6
Contract No. 8364
GENERAL AMERICAN TRANSPORTATION CORPORATION
Car Service Contract
THIS AGREEMENT, made and entered into as of the 10th day of
December, 1987, by and between GENERAL AMERICAN TRANSPORTATION
CORPORATION, a New York corporation ("GATX"), and PETRO SOURCE
CORPORATION, a Utah corporation ("Customer"),
1. Definitions.
(a) "AAR rules": the rules adopted by the Association of
American Railroads governing the condition of and repairs to
railroad cars for the interchange of freight traffic, as
currently in effect and as subsequently amended.
(b) "car" or "cars": the car or cars described in Riders
attached to this Agreement.
(c) "claims": any and all liability, charge, cost, loss,
damage, expense or demand (including for personal injury or
death), including reasonable attorneys' fees and court costs
respecting the prosecution or defense thereof.
(d) "cleaned of commodities": cleaned of all commodities and
accumulations and deposits caused by commodities to the effect
that there is no measurable amount of such commodities,
accumulations and deposits remaining in the car and the car is
safe for human entry.
(e) "private tracks or premises": tracks or premises having
other than railroad ownership, except that tracks or premises
belonging to a railroad and leased to others than railroads shall
be considered private tracks or premises.
(f) "unavoidable delay": any GATX/Customer delay due to strike,
lockout, act of God, inability to obtain labor or materials, act
or failure to act of Customer/GATX, governmental action or
restriction, enemy action, civil commotion, fire, casualty, or
any other cause beyond the control of GATX/Customer whether or
not of the class of causes heretofore enumerated.
2. Description of Cars - Service Charges. GATX shall furnish
to Customer and Customer shall accept and use, on the terms and
conditions hereinafter set forth, the car or cars for the use of
each of which Customer shall pay GATX the service charges set
forth on the Riders attached to this Agreement. Service charges
with respect to each car shall commence upon delivery of each car
to Customer and shall continue in effect, subject to Article 6
hereof, until each such car is returned to GATX in accordance
with Article 5 hereof. Service charges shall accrue monthly, in
advance, upon the first day of each month, and Customer shall be
invoiced monthly. Except for disputed amounts, payments of all
charges payable by Customer to GATX under this Agreement shall be
made, without deduction, to GATX at the address shown on the
invoice within fifteen (15) days following the date of invoice.
Payments not made within thirty (30) days of invoice may, at
GATX's option, bear interest at the rate of 1% over the prime
rate of interest quoted by Citibank N.A. per month on the unpaid
balance (or such lesser interest rate as may be consistent with
the law of the state of Customer's domicile) until the balance is
paid.
3. Delivery/Acceptance of Cars. Each car shall be deemed
delivered to Customer hereunder upon acceptance by a railroad of
instructions to forward such car to the destination point
designated by Customer, except that any car which is already in
Customer's service under an expiring agreement or an agreement
terminated hereby shall be deemed delivered to Customer hereunder
immediately upon the expiration or termination of such agreement.
Furnishing of any car to Customer hereunder shall be subject to
unavoidable delay. Customer shall cause each car delivered
hereunder to be inspected within five (5) days after receipt at
the destination point designated by Customer and failure of
Customer promptly to report to GATX any defect in the car shall
constitute acceptance of such car by Customer.
4. Inspection of Cars/Responsibility for Damage. Customer is
responsible for having each car visually inspected prior to each
loading to determine whether such car is suitable for receiving,
transporting and discharging the commodity to be loaded therein.
Customer shall indemnify and hold GATX harmless from all claims
resulting from conditions which have or should have been
determined from such inspection. In addition, Customer shall be
responsible for any loss of or damage (including corrosion
damage) to any commodity, or to any car or part thereof caused by
the commodity contained therein or incurred in the process of
loading or unloading such commodity, or caused by the chemical
environment in which the car is loaded, unloaded or stored, and
Customer shall indemnify GATX from all claims resulting
therefrom, unless such claims result directly from the negligent
act or mission of GATX. As between Customer and GATX, Customer
shall be responsible for any and all risk of loss of, damage to,
or destruction of any car, or part thereof, occurring while such
car is located upon private tracks or premises other than GATX's.
