RPC Agreement - Williams Refining & Marketing LLC and MAPCO Express Inc.
RPC#
RPC AGREEMENT
GENERAL TERMS AND CONDITIONS
THIS AGREEMENT is made and entered into as of the 30th day of May, 2001,
("Effective Date") by and between WILLIAMS REFINING & MARKETING, LLC, a Delaware
Corporation ("Seller" or "Delivering Party"), and MAPCO EXPRESS, INC., a Texas
Corporation ("Buyer" or "Receiving Party"), sometimes referred to collectively
as "Parties" or singularly as "Party".
1. OBLIGATIONS: Seller agrees to sell, and Buyer agrees to purchase Product up
to the specified quantity under the terms and conditions as set forth in the
Confirmation and herein.
2. TERM: The term of this Agreement shall be for the period provided in the
Confirmation. The provisions hereof shall survive termination of this
Agreement and continue to apply to any Transactions or Confirmation entered
into between Seller and Buyer prior to the date of termination of this
Agreement until such time as any and all obligations related to such
Transactions are satisfied, completed or terminated. Notwithstanding the
foregoing, the representations, warranties, and indemnification's set forth
in this Agreement shall survive termination of this Agreement and continue
in effect.
3. CONFIRMATIONS: Other than for Rack Transactions, Confirmations shall be in
the form attached hereto as Exhibit "A" (Purchase/Sale). The Confirmation
shall bind the Parties to the particular Transaction for the purchase or
sale in accordance with the terms set forth in the Confirmation and herein.
More than one Confirmation may be in effect between Parties from time to
time and at any given time. Each Confirmation shall be treated as a separate
and independent Agreement. The Parties acknowledge that, with respect to any
Transaction, Williams may provide only an invoice or check remittance form
of Confirmation, pursuant to the Section of this Agreement entitled,
"Payment." Williams hereby adopts its check remittance invoice, or
letterhead (including its address on each) as its signature on such
confirmation, and its identification and authorization of such confirmation.
For Rack Transactions, the bill of lading of the terminal operator shall
constitute the Confirmation.
4. PRICE: Unless otherwise provided in the Confirmation (or other writing) the
Price shall be inclusive of all royalties, currently effective
transportation charges, taxes, expenses and costs arising from or
attributable to the Product prior to its delivery to the Delivery Point(s).
If a transaction is for sale of Product on a delivered basis at Receiving
Party's destination, the Confirmation shall so state, and any transportation
from the Delivering Terminal to the Delivery Point(s) shall be borne by
Receiving Party.
5. PRODUCT: Shall mean any petroleum products which are sold or purchased in
Transaction(s).
6. TRANSPORTATION: Unless otherwise set forth in the Confirmation, Delivering
Party shall be responsible for all arrangements necessary to deliver Product
hereunder to the Delivery Point(s) and Receiving Party shall be responsible
for all arrangements necessary to receive Product at the Delivery Point(s).
7. TAXES AND CHARGES:
(A) DELIVERING PARTY'S OBLIGATION: Delivering Party shall pay any and all
Taxes, fees, or other charges (with the exception of the product excise
taxes noted below in Section 7.C) imposed or assessed by governmental or
regulatory bodies, with respect to the Product(s) delivered hereunder, the
taxable incident of which occurs before the transfer of title to the
product(s) to Receiving Party.
(B) RECEIVING PARTY'S OBLIGATION: Receiving Party shall pay any and all
Taxes, fees, or other charges (with the exception of the product excise
taxes noted below in Section 7.C) imposed or assessed by governmental or
regulatory bodies, with respect to the Product(s) delivered hereunder, the
taxable incident of which occurs after transfer of title to the product(s)
to Receiving Party.
(C) PRODUCT EXCISE TAXES: Any and all Taxes, fees, or other charges imposed
or assessed by governmental or regulatory bodies, the taxable incident of
which is the transfer of title or the delivery of the Product(s) hereunder,
or the receipt of payment therefor, regardless of the character, method of
calculation or measure of the levy or assessment, shall be paid by the Party
upon whom the Tax, fee, or charge is imposed by law, except that Receiving
Party shall reimburse Delivering Party for all federal, state, and local
gasoline, motor fuel, sales, use, gross receipt, and other excise taxes,
fees, or charges that are imposed by law on Delivering Party.
(D) EXEMPTION CERTIFICATES: Prior to the date any payment required hereunder
becomes due, Receiving Party shall furnish to Delivering Party all current
exemption or resale certificates or direct pay permits required or permitted
by law for use by Receiving Party regarding the imposition or payment of any
state or federal excise, sales or use taxes.
8. INSURANCE: With respect to Product picked up at Seller's Facilities, for
Seller's future protection, but without releasing, waiving or limiting the
obligations of Buyer herein, the Buyer, its agents, contractors and any
subcontractors (collectively referred to as "Transporter") will carry or
cause to be carried and maintained in force throughout the entire
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term of this agreement insurance coverage as described in paragraphs (a)
through (d) below with insurance companies acceptable to Seller. All costs
of such coverages and all deductible amounts will be for the sole account
of Transporter.
(a) Worker's Compensation insurance complying with the laws of the
State of States having jurisdiction over each employee, and Employer's
Liability with limits of $1,000,000 each accident, $1,000,000 disease each
employee and $1,000,000 disease policy limit.
(b) Commercial or Comprehensive General Liability insurance on an
occurrence form with a combined single limit of $1,000,000 each occurrence,
and annual aggregates of $1,000,000, for bodily injury and property damage,
including coverage for blanket contractual liability, broad form property
damage, personal injury liability, independent contractors and
products/completed operations and sudden and accidental pollution.
(c) Automobile Liability insurance with a combined single limit of
$1,000,000 each accident for bodily injury and property damage to include
coverage for all owned, non-owned, and hired vehicles with the following
endorsement: MCS-90 (Motor Carrier Act of 1980) and CA-9948 (Pollution
Liability Broadened Coverage for Covered Autos) or equivalent.
