MATAMOROS LPG MIX PURCHASE AND SALES AGREEMENT BETWEEN RIO VISTA OPERATING PARTNERSHIP L.P. AND P.M.I. TRADING LIMITED
Exhibit
10.11
BETWEEN
RIO
VISTA OPERATING PARTNERSHIP L.P. AND P.M.I. TRADING
LIMITED
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This
Matamoros LPG Mix Purchase and Sales Agreement (the "Agreement"), made and
entered into as of April 28th,
2006,
by and between Rio Vista Operating Partnership L.P., a corporation organized
under the laws of the State of Delaware, United States of America, having its
principal place of business at 000 Xxxxxxx Xxxx, Xxxxx 0000, Xxxxxxx Xxxxx,
00000, Xxxxxx Xxxxxx of America ("Seller") and P.M.I. Trading Limited, a
corporation organized under the laws of Ireland, having the administration
of
its business and place of address at Xx. Xxxxxx Xxxxxxxx Xx. 000, Xxxxx
Xxxxxxxxx Piso 20, Col. Huasteca, C.P. 11311, in Mexico City, Mexico ("Buyer")
(each of Buyer and Seller, "Party" and, collectively, the
"Parties").
NOW,
THEREFORE, in
consideration of the representations, warranties, covenants and agreements
hereinafter set forth, the Parties hereby agree as follows:
ARTICLE
I
DEFINITIONS
1.01
Definitions.
For
purposes of this Agreement, the following terms shall have the meanings
indicated below:
"Affiliate"
shall mean, with respect to any Person, any other Person controlling, controlled
by, or under common control with such Person;
"Agreement"
shall mean this Agreement, including all Exhibits attached hereto, as the same
may be amended, modified or supplemented from time to time;
"Alternative
Delivery Point" shall mean Seller's terminal located at 000 Xxxxxxxx Xxxx,
Xxxx
of Xxxxxxxxxxx, 00000 Xxxxx, Xxxxxx Xxxxxx of America.;
"ASTM"
shall mean the American Society for Testing and Materials;
"Banking
Day" shall mean any day on which the banks are open for business in the
jurisdiction in which payment is to be made;
"Butane"
shall comply with the specifications set forth by the GPA;
"Buyer's
Representatives" shall mean Pemex-Gas y Petroquímica Básica's
personnel
authorized to supervise the operations described in this Agreement at the
Delivery Point or at the Alternative Delivery Point;
"DDU"
shall mean Delivered Duty Unpaid, according to Incoterms 2000;
"Day"
shall mean a twenty-four (24) hour period, starting at zero hours local
time in Matamoros on the morning of each calendar day and ending at
zero
hours local time in Matamoros on the morning of the following calendar
day;
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"Delivery
Point" shall mean Seller's terminal located at Xxxx. Sendero Nacional Xx. 0,
xxxxxxxxxx Xxxx. Xx Xxxxxx-Xxxxx Xxxxxx Xx. 3.4, desviación brecha 22 s/n (a 500
mts.), Ejido La Xxxxxx, X.X. 00000, Xxxxxxxxx, Xxxxxxxxxx, Xxxxxx;
"FCA"
shall mean Free Carrier, according to Incoterms 2000;
"Gallon(s)"
shall mean one (1) U.S. standard gallon of two hundred and thirty one (231)
cubic inches at sixty degrees Fahrenheit (60°F);
"GPA"
shall mean the Gas Processors Association;
"Injection
Point" shall mean Seller's terminal located at 000 Xxxxxxxx Xxxx, Xxxx xx
Xxxxxxxxxxx, Xxxxx, 00000, Xxxxxx Xxxxxx of America;
"Product"
shall mean the LPG Mix meeting the specification parameters set forth in
Exhibit
A.
"Mexico"
shall mean the United Mexican States;
"MMgal"
shall mean millions of Gallons;
"Month"
shall mean a calendar month;
"Person"
shall mean an individual, partnership, company, firm, trust, joint venture,
unincorporated organization or government or any department or agency
thereof;
"PGPB"
shall mean Pemex-Gas y Petroquímica Básica;
"U.S.
Dollars" or "U.S.$" shall mean dollars of the United States of
America;
"U.S."
shall mean the United States of America.
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ARTICLE
II
PURPOSE;
TERM
2.01 Purpose. Seller
agrees to sell, transfer, convey and deliver to Buyer and Buyer agrees to
purchase and accept receipt from Seller, of Product in accordance with the
terms
and conditions of this Agreement.
2.02 Term. Unless
earlier terminated in accordance with this Agreement, the term of this Agreement
(the "Term") shall commence on May 1st,
2006
(the "Effective Date") and end on March 31st,
2007.
ARTICLE
III
PRODUCT
3.01 Product
Specifications. Product
shall, at all times, meet the specification parameters set forth in Exhibit
A.
Seller
warrants and guarantees that (i) the Product will conform to the specifications
described in Exhibit
A
at the
time and place of delivery; (ii) that Seller has free and clear title to the
Product sold hereunder, and (iii) that the Product shall be delivered to Buyer
free from security interests, liens or other encumbrances.