5. Return of Cars. Promptly upon the expiration or termination
of this Agreement with respect to any car, Customer shall return
such car to GATX in the same condition complete with all parts,
equipment and accessories as when initially delivered to
Customer, ordinary wear and tear excepted, and cleaned of
commodities; but nothing herein shall be constructed as relieving
GATX from its obligation to maintain the cars as provided in
Article 6 of this Agreement. Each car shall be deemed returned
to GATX and service charges respecting such car shall xxxxx
hereunder when Customer shall release such car to a forwarding
railroad within the boundaries of the United States (excluding
Alaska and Hawaii) in accordance with instructions furnished to
Customer by GATX either at the final unloading point or at such
other point mutually agreed upon between GATX and Customer.
Customer shall give GATX a minimum of thirty (30) days' advance
notice, confirmed promptly in writing, of the return date of each
car, including advice of the last contents of each such car.
GATX shall give Customer disposition instructions for each such
car prior to the later of (a) the return date specified in
Customer's notice, or (b) thirty (30) days following receipt by
GATX of Customer's notice. Notwithstanding the foregoing,
Customer shall pay service charges at 200% of the then current
rate for any car not promptly returned pursuant to the terms
hereof or for any returned car if Customer has not caused the car
to be cleaned of commodities.
GATX may provide cleaning services with respect to some or
all of the cars. Such cleaning services shall be performed
pursuant to a separate Car Cleaning Contract attached to this
Agreement.
6. Maintenance/Modifications/Abatement of Service Charges.
(a) GATX shall have each car maintained in accordance with the
AAR Rules and the rules and regulations of the U.S. Department of
Transportation and of any other federal authorities having
jurisdiction over tank car design, provided (except for normal
running repairs performed by railroads) GATX has been advised or
has actual knowledge of the need for necessary maintenance and
subject to unavoidable delay. No maintenance, alterations or
repairs to any car shall be made or authorized by Customer
without GATX's prior written consent except that Customer shall,
at its expense, replace any removable tank parts (dome covers,
outlet caps, etc.) if lost or damaged. Any maintenance,
alteration, repair or replacement to any car or part thereof made
by Customer shall be done to standards and with parts that are of
like kind and at least equal quality to items being repaired or
replaced. If Customer has or obtains information indicating that
any car requires maintenance, Customer shall promptly notify
GATX. Upon request by GATX, Customer shall make any car needing
maintenance available at a car repair location designated by GATX
cleaned of commodities. If any car is in need of maintenance,
modification or alteration determined by GATX to be uneconomical
to perform or if any car is determined by a railroad to have been
destroyed, GATX has the option to terminate this Agreement with
respect to such car effective upon notification by GATX to
Customer or to substitute another car of approximately the same
age, type and capacity under this Agreement within a period of
time not to exceed sixty (60) days.
(b) If a physical alteration or modification to any car is
required by the AAR or any government, agency, group or committee
exercising authority over tank car design or operation, GATX may,
at its option, perform such alterations or modifications and
Customer shall pay GATX as an additional charge an amount equal
to the greater of (i) $1.50 per car per month for each $100.00
per car cost to GATX to perform such changes or (ii) such
additional monthly charge as will cover the cost of the
modification or alteration, including GATX's then current cost or
money, over the estimated life of such modifications or
alterations or of the car. Such charge will be effective upon
date of acceptance by a railroad of instructions to forward such
car to Customer after such change has been completed. Should
GATX elect to make the alterations or modifications as aforesaid,
Customer shall, upon notice from GATX, make the car available at
a car repair location designated by GATX cleaned of commodities.
(c) (I) When any car is moved to a car repair location (other
than railroad shops) at GATX's request for maintenance,
alteration or modification pursuant to this Article 6, service
charges shall xxxxx upon the date of arrival of such car at such
GATX designated car repair location and shall resume at the end
of the third day following acceptance by a railroad of
instructions to return such car to Customer.
(II) If any car is damaged in a railroad accident and the
railroad delays in deciding whether such car is to be deemed
destroyed, service charges for such car shall xxxxx for the
period commencing on the fifth day following the date upon which
GATX receive notification of such railroad damage and shall
resume at the end of the third day following acceptance by a
railroad of instructions to return said car to Customer.
(III) If any car maintenance is performed other than as set
forth above, service charges shall xxxxx for such car commencing
upon the fifth day following the date upon which GATX shall
receive notice of the need for such maintenance, and shall resume
upon the date on which such maintenance is completed.
