AMENDMENT NO. 1 TO ASSET SALE AND PURCHASE AGREEMENT
Exhibit
2.1
AMENDMENT NO. 1 TO
ASSET SALE AND PURCHASE AGREEMENT
ASSET SALE AND PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO ASSET SALE AND PURCHASE AGREEMENT (this “Amendment”) is made
and entered into as of this 1st day of December, 2009 by and between XXXXX REFINING &
MARKETING-TULSA LLC, a limited liability company organized and existing under the laws of Delaware
(“Xxxxx Tulsa” or a “Buyer”), HEP TULSA LLC, a limited liability company organized
and existing under the laws of Delaware (“HEP Tulsa,” or a “Buyer” and together
with Xxxxx Tulsa, the “Buyers”), and SINCLAIR TULSA REFINING COMPANY, a corporation
organized and existing under the laws of the State of Wyoming (the “Seller”). Seller and
the Buyers are referred to individually as a “Party” and collectively as the
“Parties.”
WHEREAS, the Parties entered into that certain Asset Sale and Purchase Agreement, dated as of
October 19, 2009 (as amended hereby, the “Agreement”), and now desire to amend certain
provisions of such Agreement prior to the Closing, as set forth herein. Capitalized terms used,
but not defined, herein shall have the meanings given to them in the Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the agreements contained
herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereto, intending to be legally bound, do hereby agree as follows:
1. Key Material Contracts; Excluded Contracts. The Parties agree that the contract
referenced as item #53 (the Axens contract) on Exhibit A to Schedule 2.1.7 of the
Disclosure Schedules to the Agreement is hereby removed from the definition of Key Material
Contracts set forth in Section 1.1 of the Agreement, and is removed from Exhibit A to Schedule
2.1.7 of the Disclosure Schedules and shall be an “Excluded Contract” pursuant to the Agreement and
shall be deemed to be included on Schedule 2.2.10 of the Disclosure Schedules to the
Agreement. The Parties also agree that the contract referenced as item #51 (Albemarle contract) on
Exhibit A to Schedule 2.1.7 of the Disclosure Schedules to the Agreement is hereby
removed from such Exhibit and Schedule.
2. Closing Credit. The Parties agree that Xxxxx Tulsa shall receive a credit at
Closing of Sixty-Eight Thousand One Hundred Fifty-Four Dollars and Five Cents ($68,154.05), to
address certain pre-Closing matters, to be applied toward the cash amounts payable by Xxxxx Tulsa
to Seller at the Closing pursuant to Section 2.6.1.2(1), as such amounts have been agreed upon by
the Parties and set forth in a certain spreadsheet distributed between them addressing such matter.
3. Hydrocarbon Inventory Valuation and Measurement. The Parties agree that the
Hydrocarbon Inventory measurement and valuation procedures to be used in connection with
Sections 2.6.3.2 and 2.6.3.3 of the Agreement shall be as set forth on the attached
Annex A, comprised of “Part I. Hydrocarbon Inventory Quantification Procedures” and “Part
II. Hydrocarbon Inventory Valuation Methodology.” Such Part II document replaces the
methodology set forth as Exhibit A to Schedule 2.6.3.2 of the Disclosure Schedules
to the Agreement.
4. Section 6.3.2. The Parties agree that the words “21 days” set forth in the second
sentence of Section 6.3.2 shall be deleted and replaced with “15 days,” so that such second
sentence of Section 6.3.2 now reads in its entirety as follows: “At least 15 days prior to
the Closing Date (but in no event sooner than November 1, 2009), each of the Buyers shall make
offers of employment, effective as of the Closing Date and contingent upon the occurrence of the
Closing, to those Current Employees to whom such Buyer has elected to extend an offer; provided,
however, that for purposes of clarity, it is hereby noted that offers of employment shall not be
made to the employees listed on the Excluded Employee List.”
