TERMINALING SERVICES AGREEMENT
Execution
Version
Confidential
treatment has been requested for portions of this exhibit. The copy filed
herewith omits the information for which confidential treatment has been
requested and replaces it with [***].
Terminal
and Location: 0000 Xxxxxxxxxx Xxx, Xxxxxxxxx, Xxxxxxxx 00000 (the “Terminal”)
This
Terminaling Agreement (this “Agreement”)
is
made as of September 12, 2008 (the “Effective
Date”),
by
and between Atlantic Terminalling, LLC, a Maryland Limited Liability Company
("Terminal
Operator")
and
New Generation Biofuels Holdings, Inc., a Florida corporation ("Customer").
Customer’s
Federal Employers Identification Number: To be provided by Customer prior to
commencement of Terminal Services.
Terminal
Operator Customer Code: To
be
provided by Terminal Operator prior to commencement of Terminal
Services.
WITNESSETH:
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I.
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Terminal
Operator and Customer are parties to that certain Agreement of Lease,
dated as of the Effective Date (the ”Lease”).
Capitalized terms used and not defined in this Agreement shall have
the
meanings given thereto in the
Lease.
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II.
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On
and subject to the terms and conditions set forth in the Lease, Terminal
Operator will lease the Premises (including the Existing Improvements)
to
Customer for the conduct of Tenant’s Business, and provide to Customer the
right to use, in common with the Landlord and other tenants on Landlord’s
Property, the roadways, docks, rail tracks, pipe racks, interconnections
and other common areas of Landlord’s Property (collectively the
“Terminal”), and easement rights for the use of portions of Landlord’s
Property, all for the purpose of developing and operating a biofuel
production facility.
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III.
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Terminal
Operator owns and operates certain terminaling facilities located
on
Landlord’s Property.
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IV.
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In
the conduct of Tenant’s Business, Customer will, among other things, take
delivery of animal and vegetable oils and other process inputs
(collectively “Raw
Materials”)
and produce several blends of biofuel (collectively, “Products”
and, together with Raw Materials, “Commodities”).
It is anticipated that Raw Materials will be delivered to the Premises,
and that Products will be shipped from the Premises by third party
service
providers (“Carriers”)
using trucks, rail cars and marine vessels (collectively, “Vessels”).
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V.
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Terminal
Operator and Customer now wish to set forth the terms and conditions
upon
which Terminal Operator will perform terminaling and other services
for
Customer within the Landlord’s
Property.
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For
and
in consideration of the mutual covenants and conditions contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are here by acknowledged, the parties hereto agree as follows:
Customer
Name
Agreement
No. TBD
1. TERMINALING
FACILITIES; TERMINALING SERVICES; TERM AND CHARGES.
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A.
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Scope
of Terminaling Services.
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(1) Tanks.
Terminal
Operator will provide the Terminaling Services
(as defined below) to Customer with respect to the following storage tank or
tanks which have been leased to Customer pursuant to the Lease (the
“Existing
Tanks”):
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Tank
Number
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Approximate
Shell Capacity
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Commodity
to be Stored
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T108
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100,000
Gallons
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Biofuels
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T200
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750,000
Gallons
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Biofuels
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T201
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750,000
Gallons
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Biofuels
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T202
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750,000
Gallons
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Biofuels
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T203
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1,800,000
Gallons
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Biofuels
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T204
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1,800,000
Gallons
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Biofuels
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and
such
additional tanks as Customer shall construct on the Premises in accordance
with
the Lease (each, an “Additional
Tank”
and
together with the Existing Tanks, the “Tanks”).
(2) Services.
Terminal
Operator will provide the following terminaling services to Customer
(collectively, the “Terminaling
Services”):
(a) Receipt.
Receipt
of Vessels bearing Raw Materials at Terminal Operator’s delivery facilities
located within Landlord’s Property;
(b) Unloading.
Unloading
of Raw Materials from Vessels, provided that Terminal Operator shall not unload
Raw Materials from trucks;
(c) Transfer.
Transfer
of Raw Materials from points of receipt to Customer’s storage tanks within the
Premises, and transfer of Products from Customer’s finish tanks within the
Premises to load-out areas within Landlord’s Property, provided that Terminal
Operator shall not be responsible for transfers of Raw Materials from trucks
and
all transfers shall be through gauges, hoses and pipes provided or refurbished
by Customer, and Terminal Operator assumes no responsibility for the repair,
maintenance or replacement thereof ; and
(d) Loading.
Loading
of Products into Vessels at load-out areas within Landlord’s
Property.
(3) Terminaling
Facilities. Terminal
Operator represents and warrants to Customer as follows with respect to the
terminaling facilities located on the Landlord’s Property (collectively, the
“Terminaling
Facilities”):
(a) Rail
Facilities. Customer
will be provided a location, in common with other users of the Terminal to
place
four (4) tank cars at a time for loading and unloading. Terminal Operator shall
use commercially reasonable efforts to locate and develop a sidetrack for
exclusive use by Customer, which will have capacity to hold four (4) tank cars
at a time for loading and unloading.
2
Customer
Name
Agreement
No. TBD
(b)
Truck
Facilities. Truck
facilities consist of two shared positions on the existing loading rack located
adjacent to Customer’s Tanks. Customer shall be permitted to
connect to existing loading/metering system used for ethanol. The
automated system has the ability to accommodate Customer supplied
loading arms, and track gallons loaded on trucks. Customer directed
trucks/authorized drivers shall be logged in by Terminal Operator’s
security, and scaled in and out, at the guard gate. Capacity and load
speed shall be determined by Customer’s equipment sizing. Terminal
Operator anticipates adding another lane as needed to support Customer’s
requirements under this Agreement.
(c) Dockside
Facilities. Dockside
facilities consist of two barge docks located along the south end of the
Terminal. Docks to be staffed by Terminal Operator. Customer shall
refurbish and expand existing asphalt pipeline that runs along the
waterfront to load and unload products from vessels. Loading speeds shall depend
on pump/pipe sizing.
(4) Standard
of Care. Terminal
Operator represents and warrants that it shall perform the Terminaling Services,
and any other services to be performed by it under this Agreement, in a
professional and in a prompt and workmanlike manner, in accordance with this
Agreement, all applicable laws and all governmental permits applicable to
Terminal Operator.
| B. |
Term
of Agreement. This
Agreement shall be effective upon the Effective Date. The term of
this
Agreement shall run concurrently with the Lease, and this Agreement
shall
terminate simultaneously with the expiration of the term of the Lease
or
any early termination thereof and shall be extended simultaneously
with
any validly exercised renewal option under the
Lease.
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C.