(IV) Notwithstanding the foregoing, service charges for any car
shall not xxxxx (A) while such car is out of service (i) due to
damage for which Customer is responsible under this Agreement,
(ii) for lining application, maintenance, renewal or removal,
(iii) during periods of Customer delay in forwarding the car to a
GATX designated facility, (iv) for work, other than normal
maintenance, performed at Customer's request, or (v) for
alteration or modification performed pursuant to Article 6(b; or,
(B) if Customer has not caused the car to be cleaned of
commodities as required under this Agreement.
7. Lining. Customer shall pay the cost of the interior lining
of any car and shall, at its sole cost and expense, maintain and
renew all car linings (both new and currently existing) whenever
necessary during the term of this Agreement, including when
necessitated by repair to other portions of the car; and Customer
is responsible for removing the lining from each car prior to its
return to GATX at the expiration or termination of this Agreement
with respect to such car. This Article 7 shall govern
notwithstanding anything to the contrary in Article 6 hereof.
8. Reports, Mileage and Charges. Customer shall furnish GATX
promptly with complete reports of the movements of each of the
cars, including dates loaded and shipped, commodity, destination,
and full junction routing. GATX shall use its best efforts to
collect mileage earnings as paid by the railroads for car
movements during the term hereof and shall credit such earnings
to Customer's car service account when collected. For purposes
of mileage accounting, all cars under all Car Service Contracts
between GATX and Customer may be, at GATX's option, combined into
a single account for the term of this Agreement, provided that
the total mileage earnings so credited shall not exceed the
aggregate car service charges payable by Customer thereunder. If
the operation of any car during the term of this Agreement would
result in charges being made against GATX by any railroad with
respect to such car in accordance with the then prevailing
tariffs or other applicable rules and regulations to which such
railroad is a party, Customer shall pay GATX for such charges
within the period specified by such tariffs, rules or
regulations; and Customer shall use the cars upon each railroad
over which the cars move in accordance with such tariffs, rules
and regulations to which such railroad is a party.
9. Lettering of Cars. Customer shall place no lettering or
marking of any kind upon the cars without GATX's prior written
consent; except that for the purpose of evidencing the operation
of the cars in Customer's service hereunder or for purposes of
indicating the nature of the material carried in the cars,
Customer shall be permitted to board, placard or stencil the cars
as required or permitted by the AAR Rules or the rules or
regulations of any federal authority having authority over the
lettering of tank cars with letters no greater than two (2)
inches high (unless otherwise required by said authorities). Any
lettering or marking done by Customer must be removed from the
cars at Customer's expense upon termination of this Agreement.
10. Taxes. GATX is responsible for payment of all ad valorem
property taxes levied upon the cars and for filing all necessary
returns and reports for such taxes. Customer shall pay, or cause
to be paid, or shall reimburse GATX for all other taxes,
including, but not limited to, sales, use, rental, gross income,
and excise taxes (except net income taxes) as may be levied or
assessed against GATX or Customer in connection with this
Agreement, or arising out of any sale, lease, rental, use,
operation, ownership, payment, shipment, or delivery of any cars.
11. Indemnification. Customer shall indemnify and save harmless
GATX from and against all claims made against GATX or which GATX
may incur arising out of Customer's failure to comply with the
terms and conditions of this Agreement, unless and to the extent
such claim results from GATX's negligent act or omission, or is a
claim for which a railroad(s) is responsible and has satisfied
such responsibility. All indemnities contained in this Agreement
shall survive the termination of this Agreement, howsoever the
same shall occur.
12. Assignment/Subcontracting/Liens. The cars shall be used
exclusively in the service of Customer, and Customer shall not
furnish, assign or subcontract any car, or make any transfer or
assignment of this Agreement, without GATX's prior written
consent, except that Customer may furnish any car for single
trips to its customers or to its suppliers in accordance with the
provisions of demurrage tariffs lawfully in effect, and provided
that Customer shall remain liable to GATX for the fulfillment of
all obligations under this Agreement. In the event Customer
furnishes, assigns or subcontracts any car in violation of the
foregoing, Customer shall pay GATX a daily surcharge equal to
100% of the prorated daily service charge for such car during the
period of such furnishing, assignment or subcontract. This
Agreement and the rights of Customer herein shall not be
assignable or transferable by operation of law; and no title,
leasehold, or property interest of any kind shall vest in
Customer, or in Customer's successors or assigns, by reason of
this Agreement, or by reason of the delivery of the cars to, or
the use of the cars by, Customer, its successors or assigns
subject to the foregoing limitations on assignment and
subcontracting, this Agreement is binding upon and shall inure to
the benefit of the parties hereto and their successor and
assigns. Customer shall not permit any encumbrance or lien
arising out of acts of or claim against Customer to be entered,
levied, or to exist upon any car; and Customer shall have any
such encumbrance or lien removed immediately after becoming aware
of the existence thereof or upon written notice thereof from
GATX.
