Exhibit V
PIPELINE USE, RIGHT OF WAY OPTION
AND RIGHT OF FIRST REFUSAL AGREEMENT
THIS AGREEMENT is entered into this 21st day of September, 2005, by and
between Gulf States Pipe Line Co., Inc., a Texas corporation, hereinafter
referred to as "GSPL" and Xxxxxx Gas Sales, a division of Xxxxxx Operating
Partnership, L.P., a Delaware limited partnership, hereinafter referred to as
"MGS."
WHEREAS, GSPL owns and operates an eight inch liquid products pipeline
originating at Teppco Beaumont Marine Terminal in Orange County, Texas, and
terminating approximately thirty-two miles north at South Hampton Refining Co.
facility at 0000 Xxxxxxx 000 xxxx Xxxxxxx, Xxxxx (the "GSPL Pipeline"); and
WHEREAS, GSPL currently transports natural gasoline to the South Hampton
facility via the GSPL Pipeline; and
WHEREAS, MGS owns and operates a four inch liquids product pipeline, which
intersects the GSPL Pipeline just north of I-10 in Orange County, Texas (the
"MGS Pipeline"); and
WHEREAS, MGS wishes to transport natural gasoline via the GSPL Pipeline.
NOW, THEREFORE, in consideration of these premises and the mutual promises
set forth herein, MGS and GSPL agree as follows:
1. Term: This Agreement shall be initially for a period of ten (10) years but
shall be subject to the renewal terms provided for herein. This Agreement shall
automatically renew for successive five-year terms unless either party provides
written notice of non-renewal to the other party during the one-year period
immediately prior to the expiration of the then existing term and in which case,
this Agreement shall terminate one (1) year after receipt of such notice.
2. Services: GSPL agrees that it will provide access to the GSPL Pipeline by MGS
for the movement of MGS natural gasoline. MGS may off take the natural gasoline
at the point where
the MGS Pipeline intersects the GSPL Pipeline, and/or may designate such point
further North as needed on the GSPL Pipeline. All natural gasoline moved by MGS
via the GSPL Pipeline must meet Teppco specification, as specified in Exhibit
"A", and be otherwise compatible with the product which GSPL transports for
South Hampton Refining Co., unless otherwise agreed by both parties. GSPL and
MGS agree that the product movement agreement currently in place between GSPL
and South Hampton Refining Co. takes precedence over MGS product movements and
the GSPL Pipeline schedule will be operated accordingly.
3. Fee: MGS shall pay GSPL the following amounts for all natural gasoline
delivered to any MGS pipeline through the GSPL Pipeline:
a. A per barrel tariff which shall be calculated on March 1, of each
year as fifty per cent of the actual expenses of maintaining and operating the
GSPL Pipeline for the prior calendar year per the audited records of GSPL, in
accordance with GAAP, divided by 2,190,000 barrels per year (6,000 bbl per day),
with such expenses to be made up exclusively of the categories described in the
attached Exhibit "B". Any expense, which does not clearly fall into one of the
categories defined in the attached Exhibit "B" shall not be included when
calculating the tariff under this paragraph, unless otherwise agreed to by the
parties in writing.
b. MGS shall also pay any specific expenses directly attributed to the
interchange connection between the GSPL Pipeline and the MGS Pipeline for the
benefit of MGS, such as valve replacement or repair, meter installations or
maintenance, etc.
The Fee charged pursuant to Paragraph 3 shall be invoiced by GSPL monthly
and shall be paid promptly by MGS upon receipt. GSPL shall notify MGS as soon as
practical upon completion of the audit at the end of each calendar year as to
the expected tariff for the coming twelve month period and MGS shall have the
opportunity to examine the records of GSPL at a time convenient to both parties.
Any dispute with the charges or expenses shall be attempted to be resolved by
the parties in accordance with the methods outlined in Paragraph 11.
4. Construction of Interconnection Facility: MGS shall pay for the cost of the
pipeline interconnection between the MGS Pipeline and the GSPL Pipeline, and the
design of such facility, which shall be reviewed and approved by GSPL, with such
approval not to be unreasonably withheld, prior to initiation of construction.