(d) Excess Or Umbrella Liability Insurance with a combined single
limit of $1,000,000 each occurrence, and annual aggregates of $1,000,000,
for bodily injury and property damage covering excess of Employer's
Liability insurance and the insurance described in (b) and (c) above.
In each of the above described policies, Transporter agrees to waive and
will require its insurers to waive any rights of subrogation or recovery
they may have against Seller or its parent, subsidiary or affiliated
companies as respects any transportation of product after title has passed
from Seller to Buyer. Under the policies described in (b), (c) and (d)
above, Seller and its parent, subsidiaries and affiliated companies will be
named as additional insureds, and such insurance will serve as primary
coverage for Seller, its parent, subsidiary and affiliated companies as
respects any transportation of Product after title has passed from Seller
to Buyer. Non-renewal or cancellation of policies described above, will be
effective only after written notice is received by Seller from the
insurance company thirty (30) days in advance of any such non-renewal or
cancellation. Upon request, Transporter will deliver to Seller certificates
of insurance on an Accord 25 or 25S form evidencing the existence of the
insurance coverage required above.
9. FINANCIAL RESPONSIBILITY: When reasonable grounds for insecurity of payment
or title to Product arise, either party may demand in writing adequate
assurance of performance, and in the absence of such assurance from the
other Party within ten (10) Business Days from the date of delivery of such
demand, suspend further performance and terminate the Agreement. Adequate
assurance shall mean sufficient security in the form and for the term
reasonably specified by the Party demanding assurance ("Demanding Party"),
including, but not limited to, a standby irrevocable letter of credit, a
prepayment, a security interest in an asset acceptable to Demanding Party
or a performance bond or guarantee by a creditworthy entity. In the event
either Party shall (i) make an assignment or any general arrangement for
the benefit of creditors; (ii) file a petition or otherwise commence,
authorize, or acquiesce in the commencement of a proceeding or cause under
any bankruptcy or similar law for the protection of creditors or have such
petition filed or proceeding commenced against it; (iii) otherwise become
bankrupt or insolvent (however evidence); or (iv) be unable to pay its
debts as they fall due; then the other Party shall have the right to either
withhold and/or suspend deliveries or payment, net and/or set off all
transactions outstanding between the Parties, use all rights, counterclaims
and other defenses which it is or may be entitled to at law or arising from
the Agreement, and/or immediately terminate the Agreement without prior
notice. If a party to this Agreement becomes subject to Bankruptcy Code
proceeding, it is understood and agreed that the other Party shall be
entitled to exercise its contractual right to liquidate as a forward
contract merchant under Section 556 of the U.S. Bankruptcy Code.
10. DELIVERIES: Title to the Product and risk of loss shall pass from Seller to
Buyer at the point of delivery specified hereunder.
A. When FOB origin, delivery shall be deemed to have been completed:
i. To ships or barges when the Product has passed the dock loading
flange;
ii. To tank trucks when the Product has actually been delivered into
the transport trailer;
iii. To tank cars when the carrier accepts the same for shipment;
iv. To pipelines upon metering of the Product; or
v. To the terminal.
B. When FOB destination, delivery shall be deemed to have been
completed:
i. From ships or barges when the Product has passed the vessel
discharge flange;
ii. When Product is delivered into Buyer's tank.
iii. From tank cars when carrier delivers same at the destination; or
iv. From pipeline upon metering of the Product.
11. INSPECTION: Product delivered hereunder is subject to inspection and
approval at the Delivery Point(s). Each Party shall be entitled to have its
representatives present during all loadings, unloadings, tests and
measurements involving delivery of Product under this Agreement. Each party
may secure at its own expense outside inspectors to perform gauging,
sampling and testing.
12. WARRANTY OF TITLE: Seller warrants title to all Product delivered by it
hereunder, and further warrants that it has the right to sell and transfer
title to the same and that said Product is free and clear of all liens,
claims and encumbrances. In the event of any adverse claim being asserted
against the Product, Buyer may withhold payment, without interest, of sums
due hereunder up to the amount of the claim, and, in the case of exchanges,
Buyer may suspend its corresponding
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delivery obligation until such claim shall have been finally determined or
until Seller shall have furnished other adequate securities or indemnities.
13. LOADING OBLIGATIONS: Each Party making deliveries of Product hereunder shall
comply, or cause compliance with, all federal, state and local laws,
ordinances, rules and regulation (including but not limited to, all
hazardous materials regulations of the U.S. Department of Transportation
(DOT) and particularly 49 C.F.R., Part 173) as same pertain to all aspects
of a shipper's obligations in tendering Product hereunder for
transportation.
14. MEASUREMENT:
a. On all deliveries into tank cars, the quantity shall be determined by
meter or by official tank car capacity tables and tank car slip tube
gauging device in accordance with GPA publication 8162 and all revisions
hereof.
b. On all deliveries into transport and tank truck equipment, quantities
shall be determined by meter, rotary gauging device or weighing, in
accordance with GPA publication 8162 and 8168 and all revisions hereof.
c. On all deliveries into pipeline, quantities shall be determined by
pipeline meter in accordance with American Petroleum Institute Manual of
Petroleum Measurement Standards. The volume of the component products in
E-P and raw edition of GPA publication 8182.
d. On all deliveries to ships or barges, delivering company's shore tank
measurements shall determine quantity, unless otherwise agreed upon.
e. All quantities shall be corrected to 60(degrees) degrees
Fahrenheit or as otherwise agreed.
15. PAYMENT: Unless otherwise set forth in the Confirmation, any amount due
shall be paid by wire transfer or Automated Clearing House (ACH) within
[***] Business Days from receipt of the invoice. If Buyer disagrees with the
amount of any invoice for any reason, Buyer shall immediately notify Seller
of such so that the difference may be resolved before the due date for
payment of the invoice. If Buyer fails to give such notification or if Buyer
and Seller do not resolve such disagreement before the date due, such
invoice shall be paid in full according to the terms on the due date, such
payment to be subject to adjustment upon final resolution of the
disagreement. Furthermore, in the event of suit or other action to recover
any monies due under this Agreement, the prevailing Party shall be entitled
to recover its reasonable costs of collection, including court costs and
attorneys' fees. Any amounts due Delivering Party and not received in the
time period set forth above shall bear interest at the then effective [***]
published under "Money Rates" by The Wall Street Journal, plus [***] percent
[***] per annum, from the date due until the date of payment not to exceed
the maximum rate allowed by law.