5. Section 6.3.2 of the Agreement. The Parties have agreed that the bracketed clause
below shall be added to Section 6.3.2 of the Agreement, such that the second-to-last
sentence of such Section shall now read as follows (without the brackets):
“Any Selected Employee who accepts a Buyer’s offer of employment and who on the Closing Date
is on a leave of absence or short-term disability leave consistent with Seller’s or an
Affiliate of Seller’s established policies and practices that was authorized by Seller or an
Affiliate of Seller prior to the Closing Date, including any FMLA leave or military leave,
and returns to work at the end of such authorized leave, [which shall not be longer than six
(6) months after the Closing Date, unless applicable Law gives the Current Employee a longer
period for returning to work,] shall become employed by the applicable Buyer as of the date
of his or her return to work with such date being deemed the Employment Date for such
employee; provided that any such Selected Employee shall be required to comply with the
applicable Buyer’s return-to-work policies and practices, including, but not limited to, any
requirement that the employee establish he or she is able to perform the essential functions
of the position, with or without reasonable accommodation.”
6. Section 7.1.7 of the Agreement. The Parties acknowledge and agree that all of the
consents and authorizations from Governmental Authorities specified in Schedule 7.1.7 of
the Disclosure Schedules to the Agreement are intended to be and shall be “required for
consummation of the transactions contemplated by [the] Agreement,” and as such are part of Buyers’
conditions to Closing pursuant to Section 7.1 of the Agreement.
7. Union Pacific Property. Seller agrees to execute and deliver to Xxxxx Tulsa at
Closing a quit-claim deed conveying to Xxxxx Tulsa any and all right, title or interest of Seller
in and to that certain real property purportedly retained by Union Pacific Railroad Company, which
real property bisects the Owned Real Property and was described as the “Excepting therefrom” parcel
on Exhibit A to that certain Quitclaim Deed from Union Pacific Railroad Company to Sinclair Tulsa
Refining Company, dated April 29, 2008, and filed in the office of the Tulsa
2
County Recorder on May 1, 2008 as Document No. 2008044833. The form of quit-claim deed will be
agreed upon by the parties.
8. Exchange Agreement. The Parties agree that all of the finished gasoline and diesel
fuel located at the Tulsa Refinery which are within the definition of “Excluded Hydrocarbon
Inventory” shall be transferred to Xxxxx Tulsa at Closing pursuant to an Exchange Agreement between
Xxxxx Tulsa and Xxxxxxxx Oil Corporation, the form of which shall be agreed upon by the Parties.
9. Terminalling Agreement. The Parties have agreed that Section 2.9.1.16 of
the Agreement shall be deleted and replaced in its entirety with the following:
2.9.1.16 terminalling agreements (collectively, the “Terminalling Agreement”) in
mutually agreed upon forms between Xxxxx Tulsa and Seller or SOC, as applicable; and
10. Maximo Contract. The Parties have agreed that Seller shall continue in force, and
provide to the Buyers for ninety (90) days following the Closing Date, the services provided to
Seller (or its affiliates, as applicable) pursuant to that certain Maximo Strategic Asset and
Service Management Purchase Order (which contract is set forth as item #8 on Schedule
2.2.10) and to include such services provided under such contract as a Transition Service under
the Transition Services Agreement.
11. Severance Costs. With respect to Section 6.3.3 of the Agreement, the
Parties agree that there are no “Severance Costs” in excess of the agreed threshold, as referenced
in clause “(b)” included within such Section, and that no amounts are due to Seller pursuant
thereto.
12. Stipulated Value of Owned Real Property. The Parties hereby stipulate that the
value of the Owned Real Property, for purposes of the Oklahoma state documentary stamp tax only, is
Fourteen Million Four Hundred Fifty Thousand Dollars ($14,450,000). The Parties further agree that
the foregoing stipulated value shall not be utilized in connection with any other valuation of the
Owned Real Property or the Assets, and that the stipulated value set forth above shall not be
considered, relied upon or otherwise taken into account with respect to the valuation and
allocation contemplated by Section 2.6.2 of the Agreement (or for any other similar
purposes), it being the intent of the Parties that such valuation shall be completely independent
of the valuation of the Owned Real Property for purposes of documentary stamp tax.