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Terminal
Operating Hours; Scheduling; Minimum and Maximum Throughput; Maximum
Wait
Times.
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(1) Operating
Hours. The
Terminal will be available to Customer 24 hours a day, 7 days a week;
Terminaling Services will be available of 8:00 AM to 4:00 PM, Monday to Friday,
excluding holidays (“Regular
Terminal Hours”),
and
Terminal Operator shall use commercially reasonable efforts to provide
Terminalling Services outside of Regular Terminal Hours, when requested by
Customer, which Terminalling Services shall be provided at an overtime rate
as
set forth below (except that no overtime charge will be applied to the loading
and unloading of marine Vessels outside of Regular Terminal Hours).
(2) Scheduling
of Terminaling Services. Customer
shall provide Terminal Operator with prior notice of its need for Terminaling
Services within a reasonable time after Customer is advised that Vessels are
scheduled for arrival at the Terminal.
(3) Maximum
Wait Times.
Terminal Operator represents and warrants that, in order to minimize demurrage
and wait time charges by Customer’s Carriers, it shall provide the Terminaling
Services within the following maximum wait time limitations (“Maximum Wait
Times”):
3
Customer
Name
Agreement
No. TBD
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(a)
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Rail
Cars.
Terminal Operator will notify CSX that it is ready to take delivery
of
Customer’s rail cars within 48 hours after notice from Customer or CSX
that Customer’s rail car(s) are at the CSX yard in Baltimore, and Terminal
Operator will commence to unload rail cars before the end of the
next
business day after notice to proceed from Customer under Section
3B(1)
hereof. Terminal Operator will commence to load rail cars prior to
end of
the next business day after the later of arrival of the rail car
at the
Terminal or receipt of loading instructions from the
Customer.
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(b)
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Trucks.
Trucks will have access to the Terminal on a 24 hour - 7 day a week
basis
to access the loading rack provided by Terminal Operator and any
unloading
facilities provided by Customer.
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(c)
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Marine
Vessels. Marine
Vessels will be loaded and unloaded on a first come, first serve
basis;
provided that once a marine Vessels is slotted in a berth at the
Terminal,
Terminal Operator will unload such marine Vessel as soon as reasonably
practicable.
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Terminal
Operator shall not be responsible for any demurrage, wait time or similar
charges incurred by Customer, unless Terminal Operator’s fails to provide the
Terminaling Services in accordance with this Section 1(C), without any force
majeure conditions or fault by Customer, its agents, employees or
contractors.
(4)
Maximum Throughput. Terminal
Operator represents that it shall make the facilities that are part of the
Terminal, including truck loading racks, and the rail and dock facilities and
shall provide Terminaling Services to accommodate a throughput capacity of
4,167,000 gallons of Product per month.
D. Charges.
Customer
shall pay to Terminal Operator the fees determined in accordance with this
Section 1(D). All such fees for in and out Terminaling Services shall be
calculated on the basis of Product volumes delivered from the Terminal as
established by meters provided Customer for outbound trains and marine Vessels
and by Terminal Operator’s scales for trucks.
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(1)
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Throughput
Charge. Subject
to the minimums set forth in Section 1(D)(2), Customer will pay a
throughput charge of $[***]/Gallon for each Gallon of Product measured
or
metered (the “Throughput
Charge”).
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(2)
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Minimum
Throughput Charge.
From and after the Effective Date, regardless of actual volumes of
Product
measured or metered, Customer shall pay the following minimum monthly
Throughput Charge for the first [***] Gallons of Product (the “Minimum
Throughput Charge”):
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4
Customer
Name
Agreement
No. TBD
(a) Months
1
through 6: $7,802.00;
(b) Months
7
through 12: $12,118.00; and
(c) Month
13 and
following: $16,600.00.
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For
clarity, volumes of Product in excess of [***] Gallons in any month
shall
be assessed at the Throughput
Charge.
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(3)
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After
Hours Charge.
For Terminaling Services consisting of the unloading of rail cars
outside
of Regular Terminal Hours, Customer shall be charged $100.00 per
hour with
a minimum of four (4) hours per overtime operation unless the overtime
hours are immediately before or after the Regular Terminal Hours,
in which
case no minimum shall apply. This charge is in addition to the Minimum
Throughput Charge.
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(4)
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Railroad
Charges.
Except as otherwise specifically provided herein, Customer shall
directly
pay for or, if paid by Terminal Operator, reimburse Terminal Operator
promptly for, any charges (including but not limited to fuel and
maintenance expenses) assessed by any railroad serving the Terminal
against rail cars or locomotives used by Customer, whether invoiced
directly to the Customer or invoiced to Terminal Operator. Notwithstanding
the foregoing sentence, Customer shall not xxxx out Customer’s rail cars
or locomotives with Terminal Operator as the consignee, and Customer
shall
use its reasonable efforts to ensure that the railroad does not in
any way
list Terminal Operator as the consignee or otherwise as a responsible
party for such rail cars.
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| (5) |
Additional
Services. For
any service or function not specifically provided for in this Agreement,
requested by Customer and agreed to and provided by Terminal Operator
(any
such services, “Additional
Services”),
there shall be a charge to Customer equal to the sum of (a) the cost
of
Terminal Operator’s labor used on such services, at a rate of either (i)
$50 per hour of labor involved, if such work is performed during
Regular
Terminal Hours, and (ii) $75 per hour of labor involved, if such work
is performed outside of Regular Terminal Hours; plus (b) (i) any
actual
cost incurred directly by Terminal Operator for materials and equipment
used for such additional work (as established by competent evidence
reasonably acceptable to Customer) plus (ii) 10% of such sum; plus
(c) the
actual cost incurred by Terminal Operator for arms-length contracted
services (as established by competent evidence reasonably acceptable
to
Customer), if any, plus 10% of said sum.
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| (6) |
Laboratory
Fees and Service.
At Customer's request, and if agreed to by Terminal Operator, Terminal
Operator shall provide sampling and testing services for Raw Materials
and
Products at the Terminal under this Agreement. There shall be a charge
for
each sampling and testing procedure performed to be agreed upon by
Terminal Operator and Customer prior to commencement of such services.
If
Terminal Operator contracts with another party to perform laboratory
services, all fees shall be billed by Terminal Operator to Customer
at
Terminal Operator's cost plus 10%. Terminal Operator's liability
for
sampling and testing services is limited to the charge for the service
provided.
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5
Customer
Name
Agreement
No. TBD
| (7) |
Escalation.
All charges as set forth in this Section (D) (excluding any charges
for
costs passed through to Customer) shall escalate on the first anniversary
of the Effective Date and each subsequent anniversary thereof by
3%.