3.02 Product
Quantity. In
accordance with the following table:
|
5
MMgal per Month
+/-
10% at Buyer's option
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FROM
MAY 1st
THROUGH SEPTEMBER 30th,
2006.
|
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9
MMgal per Month
+/-
10% at Buyer's option
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FROM
OCTOBER 1st
THROUGH NOVEMBER 30th,
2006.
|
|
10
MMgal per Month
+/-
10% at Buyer's option
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FROM
DECEMBER 1st
2006 THROUGH JANUARY 31st,
2007.
|
|
9
MMgal per Month
+/-
10% at Buyer's option
|
FROM
FEBRUARY 1st
THROUGH MARCH 31st,
2007.
|
Ten
(10)
Days prior to the beginning of each Month, Buyer shall inform to Seller the
volume to be delivered on such Month ("Nominated Volume").
3.02.1 Early
Termination. If
this
Agreement is terminated by either Party prior to the expiration of the Term
in
accordance with the terms and conditions of this Agreement, Nominated Volume
shall be prorated through the termination date on the basis of this Article
3.02.
3.03 Product
Quality and Quantity Inspection. Buyer
and
Seller shall appoint an independent inspection company the ("Inspector")
mutually agreeable to Buyer and Seller to determine quality and quantity of
the
Product at the Delivery Point. The Inspector's findings shall be final and
binding on the Parties
in the absence of fraud, bad faith or manifest error. Buyer shall pay the gross
amount of the Inspector's fees, however Seller agrees that Buyer shall monthly
deduct the amount of U.S.$8,500.00 from amounts due to Seller, such amount
representing Seller's share of the Inspector's fees.
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3.03.1 Product
Quality Inspection. All
Product shall be monitored to ensure compliance with the specification
parameters in Exhibit
A.
Determination of quality shall follow the procedures set forth in the latest
revision of ASTM procedures (the "Compliance Procedures"). A sample of Product
will be drawn in accordance with the Compliance Procedures (the "Sampling")
by
the Inspector at the Delivery Point for approximately every 50,000 Gallons
injected at the Injection Point. A gas chromatography ("GC") analysis (as
defined hereunder) shall be performed by the Inspector on the sample in
accordance with the ASTM D-2163 method to assess the sample's compliance with
the specification parameters in Exhibit
A.
If the
sample analysis is found to be non-compliant, the entire 50,000 Gallons of
Product, from which the sample was taken, will be deemed non-compliant (the
"Non-Compliant Product"), and the Inspector shall immediately notify both
Parties. All Non- Compliant Product shall be deemed not delivered and Buyer
shall not be responsible for payment unless both parties agree to receive such
volumes. Seller shall use its best efforts to dispose of any Non-Compliant
Product promptly upon notification of its non-compliance by the Inspector and
shall be responsible for any and all costs and liabilities relating to or
arising from the Non- Compliant Product. The gas chromatograph utilized shall
be
calibrated in accordance with the latest ASTM and GPA procedures.
3.03.2 Product
Quantity Inspection. The
Inspector shall determine the quantity of Product for payment purposes as
follows:
(a) Each
empty tank truck shall be weighed on the platform scale at the Delivery
Point/Alternative Delivery Point, or an alternative independent platform scale
mutually acceptable to the Parties. Once Product is completely loaded onto
the
tank trucks, such tank truck will be weighed at the same platform scale upon
its
departure. The weight obtained by the differential between these two
measurements shall be converted into volume in Gallons and corrected at 60°F in
accordance with the Compliance Procedures, through the determination of the
specific gravity through gas chromatograph provided by Seller or by
Inspector.
(b) Seller's
terminal platform scale at the Delivery Point/Alternative Delivery Point will
be
tested and adjusted for accuracy at least once every six (6) Months. Seller
will
be required to comply with the calibration and certification procedures
adopted by Mexican authorities in accordance with Official Standards
(NOM-010-SCFI latest version). Buyer's Representatives and Inspector may witness
the calibration and certification procedures. Seller shall provide Buyer via
fax
a copy of the above-mentioned certificates. If Seller's terminal platform scale
at the Delivery Point/Alternative Delivery Point is used, and/or any claim
is
received by Buyer from PGPB, Buyer reserves the following rights: To execute
evaluation procedures on a random basis sending tank trucks to an independent
scale to test the accuracy of such scale and recover damages from Seller for
any
discrepancy found.
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(c) If
Seller's platform scale at the Delivery Point/Alternative Delivery Point is
not
suitable for the service due to non- compliance with the above-mentioned
Official Standards and an independent platform scale is used, the Parties will
share equally the cost of weighing the tank trucks before and after
loading.
(d) If
Seller
at any time replaces the platform scales at its terminal at the Delivery
Point/Alternative Delivery Point, such new scales shall be used to weigh all
tank trucks receiving Product at the Delivery Point/Alternative Delivery Point,
and shall be operated and maintained in accordance with the above provisions.
Seller shall be responsible for all costs and expenses associated with such
new
scales.