16. FAILURE TO PAY: Should Receiving Party fail to pay any amount due within the
time period set forth above, Delivering Party may (a) offset all or any
portion of the unpaid balance against moneys owed by Delivering Party under
this Agreement or any other agreement between the Parties, (b) suspend
deliveries of Product, and/or (c) after providing ten (10) Business Days'
prior written notice during which time payment is not received by Delivering
Party, terminate this Agreement; provided, however, that the exercise of
such rights shall be in addition to any and all other remedies available to
Delivering Party, whether in law or equity, under this Agreement or
otherwise. If a Party to this Agreement becomes subject to Bankruptcy Code
proceedings, it is understood and agreed that the other Party shall be
entitled to exercise its contractual right to liquidate as a forward
contract merchant under Section 556 of the Bankruptcy Code.
17. CREDIT: Receiving Party shall establish and maintain credit satisfactory to
Delivering Party during the term of this Agreement. If Receiving Party fails
to maintain satisfactory credit, Delivering Party may suspend deliveries of
Product until satisfactory credit is reestablished.
18. CHOICE OF LAW: This agreement shall be governed by and construed in
accordance with laws of Oklahoma (without regard to choice of law
provisions) and venue shall be the State of Oklahoma, County of Tulsa.
19. RULES AND REGULATIONS: This Agreement is made subject to, and both parties
shall comply with, all valid federal and state laws and all valid rules,
regulations, and orders of Federal, State, or local Government authorities
related to the sale, purchase, or exchange of Product hereunder, including
but not limited to the Equal Employment Opportunity Laws and Executive Order
Number 11246, which are incorporated herein by reference, and neither party
shall be held liable for any default resulting from compliance therewith.
20. ASSIGNMENT: This Agreement shall be binding upon and shall inure to the
benefit of the respective successors and assigns of the Parties hereto,
provided that this Agreement shall not be transferred or assigned, by
operation of law or otherwise, by either Party without the other Party's
prior written consent, which consent shall not be unreasonably withheld,
conditioned or delayed. Either Party, however, may assign its rights and
obligations hereunder to any parent or affiliate which succeeds by
assignment, purchase, merger, consolidation or otherwise to all or
substantially all of the assets of the assigning party upon written notice
to the other Party. Nothing in this clause in any way prevents either Party
from pledging or mortgaging all or any part of such Party's property as
security.
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21. FORCE MAJEURE: Except with regard to a Party's obligation to make payments
as they become due hereunder, performance by either Party shall be excused
when and to the extent that its performance under this Agreement is
prevented, wholly or in part, by Force Majeure. The term "Force Majeure"
means any event or occurrence beyond the reasonable control of a Party that
prevents in whole or in part the performance by such Party of any obligation
or condition under this Agreement, including, but not limited to acts of
God, strikes, lockouts or other industrial disturbances (including those
affecting persons transporting Product for either Party), acts of the public
enemy, wars, blockades, insurrections, riots, epidemics, landslides,
lightning, earthquakes, fires, explosions or other casualty, hurricanes,
hurricane warnings, storms, floods, washouts, arrests and restraints of
government (federal, state, local, civil or military) and of people, and
civil disturbances. Neither Party shall be entitled to the benefit of Force
Majeure under any or all of the following circumstances: to the extent that
the failure was caused by the Party claiming suspension having failed to
remedy the condition, and to resume the performance of such covenants or
obligations with reasonable dispatch; the ability of either Party to obtain
a better price for Product: the loss of markets; the loss, interruption, or
curtailment of interruptible transportation on any Transporter necessary to
effect receipt of delivery of Product hereunder, unless caused by a Force
Majeure event; or economic hardship.
22. NOTICE: Notice sent by hand, facsimile, telegram, registered or certified
mail addressed to the Party to whom such notice is given at the address of
such Party stated herein shall be deemed sufficient upon delivery.
Addresses for notices communications, and statements to:
WILLIAMS/SELLER: BUYER
Mailing Address: Mailing Address:
P.O. Box 2848
Tulsa, OK 74101
Attn: Contract Management
Fax: (918) 573-1935
Street Address: Street Address:
Williams Refining & Marketing, LLC
One Williams Center
Tulsa, OK 74172
Attn: Contract Management
Invoices: Invoices:
Same as mailing
Attn: Williams RPC Accounting
Fax: (918) 573-1965
Payments: Payments:
Bank One, N.A. Bank:
Account c/o Williams Refining & Marketing, LLC Account c/o:
Acct Number -55-79902 Acct Number:
ABA Number -071-0000-13 ABA Number:
Re: Invoice Number RE: Invoice Number
23. AUDIT: Each Party shall have, upon reasonable notice, the right at
reasonable hours to examine and to copy the records of the other Party to
the extent reasonably necessary to verify the accuracy of any invoices
billed or quantities delivered hereunder. In the event of any inaccuracy,
any necessary adjustments in the billing shall be promptly made; provided
that no adjustment for any billing and payment shall be after the lapse of
two (2) years from the date of delivery thereof.
24. NO THIRD PARTY BENEFICIARY: Nothing in this Agreement shall entitle any
other person other than Seller or Buyer, or their successors or assigns, to
any claim, cause of action, remedy or right of any kind relating to the
Transaction(s) or Confirmation(s).
25. SEVERABILITY: The invalidity of one or more provisions of this agreement
shall not affect the validity of any other provision hereof, and in case of
any such invalidity, this Agreement shall be construed to the maximum extent
possible as if such invalid provision(s) had not been included herein.