13. Sections 6.5.1 and 6.5.3. The first word in Section 6.5.1 of the
Agreement, “Promptly”, shall be deleted and replaced with “Within 180 days,” so that the sentence
now begins “Within 180 days after the Closing, . . .”. With respect to Section 6.5.3 of
the Agreement, Xxxxx Tulsa and HEP Tulsa have determined that all of the obligations referred to
therein shall be allocated to Xxxxx Tulsa.
3
14. Section 2.9.1.3. The word “and” immediately preceding and the semicolon at the
end of sub-section (iii) of Section 2.9.1.3 shall be deleted, and the following shall be added to
the end of Section 0.0.0.0: “; (iv) a Blanket Assignment (the “Union Pacific Blanket
Assignment”), substantially in the form attached hereto as Exhibit B(4), pursuant to
which the Seller conveys and assigns (or causes its Affiliates to convey and assign, as applicable)
to Xxxxx Tulsa all right, title and interest in and to the licenses and crossing agreements
identified as A-2 through and including X-00, X-00 through and including X-00, X-00, X-00, X-00
through and including X-00, X-00 and A-40 on “Exhibit A” to that certain Assignment of Licenses,
Easements, Rights of Way, Leases and Uses, dated July 29, 1983, between Texaco Inc., as Assignor,
and Xxxxxxxx Oil Corporation, as Assignee (the “Texaco Assignment”); (v) a Quit Claim
Assignment (the “Quit Claim Assignment”), substantially in the form attached hereto as
Exhibit B(5), pursuant to which the Seller shall quit claim and assign (or causes its
Affiliates to quit claim and assign, as applicable) to Xxxxx Tulsa all right, title and interest in
and to the licenses, crossing agreements and lease identified as X-0, X-00, X-00, X-00, X-00 and
D-1 on
“Exhibit A” to the Texaco Assignment, as well as all items listed on the pages entitled “F. ORAL
LICENSES OR USES BY TEXACO WHICH MAY OR MAY NOT BE VALID AND ENFORCEABLE GRANTS OF EASEMENTS,
RIGHTS OF WAY, OR INTERESTS IN LAND” on “Exhibit A” of the Texaco Assignment; (vi) an Assignment
(the “Strong Capital Assignment) substantially in the form attached hereto as Exhibit B(6),
pursuant to which the Seller conveys and assigns (or causes its Affiliates to convey and assign, as
applicable) to Xxxxx Tulsa all right, title and interest in and to the license and crossing
agreement identified as A-38 on “Exhibit A” of the Texaco Assignment; (vii) an Assignment of
Recorded Easement (the “Assignment of Recorded Easement”), substantially in the form
attached hereto as Exhibit B(7), pursuant to which the Seller shall convey and assign (or
causes its Affiliates to convey and assign, as applicable) to Xxxxx Tulsa all right, title and
interest in and to the Easement Agreement identified as A-42 on “Exhibit A” of the Texaco
Assignment; and (vii) an Assignment of Un-Recorded Easement (the “Assignment of Un-Recorded
Easement”), substantially in the form attached hereto as Exhibit B(8), pursuant to
which the Seller shall convey and assign (or causes its Affiliates to convey and assign, as
applicable) to Xxxxx Tulsa all right, title and interest in and to the Easement Agreement
identified as A-41 on “Exhibit A” of the Texaco Assignment.” In connection with the foregoing
amendment, the definition of “Railroad Agreement” shall be revised to delete items X-0, X-00, X-00,
X-00 and D-1 on “Exhibit A” to the Texaco Assignment, as well as all items listed on the pages
entitled “F. ORAL LICENSES OR USES BY TEXACO WHICH MAY OR MAY NOT BE VALID AND ENFORCEABLE GRANTS
OF EASEMENTS, RIGHTS OF WAY, OR INTERESTS IN LAND on “Exhibit A” to the Texaco Assignment, which
items shall be conveyed to Buyers pursuant to the Quit Claim Assignment in accordance with the
requirements of Section 2.9.1.3.”