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| E. |
Address
for Notice.
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Terminal
Operator:
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0000
Xxxxxxxxxx Xxxxxx
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Xxxxxxxxx,
XX 00000
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Customer:
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0000
Xxxxxxx Xxxx., Xxxxx 0000
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Xxxx
Xxxx , XX 00000
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| 2. |
TANK
OPERATIONS
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A.
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Existing
Tank Use.
Except as provided for herein, the Existing Tanks shall be used by
Customer only for the storage of Commodities.
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B.
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Prohibited
Commodities. Customer
shall not arrange for delivery to the Terminal of, and Terminal Operator
shall be required to provide Terminaling Services for, any Commodities
which (a) may not lawfully be stored in the Tanks, including, but
not
limited to, Raw Materials with vapor pressures which exceed the
limitations imposed by any law, permit, or Regulation, or (d) do
not
match, in all material respects, the specifications for the Commodity
that
Customer provides to Terminal Operator in advance of such Commodity’s
delivery to the Terminal.
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| C. |
Removal
of Commodities and Waste.
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(1)
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Vessel
Waste.
If
waste is tendered from marine Vessels as required by any MARPOL Annex,
or
similar regulations or the U.S. Coast Guard, Customer shall arrange,
or
authorize a representative of its Carrier to arrange on Customer's
behalf,
for disposal of all such waste in accordance with law using a qualified
third party service provider (which service provider shall be subject
to
approval by Terminal Operator, acting reasonably). If Customer or
its
authorized Carrier representative refuses to arrange for the removal
of
such waste, Terminal Operator will arrange for the removal and disposal
of
such waste in accordance with law and Customer shall reimburse Terminal
Operator for the reasonable costs of receiving, handling, storing,
and
shipping such waste incurred by Terminal Operator (as demonstrated
by
competent evidence reasonably acceptable to Customer) and the costs
for
the proper disposal of such waste in accordance with the rates for
Additional Services.
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6
Customer
Name
Agreement
No. TBD
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(2)
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Flushings
and Samples.
The quantity of all Commodities used as flushing materials or samples
in
connection with operations conducted by Terminal Operator for Customer
shall not constitute losses for which Terminal Operator is liable
to
Customer. If such flushing materials or samples can be recovered
by
Terminal Operator, they shall be loaded into drums or other receptacles
either provided by Customer or secured by Terminal Operator at Customer's
cost and expense in accordance with the rates for Additional Services.
All
such flushing materials or samples shall be the property of Customer
and
Terminal Operator shall remove and dispose of such flushing materials
or
samples at the expense of Customer, within thirty (30) days from
the date
of each flushing or from the last day of the applicable sample retention
period.
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D.
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Tank
Inner Lining.
If it is agreed by Customer and Terminal Operator that a Tank inner
lining
is required to protect the Commodity or the Tank or both, the direct
and
indirect costs of installing, maintaining, and repairing such lining
and
its removal, if such removal is reasonably required by Terminal Operator
upon termination of this Agreement, shall be paid for by Customer
in
accordance with the rates for Additional
Services.
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E.
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Damage
or Destruction.
If any Existing Tank is damaged or destroyed by fire or other casualty
and
as a result thereof, Customer has less than 2,000,000 gallons of
available
Tank storage, the Minimum Throughput Charge, together with Terminal
Operator's requirement to handle the volume of Commodity in consideration
of said Minimum Throughput Charge as set forth above, shall be reduced by
an amount equal to the percentage of total capacity below 2,000,000
gallons. This abatement shall continue so long as such damaged or
destroyed Tank is not repaired and ready for service. Nothing in
this
Section 2(F) shall reduce Tenant’s obligation to repair or replace any
Existing Tank or other improvement following a casualty
loss.
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As
long as Customer has 2,000,000 gallons of Tank storage, the Minimum
Throughput Charge and Throughput Charge shall not be effected by
fire or
other casualty.
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7
Customer
Name
Agreement
No. TBD
| 3. |
RECEIPTS,
DELIVERIES, INSPECTION CUSTODY TRANSFER AND
REPORTS
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| A. |
General.
Except as otherwise specifically provided herein, the Terminaling
Services
shall include traffic management, receipt, handling and discharge
for all
Commodities into and out of the Terminal. Terminal Operator shall
provide
personnel and facilities necessary to perform such traffic management
and
handling in accordance with the Agreement. All receipt and deliveries
of
Commodities shall be coordinated with Customer, and Terminal Operator
shall be responsible only to receive or discharge the Commodities
at its
designated dock lines or other Terminal lines from or to those Vessels
In
particular, all receipts of any Commodities from marine tanker, barge,
tank truck, tank car [or pipeline] shall be arranged for and provided
by
Customer. Except as otherwise specifically provided herein, Terminal
Operator shall provide all labor required to receive and secure Vessels,
make all connections with Vessels, handle all Commodities to and
from
Vessels, verify Vessels have been properly sealed after loading and
prepare and exchange all customary receipts and shipping tickets.
AS
TERMINAL
OPERATOR IS ONLY PROVIDING SERVICES TO ASSIST CUSTOMER IN TRANSPORTING
COMMODITY BETWEEN COMMON CARRIER VESSELS AND CUSTOMER’S TANKS THROUGH
FLANGES, PIPELINES, HOSES AND PUMPS PROVIDED BY CUSTOMER, TERMINAL
OPERATOR ASSUMES NO RESPONSIBILITY FOR THE RAW MATERIALS AND/OR PRODUCT
AT
ANY TIME.
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Unless
otherwise agreed to, Terminal Operator agrees to furnish only inbound and
outbound reports upon receipt or delivery and monthly stock reports as to the
quantity received, handled on Terminal Operator's reporting forms and to prepare
bills of lading as required.
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B.
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INSPECTION.
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(1)
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Receipts.
For each Vessel (other than trucks) delivering Raw Materials to the
Terminal, Terminal Operator shall provide samples to Customer for
analysis. Terminal Operator shall not unload a Vessel until directed
by
Customer.
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(2)
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Load-Out.
Prior to loading any rail car with Product, Terminal Operator shall
visually inspect such rail car for residue and damage. Terminal Operator
shall notify Customer promptly of any residue or damage, which is
visually
observed and shall not load any such rail car without further direction
from Customer. Terminal Operator’s responsibility under this paragraph
shall be limited to those conditions which could reasonably be observed
by
a visual inspection of the rail car, without entering the rail car.
With
respect to other Vessels, Terminal Operator shall notify Customer
promptly
of any contamination or damage, which Terminal Operator observes
with
respect to any Vessel, and shall not load a Vessel on which it observes
contamination or damage without further direction from Customer.