13. Remedies. If Customer shall fail to perform any of its
obligations under this Agreement, GATX may (a) without notice or
demand immediately terminate this Agreement with respect to any
or all of the cars covered hereunder and thereafter take
possession of any or all of such cars; or (b) upon seven (7) days
prior written notice to Customer, change the term of this
Agreement to a month-to-month term, subject to termination
thereafter upon ten (10) days prior written notice from either
party to the other; or (c) permit Customer to retain possession
of any or all cars under this Agreement as the same may continue
in force provided Customer shall, within five (5) days after
written notice from GATX cure any and all defaults under this
Agreement, and shall also, within said five (5) day period,
provide to GATX adequate assurances (including collateral
security) of future full performance of this Agreement, so that
all amounts due hereunder shall promptly be paid by Customer to
GATX when they shall become due, and that all covenants hereunder
to be performed by Customer shall be promptly performed by it in
the manner provided herein.
The Customer shall be liable to GATX for all charges
hereunder and no termination nor modification of this Agreement
shall affect or modify any rights, claims, or obligations
hereunder which shall have accrued prior to such termination or
modification, except as otherwise specifically provided by such
termination or modification.
Upon termination by GATX of this Agreement as permitted by
this Article 13, Customer shall thereupon, without further act or
deed by GATX, be completely divested of any and all of Customer's
rights and interests, if any, under this Agreement, and in and to
any and all cars covered hereby. GATX shall thereupon be
entitled to the immediate return of any and all such cars,
cleaned of commodities, all at Customer's expense.
In the event bankruptcy, receivership, insolvency,
reorganization, dissolution, liquidation or other similar
proceeding is instituted by or against Customer, under the United
States Bankruptcy Code or other law of the United States or any
State, then, unless the Customer, as debtor or debtor-in-
possession in any such bankruptcy or other proceeding or any
Trustee acting therein, shall comply with the provisions of
Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code (as now existing
or hereafter amended), GATX shall be entitled to the immediate
return of all cars covered hereby cleaned of commodities, by
summary proceedings, or otherwise, with no liability by reason
thereof. Customer hereby waives any rights now or hereafter
conferred by statute or otherwise to object to or contest any
such legal action or proceeding instituted by GATX to recover
possession of the cars.
The rights and remedies herein given to GATX in no way limit
its right and remedies at law or in equity.
14. Use of Cars. No car shall be utilized in unit train
service, nor shall the average loaded mileage of all cars under
this Agreement exceed eighteen thousand (18,000) miles during any
calendar year during the term hereof, unless consented to in
writing by GATX in advance of such use. The cars shall be used
exclusively within the boundaries of the United States (excluding
Alaska and Hawaii), Canada and Mexico. Customer is responsible
for all taxes and duties and for complying with all governmental
requirements arising out of any of the cars leaving, being
outside of, or returning to the boundaries of the United States;
and Customer shall defend and hold harmless GATX from any claim
connected therewith. Customer shall comply with all AAR and
governmental regulations respecting the use and operation of each
of the cars during the term of this Agreement.
15. Limitation of Obligations. GATX's/Customer's obligations
under this Agreement are limited to those expressly set forth
herein, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED BY GATX. IN NO
EVENT SHALL GATX/CUSTOMER HAVE ANY LIABILITY FOR CONSEQUENTIAL OR
INCIDENTAL DAMAGES.
16. Subordination. This Agreement and all rights of Customer
(and of any persons claiming or who may hereafter claim under or
through Customer) under this Agreement, including any purchase
option or options provided for herein are hereby made subject and
subordinate to any leveraged lease, chattel mortgage, conditional
sale or other financing agreement heretofore or hereafter
established with respect to any of the cars including any
equipment trust agreement and to all rights of a trustee under
any such agreement. Any assignment, subcontract, or loan of cars
made by Customer pursuant to Article 12 of this Agreement shall
be expressly made subject to the above subordination. At the
request of GATX, the cars may be lettered or marked to identify
the legal owner of the cars at no expense to Customer. If during
the continuance of this Agreement, any such marking shall at any
time be removed or become illegible in whole or in part, Customer
shall immediately cause such marking to be restored or replaced
at GATX's expense.
