XXXX Exhibit 10.15
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XXXX REFINING COMPANY, L.P.
SALES AGREEMENT
DATE: March 17, 1998 (Customer #71061)
TERMS: Net 10 days Sold to:
Able Oil Co.
000 Xxxxx 00
Xxxxxxxx, XX 00000
We hereby acknowledge sale
Confirming: Phone X Wire Letter SALES NO.
Xx. X. Xxxxx and Xx. Xxx Xxxxxxxxxx SA981385
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PRODUCT: #2 Fuel Oil meeting Colonial 86 grade specifications
QUANTITY: Approximately 504,000 gallons pulled ratably
(42,000 gallons per month)
PRICE: See attachment
PERIOD OF April 1, 1998 through March 31, 1998
DELIVERY
F.O.B.: Xxxx thru-put
Newark, NJ
TO BE Able Oil Co.
SHIPPED TO:
SHIPPED BY: Buyer's trucks
REMARKS: 1) Quantity to be determined by Meter Ticket at point of
loading, gross gallons.
2) Customer agrees to comply with Xxxx'x credit terms and
allocation of credit limits.
3) BE27171.
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Accepted Accepted
A & S Fuel Co., Inc. XXXX REFINING COMPANY, L.P.
KRC/GP, Inc. General Partner
BY BY /s/ XXXXX XXXXX
----------------------------------- -----------------------------------
Xxxxx Xxxxx
Senior Account Manager
-------------------------------------- Northeast Region
Title
Subject to Terms and Conditions
Xxxx Refining Company L.P.
Delivery Schedule
SA981385
Able Oil Company
Date Price
---------------------
April $.3975
May $.4045
June $.4135
July $.4235
August $.4350
September $.4466
October $.4605
November $.4710
December $.4800
January $.4865
February $.4890
March $.4850
Accepted--Able Oil Co. Accepted--Xxxx Refining Company, L.P.
/s/ Xxxxx Xxxxx
----------------------------l.s. ----------------------------l.s.
Xxxxx Xxxxx
Senior Account Manager
Northeast Region
2
XXXX REFINING COMPANY, L.P.
STANDARD PRODUCT SALES TERMS AND CONDITIONS
1. TITLE: On sales FOB Xxxx'x location, title and risk of loss shall
pass to Buyer as product passes through the flange connection between the
delivery line and Buyer's receiving line. On sales FOB Buyer's location,
title and risk of loss shall pass to Buyer as product leaves delivery vessel.
2. TAXES: Buyer shall pay, or reimburse Seller for all taxes, duties
and other governmental charges of whatever kind (except for income taxes)
imposed on any transaction of product sold hereunder. Without limitation on
the foregoing, Buyer shall bear the effect of all Federal Goods and Services
Tax on or with respect to this contract or the transactions or products
hereunder.
3. MARINE: (a) Notices--Notice of estimated time of arrival (ETA) and
name of vessel or barge tow shall be given to receiving or loading party a
reasonable time before arrival at port. Any change in ETA shall be reported
promptly. If a berth is not available for the latest ETA, a berth will be
scheduled for the next earliest time a berth is open on the dock's schedule.
Upon arrival in port, notice of readiness to load or discharge shall be
given, with allowed free time being three hours for barge tows and six hours
for vessels. Laytime shall commence at the earlier of becoming all fast at
berth or at expiration of the three or six hour period, as appropriate.
(b) Berth--Barge tow or vessel shall not exceed the maximum draft or
length allowed by dock operator. Receiving or loading party shall provide a
berth that tow or vessel may safely proceed to, lie at always afloat, and
safely depart from. Receiving or loading shall be done within the time, or at
the rate, agreed to by the parties. Seller shall pay wharfage fee, if any.
Buyer shall pay all fees or charges assessed against a vessel or barge.
(c) Demurrage--Seller shall be liable for demurrage directly caused by
Seller's sole fault. Buyer shall be liable for all other demurrage.