26. INTEGRATION: This Agreement and any Confirmation hereunder constitute the
entire Agreement of the Parties respecting the matters addressed in such
Confirmation and this Agreement, and supersedes all prior negotiations,
proposals, inquiries, commitments and agreements, whether written or oral.
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27. CONSTRUCTION: The Parties acknowledge and agree that the terms and
conditions of this Agreement were freely negotiated and drafted jointly by
the Parties, and the Parties further expressly agree that in the event of
any ambiguity in any of the terms and conditions of this Agreement,
including any Confirmations hereunder, such ambiguity shall not be construed
for or against either Party on the basis that such Party did or did not
author the same.
28. HEADINGS: The headings of the Articles, Sections and Paragraphs of this
Agreement are for convenience of reference only and shall not constitute
part, nor modify, define or limit any of the terms or provisions hereof.
29. COUNTERPARTS: This Agreement may be executed in counterparts, each of which
shall be deemed an original but all of which together shall constitute one
Agreement binding on the Parties hereto.
30. WAIVER: No waiver by either Party with respect to any breach or default of
any right or remedy and no course of dealing, shall be deemed to constitute
a continuing waiver of any other breach or default or of any such right or
remedy, unless such waiver be expressed in writing signed by the Party to be
bound.
31. TERMINAL ACTIVITY: Each Party shall be responsible for and shall indemnify
the other Party for any loss, injury, or damage that may be caused, in whole
or in part, by the indemnifying Party at any terminal.
32. RACK SALES: BY PULLING PRODUCT FROM THE RACK, BUYER ACKNOWLEDGES RECEIPT OF,
AND THAT IT SHALL BE SUBJECT TO AND GOVERNED BY THE TERMS AND CONDITIONS OF
THIS AGREEMENT WITH RESPECT TO THE PRODUCT PULLED FROM THE RACK.
33. GENERAL INDEMNITY PROVISION: Buyer shall indemnify, defend and hold Seller
harmless from and against all loss, cost and expense, including court costs
and reasonable attorney fees, for any claims, suits, judgments, demands,
actions, penalties or liabilities, including injury to or death of persons,
growing out of the operations conducted or performance hereunder by Buyer or
arising while the Product is in Buyer's exclusive control and possession.
Seller shall indemnify, defend and hold Buyer harmless from and against any
loss, cost, and expense, including court costs and reasonable attorney fees,
for any claims, suits, judgments, demands, actions, penalties or
liabilities, including injury to or death of persons, growing out of the
operations conducted or performance hereunder by Seller or arising while the
Product is in Seller's exclusive control and possession. Neither Party shall
be liable in respect of any claim to the extent same resulted from the gross
negligence, willful misconduct or bad faith of the indemnified Party. This
indemnity provision shall survive termination of this Agreement. Where
personal injury, death, or loss of or damage to property is the result of
the joint negligence or misconduct of the Parties hereto, the Parties
expressly agree to indemnify each other and save harmless in proportion to
their respective share of such joint negligence or misconduct.
34. REMEDIES: (A) Receiving Party's Failure to Receive: If Receiving Party fails
to accept tender of delivery of the Contract Quantity not subject to Force
Majeure, or if Delivering Party suspends deliveries pursuant to Section 16
and 17 of this Agreement, Delivering Party shall sell to a third party
purchaser, in good faith and in a commercially reasonable manner, the
difference between the amount of Product actually accepted by Receiving
Party and the Contract Quantity. Delivering Party shall be entitled to
reimbursement from Receiving Party for the difference between: (1) the price
set forth under this Agreement; and (2) any lesser price obtained from such
third party purchaser(s) (or if Delivering Party cannot reasonably sell the
Product that is not received by Receiving Party, a commercially reasonable
price). Any payments due Delivering Party by Receiving Party under this
paragraph shall be made within five (5) Business Days of receipt of
Delivering Party's invoice for such difference; provided, however,
Delivering Party first provides Receiving Party with information and
documentation supporting Delivering Party's claim for reimbursement.
(B) Delivering Party's Failure to Deliver: If Delivering Party fails to
tender delivery of the Contract Quantity not subject to Force Majeure,
Receiving Party shall purchase from a third party supplier, in good faith
and in a commercially reasonable manner, the difference between the amount
of Product actually delivered by Delivering Party and the Contract Quantity.
Receiving Party shall be entitled to recover from Delivering Party the
difference between: (1) the price set forth under this Agreement; and (2)
any greater price of replacement Product purchased by Receiving Party and
delivered to the Delivery Point(s) (or if Receiving Party cannot reasonably
purchase the Product that is not delivered by Delivering Party, a
commercially reasonable price). Any payments due Receiving Party by
Delivering Party under this paragraph shall be made within five (5) Business
Days of receipt of Receiving Party's invoice for such difference; provided,
however, Receiving Party shall first provide Delivering Party with
information and documentation supporting Receiving Party's claim for
reimbursement.
35. LIMITATION OF LIABILITY: NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR
CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, WHETHER,
ARISING IN TORT, CONTRACT, OR OTHERWISE EXCEPT TO THE EXTENT NECESSARY TO
INDEMNIFY A PARTY FOR
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LIABILITY TO A THIRD PARTY. THE PARTIES INTEND THAT THE LIMITATIONS UNDER
THIS CONTRACT IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT
REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING, WITHOUT
LIMITATION, THE NEGLIGENCE OR STRICT LIABILITY OF ANY PARTY, WHETHER SUCH
NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE.
36. OUTSTANDING RACK TRANSACTIONS: Upon the effectiveness of this Agreement,
unless otherwise agreed to in writing by the Parties to this Agreement,
with respect to Rack Transactions, all Rack Transactions then outstanding
between the Parties shall be subject to the terms thereof.
In witness whereof, the Parties hereto have caused this RPC Agreement to be
executed by their respective duly authorized representatives, effective as of
the date first set forth above.
WILLIAMS REFINING & MARKETING, LLC MAPCO EXPRESS, INC.