(c) Miscellaneous. This Agreement, together with any and all
exhibits attached hereto, constitutes the entire agreement
between GATX and customer. This Agreement may not be amended,
altered, or changed except by written agreement signed by the
parties hereto. No waiver of any provision of this Agreement or
consent to any departure by Customer or GATX therefrom shall be
effective unless the same shall be in writing signed by both
parties and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given.
The headings that have been used herein are solely for
convenience and shall not be construed in any event or manner as
interpretive or limiting the interpretation of this Agreement.
The invalidity of any provision of this Agreement shall not
affect the remainder hereof, which shall in such event be
construed as if such invalid provision had not been inserted.
In the event the AAR Rules conflict with any provision of
this Agreement, the provision of this Agreement shall control
This Agreement shall be governed by and construed under the
laws of the State of Illinois.
17. Term. Unless otherwise terminated pursuant to this
Agreement, this Agreement shall remain in full force and effect
until the expiration of all Riders attached hereto. Customer's
obligations to GATX under this Agreement, however, shall remain
in full force and effect until the time all cars are returned to
GATX pursuant to Article 5 of this Agreement.
18. Notices. All notices hereunder shall be in writing and
shall be deemed delivered when mailed, postage prepaid, as
follows:
To Customer:
PETRO SOURCE CORPORATION
P. O. box 27
Salt Lake City, Utah Attention: Vice President
84110.
To GATX:
General American Transportation Corporation
000 x. Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000 Attention: Contract Administrator
IN WITNESS WHEREOF, the parties hereto have executed this
instrument as of the day and year first above mentioned.
ATTEST: GENERAL AMERICAN TRANSPORTATION CORPORATION
Xxxxx Xx Xxxx By: X.X.Xxxxx
Assistant Secretary Senior Vice president
(Customer to affix
its corporate seal here)
ATTEST: PETRO SOURCE CORPORATION
__________________________________
____________________ By: Xxxxxxx Xxxxxx
Secretary Vice President
Amendment No. 1 to Contract No. 8364
THIS AMENDMENT, made and entered into this 1st day of
November, 1994, by and between GENERAL AMERICAN TRANSPORTATION
CORPORATION , a New York corporation, ("GATX") and PETRO
SOURCE CORPORATION , A Utah corporation, ("Customer").
WHEREAS, GATX and Customer entered into Car Service contract
No. 8364 on December 10, 1987; and;
WHEREAS, GATX and Customer desire to amend the Car Service
Contract on the terms hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES SET
FORTH BELOW, THE PARTIES HERETO AGREE AS FOLLOWS:
A. The Car Cleaning contract appended to the Car Service
Contract is hereby deleted and the following inserted in its
place:
Car Cleaning Contract
Subject to the terms and conditions of this Car cleaning
Contract ("Contract"), GATX agrees that is will clean any car
furnished to Customer under the Car Service Contract at a GATX
car cleaning facility when such cleaning is necessary for repair
of such car by GATX under the Car Service Contract, and, at
GATX's discretion, upon return to GATX at the termination of the
Car Service contract.
The term "Waste Material" shall mean material removed from a
GATX car at a GATX designated car cleaning facility in accordance
with the terms of this Contract. Waste Material includes
material removed from a car and (I) disposed of by GATX as waste
or (ii) sold or recycled by GATX as reusable product.
1. Services. Subject to unavoidable delay, GATX shall collect,
contain, treat, handle, recycle or dispose of Waste Material as
described in the Waste Profile (as defined below) and the Uniform
Hazardous Waste Manifest issued by customer to GATX and accepted
by GATX. GATX shall have a car cleaned at a car cleaning
facility owned and operated by GATX. Upon agreement between GATX
and Customer the car may be cleaned at a facility owned and
operated by another party.
GATX retains the right to refuse to clean any car containing
any particular Waste Material. In such event, GATX shall notify
Customer and Customer shall have the car cleaned elsewhere.