4. QUANTITY: All quantities shall be measured according to then
prevailing practices and methods generally used by Seller at its locations.
Each party may have its representative observe all measurements, sample
taking and testing.
5. SCHEDULING: (a) Cooperation--To the extent flexibility is allowed
by this contract for time or size of deliveries, the parties shall cooperate
to the extent reasonable to coordinate period(s) and time(s) for deliveries
hereunder; and Buyer shall give reasonable prior notice as to quantities and
scheduling desired.
(b) Lots--Seller may deliver in lots. Failure of Seller to deliver shall
not relieve Buyer from accepting and paying for conforming lots tendered.
6. CREDIT: Seller's duty to perform, and Buyer's right to purchase,
hereunder are at all times subject to approval, and continuing approval, of
Buyer's credit by Seller. No assurance or guarantee is made of, or of
continuation of, any particular credit; and Seller without limitation
reserves the right to sell on pre-paid, COD, standby letter of credit, or
other secured or collaterally assured basis acceptable to Seller. Unless
credit is approved and arranged by Buyer with Seller payment shall be due in
full in cash prior to loading of product. Without limitation on Seller's
rights and remedies on credit issues or any other causes(s), if Buyer fails
to pay any amount promptly when due hereunder or if Seller needs assurance,
or further assurance, of Buyer's credit worthiness, Seller may cancel this
contract, demand different payment terms, suspend or recall deliveries or
shipments, impose different credit terms, or impose different requirements
for collateral assurance of payment. ANY SUCH DEMAND MAY BE MADE ORALLY AT
SELLER'S ELECTION. Seller is hereby given an express right to set-off against
any amount whatsoever owing or becoming due to Buyer, any amount owing by or
becoming due from Seller or any company that is directly or indirectly
subsidiary to, parent of, or affiliated with Seller.
7. WARRANTIES AND LIMITATIONS: Seller warrants only that--(a) content
of product shall conform at the time of loading to Seller's then current,
standard specification therefor, and (b) Seller has good title to the product
at the time of loading transfer hereunder.
ALL OTHER WARRANTIES OF SELLER, EXPRESSED OR IMPLIED, AND ALL
REPRESENTATIONS, GUARANTEES, INSTRUCTIONS, PROMISES, DESCRIPTIONS AND SAMPLES
FROM SELLER OF, OR PERTAINING TO, PRODUCT QUALITY, COMPOSITION,
CHARACTERISTICS, ENVIRONMENTAL OR HUMAN SAFETY OR HAZARD OR HEALTH AFFECTS,
PERFORMANCE, OR LIKE MATTERS ARE EXCLUDED. WITHOUT LIMITATION ON THE
FOREGOING SENTENCE, ALL IMPLIED WARRANTIES OF FITNESS FOR PURPOSE AND OF
MERCHANTABILITY AND ALL WARRANTIES OF SELLER OF FREEDOM FROM PATENT
INFRINGEMENT ARE EXCLUDED.
8. ACCEPTANCE: All quantities of product shall, unless otherwise
agreed, be determined in accordance with the following and adjusted to a
standard temperature of sixty (60) degrees Fahrenheit in compliance with
applicable A.S.T.M. methods. Quantities delivered to vessels shall be
determined by shore tank measurements at the point of delivery or receipt or,
if unavailable, by vessel loaded or discharge figures as adjusted by the
appropriate vessel experience factor as determined by an independent
petroleum inspector. Quantities delivered into or by pipelines shall be
determined by meter. The term "barrel" as used herein shall mean forty two
(42) U.S. gallons. The term "gallon" as used herein shall mean a U.S. gallon
of two hundred thirty one (231) cubic inches. All quality determinations
shall be made by an independent inspector to be employed at the equally
shared expense of the parties. Acceptance shall be deemed to have irrevocably
occurred when the governing sample of the product for purpose of quality
determination has been found by the independent inspector to conform to the
specification required hereby.