(e) For
customs and inventory-management purposes, Product pumped through Seller's
pipeline from the Injection Point to the Delivery Point shall be measured on
a
daily basis at the micromotion measurement device installed at the Delivery
Point. Readings by such device shall be registered by the Inspector, Mexican
authorities, PGPB's customs broker, Buyer's Representative and Seller's
representative. A reading of the quantity of Product pumped will be calculated
on the basis of the differential between the readings taken at 00:00 hrs. and
the reading taken the previous Day at 00:00 hrs., converted to volume in Gallons
and corrected at 60°F, through the determination of the specific gravity by
samples taken at the Delivery Point (at the micromotion measurement device
installed at the connection point between Seller's pipeline and the Delivery
Point) for approximately every 50,000 Gallons received at the Delivery Point,
through GC.
Additionally,
for verification and customs purposes, Product pumped through Seller's pipeline
from the Injection Point to the Delivery Point shall be measured on a weekly
basis every Monday at the micromotion measurement device installed at the
Delivery Point. Readings by such device shall be witnessed by the Inspector,
Mexican authorities, PGPB's customs broker Buyer's Representative and Seller's
representative. A reading of the
quantity of Product pumped will be calculated on the basis of the differential
between the current reading and the reading taken the previous Monday at the
same time converted to volume in Gallons and corrected at 60°F, through the
determination of the specific gravity by samples taken at the Delivery Point
(at
the micromotion measurement device installed at the connection point between
Seller's pipeline and the Delivery Point) for approximately every 50,000 Gallons
received at the Delivery Point on the immediate preceding five (5) Days, through
GC. The Inspector shall take line samples and shall test the batch pumped at
the
time of the readings.
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ARTICLE
IV
PRODUCT
DELIVERY; TRANSFER OF TITLE; CUSTODY
RISK
OF LOSS AND CONTAMINATION
4.01 Product
Delivered at Delivery Point. Product
shall be
delivered DDL) at the Delivery Point. Title of Product shall pass from Seller
to
Buyer at the point in the Seller's pipeline where Product passes into México at
the U.S./México border in Matamoros, Tamaulipas, México. The custody, risk of
loss and contamination with respect to Product shall pass from Seller to Buyer
at the moment Product passes the flange connection between the Delivery Point
hose and the tank trucks provided by Buyer.
4.02 Product
Delivered at the Alternative Delivery Point. If,
by
any reason of a programmed maintenance at the Delivery Point or Injection Point,
or an event different from Force Majeure at the Delivery Point, Seller is not
able to deliver Product at the Delivery Point, Seller shall immediately notify
Buyer, and Buyer shall have the option of loading Product at the Alternative
Delivery Point, in which case Buyer shall so notify Seller. The Product shall
be
then delivered FCA at the Alternative Delivery Point. Title of Product, as
well
as custody, risk of loss and contamination with respect to Product shall pass
from Seller to Buyer as the Product passes the flange connecting the Seller's
Alternative Delivery Point with Buyer's tank trucks.
For
Product delivered at the Alternative Delivery Point, Buyer shall nominate tank
truck transportation services. Seller shall discount from the sales price,
the
Service Fee described in Article 5.01 and 5.02, by an amount equal to the
transportation costs incurred by Buyer, such transportation costs to be
determined based on the prevailing market conditions at the time that Buyer
must
arrange for transportation and as mutually agreed by the Parties.
In
the
event of a Force Majeure condition at the Delivery Point, Buyer shall also
have
the option of loading Product at the Alternative Delivery Point. The Parties
agree that in this event, Seller shall discount from the Product's price
(including the Service Fee), as set forth in Article 5.01 and 5.02, an amount
equal to the operational costs of the terminal at the Delivery Point plus costs
related to the transportation of Product through Seller's pipeline from the
Alternative Delivery Point to the Delivery Point. Seller shall inform Buyer
of
its. calculation
of the amounts to be discounted, such final discount amount to be mutually
agreed between the Parties.
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In
the
event Buyer elects not to exercise its option to take delivery at the
Alternative Delivery Point, Seller shall still be obligated to deliver to Buyer
the Nominated Volume.
ARTICLE
V
PRICING;
INVOICING; PAYMENT TERMS
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5.01
|
Price
of Product; Service Fees. Product
pricing shall be calculated monthly in accordance with the Propane
and
Butane content of the mix actually received by Buyer. Price shall
be the
sum of (i) the average price of Propane multiplied by its actual
fraction
and Butane multiplied by its actual fraction during the delivery
Month as
published by OPIS (Oil Price Information Service) for Mont Belvieu
non-TET
daily spot postings, and (ii) a premium (the "Service Fee") as provided
in
Exhibit B; it being understood that in no event shall the Butane
component
shall be greater than 10%.
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|
5.02
|
Price
of Additional Volume. the
Service Fee for additional volume, will be as provided in Exhibit
B.
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The
estimated prices (the "Estimated Prices") to be used for interim invoicing
purposes shall be determined in accordance with Sections 5.01 and 5.02
(including the Service Fee), except that the price of Product shall be based
on
the closing posting price of the Mt. Belvieu non-TET as of the fifth Day prior
to the delivery Month in which a posting price is published assuming ninety
percent (90%) of Propane and ten percent (10%) normal Butane. At the end of
the
delivery Month, an adjustment shall be made so
as
to
reflect the differences between the Estimated Prices as invoiced and the actual
Month-end prices as determined in Sections 5.01 and 5.02 (the "True
Up").