Notwithstanding the foregoing, other than rail cars, Terminal Operator
shall have no obligation to physically inspect Vessels for contamination
or damage, and shall not be liable for failing to observe any
contamination or damage.
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| C. |
Metering;
Reports.
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(1)
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All
metering of Commodities for purposes of determining receipts, throughput,
inventory, losses and other matters under this Agreement shall be
done by
meters or gauges to be installed, owned and maintained by Customer
and
operated by Terminal Operator, except Terminal Operator shall supply
the
scales to be used . Customer shall inspect all such meters and gauges
at
least annually to ensure that they remain in good working order.
Customer
shall obtain Terminal Operator’s approval of all such meters and gauges
prior to installation thereof, which approval shall not be unreasonably
withheld. Terminal Operator also shall have the right inspect the
meters
and gauges from time to time, and if Terminal Operator determines
that the
meters and gauges are not working properly, it shall provide written
notice to Customer, who shall immediately make all necessary repairs
and
replacements.
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8
Customer
Name
Agreement
No. TBD
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(2)
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Daily,
prior to 12 pm, Terminal Operator shall provide a written report
to
Customer, in substantially the form of Exhibit
B,
detailing (as of the close of business on the immediately prior day)
the
matters outlined therein.
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(3)
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In
addition, Terminal Operator shall provide Inbound/Outbound Scale
Tickets
for each truck received and loaded or unloaded on the immediately
prior
day.
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Without
limitation to Terminal Operator’s obligations under this Section 3, Customer
shall be entitled to have one or more representatives present during the
performance of all inspection, loading and unloading activities by Terminal
Operator.
| 4. |
PAYMENTS
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| A. |
Prepaid
Charges.
Customer agrees to pay Terminal Operator the Minimum Throughput Charge
prior to the first day of each month in which Terminaling Services
will be
provided (regardless of when an invoice for such prepaid fees, expenses,
and charges is delivered to Customer).
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| B. |
Other
Invoiced Charges. Customer
also agrees to pay Terminal Operator for all other fees, expenses,
and
charges for Terminaling Services or Additional Services specified
in this
Agreement. Such fees incurred in any month shall invoiced by Terminal
Operator to Customer after the end of the month in which the fees
are
incurred and such invoice shall be due within fifteen (15) days after
it
is submitted.
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| C. |
Payment.
If any payment required under this Agreement is not paid when due,
it
shall bear interest at the rate of 1.0% per month for each month
or
portion of a month thereafter during which such overdue amount remains
unpaid. All payments shall be made to Terminal Operator mailed to
the
designated address on the invoice. Customer shall identify by number
the
Terminal Operator invoices being paid on the check stub. Acceptance
by
Terminal Operator of any payment from Customer for any charge or
service
at any time shall not be deemed a renewal of this Agreement or waiver
by
Terminal Operator of any default by Customer hereunder. Customer
agrees
that Terminal Operator will be entitled to suspend the performance
of any
services as provided for in this Agreement if Customer fails to pay
invoices when due. In the event Customer disputes any portion of
an
invoice, Customer shall promptly notify Terminal Operator in writing
of
the disputed portion and pay the undisputed portion according to
the terms
of this paragraph.
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D.
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Additional
Security.
If, at any time throughout the term of this Agreement, Terminal Operator
determines in its sole good faith discretion, that Customer’s credit
rating has materially worsened, Customer shall provide, at Terminal
Operator’s request, additional security for its performance hereunder in
form and amount reasonably satisfactory to Terminal Operator. The
form of
such additional security may include, but need not be limited to
the
prepayment of charges hereunder, or the posting of a letter of credit
or
bond securing Customer’s payment
hereunder.
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9
Customer
Name
Agreement
No. TBD
| 5. |
MARINE
TRAFFIC
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|
A.
|
General.
Customer shall notify Terminal Operator in writing at least Seventy
Two
(72) hours in advance of the arrival of any marine tanker or barge.
Notwithstanding such advance notice, marine tankers or barges shall
be
handled on a first come-first served basis, unless otherwise dictated
by
local practice; provided, however, that marine tankers may, at Terminal
Operator’s discretion, have preference over barges prior to berthing where
the facility is common to both. If any marine tanker or barge fails
to
vacate any Terminal Operator dock upon completion of receipt or discharge
of Customer's Commodities or when otherwise ordered to do so by Terminal
Operator, in its sole discretion, then Customer shall be responsible
for
the costs incurred by other vessels which otherwise would be occupying
said Terminal Operator dock but for failure of Vessel supplied by
Customer
to vacate same.
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B.
|
Demurrage.
Terminal Operator shall not be responsible for any loss, damage,
demurrage, or expense due to delay in loading or unloading of Customer’s
Commodities, except to the extent resulting soley from Terminal Operator’s
failure to perform in accordance with this Agreement, without a Force
Majeure Event, any fault by Customer, its employees, agents or contractors
or from the gross negligence or willful misconduct of Terminal Operator
or
any other person or entity for whom Terminal Operator is legally
responsible and Terminal Operator shall indemnify, defend and hold
Customer harmless from all costs and actions in respect thereof.
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| C. |
Third
Party Access.
Customer agrees that access to the Terminal by (1) marine tankers,
barges,
tank trucks and tank cars owned by Customer’s Carriers or (2) any party
seeking access to the Terminal on Customer’s behalf who is not an employee
of Customer (both (1) and (2) hereinafter referred to as a "Third
Party"
or "Third Parties") on behalf of Customer may, in the sole discretion
of
Terminal Operator, be conditioned upon prior execution of an access
agreement between Terminal Operator and the Third Party in a commercially
reasonable form; provided that the foregoing shall not apply to Customer’s
own employees. Customer agrees (i) to assist Terminal Operator in
obtaining execution of such access agreements from Third Parties,
(ii) to
indemnify Terminal Operator for any claims, losses, suits, liabilities
and
expenses caused by the Third Party; and (iii) to ensure that such
Third
Parties maintain insurance at levels similar to those maintained
by
similar responsible companies in similar
industries.
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10
Customer
Name
Agreement
No. TBD
| 6. |
TAXES
AND ASSESSMENTS
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A.
|
General.