15. WGS Matters. The Parties agree that the Wet Gas Scrubber for the FCC Unit that is
included as a part of the Environmental Compliance Projects (the “WGS”) has certain design
deficiencies (collectively, the “Design Deficiencies”), primarily those related to the
failure to
4
design the WGS to operate at a maximum of a two (2) pound (psi) pressure drop. The Parties
disagree as to whether the Design Deficiencies adversely affect the operation or performance of the
WGS or the FCC Unit. Notwithstanding that disagreement, the Parties have agreed to proceed with the
Closing as of December 1, 2009, based on the following provisions and subject to the other terms
and conditions of the Agreement:
A. Escrow Account. At the Closing, Xxxxx Tulsa will holdback the sum of TEN MILLION
DOLLARS ($10,000,000) (the “Escrow Amount”) of the Xxxxx Tulsa portion of the cash
portion of the Purchase Price payable to Seller pursuant to this Agreement at the Closing. As
soon as practical but in any event within ten (10) days after the Closing Date, the Parties will
establish an interest bearing escrow account (the “Escrow Account”) with a mutually
acceptable national bank (the ‘Escrow Agent”) that either (i) has no relationship with
any Party or (ii) waives all rights to the escrow as collateral for any loan with any of the
Parties and agrees to hold the Escrow Amount merely as a trust agent. The form of the escrow
agreement entered into in connection with the establishment of the Escrow Account shall be
reasonably acceptable to both Seller and Xxxxx Tulsa. Concurrently with the entry into the
escrow agreement, Xxxxx Tulsa shall deposit the Escrow Amount into the Escrow Account. The
Parties agree that no portion of the Escrow Amount will be available for use by Seller in paying
for the costs of the Corrective Work (as defined below) and that the Corrective Work will be
funded directly by Seller. Any fees and expenses charged by the Escrow Agent to establish and
maintain the Escrow Account shall be paid equally by Seller and Xxxxx Tulsa. The Escrow Amount
is in addition to, and not in lieu of, the amounts provided for in Section 6.7.1.3 of
the Agreement.
B. Environmental Compliance Projects. Notwithstanding the reference in subpart (ii) of
the definition of Final Completion in the Agreement, Xxxxx Tulsa agrees not to assert that the
Design Deficiencies mean that Mechanical Completion or Final Completion of the Environmental
Compliance Projects has not occurred or may not occur; provided that Xxxxx Tulsa reserves the
right to assert that Mechanical Completion or Final Completion has not occurred for any other
reason provided for in the Agreement.
C. Corrective Work. Seller shall retain, at Seller’s sole cost and expense, MECS, Inc.,
a professional engineering firm, (“MECS”) to identify the Design Deficiencies and to
design and engineer changes to the WGS that are mutually acceptable to Seller and Xxxxx Tulsa to
resolve such Design Deficiencies, including but not limited to, the redesign and modification of
the WGS to operate with a maximum of a two (2) pound (psi) pressure drop and to meet all
applicable requirements for Final Completion, as defined in the Agreement but subject to Section
15.B. (collectively, the “Corrective Work”). Seller shall instruct MECS to design the
Corrective Work in accordance with prudent industry standards taking into account the goal of
minimizing the aggregate amount of Corrective Costs (as defined in 15.D below), Economic Damages
(as defined in Section 15.F), if any, and short-term and long-term
5
operating and maintenance costs. If Seller or Xxxxx Tulsa disagrees with the recommendations of
MECS, such disagreement shall be resolved as set forth in Section 15.I below.