5.03 Invoicing. Seller
shall invoice and send Buyer every Friday, the total volume loaded during the
immediately preceeding week, using the Estimated Prices (the "Estimated
Invoices"), as set forth under Article 5.01.
The
Month-End True Up shall be invoiced (the "True Up Invoice") at the end of the
delivery Month. This True Up invoice shall include (i) the volume delivered
from
Seller to Buyer, and (ii) the realized price as per this Section. The True
Up
invoice must contain a deduction of US$8,500, representing Seller's payment
of
its share of Inspector's fees, as provided under Article 3.03.
All
invoices shall comply with Buyer's treasury policies and shall be sent in
original to Buyer's financial contact set forth in the notice provision of
this Agreement.
Neither faxed nor copied invoices will be acceptable to Buyer.
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5.04 Payment
Terms. Except
as
otherwise agreed in this Agreement, payments shall be made by Buyer in net
U.S.
Dollars without set-off, deduction or counterclaim, and by wire transfer to
Seller's designated account, as follows.
5.04.1 Estimated
Invoices Payment. Payment
of each of the Estimated Invoices shall be made by Buyer ten (10) Days after
the
date on which such Estimated Invoices are received by Buyer. In case that
payment date falls on a Sunday or holiday, then payment date will be the next
Banking Day. In case that payment date falls on a Saturday, then payment date
will be the prior Banking Day.
5.04.2 True
Up Invoice Payment. Payment
of any amount due, either from Buyer to Seller or from Seller to Buyer shall
be
made in U.S. Dollars within ten (10) Days after receipt of the original invoice.
In case that payment date falls on a Sunday or holiday, then payment date will
be the next Banking Day. In case that payment date falls on a Saturday, then
payment date will be the prior Banking Day.
5.04.3 Other
Payments. Except
as
provided in Articles 5.04.1 and 5.04.2 above, any amount due from one Party
to
the other shall be paid in U.S. Dollars within ten (10) Days after receipt
of
the original invoice. In case that payment date falls on a Sunday or holiday,
then payment date will be the next Banking Day. In case that payment date falls
on a Saturday, then payment date will be the prior Banking Day.
5.04.4 Office
Expenses. Seller
shall provide Buyer with a list detailing certain expenses which Buyer shall
be
liable for and which may include telephone, telefax, cleaning and secretarial
services, as well as expenses incurred by Buyer's Representatives supervising
receipt of the Product deliveries at the Delivery Point. Buyer's Representatives
must approve such detailed list. Seller shall invoice Buyer at the end of the
Month U.S. $2,500 for such expenses, and Buyer shall pay Seller within twelve
(12) Days after receipt of the original invoice at Buyer's offices. If payment
date falls on a weekend or U.S. or Mexican holiday, payment shall be made on
the
following Banking Day. Extraordinary expenses shall be mutually agreed by the
Parties.
5.04.5 Late
payments. If
either
Party does not make timely payments of any amount due under this Agreement,
then
any such late payment shall accrue interest at a rate equal to the Prime Rate
announced by Citibank N.A., New York, New York, U.S., pro-rated for the number
of days a payment is late. If either Party, for any reason, disputes an amount
which is invoiced or claimed to be owed, then such Party shall promptly pay
the
undisputed amount to the extent that such amount is undisputed. Buyer
and
Seller shall resolve the disputed amount, and a replacement invoice shall be
issued and payment of the replacement invoice shall be made in accordance with
Section 5.03. The failure of a Party to object to an invoice within ten (10)
Days after receipt of the invoice shall de deemed considered a waiver of such
Party's right to contest the invoiced amount. If a timely objection is raised
and not resolved within thirty (30) Days thereafter, the dispute may then be
submitted to the American Arbitration Association through its expedited
arbitration procedures.
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ARTICLE
VI
REPRESENTATIONS
AND WARRANTIES
Seller
hereby represents and warrants to Buyer as follows:
6.01 Organization
and Qualification. Seller
is
a corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has all requisite corporate
power and authority to own and operate its assets and properties and to carry
on
its business as currently conducted. Seller is duly qualified to do business
and
is in good standing as a foreign corporation in each jurisdiction where the
ownership or operation of its assets and properties or the conduct of its
business requires such qualification.
6.02 Corporate
Authorization. Seller
has full corporate power and authority to execute and deliver this Agreement,
and to perform its obligations hereunder. The execution, delivery, and
performance by Seller of this Agreement have been duly and validly authorized
and no additional corporate authorization or consent is required in connection
with the execution, delivery and performance by it of this
Agreement.
6.03 Consents
and Approvals. No
consent, approval, waiver or authorization is required to be obtained by Seller
from, and no notice or filing is required to be given by Seller or made by
Seller with, any federal, state, local or foreign governmental authority or
other person in connection with the execution, delivery and performance of
this
Agreement.