By: /s/ Ralph A. Hill By: /s/ James C. Alligood
------------------------------- ------------------------------
Print Name: Ralph A. Hill Print Name: James C. Alligood
Title: CEO & President ----------------------
Date: May 31, 2001 Title: President - CEO
---------------------------
Date: 5-31-01
----------------------------
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REVISION #2
EXHIBIT A
TO: MAPCO EXPRESS, INC.
ATTN: JAMES ALLIGOOD
DATE: JUNE 24, 2002
FAX:
SUBJECT: PURCHASE
REF: RPC-1638
Pursuant and subject to the terms and conditions of the RPC Agreement dated May
30, 2001, by and between Williams Refining & Marketing, LLC ("Williams") and
MAPCO EXPRESS, INC. ("Company"), this confirms the following Transaction
negotiated between Mr. John Yeager of Williams and Mr. James Alligood of MAPCO
EXPRESS, INC. on , 2002.
BUYER: MAPCO EXPRESS, INC.
SELLER: Williams Refining & Marketing, L.L.C.
CONTRACT TERM: JULY 1, 2002 THROUGH MAY 31, 2008; PROVIDED THAT BUYER SHALL
HAVE THE RIGHT TO TERMINATE THIS AGREEMENT UPON 365 DAYS' PRIOR WRITTEN NOTICE
OF INTENT TO TERMINATE DELIVERED TO THE SELLER.
CONTRACT
PRODUCT *(SPECIAL PROVISION #6) QUANTITY DIFFERENTIAL *(SPECIAL PROVISION #1)
Conventional 87 octane Unleaded [***] $[***]
Conventional 89 octane Unleaded [***] $[***]
Conventional 93 octane Premium [***] $[***]
Conventional 87 octane Unleaded, 7.8 RVP See Special Provisions #2 $[***]
Conventional 89 octane Unleaded, 7.8 RVP See Special Provisions #2 $[***]
Conventional 93 octane Premium, 7.8 RVP See Special Provisions #2 $[***]
Low Sulfur Diesel Fuel [***] $[***]
DELIVERY POINTS: [***]
[***]
[***]
DELIVERY TRANSPORTATION TERMS: [***]
PAYMENT TERMS: [***]
SPECIAL PROVISIONS:
1. PRICING: DAILY RACK LIFTINGS UNDER THE TERM OF THIS AGREEMENT SHALL BE PRICED
AT PREVIOUSLY DAY'S U.S. GULF COAST PIPELINE PROMPT PLATT'S MEAN FOR THE
RELEVANT BASE PRODUCT WHICH WAS LIFTED PLUS THE ABOVE REFERENCED
DIFFERENTIALS BY PRODUCT GRADE. ON WEEKENDS AND HOLIDAYS WHEN PLATT'S DOES
NOT PUBLISH TRADING RANGES, RACK LIFTINGS WILL BE PRICED AGAINST THE MOST
PREVIOUS PUBLISHED PLATT'S MEAN VALUE.
2. CONTRACT VOLUMES: TOTAL MONTHLY CONTRACT LIFTINGS SHALL BE [***] OF THE
ABOVE REFERENCED VOLUMES. ANY LIFTINGS IN EXCESS OF THIS RANGE SHALL BE
INVOICED AT WILLIAMS REFINING & MARKETING, L.L.C.'S POSTED RACK PRICE FOR THE
DATE OF LIFTING. IF DURING THE DURATION OF THIS AGREEMENT THE RECEIVING
PARTY'S MONTHLY VOLUMES, ON A QUARTERLY AVERAGE DO NOT MEET MINIMUM MONTHLY
CONTRACT VOLUME RANGE, THEN THE DELIVERING PARTY HAS THE RIGHT TO REDUCE THE
REMAINING VOLUMES UNDER THIS AGREEMENT BY THE SAME % FOR THE DURATION OF THE
CONTRACT. RECEIVING PARTY SHALL SUPPLY DELIVERING PARTY WITH AT LEAST THREE
(3) WEEKS WRITTEN NOTICE OF ANY ANTICIPATED DEMAND NEEDS FOR SPECIFIC PRODUCT
GRADE. DURING THE
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PERIOD OF VOC CONTROL, BUYER'S CONTRACT QUANTITIES FOR UNLEADED AND PREMIUM
GASOLINE SHALL BE DIVIDED BETWEEN ITS 7.0 RVP AND 9.0 RVP DEMAND FOR EACH
GRADE OF PRODUCT.
3. RATABILITY: CONTRACT QUANTITIES UNDER THE TERMS OF THIS CONTRACT SHALL BE
LIFTED RATABLY, ON A DAILY BASIS, OVER THE COURSE OF EACH MONTH.
4. NET GALLONS: DIFFERENTIALS ARE BASED ON NET GALLONS, ADJUSTED TO 60 DEGREES
FAHRENHEIT.
5. THE ABOVE REFERENCED DIFFERENTIALS WILL BE ADJUSTED BY ANY INCREASE OR
DECREASE IN EITHER COLONIAL PIPELINE PUBLISHED TARIFF TO [***] FROM PASADENA,
TX, TERMINAL HANDLING COSTS (INCLUDING IVD ADDITIVES) AND OR BY ANY CHANGES
IN THE COLONIAL PIPELINE LINE LOSS CHARGE.
6. IF DURING THE TERM OF THIS AGREEMENT ANY STATE OR FEDERAL GOVERNMENT
REGULATIONS REQUIRE A DIFFERENT PRODUCT SPECIFICATION TO BE DELIVERED TO THE
CUSTOMER, THEN THE PLATT'S PROMPT PIPELINE MEAN POSTING USED FOR THE PRICE
CALCULATIONS WILL BE CHANGED TO THE NEW REQUIRED PRODUCT(S). IF PLATT'S FAILS
TO PUBLISH A PRICE FOR THE NEW PRODUCT(S) THEN BOTH PARTIES WILL NEGOTIATE
THE PRICING IN ACCORDANCE TO INDUSTRY PRACTICE.