D. Corrective Costs. After the Corrective Work has been agreed upon by the Seller and
Xxxxx Tulsa or resolved pursuant to Section 15.I below, Seller shall proceed to promptly and
expeditiously perform and provide or arrange for the provision of, at Seller’s sole cost and
expense (the “Corrective Costs”), all construction, installation, labor, equipment,
materials, services and technology necessary to complete the Corrective Work as soon as
practicable but in no event later than the end of any turnaround that Xxxxx Tulsa makes
available for the Corrective Work to be performed (as long as any such turnaround does not occur
so soon after the date hereof that Seller has not had a reasonable opportunity to prepare for
such Corrective Work). Xxxxx Tulsa shall permit Seller to complete the Corrective Work in the
first turnaround of the Tulsa Refinery after the date hereof which involves the FCC Unit. In
the event that Seller fails to complete the Corrective Work as required above for reasons not
attributable to Buyers, Xxxxx Tulsa shall have the right to take over the performance of such
Corrective Work and all reasonably incurred Corrective Costs shall be paid by Seller. Seller
and its contractors shall have a license to enter on the Owned Real Property for the purpose of
effecting the Corrective Work subject to terms and conditions consistent with those set forth in
Section 6.7.1.10 of the Agreement, and Xxxxx Tulsa shall cooperate with Seller’s reasonable
requests in connection with the Corrective Work. Notwithstanding the foregoing, Seller agrees
that Xxxxx Tulsa has no obligation to perform a turnaround of the FCC Unit prior to the
turnaround that is currently scheduled for December 2010 (the “Scheduled Turnaround”),
but which may be accelerated or delayed in Xxxxx Tulsa’s sole discretion; provided, however,
that if Xxxxx Tulsa elects to delay the Scheduled Turnaround beyond December 2010, then Seller
shall have no responsibility for Economic Damages, if any, after December 2010; and provided
further, that Xxxxx Tulsa’s right to recover Economic Damages, if any, may be limited as
provided in Section 15.G below if Xxxxx Tulsa refuses to accelerate the Scheduled Turnaround as
provided in Section 15.G.
E. Payment of Economic Damages. Until the Corrective Work has been completed, if the
Parties mutually agree or if the Economic Consultant determines that Xxxxx Tulsa has incurred
Economic Damages (as defined in 15.F below), then within ten (10) Business Days thereafter
Seller shall pay Xxxxx Tulsa the full amount of such Economic Damages, such payment to be made
first from the Escrow Account and, if the Escrow Account has been exhausted, then directly from
Seller. Seller and Xxxxx Tulsa shall promptly execute an order to the Escrow Agent directing
the Escrow Agent to promptly pay the amount of Economic Damages, if any, agreed upon by the
Parties or certified by the Economic Consultant.
6
F. Determination of Economic Damages. As used herein, the term “Economic
Damages” means adverse economic costs to Buyers, if any, caused by (i) the Design
Deficiencies, (ii) any shutdown other than the Scheduled Turnaround required for the Corrective
Work, or (iii) any unintended shutdown of the FCC Unit caused by the Design Deficiencies.
Economic Damages include, without limitation, any economic consequences to Buyers of the
following items, without duplication, in each case to the extent caused by the matters referred
to in clauses (i), (ii) or (iii) of the preceding sentence: increased engineering, construction,
repair, maintenance, operation and downtime costs and expenses, and other incremental
operational costs, Damages, lost income, consequential damages and other negative effects,
including any lost income, costs associated with maintenance to restart the unit, product
commitment coverage and resale of crude oil already purchased in connection with any unintended
or unscheduled turnaround. Economic Damages shall not duplicate Corrective Costs. If Xxxxx
Tulsa has not operated the Tulsa Refinery in a prudent manner consistent with industry standards
and in a manner otherwise consistent with the manner Xxxxx Tulsa would have operated the Tulsa
Refinery if it had no recourse against Seller pursuant to this Section 15 (the “Applicable
Standard”), then Economic Damages shall be reduced to the amount the Economic Damages would
have applied if Xxxxx Tulsa operated the Tulsa Refinery consistent with the Applicable Standard.