9. EXCUSED PERFORMANCE: (a) Beyond Reasonable Control--The parties
shall be excused from their respective performances hereunder if performance
has been prohibited or delayed by any foreseeable or unforeseeable causes(s)
beyond the reasonable control of the party claiming excuse. Such shall
include without limitation any failure of mechanical or chemical function or
equipment normally used by Seller for manufacturing, handling or delivering
of product covered hereby. Promptly after a party determines to claim excuse
of performance, the party shall notify the other of the circumstances and
consequences claimed and shall use reasonable means to remove the cause(s) in
question. But in no event shall either party be obligated to settle any
demands of, or disputes with, laborers; nor shall either party be excused
from paying monies due or complying with credit terms of Seller. Quantities
affected by such causes(s) shall be dropped from this contract, but this
contract shall otherwise continue in force and effect. In periods of shortage
of product due to such cause(s), Seller shall be entitled to allocate
available supply among itself and its affiliated, subsidiary and parent
companies and customers, Buyer included.
(b) Impracticability--Seller shall have the right to cancel this
contract without liability to Seller if for any reason Seller shuts down the
unit(s) in, or the plant at, which the product is made or if a change in
circumstances (whether foreseeable or unforeseeable) causes Seller to incur a
loss on a full cost basis at any time on the sale of product hereunder.
(c) Alternate Supply--Under no circumstances shall Seller be obligated to
obtain product for delivery hereunder from any person or entity that is not
an affiliate, subsidiary or parent company of Seller.
10. LIMITED REMEDIES: Seller's liability, and Buyer's exclusive remedy,
for any cause of action (whether in contract, warranty, guarantee, failure of
essential purpose, tort [including but not limited to negligence], violation
of law, strict liability or otherwise) arising out of or related to this
contract is expressly limited at Seller's option to--(a) replacement of a
nonconforming product FOB Seller's point of delivery; or (b) payment not to
exceed the purchase price for shipment which is the subject of the claim or
cause of action.
WITHOUT LIMITATION ON THE FOREGOING, SELLER SHALL NOT BE OBLIGATED FOR
LOST PROFITS, ECONOMIC LOSS, OR ANY OTHER SPECIAL, CONSEQUENTIAL OR
INCIDENTAL DAMAGES WHETHER ARISING UNDER WARRANTY, FAILURE OF ESSENTIAL
PURPOSE, CONTRACT, GUARANTEE, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE),
STRICT LIABILITY, VIOLATION OF LAW, OR OTHERWISE.
Solely as a means of early identification of any possible problems or
disputes and not by way of limitation of Seller's rights hereunder nor in
mitigation of acceptance hereunder, on each shipment Buyer shall sample and
test such prior to use or resale or other transfer thereof by Buyer in order
to independently determine conformity at as early a time as possible; and if
Buyer determines or suspects nonconformity, Buyer shall not use or resell or
otherwise transfer the same unless Seller gives Buyer written notice to
proceed with use or resale. Seller shall be reasonably prompt in giving any
instruction to Buyer concerning such.
11. INDEMNITY: Buyer shall indemnify and defend and hold harmless
Seller as to any breach of this contract by Buyer and from any liability
and/or remedy, of whatever nature or kind, to which Seller might become
subject directly or indirectly resulting from Buyer's sole negligence or
willful misconduct. Buyer agrees without limitation to promptly and properly
provide to its employees, customers and community representatives, as
appropriate, any information provided by Seller relating to human health or
human or environmental safety on the product sold hereunder.
12. LAW AND JURISDICTION: This contract shall be governed by the laws
of the State of Kansas, excluding rules of conflict of law, and by applicable
United States federal law and by INCOTERMS.