7. ALL VOLUMES OF PRODUCT SUPPLIED HEREUNDER ARE INTENDED FOR C-STORE USE ONLY
AND SHALL NOT BE RE-SOLD TO OTHER RETAIL OR WHOLESALE MARKETERS.
These specific terms and conditions together with the RPC Agreement shall
constitute the entirety of the agreement between buyer and seller unless
COMPANY furnishes to Williams notice of alleged errors by telecopy, other
electronic transmission, or first class mail before 4:00 p.m. CST of the fifth
(5th) Business Day following the Business Day of receipt of the Confirmation
from Williams, the Confirmation shall be conclusive evidence of the Transaction
that is the subject matter thereof, and shall, along with the terms herein, be
the final expression of all its terms, notwithstanding any failure of COMPANY
to execute such confirmation.
WILLIAMS REFINING & MARKETING, LLC MAPCO EXPRESS, INC.
By: /s/ Ted Brennan By: /s/ James C. Alligood
Trader: Trader:
Title: Title:
Prepared by:________________, Risk Control Management
Phone:_______________________
Fax No.:_____________________
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
REVISION #2
EXHIBIT A
TO: MAPCO EXPRESS, INC.
ATTN: James Alligood
DATE: June 24, 2002
FAX:
SUBJECT: PURCHASE
REF: RPC-1638
Pursuant and subject to the terms and conditions of the RPC Agreement dated May
30, 2001, by and between Williams Refining & Marketing, LLC ("Williams") and
MAPCO EXPRESS, INC., ("Company"), this confirms the following Transaction
negotiated between Mr. John Yeager of Williams and Mr. James Alligood of MAPCO
EXPRESS, INC. on , 2002.
BUYER: MAPCO EXPRESS, INC.
SELLER: WILLIAMS REFINING & MARKETING, LLC
CONTRACT TERM: JUNE 1, 2002 THROUGH MAY 31, 2008; PROVIDED THAT BUYER SHALL
HAVE THE RIGHT TO TERMINATE THIS AGREEMENT UPON 365 DAYS' PRIOR WRITTEN NOTICE
OF INTENT TO TERMINATE DELIVERED TO THE SELLER.
CONTRACT
PRODUCT *(SPECIAL PROVISION #6) QUANTITY DIFFERENTIAL *(SPECIAL PROVISION #1)
------------------------------- -------------------------- ------------------------------------
Conventional 87 octane Unleaded [***] [***]
Conventional 89 octane Unleaded [***] [***]
Conventional 93 octane Premium [***] [***]
Conventional 87 octane Unleaded, 7.8 RVP See Special Provisions #2 [***]
Conventional 89 octane Unleaded, 7.8 RVP See Special Provisions #2 [***]
Conventional 93 octane Premium, 7.8 RVP See Special Provisions #2 [***]
Low Sulfur Diesel Fuel [***] [***]
DELIVERY POINTS: [***]
DELIVERY TRANSPORTATION TERMS: [***]
PAYMENT TERMS: [***]
SPECIAL PROVISIONS:
1. Pricing: Daily rack liftings under the term of this agreement shall be
priced at previous day's U.S. Gulf Coast Pipeline Prompt Platt's mean for
the relevant base product which was lifted plus the above referenced
differentials by product grade. On Weekends and holidays when Platt's does
not publish trading ranges, rack liftings will be priced against the most
previous published Platt's mean value.
2. Contract Volumes: Total monthly contract liftings shall be [***] of the
above referenced volumes. Any liftings in excess of this range shall be
invoiced at Williams Refining & Marketing, L.L.C.'s posted rack price for
the date of lifting. If during the duration of this agreement the receiving
party's monthly volumes, on a quarterly average do not meet minimum monthly
contract volume range, then the delivering party has the right to reduce the
remaining volumes under this agreement by the same % for the duration of the
contract. Receiving party shall supply delivering party with at least three
(3) weeks written notice of any anticipated demand needs for specific
product grade. During the period of VOC control, buyer's contract quantities
for unleaded and premium gasoline shall be divided between its 7.0 RVP and
9.0RVP demand for each grade of product.
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
3. Ratability: Contract quantities under the terms of this contract shall be
lifted ratably, on a daily basis, over the course of each month.
4. Net Gallons: Differentials are based on net gallons, adjusted to 60 degrees
Fahrenheit.
5. If during the terms of this Agreement any State or Federal government
regulations require a different product specification to be delivered to the
customer, then the Platt's Prompt Pipeline mean posting used for the price
calculations will be changed to the new required product(s). If Platt's
fails to publish a price for the new product(s) then both parties will
negotiate the pricing in accordance to industry practice.
6. All volumes of product supplied hereunder are intended for C-Store use only
and shall not be re-sold to other retail or wholesale marketers.
7. The above-referenced Differentials for all gasoline (including IVD
additives) and low sulfur diesel products listed above, other than the 93
octane Premiums, will be adjusted during the term of this agreement to equal
the lowest of Williams' exchange differentials (including IVD additives) in
effect from time to time for such non-Premium gasoline and low sulfur diesel
products delivered into the [***] (the "ADJUSTED DIFFERENTIALS"). The
Differentials for the two 93 octane Premium gasolines listed above shall be
adjusted during the term hereof to equal the then-current Adjusted
Differential plus [***] basis points.
These specific terms and conditions together with the RPC Agreement shall
constitute the entirety of the agreement between buyer and seller unless COMPANY
furnishes to Williams notice of alleged errors by telecopy, other electronic
transmissions, or first class mail before 4:00 p.m. CST of the fifth (5th)
Business Day following the Business Day of receipt of the Confirmation from
Williams, the Confirmation shall be conclusive evidence of the Transaction that
is the subject matter thereof, and shall, along with the terms herein, be the
final expression of all its terms, notwithstanding any failure of COMPANY to
execute such confirmation.
WILLIAMS REFINING & MARKETING, LLC MAPCO EXPRESS, INC.