Customer agrees to pay all taxes and assessments that may be assessed
by
any governmental authority against any Commodity, waste, or other
property
of Customer or against Terminal Operator (except for income, franchise
and
real estate taxes) with respect to the receiving, storing, handling,
shipping or disposing of any Commodity, Waste or property of Customer,
except to the extent resulting from Terminal Operator’s failure to perform
in accordance with this Agreement or from the negligence, gross negligence
or willful misconduct of Terminal Operator or any other person or
entity
for whom Terminal Operator is legally responsible and Terminal Operator
shall indemnify, defend and hold Customer harmless from all costs
and
actions in respect thereof. Customer further agrees to pay any existing
or
newly created or undisclosed tax in the form of a so-called "value
added"
tax, sales tax, rent tax, excise tax, service charge or similar tax
assessment assessed on the sale or purchase of any Commodity or any
service provided hereunder. In addition, Customer shall pay its direct
costs or pro rata share of any inventory or use tax or so-called
spill
tax, pollution control tax or emission fee which may be assessed
against
the Terminal, any Commodity, any Waste, the Minimum Throughput Charge,
other charges hereunder or against the service to be performed by
Terminal
Operator hereunder, except to the extent resulting from Terminal
Operator’s failure to perform in accordance with this Agreement or from
the gross negligence or willful misconduct of Terminal Operator or
any
other person or entity for whom Terminal Operator is legally responsible
and Terminal Operator shall indemnify, defend and hold Customer harmless
from all costs and actions in respect
thereof.
|
|
B.
|
Excise
Tax.
When applicable, Customer agrees to supply Terminal Operator with
a
completed signed original Notification Certificate of Gasoline and
Diesel
Fuel Registrant as required by the Internal Revenue Service's excise
tax
regulations. Customer further agrees to comply with all applicable
laws or
regulations and reasonable industry standards with respect to such
excise
taxes.
|
| 7. |
INSURANCE
|
Terminal
Operator does not and shall not insure Customer's Commodity or property, nor
property of others. Insurance, if desired by Customer or Customer's contractors,
shall be carried by Customer or its contractors at their own expense. If
Customer carries any insurance on the Commodities, Customer's insurance carrier
shall endorse the policies to waive subrogation against Terminal Operator.
Copies of such endorsements shall be furnished to Terminal Operator upon
request.
11
Customer
Name
Agreement
No. TBD
| 8. |
FORCE
MAJEURE EVENT
|
|
A.
|
Force
Majeure Event.
Neither party shall be liable for any delay in performance or
nonperformance of any obligation under this Agreement, to the extent
caused in whole or in part by (and for the duration of) any cause
or
event, arising after the Effective Date, that is not within the reasonable
control of said party (each, a “Force
Majeure Event”),
including, without limitation, the following: war, blockade, revolution,
insurrection, riot, act of terrorism, public disorder or acts of
emergency; expropriation, requisition, confiscation or nationalization;
embargoes or sanctions; closings or accidents to harbors, docks,
canals or
other assistances to or adjuncts of the shipping or transportation
industry; rationing or allocation, at the request or insistence of
any
governmental authority; action or inaction of any governmental authority;
fire; flood; earthquake; volcano; tide, tidal wave or perils of the
sea;
abnormally severe weather conditions; lightning strikes; an epidemic
or
quarantine at the Terminal; acts of God; or strikes, work protests
or
stoppages; provided,
however,
that the following events, matters or things shall not constitute
a Force
Majeure Event: (a) the absence of sufficient financial means to
perform obligations or the failure to make payments in accordance
with
this Agreement; (b) mechanical, electrical or control system or
component failures, unless caused by a Force Majeure Event;
(c) storms and other climatic or weather conditions other than
abnormally severe weather conditions; (d) the unavailability of
equipment and materials, unless itself caused by a Force Majeure
Event;
and (e) any labor disturbance affecting a party, to the extent that
such labor disturbance involves direct employees of such party, unless
such labor disturbance involving direct employees is part of a national
or
regional labor dispute among a common union or labor organization;
and
further provided that, subject to Section 2.E hereof, a Force Majeure
Event shall not excuse any payment obligation under this Agreement,
unless
as a result thereof Terminal Operator is unable to provide a material
portion of the Terminaling Services so as to prevent Customer from
receiving or delivering Commodities, and then such payment shall
be
excused only to the extent that such payment is not covered by business
interruption insurance carried by Customer. In the event of a Force
Majeure Event that limits a particular mode of transportation of
Commodities, Customer shall reasonably cooperate to use other modes
of
transportation for which Terminal Services are then available at
the
Terminal until the Force Majeure Event can be
remedied.
|
|
B.
|
Responsibilities
of the Affected Party. The
party asserting a Force Majeure Event shall (i) promptly notify the
other
party in writing of such Force Majeure Event and its cause, and in
all
cases within no more than five (5) days of such party obtaining knowledge
of the occurrence thereof, which notice shall estimate the expected
duration of the Force Majeure Event, its probable impact on the
performance of the affected party and any
actions to be taken by the affected party to avoid or
minimize
the effect upon the performance of such Party’s
obligations;
(ii) promptly and regularly (for the duration of the event) supply
such
available information about the Force Majeure Event and its cause
as may
be reasonably requested by the other party and (iii) for so long
as the
Force Majeure Event continues, exercise its commercially reasonable
efforts to eliminate or mitigate the disabling effects of such Force
Majeure Event. If the affected party fails to perform its responsibilities
under this Section 8(B), it shall be deemed to have waived its rights
provided under this Section 8(A) and its related rights at law or
in
equity.
|
|
C.
|
Limitations.
For
any Force Majeure event affecting a party: (a) the
suspension of performance shall be of no greater scope with respect
to the
obligation or work affected thereby and of no longer duration than
is
reasonably required by the Force Majeure Event; (b) no
liability of either party
which
arose before the occurrence of the event causing the suspension of
performance shall be excused as a result of the occurrence; and (c)
when
the affected Party
is
able to resume performance of the affected obligations under this
Agreement,
the affected party
shall
give the other party
written
notice to that effect, and the affected party
shall promptly
resume its performance under this Agreement.
|
|
X.
|
Xxxxxx
of Proof. In
the case of a dispute, the burden of proof as to whether a Force
Majeure
Event has occurred and whether such Force Majeure Event excuses a
party
from any particular obligation under this Section 8 shall be upon
the
party claiming such impact.
|
12
Customer
Name
Agreement
No. TBD
|
E.
|
Termination
for Force Majeure. If
a Force Majeure Event prevents the performance of a material obligation
by
either party and continues, uninterrupted for one (1) year or more,
either
party shall have the right to terminate this Agreement without liability;
provided that each party’s rights and liabilities arising prior to the
date of such.
|
| 9. |
INDEMNITY.
|
|
A.
|
By
Terminal Operator.