6.04 Non-Contravention. The
execution, delivery and performance by Seller of this Agreement, and the
consummation of the transactions contemplated hereby, do not and will not (i)
violate any provision of the organizational documents of Seller; (ii) conflict
with, or result in the breach of, or constitute a default under, or result
in
the termination, cancellation or acceleration (whether after the filing of
notice or the lapse of time or both) of any right or obligation of Seller under,
or to a loss of any benefit to which Seller is entitled under, any contract;
or
(iii) or result in a breach of or constitute a default under any law of any
court or governmental authority to which Seller is subject.
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6.05 Binding
Effect. This
Agreement constitutes a valid and legally binding obligation of Seller
enforceable against Seller in accordance with the terms of this Agreement,
subject to bankruptcy, insolvency, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and to
general equity principles.
Buyer
hereby represents and warrants to Seller as follows:
6A.01 Organization
and Qualification. Buyer
is
a corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has all requisite corporate
power and authority to own and operate its assets and properties and to carry
on
its business as currently conducted. Buyer is duly qualified to do business
and
is in good standing as a foreign corporation in each jurisdiction where the
ownership or operation of its assets and properties or the conduct of its
business requires such qualification.
6A.02 Corporate
Authorization. Buyer
has
full corporate power and authority to execute and deliver this Agreement, and
to
perform its obligations hereunder. The execution, delivery and performance
by
Buyer of this Agreement have been duly and validly authorized and no additional
corporate authorization or consent is required in connection with the execution,
delivery and performance by it of this Agreement.
6A.03 Consents
and Approvals. No
consent, approval, waiver or authorization is required to be obtained by Buyer
from, and no notice or filing is required to be given by Buyer or made by Buyer
with, any federal, state, local or foreign governmental authority or other
person in connection with the execution, delivery and performance of this
Agreement.
0X.00 Xxx-Xxxxxxxxxxxxx. The
execution, delivery and performance by Buyer of this Agreement, and the
consummation of the transactions contemplated hereby, do not and will not (i)
violate any provision of the organizational documents of Buyer; (ii) conflict
with, or result in the breach of, or constitute a default under, or result
in
the termination, cancellation or acceleration (whether after the filing of
notice or the lapse of time or both) of any right or obligation of Buyer under,
or to a loss of any benefit to which Buyer is entitled under, any contract;
or
(iii) or result in a breach of or constitute a default under any law of any
court or governmental authority to which Buyer is subject.
6A.05 Binding
Effect. This
Agreement constitutes a valid and legally binding obligation of Buyer
enforceable against Buyer in accordance with the terms of this Agreement,
subject to bankruptcy, insolvency, reorganization moratorium and similar laws
of
general applicability relating to or affecting creditors' rights and to general
equity principles.
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ARTICLE
VII
TERMINAL-RELATED
PROVISIONS; REGULATORY COMPLIANCE
7.01 Terminal
Safety. Buyer
will comply, and will cause Buyer's Representatives entering into the Delivery
Point (or the Alternative Delivery Point, if such is the case) to comply, with
all applicable terminal safety and health regulations. Seller will furnish
to
Buyer prior to accepting any Product at the Delivery Point (or the Alternative
Delivery Point, if such is the case), all information (including applicable
material safety data sheets), documents, labels, placards, container, and other
materials which are required to be furnished pursuant to statutes, ordinances,
rules or regulations of any public authority relating to the describing,
packaging, receiving, storing, handling, or shipping of Product at or from
the
Delivery Point (or the Alternative Delivery Point, if such is the case). Seller
shall provide such information on the date of execution of this
Agreement.
7.02 Loading. Seller
will provide loading services at the Delivery Point (or the Alternative Delivery
Point, if such is the case) seven (7) Days a week, twenty-four (24) hours per
Day. If the Parties determine that it is not necessary to have personnel 24
hours a Day based upon operational experience developed on site, hours of
service shall be subject to availability of Buyer's Representatives to dispatch
Product from the Delivery Point (or the Alternative Delivery Point, if such
is
the case).
Seller
will provide Buyer, in addition to the Inspector's report, with a daily activity
report specifying the quantity (weight and volume) and quality of Product
delivered to Buyer at the Delivery Point (or the Alternative Delivery Point,
if
such is the case).
7.03 Spill/Environmental
Pollution. If
any
Propane and/or Butane or Product spill or other environmental polluting
discharge occurs in connection with or relating to any Product prior to delivery
of such Product, all containment and clean-up operations (including those
required by any governmental authority), shall be at Seller's
expense.
If
such
spill or environmental polluting discharge occurs after delivery at the Delivery
Point (or the Alternative Delivery Point, is such is the case), Buyer authorizes
Seller to commence containment or clean-up operations as deemed appropriate
or
necessary by Seller or as may be required by any governmental authority. Seller
will notify Buyer immediately of such operations. Seller shall have the right
to
direct all containment and clean-up operations.
All
costs
of containment and clean-up for any spill or environmental pollution will be
borne by the Party responsible for such spill or environmental pollution, and
such Party shall indemnify and hold harmless the other Party from any and all
expenses, claims, liabilities, damages, penalties, fines and other costs
(including, without limitation, attorneys' fees) resulting from or related
to
such incident.