By: /s/Ted Brennan By: /s/James C. Alligood
Trader: Trader:
Title: Title:
Prepared by: ______________________________, Risk Control Management
Phone: ____________________________________
Fax No.: __________________________________
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
REVISION #2
EXHIBIT A
TO: MAPCO EXPRESS, INC.
ATTN: JAMES ALLIGOOD
FAX:
DATE: JUNE 24, 2002
SUBJECT: PURCHASE
REF: RPC-1638
Pursuant and subject to the terms and conditions of the RPC Agreement dated May
30, 2001, by and between Williams Refining & Marketing, LLC ("Williams") and
MAPCO EXPRESS, INC., ("Company"), this confirms the following Transaction
negotiated between Mr. John Yeager of Williams and Mr. James Alligood of MAPCO
EXPRESS, INC. on ________, 2001.
BUYER: MAPCO EXPRESS, INC.
SELLER: WILLIAMS Refining & Marketing, LLC
CONTRACT TERM: JULY 1, 2002 THROUGH MAY 31, 2008; PROVIDED THAT BUYER SHALL HAVE
THE RIGHT TO TERMINATE THIS AGREEMENT UPON 365 DAYS' PRIOR WRITTEN NOTICE OF
INTENT TO TERMINATE DELIVERED TO THE SELLER.
CONTRACT
PRODUCT *(SPECIAL PROVISION #6) QUANTITY DIFFERENTIAL *(SPECIAL PROVISION #1)
------------------------------- -------- ------------------------------------
Conventional 87 octane Unleaded [***] [***]
Conventional 89 octane Unleaded [***] [***]
Conventional 93 octane Premium [***] [***]
Low Sulfur Diesel [***] [***]
DELIVERY POINTS: [***]
DELIVERY TRANSPORTATION TERMS: [***]
PAYMENT TERMS: [***]
SPECIAL PROVISIONS:
1. PRICING: DAILY RACK LIFTINGS UNDER THE TERM OF THIS AGREEMENT SHALL BE
PRICED AT PREVIOUS DAY'S U.S. GULF COAST PIPELINE PROMPT PLATT'S MEAN FOR
THE RELEVANT BASE PRODUCT WHICH WAS LIFTED PLUS THE ABOVE REFERENCED
DIFFERENTIALS BY PRODUCT GRADE. ON WEEKENDS AND HOLIDAYS WHEN PLATT'S DOES
NOT PUBLISH TRADING RANGES, RACK LIFTINGS WILL BE PRICED AGAINST THE MOST
PREVIOUS PUBLISHED PLATT'S MEAN VALUE.
2. CONTRACT VOLUMES: TOTAL MONTHLY CONTRACT LIFTINGS SHALL BE [***] OF THE
ABOVE REFERENCED VOLUMES. ANY LIFTINGS IN EXCESS OF THIS RANGE SHALL BE
INVOICED AT WILLIAMS REFINING & MARKETING, L.L.C.'S POSTED RACK PRICE FOR
THE DATE OF LIFTING. IF DURING THE DURATION OF THIS AGREEMENT THE
RECEIVING PARTY'S MONTHLY VOLUMES, ON A QUARTERLY AVERAGE DO NOT MEET
MINIMUM MONTHLY CONTRACT VOLUME RANGE, THEN THE DELIVERING PARTY HAS THE
RIGHT TO REDUCE THE REMAINING VOLUMES UNDER THIS AGREEMENT BY THE SAME %
FOR THE DURATION OF THE CONTRACT. RECEIVING PARTY SHALL SUPPLY DELIVERING
PARTY WITH AT LEAST THREE (3) WEEKS WRITTEN NOTICE OF ANY ANTICIPATED
DEMAND FOR NEEDS FOR SPECIFIC PRODUCT GRADE. DURING THE PERIOD OF VOC
CONTROL, BUYER'S CONTRACT QUANTITIES FOR UNLEADED AND PREMIUM GASOLINE
SHALL BE DIVIDED BETWEEN ITS 7.0 RVP AND 9.0RVP DEMAND FOR EACH GRADE OF
PRODUCT.
3. RATABILITY: CONTRACT QUANTITIES UNDER THE TERMS OF THIS CONTRACT SHALL BE
LIFTED RATABLY, ON A DAILY BASIS, OVER THE COURSE OF EACH MONTH.
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
4. NET GALLONS: DIFFERENTIALS ARE BASED ON NET GALLONS, ADJUSTED TO 60 DEGREES
FAHRENHEIT.
5. THE ABOVE REFERENCED DIFFERENTIALS WILL BE ADJUSTED BY ANY INCREASE OR
DECREASES IN EITHER COLONIAL PIPELINE PUBLISHED TARIFF TO [***] FROM
PASADENA, TX, TERMINAL HANDLING COSTS (INCLUDING IVD ADDITIVES) AND OR BY
ANY CHANGES IN THE COLONIAL PIPELINE LINE LOSS CHARGE.
6. IF DURING THE TERM OF THIS AGREEMENT ANY STATE OR FEDERAL GOVERNMENT
REGULATIONS REQUIRE A DIFFERENT PRODUCT SPECIFICATION TO BE DELIVERED TO THE
CUSTOMER, THEN THE PLATT'S PROMPT PIPELINE MEAN POSTING USED FOR THE PRICE
CALCULATIONS WILL BE CHANGED TO THE NEW REQUIRED PRODUCTS(S). IF PLATT'S
FAILS TO PUBLISH A PRICE FOR THE NEW PRODUCT(S) THEN BOTH PARTIES WILL
NEGOTIATE THE PRICING IN ACCORDANCE TO INDUSTRY PRACTICE.
7. ALL VOLUMES OF PRODUCT SUPPLIED HEREUNDER ARE INTENDED FOR C-STORE USE ONLY
AND SHALL NOT BE RE-SOLD TO OTHER RETAIL OR WHOLESALE MARKETERS.