5. Product Transfer: Possession and risk of loss of any natural gasoline
delivered into the GSPL Pipeline by MGS shall pass from MGS to GSPL, when the
product passes through the
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transfer meter located at TEPPCO BMT (the "Meter") into the GSPL Pipeline.
Possession and risk of loss of any natural gasoline to be removed from the GSPL
Pipeline by MGS shall pass from GSPL to MGS, when the product passes through the
transfer meter located at the MGS Pipeline interconnection point with the GSPL
Pipeline (the "Interconnect Meter") or as agreed later in the event of removal
of product from the GSPL Pipeline by MGS at a point North of the Interconnect
Meter. All fees payable by MGS pursuant to Paragraph 3 shall be based upon the
reading at the Interconnect Meter and such meter shall be calibrated at least
quarterly with both parties observing such calibration.
6. Rights of Way: In the event it is determined by MGS that the GSPL Pipeline
does not satisfy the needs of MGS in transporting its natural gasoline to the
intersection with the MGS Pipeline or points North thereof on the GSPL Pipeline,
GSPL shall use its best efforts to secure rights to assign or sell to MGS all
requested right of way, which GSPL currently owns and which may be less than the
entire length of the GSPL Pipeline if such is requested by MGS, at market price
to MGS so that MGS can construct, at its sole expense, a pipeline which meets
MGS requirements. The parties will endeavor to agree upon market price for such
right of way and in the event that they fail to do so within forty-five (45)
days of the date that MGS exercises its rights under this paragraph, then MSG
and GSPL each shall engage a certified appraiser, who is qualified in evaluating
the value of a pipeline right of way, and each appraiser shall determine his or
her opinion of the market price of the right of way to be acquired. In the event
that the two appraisers' opinions of market price are within ten percent (10%)
of each other, the then market price of the right of way shall be determined by
averaging the two appraisals. In the event that the appraisers' opinions of
market price vary by more than ten percent (10%), then the two appraisers shall
mutually appoint a third appraiser within thirty (30) days from the date that
both initial appraisers' reports are completed. The third appraiser shall then
work with the first two appraisers to determine the market price of the right of
way and the third appraiser's opinion of market price of the right of way shall
be binding on both parties.
The assignment rights or rights to purchase right of way from GSPL are
available to MGS for the term of this Agreement, including any extension or
renewal thereof, and such rights, if not exercised, expire upon the termination
of this Agreement. If MGS exercises this option, construction of the pipeline
contemplated with assignment or purchase of the right of
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way must be completed within three years, or the right of way will revert to
GSPL and 75% of the price paid for the right of way will be refunded to MGS.
In the event it is determined that the right of way agreements GSPL
currently has in place with the affected landowners do not allow for the sale or
assignment of such right of way, or other ownership or permitting issues are
discovered, which prevent GSPL from selling or assigning the right of way
interest to MGS, GSPL agrees to undertake its best efforts to assist MGS with
resolution of such issues. GSPL does not warrant by this Agreement that it has
the ability to assign, sell, lease or otherwise convey sufficient space in its
existing right of ways to allow for the construction of an additional line by
MGS. Exhibit C describes the easements or right of ways held by GSPL for the
movement of product pursuant to the terms of this Agreement.
7. Right of First Refusal: Subject to the following paragraph and while this
Agreement is in effect, if GSPL decides to sell or transfer the GSPL Pipeline or
any portion thereof and receives a bona fide offer for such sale or transfer
(the "Pipeline Offer"), MGS will be given no less than thirty (30) days notice
(the "Notice Period") and will be given the right of first refusal to acquire
the GSPL Pipeline from GSPL upon the same terms and conditions as contained in
the Pipeline Offer, with such right of first refusal expiring at the end of the
Notice Period. In the event that MGS does not exercise its right of first
refusal under this paragraph during the Notice Period, GSPL shall be free to
sell or assign the GSPL Pipeline to the person or entity who made the Pipeline
Offer, under the same terms as conditions as those originally contained in the
Pipeline Offer. If the terms or conditions of the Pipeline Offer are changed,
such changes shall constitute a new offer and GSPL will be required to comply
with the notice and right of first refusal terms contained in this paragraph
before completing any sale or assignment under the new terms.