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7.04 Terminal
Regulatory Compliance. Seller
warrants that the terminals at the Delivery Point and the Alternative Delivery
Point, respectively, comply, and covenants that such terminals will comply
at
all times during the Term of the Agreement, with all local, state and federal
laws, rules or regulations applicable to terminals, including without
limitation, all such laws, rules or regulations concerning permits and insurance
required for owning, leasing, using, or operating a terminal at the Delivery
Point or Alternative Delivery Point.
ARTICLE
VIII
CHANGE
OF CIRCUMSTANCES
In
case
of issuance of licenses by the Mexican government allowing private companies
to
import Product into Mexico, any party shall have the right to notify the other
party its desire to reduce the quantity stated in this Agreement or its desire
to terminate this Agreement in advance. The negotiation process shall last
no
more than thirty (30) Days. If, by the end of such period, the parties do not
reach a mutual consent, this Agreement shall be deemed terminated
ARTICLE
IX
MISCELLANEOUS
9.01 Notices. All
notices or other communications hereunder shall
be
deemed to have been duly given and made, if in writing and if served by personal
delivery upon the Party for whom it is intended, if delivered by registered
or
certified mail, return receipt requested, or by a national courier service,
or
if sent by telecopier; provided that the telecopy is promptly confirmed by
telephone confirmation thereof, to the person at the address set forth below,
or
such other address as may be designated in writing hereafter, in the same
manner, by such person:
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BUYER:
|
P.M.I.
TRADING LIMITED
|
|
ADDRESS:
|
Xx.
Xxxxxx Xxxxxxxx Xx. 000
Xxxxx
Xxxxxxxxx, Xxxx 00
Col.
Huasteca
11311
México D.F.
|
Commercial
Contact
|
Name:
|
Xxxxxxx
Xxxxxx / Xxxxx Xxxxxx
|
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Telephone:
|
(00-00)
0000-0000/0158/0240 / (000) 000-0000/0158/0240
|
|
Telex
No.:
|
0000000
|
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Fax
No.:
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(00-00)
0000-0000 / (000) 000 0000
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Page
13 of
21
Operations Contact
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Name:
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Xxxxx
Xxxxxxxxxxx/Xxxxxx Xxxxxxxxx/Xxxxxxxx Xxxxxxx
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|
Telephone:
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(00-00)
0000-0000/0142/0119 / (000) 000-0000/0142/0119
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Telex
No.:
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0000000/0000000
|
|
Fax
No.:
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(00-00)
0000-0000 / (000) 000-0000
|
Financial
Contact
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Name:
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Xxxx
Xxxxxx Xxxxxxxxx/Xxxxxxxxx Xxxxxxxxx
|
|
Telephone:
|
(00-00)
0000-0000/0077 / (000) 000-0000/0077
|
|
Telex
No.:
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1773671-1773509
|
|
Fax
No.:
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(00-00)
0000-0000 / (000) 000-0000
|
|
SELLER:
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RIO
VISTA OPERATING PARTNERSHIP L.P.
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|
ADDRESS:
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000
Xxxxxxx Xx. Xxx. 0000
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Xxxxxxx,
Xxxxx, 00000
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Commercial
Contacts
|
|
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
Telephone
No.:
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(000)
000-0000
|
|
Fax
No.:
|
(000)
000-0000
|
|
Name:
|
Xxxxxxx
Xxxxxxx
|
|
Telephone
No.:
|
(00-00)
0000-0000
|
|
Fax
No.:
|
(00-00)
0000-0000
|
|
Operations
Contact
|
|
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
Telephone
No.:
|
(000)
000-0000
|
|
Fax
No.:
|
(000)
000-0000
|
|
Name:
|
Xxxxxxx
Xxxxxxx
|
|
Telephone
No.:
|
(00-00)
0000-0000
|
|
Fax
No.:
|
(00-00)
0000-0000
|
|
Name:
|
Xxxxx
Xxxxx
|
|
Telephone
No.:
|
(000)
000-0000
|
|
Fax
No.:
|
(000)
000-0000
|
|
Carretera
La Xxxxxx - Xxxxx Xxxxxx KM. 34
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|
|
La
Xxxxxx, Tamaulipas
|
|
|
Financial
Contact
|
|
|
Name:
|
Xxx
Xxxxxxxx
|
|
Telephone
No.:
|
(000)
000-0000
|
|
Fax
No.:
|
(000)
000-0000
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Page
14 of
21
9.02 Amendment;
Waiver. Any
provision of this Agreement may be amended or waived if, and only if, such
amendment or waiver is in writing and signed, in the case of an amendment,
by
Buyer and Seller, or in the case of a waiver, by the Party against whom the
waiver is to be effective. In the event of any such attempted assignment or
delegation by any Party without the consent of the other Party, such Party
shall
have the right, without prejudice to any other rights or remedies it may have
hereunder or otherwise, to terminate the Agreement effective immediately upon
notice to the other Party.
