or in any way connected with its failure to properly disseminate the warnings and information including, without limitation, liability for injury, sickness, death, and property damage.

 

21. CONFLICTS OF INTEREST: Each Party, in performing the Contract, shall maintain appropriate business standards, procedures, and controls, including those necessary to avoid any real -or apparent impropriety or adverse impact on the interest of the other Party. Each Party shall review its business standards with reasonable frequency during the term of the Contract, including, without limitation, those related to the activities of its employees and agents and their relations with the other Party's employees, agents, and representatives and other third parties.

B. The Parties agree to take all necessary precautions to maintain the confidentiality of Confidential Information and to prevent disclosure to third parties unless the Party obtains the other Party's written consent to do so.

 

        C  Each Party agrees that, upon expiration or termination of the Contract, it shall return to the other Party all documents or electronic data, including any copies thereof, containing Confidential Information.

 

23. NOTICES: All notices, consents, and other communications under the Contract shall be in writing and shall be deemed to have been duly given (i) when delivered in person, (ii) when received by fax (with acknowledgement of receipt), (iii) when received by the addressee if sent by Express Mail, Federal Express, or other express delivery service (receipt requested), (iv) five business days after being placed in the United States mail, by first class postage or Registered or certified mail, return receipt requested, or (v) by any other means as the Parties may agree from time to time, in each case to the appropriate address as designated by the Parties.

 

24. APPLICABLE LAW: The Contract shall be interpreted in accordance with the laws of the State of Texas without regard to any choice of law rules. Notwithstanding anything to the contrary, the Contract 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.

 

25. ENTIRETY-CHANGES: The Contract comprises the entire agreement and supersedes all prior representations and understandings between the parties concerning the subject matter or in consideration hereof. No agreement amending, supplementing, or partly or wholly terminating the Contract shall be binding on either Party unless in writing executed by its authorized representative.