The foregoing first right of refusal shall not be operative if the entire
GSPL pipeline is sold or transfered contemporaneously with a sale of the South
Hampton Resources, Inc.'s facility at 0000 Xxxxxxx 000 xxxx Xxxxxxx, Xxxxx (the
"Plant") to the same purchaser. A sale of the GSPL Pipeline and/or the Plant
shall not extinguish the right of first refusal granted herein and such right of
first refusal shall remain in full force and effect for the term of this
Agreement. Any purchaser of the GSPL Pipeline shall be obligated to comply with
the obligations contained in this Paragraph 7 prior to any subsequent sale of
the GSPL Pipeline.
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In the event that MGS exercises it option to purchase the GSPL Pipeline,
the parties will endeavor to agree upon purchase price for the GSPL Pipeline and
in the event that they fail to do so within forty-five (45) days after the date
that MGS exercises its rights, the purchase price of the MGS Pipeline shall be
determined in accordance with the same appraisal mechanism used in Paragraph 6.
8. Force Majeure: No liability shall result to either party from delay in
performance or from nonperformance hereunder caused by circumstances beyond the
control of the party who has delayed performance or not performed. Such
circumstances may include, but are not limited to, flood or other act of God,
war, governmental action or inaction, inability to obtain natural gasoline, or
requirement of governmental authority, strike or lockout. The non-performing
party shall be diligent in attempting to remove any such cause and shall
promptly notify the other party of its extent and probable duration and shall
give the other party such evidence as it reasonably can of such force majeure.
9. Consequential Damages. The parties hereto waive all claims against one
another for any consequential damages, except those damages specifically
provided for herein, resulting from the breach of this Agreement by a party.
10. Confidentiality. The parties agree that the terms of this Agreement shall
remain confidential between the parties and shall not be disclosed to any third
party (excluding the professional advisors of either party who have a duty to
maintain its confidentiality) without first obtaining the other party's prior
written consent.
11. Mediation: In the event of any dispute arising under this Agreement, the
parties agree to attempt to resolve the dispute through good faith mediation
prior to the initiation of suit. The Parties agree to make a good faith effort
to choose a mutually acceptable mediator. The costs of mediation shall be shared
equally by both Parties.
12. Entire Agreement: This Agreement constitutes the sole and only agreement of
the parties and supersedes any prior understandings or written or oral
agreements between the parties respecting the subject matter of this Agreement.
13. Assignment: Neither this Agreement nor any duties or obligations under this
Agreement shall be assignable by the parties hereto without the prior written
consent of the other party, except that MGS may assign its rights and
obligations under this Agreement to an affiliate without consent. In the event
of an assignment for which consent has been granted or is not
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required, the assignee or the assignee's legal representative shall agree in
writing to personally assume, perform, and be bound by all of the covenants,
obligations, and agreements contained in this Agreement.
14. Successors and Assigns: Subject to the provisions regarding assignment in
Paragraph 13, this Agreement shall be binding on and inure to the benefit of the
parties to it and their respective heirs, executors, administrators, legal
representatives, successors, and assigns.
15. Governing Law: The validity of this Agreement and of any of the terms or
provisions hereof, as well as the rights and duties of the parties, shall be
governed by the laws of the State of Texas. Exclusive venue for any dispute
hereunder shall be the State District Courts in Jefferson County, Texas.
16. Amendment: This Agreement may be amended by the mutual agreement of the
parties hereto and a writing to be attached to and incorporated into this
agreement.
17. Severability: In the event that any one or more of the provisions contained
in this Agreement shall for any reason be held to be invalid, illegal, or
enforceable in any respect, such invalidity, illegality, or unenforceability
shall not effect any other provisions, and this Agreement shall be construed as
if such invalid and illegal or unenforceable provisions have never been
contained in it.