No
failure or delay by any Party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by
law.
9.03 Assignment. No
Party
to this Agreement may assign any of its rights or obligations under this
Agreement without the prior written consent of the other Party hereto.
Notwithstanding the foregoing, Buyer may freely assign the Agreement to any
affiliate thereof and Seller will have the right to assign this Agreement if
substantially all of its assets are sold or in the event a merger with another
entity in which it is not the surviving entity, provided that Seller receives
the prior written consent from Buyer.
9.04 Entire
Agreement. This
Agreement (including
all Exhibits hereto) contains the entire agreement between the Parties hereto
with respect to the subject matter hereof and supersedes all prior agreements
and understandings, oral or written, with respect to such matters.
9.05 Fulfillment
of Obligations. Any
obligation of any Party to any other Party under this Agreement, which
obligation is performed, satisfied or fulfilled by an Affiliate of such Party,
shall be deemed to have been performed, satisfied or fulfilled by such
Party.
9.06 Parties
in Interest. This
Agreement shall inure to the benefit of and be binding upon the Parties hereto
and their respective successors and permitted assigns. Nothing in this
Agreement, express or implied, is intended to confer upon any Person other
than
Buyer, Seller or their respective successors or permitted assigns, any rights
or
remedies under or by reason of this Agreement.
9.07 Disclosure. Notwithstanding
anything herein to the contrary, each of the Parties hereby agrees with the
other Party or Parties hereto that, except as may be required to comply with
the
requirements of any applicable Laws and the rules and regulations of any stock
exchange upon which the securities of one of the Parties is listed, no press
release or announcement or communication of any kind shall ever, whether prior
to or subsequent to the execution
of this Agreement, be made or caused to be made concerning the execution,
performance or terms of this Agreement unless specifically approved in advance
by all Parties hereto.
Page
15 of
21
9.08 Expenses. Except
as
otherwise expressly provided in this Agreement, whether or not the transactions
contemplated by this Agreement are consummated, all costs and expenses incurred
in connection with this Agreement and the transactions contemplated hereby
shall
be borne by the Party incurring such expenses.
9.09 Governing
Law. This
agreement shall be governed by, and construed in accordance with the internal
laws of the state of New York without regard to its conflicts of law
principals.
9.10 Arbitration. Any
and
all disputes, claims or controversies arising under or relating to this
Agreement shall be settled by arbitration administered by the American
Arbitration Association ("AAA") under its International Arbitration Rules.
The
place of the arbitration shall be New York City, New York, U.S. The Parties
agree that the number of arbitrators shall be three. Each Party shall nominate
a
neutral and independent arbitrator, and the two arbitrators so appointed shall
appoint the third neutral and independent arbitrator, who shall act as the
Chairperson. If the arbitrators selected by the Parties are unable or fail
to
agree upon the third arbitrator, the third arbitrator shall be selected by
the
AAA. The award shall be in writing, shall be signed by a majority of the
arbitrators, and shall include a statement regarding the reasons for the
disposition of any claim. A judgment of the court having jurisdiction may be
entered on the award. Except as may be required by law, neither a Party nor
an
arbitrator may disclose the existence, content, or results of any arbitration
hereunder without the prior written consent of both Parties.
9.11 Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, and all of which shall constitute one and the same
Agreement.
9.12 Headings. The
heading references herein and the table of contents hereto are for convenience
purposes only, do not constitute a part of this Agreement and shall not be
deemed to limit or affect any of the provisions hereof.
9.13 Severability. The
provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. If any provision of this
Agreement, or the application thereof to any Person or any circumstance, is
invalid or unenforceable, (a) a suitable and equitable provision shall be
substituted therefore in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable provision
and (b) the remainder of this Agreement and the application of such provision
to
other Persons or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the
validity, or enforceability of such provision, or the application thereof,
in
any other jurisdiction.
Page
16 of
21
9.14 Third
Party Beneficiaries. Nothing
in the Agreement is intended or shall be construed to confer upon or give to
any
Person or entity any rights as a third party beneficiary of the Agreement or
any
part thereof.
9.15 Taxes
and Documents. Each
Party shall be responsible for paying any taxes, duties, fees or whichever
other
similar to which they are obliged to pay in accordance with the applicable
law.
Seller
will be obliged to provide Buyer with a valid North American Free Trade
Agreement certificate of origin. If for any reason Seller does not provide
Buyer
with such certificate of origin, Buyer shall have the right to discount from
the
final purchase price of Product, any and all taxes, duties or fees imposed
by
the Mexican governmental authorities which must be paid in excess by Buyer,
due
to the lack of the above-mentioned certificate.
9.16 Other
Terms and Conditions. Except
as
would conflict or except as otherwise provided in this Agreement, Incoterms
2000
for DDU or FCA, as appropriate, shall apply. In no event shall the United
Nations Convention for the International Sales of Goods apply to this
Agreement.