2. Waste profile. Customer shall provide GATX with a written
physical and chemical description and an analysis (the
description and analysis are collectively the "Waste Profile") of
the Waste material to be handled by GATX hereunder. The Waste
Profile shall include approximate percentage concentrations of
the constituents of the Waste Material, shall list any known
unique chemical characteristics and shall describe the processes,
if known, which generated the Waste material that would be of
significance to the proper handling of the Waste Material. A
Material Safety Data sheet covering the Waste material or any
component thereof shall accompany the Waste Profile. The Waste
Profile shall be provided to GATX before GATX takes possession of
the Waste Material.
3. Non-conforming Waste.
A. Waste Material shall be deemed "Non-conforming" if:
a. Waste Material does not conform in any material respect to
the specifications, descriptions, analysis or limitations stated
in the Waste Profile; or
b. Waste Material contains components which are not
specifically identified in the Waste Profile ("Unidentified
Components"); and
i. the Unidentified Components increase the nature or extent of
the hazard or risk retention undertaken by GATX in handling or
disposing of the Waste material; or
ii. GATX's facility is not designed or permitted to handle,
store, recycle or dispose of the Waste Material containing the
unidentified Components.
B. If GATX determines that any Waste material delivered to GATX
by Customer is Non-Conforming, GATX shall notify Customer and the
parties shall arrange for satisfactory disposition of the Waste
Material by Customer. If the parties cannot reach such an
agreement, GATX may reject and return any Non-Conforming Waste
material to Customer by any means at Customer's cost.
4. Title. Title to the Waste material shall pass from customer
to GATX upon removal of the Waste Material from the car at a
cleaning facility owned and operated by GATX. Title to Non-
Conforming Waste Material shall revest in Customer upon
notification to Customer of GATX'' rejection of the Waste
Material pursuant to Section 3 B, above, unless GATX agrees in
writing to perform services with respect to such Non-Conforming
Waste material pursuant to the terms of this Contract and for a
price to be agreed.
5. GATX Warranties. GATX represents and warrants to Customer
that:
A. GATX understands the currently known environmental hazards
and risks involved in the handling of the Waste Materials which
are described on the Waste profiles.
B. Any disposal facility owned and operated by GATX used for
disposal of Waste Materials hereunder has or will have at the
time of disposal all permits, licenses, certificates or approvals
which are required by applicable laws.
C. Cleaning services performed at a cleaning facility owned and
operated by GATX shall be performed in accordance with the
standards prevailing in the tank car cleaning industry and shall
comply with all federal, state and local laws and regulations
applicable to such services.
6. Customer Warranties. Customer represents and warrants to
GATX that:
A. The description of the Waste Material on each Waste Profile
is true and correct in all material respects.
B. After designating the components of the Waste material on
each Waste Profile, Customer will not mix the Waste material with
other materials or otherwise cause the material alteration of the
characteristics or components of the Waste Material.
C. Any manifest or shipping document which Customer is required
by applicable laws to deliver to GATX at the time of tender of
the Waste Material shall be delivered in the form and number
required and shall be prepared in the manner and executed by
those persons specified in such laws.
7. Compensation. The costs for cleaning any car hereunder at a
cleaning facility owned and operated by GATX will be at the
prices currently established by GATX at the time of the cleaning.
If, upon agreement between GATX and Customer the car is cleaned
at a facility owned and operated by another party, the costs for
cleaning such car will be the prices charged by that facility for
its services.
8. Cars to be Empty. The base prices for cleaning cars
hereunder at a facility owned and operated by GATX is based on
the assumption that the car to be cleaned is "empty" (containing
less than one (1) inch of residue at the deepest point in the car
or one atmosphere of pressure). If any car is received by GATX
not in an empty condition, either (i) the car will be returned to
Customer at its expense and all service charges under the Car
Service Agreement will continue, or (ii) Customer and GATX will
agree upon the price for cleaning that car.
9. Prohibited Commodities. GATX shall notify Customer from
time to time of those materials which Customer is prohibited from
sending to any GATX designated facility at any time or to any
disposition point at the expiration or termination of the Car
Service Contract. Any car containing any such materials shall be
cleaned of commodities by Customer prior to the forwarding or
movement of such car to any such point. If not so cleaned, such
car shall be returned to Customer at its expense for cleaning and
all service charges under the Car Service Contract shall continue
until such car is returned to GATX cleaned of commodities.
10. GATX Indemnity. GATX shall indemnify, defend and hold
Customer harmless from and against costs, claims, expenses and
causes of action brought against or paid or incurred by Customer
arising out of the handling, storage, transportation or disposal
of Waste Material title to which has passed to GATX pursuant to
this Contract.