G. Timing of Corrective Work. Seller shall have the right to request Xxxxx Tulsa to
allow Seller to effect the Corrective Work at any time that Seller believes will result in the
lowest aggregate amount of Corrective Costs and Economic Damages, if any. If effecting the
Corrective Work at such requested time will result in a temporary shutdown or unscheduled
turnaround, then Seller shall be responsible for the Economic Damages caused by such shutdown or
turnaround. If Xxxxx Tulsa refuses to allow Seller to effect the Corrective Work at the
requested time (unless allowing the Corrective Work at such time would not be prudent for
reasons other than the Economic Damages for which Seller must make Xxxxx Tulsa whole), then
Seller shall thereafter not be responsible for Economic Damages greater than it would have
incurred had it been permitted to effect the Corrective Work at the requested time. If the
Parties cannot agree as to whether the shutdown or turnaround at the requested time is prudent,
such dispute shall be resolved by the Economic Consultant.
H. Economic Consultant. Within ten (10) Business Days after Closing, Seller and Xxxxx
Tulsa shall agree upon a professional engineering firm (the “Economic Consultant”) to
determine at the end of each calendar month the amount of Economic Damages, if any. The
Economic Consultant shall have experience in fluid catalytic cracker unit and petroleum refinery
operations and economics and the expertise to determine the Economic Damages, if any. The
Economic Consultant shall not have any existing relationship with either Seller or Buyers
(unless such relationship is fully disclosed to the other Parties and is approved by such other
Parties in their sole discretion). The Economic Consultant’s decision as to the
7
timing of a shutdown or turnaround, or the amount of the Economic Damages, if any, shall be
final and binding on the Parties and is not appealable. The fees and expenses of the Economic
Consultant shall be shared equally by the Parties. In the event that the Parties are unable to
agree upon the Economic Consultant within such ten (10) Business Day period, then within twenty
(20) Business Days following the end of such period, each of Xxxxx Tulsa and Seller shall
propose an engineering firm which such proposing Party in good faith believes has such
qualifications, and such two named firms shall name a third engineering firm that has such
expertise, and such named firm shall be the Economic Consultant.
I. Dispute Resolution for Design Deficiencies. If the Parties are unable to agree on
the nature or scope of the Corrective Work necessary to resolve the Design Deficiencies as
recommended by MECS or whether the Corrective Work has been completed, then within ten (10)
Business Days Seller and Xxxxx Tulsa shall agree upon a professional engineering firm (the
“Design Consultant” and together with the Economic Consultant, the “Consultants”
or individually, a “Consultant”) to determine the nature and scope of the Corrective
Work or whether the Corrective Work has been completed, as applicable. The Design Consultant
shall have expertise in FCC Unit and Wet Gas Scrubber design, engineering and operations. The
Design Consultant shall not have any existing relationship with either Seller or Buyers (unless
such relationship is fully disclosed to the other Parties and is approved by such other Parties
in their sole discretion). In the event that the Parties are unable to agree upon the Design
Consultant within such ten (10) Business Day period, then within twenty (20) Business Days
following the end of such period, each of Xxxxx Tulsa and Seller shall propose an engineering
firm which such proposing Party in good faith believes has such qualifications, and such two
named firms shall name a third engineering firm that has such expertise, and such named firm
shall be the Design Consultant. The Design Consultant’s decision as to the Corrective Work shall
be final and binding on the Parties and is not appealable. The fees and expenses of the Design
Consultant shall be the shared equally by the Parties.