9.17 Force
Majeure. Neither
Party shall be liable for losses, damages, claims or demands of any nature
arising out of delays or defaults in performance under the Agreement due to
any
unforeseeable impediment beyond the reasonable control of the Parties ("Force
Majeure"), which shall include, but not be limited to: acts of god or public
enemy; floods or fire; hostilities or war (whether declared or undeclared);
blockades; labor disturbances, strikes, riots, insurrections or civil commotion;
quarantine restrictions or epidemics; electrical shortages or blackouts;
earthquakes; tides, storms or bad weather; accidents; breakdown or injury to
Buyer's (or Seller's) facilities; or laws, decrees, regulations, orders or
other
directives or actions of either general or particular application of the
government of México or the U. S. or any agency thereof or of a person or
authority purporting to act therefore, or request of any such person or
authority. Any Party claiming Force Majeure shall promptly notify the other
of
the occurrence of the event of Force Majeure relied upon and shall estimate
the
length of time that the Force Majeure condition is expected to continue. Such
Party shall also promptly notify the other Party of the cessation of the Force
Majeure condition. Nothing in this Article shall relieve Buyer of its obligation
to pay in full for product sold and effectively delivered and to pay all other
amounts due to Seller under the Agreement.
The
occurrence of an event of Force Majeure shall not operate to extend the period
of this Agreement. Should any such event curtail or suspend the performance
of
either Party hereunder for a period in excess of seven (7) Days, either Party
shall have the right to terminate this Agreement upon notice to the other
Party.
If,
as a
result of Force Majeure, Seller at any time does not have available a sufficient
amount of Product to be sold to Buyer, Seller shall be obligated
to equally prorate the available amount it holds for export among its customers,
including Buyer, or shall make reasonable commercial efforts to purchase Product
from any third party to sell to Buyer.
Page
17 of
21
9.18 Confidentiality. The
Parties agree to keep all terms and conditions of this Agreement, including
the
Parties' identities, private and confidential except to the extent that
disclosure is required under any rule or regulation to which the Party shall
be
subject. This obligation shall be of a continuing nature and shall not be
canceled by the termination of this Agreement.
9.19 Limitation
of Liability. Neither
Party shall be liable for special, indirect, incidental or consequential damages
of any kind arising out of or in any way connected with the performance of
or
failure to perform this Agreement.
9.20 Indemnity. Seller
agrees to indemnify, defend and fully hold harmless Buyer and/or any of its
officers, directors, representatives, employees, shareholders, subsidiaries,
agents, invitees, or licensees thereof, from and against any and all claims,
liabilities, damages, losses, costs, expenses (including reasonable attorney's
fees) demands, fines, suits, causes of action or judgments, directly or
indirectly, arising out of, in connection with, or resulting from, Product
related incident causing property damage, personal injury or death, whether
or
not claimants allege Seller's negligence as a cause, while Seller has custody
of
Product.
Likewise,
Seller shall indemnify, defend and hold harmless Buyer from and against all
actual or alleged liability, loss, or damage to Buyer or third parties resulting
from Seller's breach of this Agreement.
ARTICLE
X
TERMINATION
Termination
for Various Events. Notwithstanding
anything herein to the contrary, either Party may (in addition to any other
rights or remedies provided to the other Party under this Agreement) terminate
this Agreement, effective immediately upon notice to the other Party, if any
of
the following events occurs, and no alternative payment arrangement has been
made to secure payment to the terminating Party:
|
(a)
|
The
other Party (or any guarantor of the other Party's obligations hereunder)
institutes proceeding to be adjudged bankrupt or insolvent, seeks
or
suffers reorganization under court order, seeks the benefit of any
law for
the relief of debtors, makes an assignment for the benefit of creditors,
admits in writing its inability to pay its debts generally, when
become
due, or performs any other generally recognized act of insolvency
or
bankruptcy, or there shall be declared a moratorium
on the payment of the other Party's (or such guarantor's)
debts;
|
Page
18 of
21
|
(b)
|
There
is entered any decree or order by a court adjudging the other Party
(or
any guarantor of any of the other Party's obligations hereunder)
bankrupt
or insolvent, approving a petition for reorganization, approving
a
petition seeking the benefit of any law for the relief of debtors,
appointing a receiver, or decreeing or ordering the winding-up or
liquidation of the other Party's (or such guarantor's)
affairs;
|
|
(c)
|
Any
law, rule, regulation or decree of any competent authority restricts
the
ability of the other Party (or any guarantor of any of the other
Party's
obligations hereunder) to obtain U.S. Dollars for payments to be
made
under the Agreement (or any guaranty);
and
|
|
(d)
|
Any
material representation or material warranty made by the other Party
(or
any guarantor of any of the other Party's obligations hereunder)
hereunder
or otherwise proves to be false or incorrect in any material
respect.
|
In
witness whereof, the parties have duly executed this agreement as of day first
above written.
|
Rio
Vista Operating Partnership L.P.
|
P.M.I.
Trading Limited
|
|
|
/s/
Xxxxxxx X. Xxxxxx
|
/s/
Xxxxxxx Xxxxxx
|
|
|
Xxxxxxx
X. Xxxxxx
|
Xxxxxxx
Xxxxxx
|
|
|
Title:
|
Title:
|
|
|
President
|
Signatory
|
Page
19 of
21