Except as provided in paragraph 10, Terminal Operator shall indemnify,
defend and hold Customer harmless from and against all claims, demands,
losses, fines, penalties, expenses (including reasonable attorneys
fees)
costs, suits, and liabilities (collectively “Claims”) caused by or
resulting from gross negligence or intentional misconduct on the
part of
Terminal Operator, its employees, agents, or contractors (the
“Terminal
Operator Indemnitees”)
to the extent arising from or related to this Agreement.
|
| B. |
By
Customer.
Customer shall indemnify and hold Terminal Operator harmless from
and
against all Claims, caused by or resulting from (i) negligent or
intentional wrongful acts or omissions on the part of Customer, its
employees, agents or contractors (including, but not limited to,
any
contractors transporting Commodities to or from the Terminal) in
the
performance of this Agreement, (ii) any breach of this Agreement
by
Customer; and (iii) to the extent not caused by the negligent or
wrongful
acts or omissions of Terminal Operator, its employees, agents or
contractors, any exposure to the Commodity. Terminal Operator shall
in no
event be liable for Claims arising from loss of or damage to any
Commodity
or property of Customer except when and to the extent caused by the
negligent or intentional wrongful acts or omissions of Terminal Operator
or its employees, agents, or contractors; provided, however, that
Terminal
Operator shall not be liable for any such loss or damage to the extent
that such Claim is covered by Customer’s
insurance.
|
Notwithstanding
anything contained herein to the contrary, to the extent that Customer’s
Commodities include Commodities owned by Customer’s affiliates or customers of
Customer or its affiliates, Customer shall indemnify and hold Terminal Operator
and its officers, directors, employees and agents harmless from and against
all
Claims by Customer’s affiliates or customers of Customer or its affiliates to
the extent that such Claims or any recovery in connection with such Claims
would
not have been available to Customer hereunder had Customer owned the relevant
Commodities.
13
Customer
Name
Agreement
No. TBD
|
C.
|
Apportionment
of Claims. In
the event it is determined by a finder of fact of competent jurisdiction
that any Claim for which Terminal Operator seeks indemnity pursuant
to
this Section 10 is caused in whole or in part by the concurrent
negligence, gross negligence or intentional misconduct of any Terminal
Operator Indemnitee, then the obligation of Customer to indemnify
Terminal
Operator under this Section 9 shall be reduced by the comparative
fault
apportioned to such Terminal Operator Indemnitee by the finder of
fact. In
the event it is determined by a finder of fact of competent jurisdiction
that any Claim for which Customer seeks indemnity pursuant to this
Section
9 is caused in whole or in part by the concurrent negligence, gross
negligence or intentional misconduct of any Customer Indemnitee,
then the
obligation of Terminal Operator to indemnify Customer under this
Section 9
shall be reduced by the comparative fault apportioned to such Customer
Indemnitee by the finder of fact.
|
|
D.
|
Claims
Covered by Insurance. Neither
party shall be liable under this Section 9 for any Claim covered
by the
other party’s fire and casualty insurance, and each party shall cause its
insurer to include a waiver of subrogation in each such
policy.]
|
| 10. |
LIMITATION
OF LIABILITY
|
|
A.
|
Limitations
on Customer Losses. Unless
specifically set forth elsewhere in this Agreement, Terminal Operator
shall in no event be liable for evaporation, shrinkage, clingage,
or
discoloration of a Commodity. In consideration of the charges set
forth in
Section 1.D. above (it being recognized that higher charges would
be made
but for the limitation of liability set forth in this paragraph),
it is
understood and agreed that in the event of loss or damage to Commodities
for which Terminal Operator is liable in accordance with this Agreement,
Terminal Operator shall not be liable to Customer for more than the
lesser
of: (i) the actual cost to Customer to replace any lost or damaged
Raw
Materials (including transportation to the Terminal), less salvage
value
of any saleable Raw Materials, (ii) the actual cost to Customer to
manufacture a replacement for any Products lost or damages (including
the
associated costs of Raw Materials and transportation of such Raw
Materials
to the Terminal), or (iii) the following specified limits (y) $2/gallon
for vegetable oil,
Product
and ethanol and (z) $6/gallon for butanol and glycol. Notwithstanding
the
above, Terminal Operator shall in no event be responsible for chemical
deterioration of Commodity resulting from the stagnant storage of
Commodity by Customer. Terminal Operator shall have no liability
to
Customer unless a written claim is delivered to Terminal Operator
by
Customer within two (2) months after Terminal Operator reports the
alleged
loss to the Customer or the Customer discovers the alleged loss,
whichever
is earlier. Customer shall make no deductions from the undisputed
portion
of any invoice presented by Terminal Operator pending the resolution
of
any claim.
|
| B. |
No
Indirect Damages. EXCEPT
AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY SHALL IN ANY
EVENT
BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR OTHER INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM
OR
RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, EQUITY, TORT, STRICT
LIABILITY OR ANY OTHER THEORY OF DAMAGES.
|
| C. |
Limitation
of Warranties. EXCEPT
AS EXPRESSLY PROVIDED HEREIN, THERE ARE NO GUARANTEES OR WARRANTIES
OF ANY
KIND MADE OR GIVEN BY EITHER PARTY, WHETHER EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A
PARTICULAR PURPOSE, WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE,
AND
EACH PARTY HEREBY DISCLAIMS ALL SUCH
WARRANTIES.
|
14
Customer
Name
Agreement
No. TBD
|
D.
|
Overall
Limitation on Terminal Operator’s Liability. Notwithstanding
anything herein to the contrary, Terminal Operator’s liability for
activities taken in connection with this Agreement, whether such
liabilities arise under contract, indemnity, tort, or any other legal
theory, shall in no event exceed an amount equal to the greater of
the
aggregate fees and other charges collected by Terminal Operator under
this
Agreement during the year in which the liabilities arose, or the
amount
available under any insurance policy maintained by Terminal Operator
providing coverage for such liability.
|
|
E.
|
Exclusive
Remedy.
Customer
agrees that the remedies provided in this Agreement shall be, subject
to
the limitations set forth in paragraph 10, its sole and exclusive
remedy
for claims related to the activities undertaken in connection with
this
Agreement and Customer hereby waives any rights it may have to bring
any
additional causes of action against Terminal
Operator.
|
| 11. |
COMMODITY
INFORMATION, MATERIAL SAFETY DATA SHEETS AND
DOCUMENTATION
|
| A. |
General.