These specific terms and conditions together with the RPC Agreement shall
constitute the entirety of the agreement between buyer and seller unless COMPANY
furnishes to Williams notice of alleged errors by telecopy, other electronic
transmission, or first class mail before 4:00 p.m. CST of the fifth (5th)
Business Day following the Business Day of receipt of the Confirmation from
Williams, the Confirmation shall be conclusive evidence of the Transaction that
is the subject matter thereof, and shall, along with the terms herein, be the
final expression of all its terms, notwithstanding any failure of COMPANY to
execute such confirmation.
WILLIAMS REFINING & MARKETING, LLC MAPCO EXPRESS, INC.
By: /s/ Ted Brennan By: /s/ James C. Alligood
Trader: Trader:
Title: Title:
Prepared by: ____________________________, Risk Control Management
Phone: __________________________________
Fax No.: ________________________________
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
REVISION #2
EXHIBIT A
To: MAPCO EXPRESS, INC.
Attn: James Alligood
Date: June 24, 2002
Fax:
Subject: Purchase
Ref: RPC-1638
Pursuant and subject to the terms and conditions of the RPC Agreement dated May
30, 2001, by and between Williams Refining & Marketing, LLC ("Williams") and
MAPCO EXPRESS, INC., ("Company"), this confirms the following Transaction
negotiated between Mr. John Yeager of Williams and Mr. James Alligood of MAPCO
EXPRESS, INC. on _______________, 2002.
Buyer: MAPCO EXPRESS, INC
Seller: WILLIAMS REFINING & MARKETING, LLC
CONTRACT TERM: JULY 1, 2002 THROUGH MAY 31, 2008; PROVIDED THAT BUYER SHALL
HAVE THE RIGHT TO TERMINATE THIS AGREEMENT UPON 365 DAYS' PRIOR WRITTEN NOTICE
OF INTENT TO TERMINATE DELIVERED TO THE SELLER.
CONTRACT
PRODUCT *(SPECIAL PROVISION #6) QUANTITY DIFFERENTIAL *(SPECIAL PROVISION #1)
------------------------------- -------- ------------------------------------
Conventional 87 octane Unleaded [***] [***]
Conventional 89 octane Unleaded [***] [***]
Conventional 93 octane PREMIUM [***] [***]
Low Sulfur Diesel [***] [***]
DELIVERY POINTS: [***]
DELIVERY TRANSPORTATION TERMS: [***]
PAYMENT TERMS: [***]
SPECIAL PROVISIONS:
1. Pricing: Daily rack liftings under the term of this agreement shall be
priced at previous day's U.S. Gulf Coast Pipeline Prompt Platt's mean for
the relevant base product which was lifted plus the above referenced
differentials by product grade. On Weekends and holidays when Platt's does
not publish trading ranges, rack liftings will be priced against the most
previous published Platt's mean value.
2. Contract Volumes: Total monthly contract liftings shall be [***] of the
above referenced volumes. Any liftings in excess of this range shall be
invoiced at Williams Refining & Marketing, L.L.C.'s posted rack price for
the date of lifting. If during the duration of this agreement the receiving
party's monthly volumes, on a quarterly average do not meet minimum monthly
contract volume range, then the delivering party has the right to reduce
the remaining volumes under this agreement by the same % for the duration
of the contract. Receiving party shall supply delivering party with at
least three (3) weeks written notice of any anticipated demand needs for
specific product grade. During the period of VOC control, buyer's contract
quantities for unleaded and premium gasoline shall be divided between its
7.0 RVP and 9.0RVP demand for each grade of product.
3. Ratability: Contract quantities under the terms of this contract shall be
lifted ratably, on a daily basis, over the course of each month.
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
4. NET GALLONS: DIFFERENTIALS ARE BASED ON NET GALLONS, ADJUSTED TO 60
DEGREES FAHRENHEIT.
5. THE ABOVE REFERENCED DIFFERENTIALS WILL BE ADJUSTED BY ANY INCREASE OR
DECREASES IN EITHER TEPPCO PIPELINE PUBLISHED TARIFF TO [***] FROM HOUSTON
(PASADENA), TX, TERMINAL HANDLING COSTS (INCLUDING IVD ADDITIVES) AND OR BY
ANY CHANGES IN THE TEPPCO PIPELINE LINE LOSS CHARGE.
6. IF DURING THE TERM OF THIS AGREEMENT ANY STATE OR FEDERAL GOVERNMENT
REGULATIONS REQUIRE A DIFFERENT PRODUCT SPECIFICATION TO BE DELIVERED TO
THE CUSTOMER, THEN THE PLATT'S PROMPT PIPELINE MEAN POSTING USED FOR THE
PRICE CALCULATIONS WILL BE CHANGED TO THE NEW REQUIRED PRODUCTS(S). IF
PLATT'S FAILS TO PUBLISH A PRICE FOR THE NEW PRODUCT(S) THEN BOTH PARTIES
WILL NEGOTIATE THE PRICING IN ACCORDANCE TO INDUSTRY PRACTICE.
7. ALL VOLUMES OF PRODUCT SUPPLIED HEREUNDER ARE INTENDED FOR C-STORE USE ONLY
AND SHALL NOT BE RE-SOLD TO OTHER RETAIL OR WHOLESALE MARKETERS.
These specific terms and conditions together with the RPC Agreement shall
constitute the entirety of the agreement between buyer and seller unless
COMPANY furnishes to Williams notice of alleged errors by telecopy, other
electronic transmission, or first class mail before 4:00 p.m. CST of the fifth
(5th) Business Day following the Business Day of receipt of the Confirmation
from Williams, the Confirmation shall be conclusive evidence of the Transaction
that is the subject matter thereof, and shall, along with the terms herein, be
the final expression of all its terms, notwithstanding any failure of COMPANY
to execute such confirmation.
WILLIAMS REFINING & MARKETING, LLC MAPCO EXPRESS, INC.
By: /s/Ted Brennan By: /s/James C. Alligood
Trader: Trader:
Title: Title:
Prepared by:_______________, Risk Control Management
Phone:______________________
Fax No.:____________________
[***] CONFIDENTIAL TREATMENT REQUESTED