J. Access and Submissions. Seller and Xxxxx Tulsa may, and shall upon the request of a
Consultant, submit analysis and other documentation to such Consultant and the other Party for
consideration. In addition, Xxxxx Tulsa shall make available to Seller and the Consultants, and
Seller shall make available to Xxxxx Tulsa and Consultants, non-privileged data and other
non-privileged documentation with respect to the performance of the Tulsa Refinery that is
relevant to such Consultant’s determination. Seller and the Consultants shall have reasonable
access to the Tulsa Refinery in the manner contemplated by Section 6.7.1.10 of the Agreement for
purposes of gathering information that can only be obtained with a site visit and that is
relevant to the Consultants’ determinations. All such information shall be subject to the
confidentiality provisions of the Agreement, which provisions shall survive the
8
Closing. All Consultants will be required to execute appropriate confidentiality agreements.
All such access and disclosure of such information shall be subject to applicable Laws.
K. Inapplicability of Certain Limitations. The Minor Claims, Threshold Amount and
Indemnity Cap Limitations on indemnification under Section 8.4 of the Agreement shall
not apply to this Section 15. The remedy provided by this Section 15 shall be
in addition to the other remedies provided by Section 8.5 of the Agreement. The
Economic Consultant’s determination of Economic Damages, if any, shall not be limited by
Section 8.9 of the Agreement or otherwise.
L. Excluded Assets. The definition of Excluded Assets shall be amended to add as an
Excluded Asset all claims, demands, causes of action, rights of recovery and similar rights in
favor of the Seller or any Affiliate of the Seller of any kind (including amounts collected in
connection therewith) to the extent but only to the extent (i) related to the provision of any
goods or services that relate to the FCC Unit or the related Wet Gas Scrubber and (ii) such
claims may be asserted by Seller against the provider of such goods or services (other than
Buyers or their Affiliates) for Corrective Costs incurred by Seller and/or Economic Damages, if
any, paid by Seller to Xxxxx Tulsa from the Escrow Account or otherwise. Xxxxx Tulsa agrees to
cooperate with Seller’s reasonable requests for assistance in pursuing any such rights against
any such provider; provided that Xxxxx Tulsa shall not be obligated to incur any costs or
liability in connection with any such assistance.
M. Completion of Corrective Work. Seller may notify Xxxxx Tulsa in writing that it
believes the Corrective Work has been completed and the Parties, with the assistance of MECS,
shall attempt to determine whether the Corrective Work has been completed. If the Parties are
unable to agree within ten (10) Business Days after Seller notice whether the Corrective Work
has been completed or not, either Party may give written notice of such disagreement to the
other Party and to the Design Consultant and thereafter the Design Consultant shall determine
whether the Corrective Work has been completed. Seller shall have no responsibility for any
Corrective Costs or Economic Damages on and after the time which the Corrective Work has been
completed (as determined above) other than Corrective Costs and Economic Damages, if any,
incurred prior to such time.
N. Disbursement of Escrow Account. Any remaining funds in the Escrow Account shall be
paid to Sinclair only after but promptly after (i) the Corrective Work has been completed (as
determined in accordance with Section 15.M), (ii) Xxxxx Tulsa has been reimbursed for any
Corrective Costs it reasonably incurred, including, but not limited to costs due to Seller’s
non-performance of the Corrective Work and/or non-payment of the Corrective Costs, and (iii) all
Economic Damages, if any, have been paid to Xxxxx Tulsa. The Parties agree to direct the Escrow
Agent to make the payments contemplated herein.
