EXHIBIT 2(b)
FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This First Amendment to Purchase and Sale Agreement ("Amendment") is entered
into this 31st day of March, 1995, by and among EXXON PIPELINE COMPANY, a
Delaware Corporation, ("Seller") HOWELL CRUDE OIL COMPANY ("HCO"), HOWELL
PIPELINE USA, INC.("HUSA"), AND HOWELL PIPELINE TEXAS, INC. ("HTEX"), each being
a Delaware corporation (HCO, HUSA, and HTEX collectively and individually
referred to herein as "Buyer").
W I T NE S S E T H :
Whereas, Seller and HCO entered into a Purchase and Sale Agreement ("PSA")
dated February 22, 1995, for Seller to sell and HCO to buy certain pipeline
"Assets" described in the PSA, on the terms and conditions stated in the PSA;
and
Whereas, HCO desires to assign part of its interests in the PSA to HUSA and
HTEX and Seller agrees to such assignment on certain terms and conditions stated
in this Amendment; and
WHEREAS, Seller and Buyer also desire to amend the PSA as provided in this
Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and other valuable consideration, the receipt and sufficiency of
which each party hereby acknowledges, the parties hereby agree as follows:
1. HCO does hereby grant, sell, convey, and assign unto HUSA, all of HCO's
rights, title and interest in and to the PSA insofar as they relate to the
pipelines that are located in the States of Florida, Alabama, Mississippi, and
Louisiana, and any other Assets related to such pipelines. HCO does hereby
grant, sell, convey, and assign insofar as it is legally able to so do, unto
HTEX, all of HCO's rights, title and interest in and to the PSA insofar as they
relate to the pipelines that are located in the State of Texas, and any other
Assets related to such pipelines, save and except the Groesbeck Station and the
idle Groesbeck to Neches Junction pipeline system that runs north from said
Groesbeck Station, both of which shall remain with HCO. Provided, however, HCO
shall not be relieved of its rights and obligations by these assignments. HUSA
and HTEX each hereby assumes and agrees to be bound jointly and severally with
HCO by all of the terms, covenants and conditions of and to pay, perform, comply
with and discharge all of the obligations of HCO under the PSA as of March 31,
1995. Further provided, HCO shall remain the party to the Facilities Sharing
Agreement executed by and between HCO and Seller on February 22, 1995, as agent
for HUSA and HTEX. Seller does hereby agree to these assignments on the terms
and conditions stated above.
2. The PSA is hereby amended by adding a new Exhibit "JJ," which is attached
hereto, and Section 1.A(3)b of the PSA is hereby amended by inserting the
following parenthetical phrase at the end thereof:
(See Exhibit "JJ" herebto showing ownership limits)
3. Section 2.E of the PSA is hereby amended by adding a comma and the word
"and" at the end of subsection (3) and by adding the following subsection (4):
(4) The two rectifiers located at Neches Station.
4. The first sentence of Section 3.B of the PSA is hereby amended to read it
its entirety, as follows:
EPC shall grant to Buyer a Webster Lease (hereby defined), in the form
of Exhibit "Q" hereto, for (i) storage tanks currently located at EPC's Webster
Station, and (ii) roadway access across EPC's property to allow access to the
leased premises, approximately as shown in the drawing in Exhibit "E" hereto.
5. Section 3.D of the PSA is hereby amended by adding the following at the end
thereof:
At Closing, Buyer is delivering to EPC a letter from the lender providing
financing to Buyer ("Lender") by which Lender is agreeing, under certain
conditions, to subordinate the lien securing Buyer's financing for certain
easements, subleases, or leases granted to EPC after the Closing. To the extent
that the letter or Lender's actions pursuant thereto fail to grant EPC the full
rights and benefits EPC would have received had the Lender subordinated its
lien, Buyer agrees to be responsible for all costs and expenses incurred by EPC
as a result of such failure, including without limitation, the cost and expense
of acquiring a partial release from lender's lien, of acquiring any easement,
sublease, or lease required for the operation of EPC's retained operations, and
loss of business, if any.
6. Section 7 of the PSA is hereby amended by changing Buyer's reimbursement
obligation thereunder from ONE MILLION AND NO/100 DOLLARS ($1,000,000.00) to
EIGHT HUNDRED SEVENTY-FIVE THOUSAND AND NO/100 DOLLARS ($875,000.00).