11. Customer Indemnity. Customer shall indemnify, defend and
hold GATX harmless from and against costs, claims, expenses and
causes of action brought against or paid or incurred by GATX
arising out of any error or omission in the Waste Profile or
Uniform Hazardous Waste Manifest issued by Customer to GATX
pursuant to this Contract.
12. Miscellaneous. This Contract is subject to all the terms
and conditions of the Car Service Contract.
B. Article 8 of the Car Service Contract is hereby amended by
deleting the first sentence thereof.
C. Article 11 of the Car Service Contract is hereby amended to
read as follows:
a. Except as otherwise provided in Article 4 of this
Agreement, Customer shall indemnify and save harmless GATX
from and against all claims made against GATX or which GATX
may incur arising out of Customer's failure to comply with
the terms and conditions of this Agreement, except to the
extent such claim is a claim for which a railroad(s) is
responsible and has satisfied such responsibility; and,
provided, that to the extent any negligence on the part of
GATX is a legal cause of such claim, Customer's obligations
to indemnify and hold GATX harmless shall be reduced by an
amount which corresponds to the extent of GATX's negligence.
b. All indemnities contained in this Agreement shall
survive the termination of this Agreement, howsoever the
same shall occur.
D. The first sentence of Article 12 of the Car Service Contract
is hereby amended to read as follows:
THE CARS SHALL BE USED EXCLUSIVELY IN THE SERVICE OF
CUSTOMER, AND CUSTOMER SHALL NOT FURNISH, ASSIGN OR
SUBCONTRACT ANY CAR, OR MAKE ANY TRANSFER OR ASSIGNMENT OF
THIS AGREEMENT, WITHOUT GATX'S PRIOR WRITTEN CONSENT, except
that Customer may furnish any car for single trips to its
customers or to its suppliers in accordance with the
provisions of demurrage tariffs lawfully in effect, and
provided that Customer shall remain liable to GATX for the
fulfillment of all obligations under this Agreement.
E. The last sentence of Article 15 of the Car Service Contract
is hereby amended to read as follows:
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE
OTHER FOR CONSEQUENTIAL OR INCIDENTAL DAMAGE, WHETHER IN
CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE.
F. The last sentence of Article 17 is hereby amended to read as
follows:
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE
LAWS OF THE STATE OF ILLINOIS.
GENERAL AMERICAN TRANSPORTATION CORPORATION
By: ____________________
General Manager
PETRO SOURCE CORPORATION
By: _________________________________________________
Title
Amendment Xx. 0 xx Xxxxxxxx Xx. 0000
Xxxxxxxxx:
Please reference the Car Service Contract dated December 10,
1987, by and between GENERAL AMERICAN TRANSPORTATION CORPORATION
("GATX") AND PETRO SOURCE CORPORATION ("PETRO") which contract is
hereinafter referred to as the "Contract".
WHEREAS, CROWN ASPHALT PRODUCTS COMPANY ("CROWN") has assumed
effective July 1, 1998, all responsibilities, continuing
obligations, and future business of PETRO;
WHEREAS, PETRO has assigned the Contract to CROWN pursuant to the
aforesaid assumption, subject to the consent of GATX.
NOW, THEREFORE, the parties hereto agree as follows:
FIRST: GATX hereby consents to the assignment by PETRO of its
rights and interests under the Contract to CROWN.
SECOND: CROWN agrees to and hereby does accept the assignment
and expressly assumes and agrees to pay all of PETRO's debts,
obligations, liabilities, charges and indemnities under the
Contract. CROWN further assumes and agrees to perform each and
every duty and obligation to be performed by PETRO under the
Contract in accordance with the terms thereof.
THIRD: This letter, when signed by GATX and confirmed by CROWN,
shall constitute an amendment to the Contract effective July 1,
1998. PETRO and CROWN agree that car service invoicing and
credits for mileage earnings will be issued by GATX to CROWN
effective as of October 1, 1998. Any adjustments thereto for
this period after the effective date hereof and October 1, 1998
shall be made between PETRO and CROWN.
Very truly yours,
GENERAL AMERICAN TRANSPORTATION
CORPORATION
By:___________________________________________
Manager of Fleet Portfolio & Pricing
CROWN ASPHALT PRODUCTS COMPANY
BY: __________________________________
Title