9
O. Notices. In addition to the notices required under the Agreement, notices regarding
matters covered by this Section 15 shall also be delivered to the following:
Xxxxx Refining & Marketing — Tulsa
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx, XX, 00000
Attn: Xxxxx Xxxxxxxx
Tel: 000-000-0000
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx, XX, 00000
Attn: Xxxxx Xxxxxxxx
Tel: 000-000-0000
Email: Xxx.xxxxxxxx@xxxxxxxxx.xxx
16. Corrective Special Warranty Deed. Due to discrepancies and gaps encountered by
the Title Company in connection with its investigation into Seller’s chain of title with respect to
certain portions of the Owned Real Property, Seller and Buyers have elected to proceed to Closing
utilizing a Special Warranty Deed that excludes certain real property historically subject to
railroad rights-of-way (such railroad rights-of-way to be initially conveyed by Seller to Buyers by
quit claim deed) and reflects certain Permitted Encumbrances that the Title Company expects it will
be able to eliminate or narrow in scope with additional investigation and research. Accordingly,
Seller covenants and agrees that, for a period of ninety (90) days following the Closing, if the
Title Company agrees to insure portions of such railroad rights-of-way or to eliminate Permitted
Encumbrances listed on the Special Warranty Deed delivered at Closing, Seller shall execute and
deliver to the grantee under the Special Warranty Deed a corrective or reformative special warranty
deed reflecting such modifications to the Title Policy. Such corrective or reformative special
warranty deed shall be in the form of the Special Warranty Deed delivered in connection with the
Closing, except for such modifications as are necessary to properly reflect its corrective or
reformative nature consistent with the modifications to the Title Policy.
17. Final Completion. For avoidance of doubt, subpart (iv) of the defined term
“Final Completion” is to be demonstrated by Seller achieving each of the items listed in the
Environmental Compliance Projects Agreement executed by the Parties of even date herewith. The
Parties do not intend that the Environmental Compliance Projects Agreement in any way replace
subparts (i), (ii) or (iii) of the definition of “Final Completion.”
18. CapEx Amounts. Section 6.7.1.3(a) of the Agreement is amended and restated in its
entirety as follows:
(a) Ten Million Dollars ($10,000,000) payable (i) Eight Million Dollars
($8,000,000) at Closing and (ii) Two Million Dollars ($2,000,000) fifteen (15) days
following Mechanical Completion of each of the following items:
10
(I) Safety:
A. Steam tracing and insulation
B. Safety showers
C. Lighting
(II.) DAF project/wastewater treatment plant modifications required by
subsection f. in the definition of “Mechanical Completion”
18. No Further Amendment; Miscellaneous. Except as specifically provided in this
Amendment, the remaining provisions of the Agreement remain in effect according to their respective
terms. The “Miscellaneous” provisions set forth in Article 11 of the Agreement, are hereby
incorporated herein by reference.
[remainder of page intentionally left blank; signature page follows]
11
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment No. 1 to Asset Sale and
Purchase Agreement as of the date first above written.
| Seller: SINCLAIR TULSA REFINING COMPANY a Wyoming corporation |
||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxx | |||
| Title: | Vice President | |||
| Buyers: XXXXX REFINING & MARKETING-TULSA LLC, a Delaware limited liability company |
||||
| By: | Xxxxx Refining & Marketing Company, Member | |||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Vice President, Supply and Marketing | |||
| HEP TULSA LLC a Delaware limited liability company |
||||
| By: | ||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Senior Vice President | |||
CONSENT
The undersigned Guarantors hereby consent to this Amendment No. 1 to Asset Sale and Purchase
Agreement as of the date first above written.
| XXXXX CORPORATION |
|||||
| By: | /s/ Xxxxx X. Lamp | ||||
| Name: | Xxxxx X. Lamp | ||||
| Title: | President | ||||
| XXXXX ENERGY PARTNERS—OPERATING, L.P. |
|||||
| By: | /s/ Xxxxx X. Xxxxx | ||||
| Name: | Xxxxx X. Xxxxx | ||||
| Title: | Senior Vice President | ||||
| THE SINCLAIR COMPANIES |
|||||
| By: | /s/ Xxxx X. Xxxxxxxx | ||||
| Name: | Xxxx X. Xxxxxxxx | ||||
| Title: | C.O.O. | ||||
ANNEX A
[see attached]