13. COMPLIANCE WITH LAW: Vessels shall fully comply (or hold necessary
waivers if not in compliance) with all applicable U.S. Coast Guard
regulations in effect as of the date vessel berths. Vessels shall comply with
all local, state, and federal environmental laws and regulations while
berthed at the terminal, including the U.S. Federal Water Pollution Control
Act, as amended, and shall have secured and carry aboard the vessel a current
U.S. Coast Guard Certificate of Financial Responsibility (Water Pollution)
(The "Certificate"). Terminal shall not be liable for demurrage or other
expenses during any time lost as a result of failure to obtain or maintain
the Certificate. If any vessel fails to comply with such laws and
regulations, the vessel may be required to leave the terminal. Any vessel
delay time caused by the vessel's failure to meet such laws and regulations
shall not count as used laytime.
14. OIL POLLUTION AVOIDANCE: In the event of an escape or discharge of
oily water, oil ballast, or oil in any form occurring at the Terminal
(regardless of cause), Seller shall immediately notify Buyer and shall
cooperate with Buyer in jointly effecting a cleanup, or other resolution to
the spill and necessary notifications. Buyer agrees to keep Seller advised of
the nature and extent of the measures to be undertaken by it. Any of the
aforementioned measures undertaken shall be at the expense of the party
causing the discharge. The above shall not be considered to be inderogation
of any other such right as Buyer or Seller may have or acquire by law or
international convention.
15. WAIVERS: Waivers by Seller or Buyer of a breach by the other party
of any provision of this contract shall not be deemed a waiver of future
compliance therewith. No delay or failure on Seller's or Buyer's part to
enforce any right or claim which it may have hereunder shall constitute a
waiver on Seller's or Buyer's part of such right or claim.
16. EXPORT/IMPORT: Buyer shall be the exporter and importer of record
with respect hereto and shall have the duty and risk of determining and
complying with all export and import laws.
17. ASSIGNMENT: Buyer shall not assign this contract or any part hereof
except upon, and according to, such prior, written consent as Seller may
choose to give in its sole discretion.
18. MISCELLANEOUS: These sale terms constitute the entire agreement and
contract of the parties and shall control over any other terms except that,
to the limited extent that any separate writing of the parties--(i) relates
expressly and directly hereto; (ii) is mutually executed by respective
officers of Seller and Buyer; and (iii) is intended by the parties to
replace or supersede, rather than to supplement, a specific portion of these
sales terms, then such specific replacing or superseding term shall control
over the term hereof in question but not otherwise.
THESE STANDARD TERMS AND CONDITIONS OF SALE ARE DEEMED AN OFFER FOR SALE
BY SELLER. IF BUYER DOES NOT ACCEPT THIS OFFER BY EXECUTION HEREON OR
OTHERWISE IN WRITING WITHOUT ALTERATION HEREOF OR ADDITION HERETO, BUYER
SHALL BE DEEMED TO HAVE ACCEPTED THIS OFFER BY PURCHASING, OR TAKING DELIVERY
OF, PRODUCT FROM SELLER. ANY ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS
AND CONDITIONS EXCEPT SUCH AS MEETS THE REQUIREMENTS OF THE FIRST PARAGRAPH
OF THIS SECTION 19. Without limitation on Seller's rights, no term in Buyer's
purchase order or any other document, correspondence or communication from
Buyer which conflicts with the terms of this contract is, or shall be,
accepted by Seller except in a separate writing executed by an officer of
Seller. Headings are provided for convenience, and are not part of the
contract of the parties. Seller's rights and remedies hereunder are in
addition to, and not in lieu of, Seller's other rights and remedies.
August, 1995
2
[LETTERHEAD]
August 19, 1998
To Whom It May Concern:
Re: Able Oil Company
000 Xx 00
Xxxxxxxx, Xxx Xxxxxx 00000
The above referred to company has established credit with Xxxx Refining
Company L. P, currently pulling product from us at Newark Stratus and Newark
Star Terminals in New Jersey.
/s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
Marketing Representative
Northwest Region
VM:bd