7. Section 10 of the PSA is hereby amended by changing Buyer's reimbursement
obligation thereunder from EIGHT HUNDRED THOUSAND AND NO/100 DOLLARS ($800,000)
to SEVEN HUNDRED TWENTY FIVE THOUSAND AND NO/100 DOLLARS ($725,000). In
addition, Buyer hereby agrees to to be responsible for all tank repairs on the
Gwinville Tank to be conveyed to Buyer. In addition, Section 4A of that certain
Facilities Separation Agreement entered into by and between Howell Crude Oil
Company and Seller, dated February 22, 1995, is hereby amended in the same
manner.
8. Section 11.I of the PSA is hereby amended to read in its entirety, as
follows:
To the best of EPC's knowledge, the Assets have been used at their present
locations only for the operation of a crude pipeline system, except for (i) the
approximately fifteen (15) miles of pipeline on the Hearne to Navasota system
from Station No. 831 + 68 to Station No. 1616 + 50, which pipeline segment has
also been used in the operation of a refined products pipeline system and (ii)
segments of the Hearne to Satsuma system may have also been used in the
operation of a liquified petroleum gas (LPG) system.
9. Section 19.D of the PSA is hereby amended so that Subsection19.D.(2) shall
read in its entirety, as follows:
(2) ANY CLAIMS RELATING TO THE ITEMS LISTED IN SCHEDULE 11.F, FOR
WHICH INDEMNITEE SHALL RETAIN RESPONSIBILITY;
10. Section 20 of the PSA is hereby amended by amending the second to last
sentence to read in its entirety, as follows:
The above listed closing documents shall be executed on Closing made effective
as of 11:59 p.m. on the day of Closing ("Effective Date").
11. A new Section 44 is hereby inserted to the PSA, as follows:
44. Any franchise charge, fee, tax, duty or levy for the current year
that may be lawfully imposed for authority to do business on or for use of city
or municipal property shall be allocated between EPC and Buyer as of Closing.
12. A new Section 45 is hereby inserted to the PSA, as follows:
45. EPC agrees to continue, or cause its contractor to continue, the
current groundwater monitoring in the vicinity of 1561 Bracher Lane, Houston,
Texas in accordance with that certain Groundwater Investigation Report prepared
for EPC by KEI Consultants, dated November 29, 1994 , and be responsible for any
groundwater remediation related thereto, until the Texas Railroad Commission
agrees that the groundwater monitoring, and any potential related groundwater
remediation, is no longer needed. Provided, however, EPC shall only be
responsible under this paragraph for groundwater monitoring and related
groundwater remediation arising out of EPC's 1978 pipeline spill at that
location or arising out of EPC's ownership, operation, use, repair, removal or
control of the pipeline prior to Closing; and, Buyer shall be responsible for
any contamination caused by Buyer's ownership, operation, use, repair, removal
or control of the pipeline.
13. The following Exhibits and Schedule to the PSA are hereby amended, as set
forth below:
(a) Exhibit A2 Part 1 is amended by replacing it with Exhibit A2 Part 1
attached hereto;
(b) Exhibit A3 Parts 1 and 2 are amended by replacing them with Exhibit A3
Parts 1, 2, 3 and 4, attached hereto;
(c) Exhibit B is amended by replacing it with Exhibit B, attached hereto;
(d) Exhibit F1 is amended by replacing it with Exhibit F1, attached
hereto;
(e) Exhibit G is amended by replacing it with Exhibit G, attached hereto;
(f) Exhibit J is amended by adding to it Exhibit J, attached hereto;
(g) Exhibit N is amended by replacing it with Exhibit N, attached hereto;
(h) Exhibit Y1 is amended by replacing it with Exhibit Y1, attached
hereto;
(i) Exhibit AA is amended by replacing it with Exhibit AA, attached
hereto;
(j) Exhibit HH is amended by adding to it Exhibit HH page 2, attached
hereto;
(k) Schedule 11.F is hereby amended by replacing it with Schedule 11.F,
attached hereto.
14. To the extent that any document executed at Closing differs from the form
of such document that was attached to the PSA, the form executed at Closing
shall supercede and control over the form attached to the PSA.
Except as specifically set forth in this Amendment, the Agreement shall
remain in full force and effect upon the same terms and conditions as set forth
therein.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
EXXON PIPELINE COMPANY
By: /s/ Otto R. Harrison
--------------------
Name: Otto R. Harrison
Title: President
Date: --------------------
HOWELL CRUDE OIL COMPANY
By: /s/ Mark J. Gorman
------------------
Name: Mark J. Gorman
Title: President
Date: __________________
HOWELL PIPELINE TEXAS, INC.
By: /s/ Allen R. Stanley
-------------------
Name: Allen R. Stanley
Title: President
Date:____________________
HOWELL PIPELINE USA, INC.
By: /s/ Allen R. Stanley
--------------------
Name: Allen R. Stanley
Title: President
Date: ____________________