Customer agrees to execute in its name, pay for and furnish to Terminal
Operator at the Terminal all information, material safety data sheets,
certificates of analysis, documents, labels, placards, containers
and
other materials and data which may be required by laws or regulations
of
any governmental authority relating to the describing, packaging,
receiving, storing, handling, shipping or disposing of any Commodities
to
or from the Terminal, together with detailed written instructions
as to
their use and disposition. Customer agrees to notify Terminal Operator
of
any changes in any of the information or materials identified above
and to
supply revised information or materials. Customer agrees that Terminal
Operator may report to any governmental or regulatory body as required
by
applicable laws and regulations, in regard to Commodities and activities
of Customer, and Customer agrees to provide such information to Terminal
Operator as necessary, in Terminal Operator's opinion, to comply
with such
laws and regulations.
|
| B. |
Right
to Know.
Terminal Operator may have an obligation to furnish Raw Material
names and
constituents to governmental authorities and employees or others
handling
or exposed to the Raw Materials in connection with Right to Know,
worker
exposure, or similar laws and regulations. Terminal Operator may
also have
an obligation under applicable laws and regulations to furnish this
information to the general public. Customer agrees to furnish the
common
or chemical name of all Raw Materials and their constituents to Terminal
Operator prior to Customer's Raw Materials entering the Terminal
so that
Terminal Operator can comply with such laws and regulations. Customer
shall have the responsibility for filing and pursuing any exemption
from
disclosure pursuant to such laws and regulations which Customer may
desire.
|
15
Customer
Name
Agreement
No. TBD
| 12. |
REGULATORY
COMPLIANCE
|
|
Governmental
or regulatory bodies may cause Terminal Operator to incur additional
cost
or expense to comply with applicable laws and regulations in the
performance of Terminaling Services under this Agreement, including
but
not limited to costs or expenses relating to (1) making additions
or
modifications to facilities at the Terminal, (2) changing methods
of
operation to comply with laws and regulations, (3) implementing testing
or
verification programs, (4) implementing the conditions of any permit
necessary to operate the Terminal, (5) preventing, reducing, controlling
or monitoring any emission, exposure or discharge into the environment,
or
(6) paying additional fees, taxes or assessments which may be assessed
against the Terminal, any Commodity, the handling charges, other
charges
hereunder, or against the services provided under this Agreement
(costs
and expenses arising from such requirements are hereinafter referred
to as
"Compliance
Costs").
Compliance Costs shall include the actual or pro rata cost of additional
expense, changes or additions (including engineering and overhead
expense)
and subsequent direct and indirect costs, as may be escalated, of
operating and maintaining such changes or additions, including the
cost of
changes in staffing for operations at the Terminal. If Terminal Operator
is required to expend increased Compliance Costs, Terminal Operator
shall
notify Customer of the Compliance Costs, including a request that
Customer
reimburse Terminal Operator for a pro rata portion of such Compliance
Costs determined as the percentage of the increase in Compliance
Costs
equivalent to the percentage that Customer’s volumes of Product bear to
all other volumes of material for which Terminal Operator provides
terminaling services at the Terminal and to which the Compliance
Costs
apply at the time of such increase, and Customer may elect to pay
such pro
rata amount or notify Terminal Operator of its election not to pay
such
pro rata amount. If Customer elects not to pay its pro rata amount
of
increased Compliance Costs or fails to respond to Terminal Operator’s
notice within thirty (30) days of its receipt thereof, then Terminal
Operator shall have the right to terminate those elements of the
Terminaling Services affected by the increase in Compliance Costs
by
providing written notice thereof to Customer within a further thirty
(30)
days. If Customer elects to pay its pro rata portion of the increase
in
Compliance Costs, it shall pay its portion of such costs as invoiced
by
Terminal Operator.
|
| 13. |
PUBLIC
USE
|
|
If
for any reason the Terminal or any of Terminal Operator’s facilities used
in the performance of Terminaling Services becomes subject to regulation
as a public utility or common carrier, then, and in that event, at
the
option of Terminal Operator and upon Customer's receipt of Terminal
Operator's written notice, Terminal Operator may terminate this Agreement
on the effective date of such action as to the affected Tanks or
services;
provided that Terminal Operator agrees to exhaust all reasonable
objections to such regulation prior to exercising its right to terminate
the Agreement pursuant to this Section
13.
|
| 14. |
DEFAULT
|
The
following shall be considered “Events of Default” of a party under this
Agreement:
16
Customer
Name
Agreement
No. TBD
| A. |
Default
in Payment. A
party fails to pay any monies due hereunder within five (5) days
of the
date when due and such party has failed to cure such non-payment
within a
further three (3) days of its receipt of written notice of such
non-payment from the other party;
|
| B. |
Other
Material Default. Except
as set forth in Section 15(a), a party fails to comply in any material
respect with any terms or conditions of this Agreement applicable
to it
and such party has failed to cure such noncompliance within 30 days
after
receiving notice thereof from the other party, or where cure of such
failure is not possible within such 30 day period, the party fails
to
commence cure of such failure within such 30 day period and to diligently
and in good faith pursue such cure; provided that, notwithstanding
diligent efforts to cure, it shall be an Event of Default if any
such
failure is not cured within one hundred eighty (180) days of the
date on
which performance was originally required;
|
| C. |
Voluntary
Bankruptcy. A
party or any person owning fifty percent or more of the voting securities
or interests entitled to vote of such party (a "Controlling Person")
commences a voluntary case as a debtor concerning such party or such
Controlling Person under the United States Bankruptcy Code and its
regulations as then in effect (the "Bankruptcy Code");
|
| D. |
Involuntary
Bankruptcy. An
involuntary case against a party or its Controlling Person is commenced
under the Bankruptcy Code and relief is ordered against such party
or its
Controlling Person or the petition is not dismissed or stayed within
sixty
(60) days after the commencement of the
case.
|
| E. |
Unauthorized
Assignment.
A
party shall assign or transfer its rights or obligations under this
Agreement, in whole or in part, in contravention of its rights under
this
Agreement.
|
If
an
Event of Default occurs and is continuing, then the non-defaulting party may
terminate this Agreement and pursue any remedies available to it under this
Agreement, at law, or in equity. Additionally, in the event of default by
Customer, Customer shall pay to Terminal Operator liquidated damages equal
to
the net prevent value of the aggregate Minimum Throughput Charge that would
otherwise be due between
the effective date of termination and the end of the current term of
the
Lease
(including any previously exercised renewal option) assuming a 25% discount
rate, and such liquidated damages shall be Terminal Operator’s sole
remedy.