18. Notices: All notices or other communications provided for in this Agreement
shall be in writing and shall be deemed to have been given at the time when
personally delivered, or mailed in a registered or certified pre-paid envelope,
return receipt requested and addressed to the other party at the address below:
If to Company: If to Customer:
Xxxxxx Operating Partnership, L.P. Gulf State Pipe Line Co., Inc.
Attn: Xxx Xxxxxxxx Attn: Xxxx Xxxxxx
P. X. Xxx 000 X. X. Xxx 0000
Xxxxxxx, Xxxxx 00000 Xxxxxxx, Xxxxx 00000
or at such other address as hereafter may be notified in writing by one party to
the other.
19. Default:
a. If MGS fails to comply with its obligations hereunder, GSPL may,
after giving MGS sixty (60) days to cure such default after written notice,
terminate this Agreement. In the event of termination of this Agreement due to
MGS's default, GSPL shall have the right to immediately disconnect the
interconnection between the MGS Pipeline and the GSPL Pipeline.
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b. If GSPL fails to comply with its obligations hereunder, MGS may,
after giving GSPL sixty (60) days to cure such default after written notice,
terminate this Agreement. In the event of termination of this Agreement due to
GSPL's default, MGS shall have sixty (60) days to exercise its right to acquire
the right of way pursuant to Paragraph 6 of this Agreement. However, all such
rights of way shall be assigned to MGS at no cost but shall be subject to the
title limitations described in Paragraph 6 hereof.
20. Further Assurances: The parties agree to execute such other documents as may
be required to implement the terms and provisions and fulfill the intent of this
Agreement.
21. Binding. This Agreement shall be binding on the parties on the Effective
Date.
EXECUTED effective the 21st day of September, 2005 (the "Effective Date").
XXXXXX GAS SALES, A DIVISION OF
XXXXXX OPERATING PARTNERSHIP L.P.
By Xxxxxx Operating GP LLC,
Its General Partner
By Xxxxxx Midstream Partners L.P.,
Its Sole Member
By Xxxxxx Midstream GP LLC,
Its General Partner
By: /s/ XXX XXXXXXXX
------------------------------------
Printed Name: Xxx Xxxxxxxx
Its Executive Vice President
GULF STATES PIPE LINE CO., INC.
By: /s/ XXXXXXXX XXXXXX
------------------------------------
Printed Name: Xxxxxxxx Xxxxxx
Its President
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Xxxxxx Operating Partnership, L.P., a Delaware limited partnership ("Xxxxxx"),
does hereby consent to South Hampton Resources, Inc.'s execution of this
Agreement and waives any right that it may possess, as lienholder under that
certain Deed of Trust, Security Agreement, Financing Statement, and Assignment
of Rental dated June 1, 2004 and executed by South Hampton Refining Co. in favor
of Xxxxxx as beneficiary (the "Deed of Trust"), to claim that the execution of
this Agreement by South Hampton Resources, Inc. constitutes a default or breach
of the Deed of Trust. Except those rights expressly enumerated in this
paragraph, Xxxxxx hereby waives no other rights that it may possess relating to
the Deed of Trust.
XXXXXX OPERATING PARTNERSHIP L.P.
By Xxxxxx Operating GP LLC,
Its General Partner
By Xxxxxx Midstream Partners L.P.,
Its Sole Member
By Xxxxxx Midstream GP LLC,
Its General Partner
By: /s/ XXX XXXXXXXX
------------------------------------
Printed Name: Xxx Xxxxxxxx
Its Executive Vice President
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EXHIBIT "A"
(Teppco Specifications)
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EXHIBIT "B"
(Expense Categories)
ACCOUNT
NUMBER DESCRIPTION
------- -----------
OPERATING EXPENSES
5010 Contract Labor
5015 Depreciation
5020 Equipment Rental
5028 Lease Expense
5030 Maintenance & Repairs
5035 Equipment Maintenance & Repairs
5037 Miscellaneous
5040 Spill Control Expense
5042 Operating Supplies
5046 Security Service
5050 Row Maintenance
5060 Utilities
5125 Printing & Postage
GENERAL EXPENSE
6025 Consulting Fees
6053 Taxes - Franchise
6055 Taxes - Property
6065 Taxes - Gas Utility
6070 Tocco Management Fees
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