In the
event of a default by Terminal Operator, Customer shall be permitted to use
any
facilities at the Terminal of Landlord or Terminal Operator required to perform
the Terminaling Services itself or arrange for third parties to do so on its
behalf.
| 15. |
LIENS
|
|
Notwithstanding
the passage of risk of loss, title to the Commodities shall at all
times
remain with Customer or its assignees. At all times to the extent
permitted by law, Terminal Operator shall have all applicable statutory
liens to which it is entitled as a matter of law. To the extent that
the
Commodities or other property of Customer are subject to a lien in
connection with any indebtedness of Terminal Operator or otherwise
arising
by, through or under Terminal Operator, Terminal Operator shall cause
such
lien to be released or bonded within fifteen (15) days after receiving
notice of such lien, and Terminal Operator shall indemnify save and
hold
harmless Customer from any liability or damage incurred in connection
with
such lien.
|
17
Customer
Name
Agreement
No. TBD
|
16.
|
ASSIGNMENT
|
|
This
Agreement shall be binding upon, and inure to the benefit of, the
successors and permitted assigns of each of the parties hereto. This
Agreement may only be assigned by Tenant in connection with a permitted
assignment of the Lease.
|
| 17. |
NOTICES
|
|
Notices
to be given hereunder shall be deemed properly served on Customer
when
delivered in writing, either in person, by fax, express delivery,
or
certified mail to Customer at the address shown on page one and on
Terminal Operator when so delivered to Terminal Operator at the address
shown on page one or, in either case, at such other address as shall
be
specified in a notice meeting the requirements of this
paragraph.
|
| 18. |
CHANGE
OF OWNERSHIP
|
|
Customer
shall advise Terminal Operator in writing of any change in Commodity
ownership while in the Terminal. If any of Customer's Commodity is
sold,
exchanged, or otherwise changes ownership while in the Terminal,
Customer
shall nonetheless be responsible for all charges and taxes for which
Customer is made responsible under, and shall continue to be bound
by the
terms and conditions of, this Agreement, the same as if Commodity
had not
been sold, exchanged, or transferred by
Customer.
|
| 19. |
GENERAL
|
|
This
Agreement, together with any and all exhibits hereto, constitutes
the
entire agreement between Terminal Operator and Customer and supersedes
any
and all statements, representations, terms, conditions or agreements
made
or given prior to or contemporaneous with this Agreement. This Agreement
may not be amended, altered, or changed except by written agreement
signed
by both parties. The remedies herein provided for shall not be exclusive,
but shall be cumulative and shall be in addition to all other remedies
available at law or in equity. The waiver by either party of any
right of
such party hereunder, at any time, shall not serve to waive any other
such
right nor shall such waiver operate as a waiver of the right so waived
at
any future date in connection with another default or a subsequent
recurrence of the same default. This Agreement may be executed in
counterparts, each of which shall constitute but one and the same
agreement. The parties agree that facsimile copies of this Agreement
shall
be as valid as original copies hereof. This Agreement shall be governed
by
and construed in accordance with the laws of the State of Maryland,
excluding any conflicts of laws rules thereof.
Terminal Operator and Customer hereby waive trial by jury in any
action,
proceeding or counterclaim brought by either of the parties hereto
against
the other on any matters whatsoever arising out of or in any way
connected
with this Agreement.
|
18
Customer
Name
Agreement
No. TBD
| 20. |
HEADINGS
|
The
headings of the paragraphs of this Agreement have been inserted for convenience
of reference only and are not to be considered part of this Agreement and shall
in no way affect the interpretation of any of the provisions of this
Agreement.
|
21.
|
THIRD
PARTY BENEFICIARIES
|
|
Except
as expressly set forth herein, there are no third party beneficiaries
to
this Agreement and the provisions of this Agreement shall not impart
any
legal or equitable right, remedy or claim enforceable by any person,
firm
or organization other than the parties and their permitted successors
and
permitted assigns.
|
|
22.
|
CONFIDENTIALITY
|
Each
party agrees to hold in confidence, and not to disclose to third parties or
use
for any purpose other than performance of its obligations hereunder, all or
any
information (including the location and type of work performed hereunder) that
is received or ascertained directly or indirectly, from the other party or
its
representatives in connection with this Agreement (“Information”).
Each party shall ensure that its employees, subcontractors and suppliers who
may
be exposed to Information comply with the confidentiality requirements of this
Agreement. Nothing herein contained should preclude a party from providing
information to any federal, state or local agency or agencies to the extent
such
party is required to do so by applicable laws, rules, codes or regulation of
any
federal, state or local agency or agencies; provided that the party subject
to
an obligation to disclose Information of the other party hereunder shall provide
notice of such obligation to the other party prior to making such disclosure
and
shall afford such other party (at such other party’s sole cost) the opportunity
to oppose, or seek a protective order or other remedy in connection with, such
disclosure.
Neither
party shall have confidentiality obligations with respect to Information
that:
| i. |
is
or becomes part of the public knowledge through no fault of such
party or
its representatives;
|
| ii. |
is
received from a third-party without violation of any obligation of
confidence to the disclosing party (as demonstrated by competent
evidence);
|
|
iii.
|
is
in such party’s possession prior to the Effective Date other than as the
result of a disclosure by the other party in contemplation of this
Contract (as demonstrated by competent
evidence);
|
| iv. |
is
independently developed by a party without use of or reference to
the
Information of the disclosing party (as demonstrated by competent
evidence).
|
[Signatures
follow.]
19
Customer
Name
Agreement
No. TBD
IN
WITNESS WHEREOF, this Agreement has been executed by the parties hereto as
of
the Effective Date.
|
Customer
Name
|
Terminal
Operator
|
|||
|
Atlantic
Terminalling, LLC
|
||||
|
BY:
|
/s/
Xxxxx X. Xxxxxxxxx
|
BY:
|
/s/
Xxxxxx X. Xxxxxx
|
|
|
TITLE:
|
President
|
TITLE:
|
Managing
Member
|
|
|
DATE:
|
September
11, 2008
|
DATE:
|
September
12, 2008
|
|
20
Customer
Name
Agreement
No. TBD
Exhibit
A
[Intentionally
Deleted]
21
Customer
Name
Agreement
No. TBD
Exhibit
B
Form
of Daily Terminal Report
Daily
Terminal Report
Movements:
showing
gallons of through-put by
transportation mode
Trucks:
via
meter
or scale weights (converted gallons)
|
Outbound:
|
a)
per BOL number
|
|
b)
total outbound gallons
|
|
|
Inbound:
|
a)
per receipt / ticket number
|
|
b)
total inbound gallons
|
Rail:
via tank
gages (gross gallons)
|
Inbound:
|
a)
per BOL /Railcar receipt/Railcar ID
|
|
b)
Tank ID No. /gals via tank gage(s)
|
Marine:
via
tank
gage, meter, barge strapping
|
a)
Vessel Name / Tank ID No./gallons via Gage or
|
|
|
b)
Third party custody transfer
|
22
