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EXHIBIT 10.23
CALL OPTION AGREEMENT
THIS CALL OPTION AGREEMENT ("Agreement") granted as of February 9,
1999, by and between BASF Fina Petrochemicals Limited Partnership (LP), Fina
Oil and Chemical Company ("Fina"), BASF Corporation ("BASF") (collectively
"Fina/BASF"); and TE Products Pipeline Company, Limited Partnership ("TEPPCO");
WITNESSETH:
WHEREAS, Fina/BASF have entered into a Services and Transportation
Agreement ("Transportation Agreement") with TEPPCO dated as of the date of this
Agreement pursuant to which TEPPCO will design, engineer, construct, install,
and operate certain Pipeline Facilities through which Fina/BASF agrees to ship
or caused to be shipped certain guaranteed volumes of Products; and
WHEREAS, Fina/BASF has requested and TEPPCO is willing to xxxxx
Xxxx/BASF a call option to acquire for cash the Pipeline Facilities pursuant to
the terms hereof;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Definitions. Terms capitalized but not defined in this Agreement
shall have the meaning given to such term in the Transportation Agreement
unless the context of such term as used herein requires otherwise.
2. Grant of Option.
(a) TEPPCO hereby grants to Fina/BASF an irrevocable
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call option (the "Option") to purchase and acquire from TEPPCO all the Pipeline
Facilities based on the buyout schedule attached hereto as Exhibit A and by
this reference made a part hereof. If Fina, BASF and/or LP have an Excess
Product Volume balance at the time of the Closing, then the buyout schedule in
Exhibit A shall be reduced by a total amount determined by multiplying such
Excess Product Volume by the applicable Transportation Charges under which such
Excess Product Volumes were transported by TEPPCO.
(b) This Agreement shall become operative and in full force and
effect as of the Commencement Date and unless sooner terminated as herein
provided, shall terminate forty (40) years from the Commencement Date ("Initial
40-Year Term"). Fina/BASF shall have the right to extend this Agreement from
year-to-year ("Renewal Term") following the Initial 40-Year Term and any
Renewal Term upon giving TEPPCO written notice not less than 180 days prior to
the end of the Initial 40-Year Term or any Renewal Term, as the case may be, of
Fina/BASF's desire to so extend this Agreement and the payment to TEPPCO of
$100.00 for such extension.
(c) In addition to the provisions of Section 5(i), the Option may
only be revoked and this Agreement terminated by TEPPCO if Fina/BASF or their
successors and assigns have not transported any Product under the Tariff for a
period of not less than six consecutive Months and the Transportation Agreement
has been terminated.
3. Exercise of Option.
(a) The Option may be exercised by Fina/BASF by written
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notice to TEPPCO, provided Fina/BASF shall not be in material default in the
performance of their obligations set forth in the Transportation Agreement.
Such notice must be given not later than 180 days prior to the commencement of
the Contract Year for which the purchase price is to be determined in
accordance with Exhibit A and Section 2(a) hereof and must be contemporaneously
given by or on behalf of all the parties constituting Fina/BASF hereunder. Such
notice shall specify a place and a date for the closing ("Closing") which date
shall not be earlier than the first day of the applicable Contract Year nor
later than the fifteenth day from the commencement of the applicable Contract
Year. The Closing will be postponed if required to comply with the required
waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976
as amended ("HSR Act").
(b) Fina/BASF shall have the right to exercise the Option at any
time after the twentieth Contract Year by giving TEPPCO at least 180 days
written notice of its intention to exercise the Option. The notice shall
specify a place and a date for the Closing. The Closing will be postponed if
required to comply with the required waiting period under the Xxxx-Xxxxx-Xxxxxx
Act. The purchase price shall be $4 million, subject to the provisions of
Section 2(a) hereof.
4. Closing. In the event Fina/BASF exercises the Option, Fina/BASF
will make payment to TEPPCO on the date of the Closing of the purchase price
for the Pipeline Facilities as determined in accordance with Exhibit A and
Section 2(a) hereof, in immediately
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available funds by wire transfer to a bank account of TEPPCO designated by
TEPPCO. TEPPCO will deliver to Fina/BASF all necessary documentation evidencing
the assignment and transfer of the Pipeline Facilities to Fina/BASF on an "AS
IS, WHERE IS" basis WITH ALL FAULTS. Except as provided in Paragraph 5,such
transfer documents shall expressly disclaim and negate ALL WARRANTIES, EXPRESS
OR IMPLIED OR STATUTORY, REGARDING THE PROPERTY TRANSFERRED INCLUDING WITHOUT
LIMITATION, (i) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, DESIGN, PERFORMANCE, CONDITION, CERTIFICATE, MAINTENANCE,
OR SPECIFICATION, AND (ii) ANY INFORMATION, DATA, OR OTHER MATERIALS (WRITTEN
OR ORAL) FURNISHED BY OR ON BEHALF OF TEPPCO TO FINA/BASF, AND FINA/BASF WILL
HAVE SOLE RESPONSIBILITY FOR ANY ACTION TAKEN BY FINA/BASF, OR BY OTHERS
RELYING ON FINA/BASF'S ADVICE, BASED ON SUCH RECORDS.
5. Investigation of Pipeline Facilities.
(a) Access to Information. Immediately following the exercise of
the Option and until the Closing, (i) TEPPCO shall permit Fina/BASF and its
respective representatives ("Fina/BASF's Representatives") to examine TEPPCO's
records (other than litigation, financial and accounting records) with respect
to the Pipeline Facilities, including, but not limited to, all files, abstracts
of title, title opinions, title files, ownership maps, rights-of-way maps,
rights-of-way agreements, licenses, leases and documents of title, safety,
maintenance and operating manuals, facility response plans, system pressure
logs, cathodic protection
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records, inspection records, records concerning the construction, repair and
maintenance of the Pipeline Facilities, records pertaining to environmental
issues, and all other property or operation records, all engineering and other
records, and all other contracts, agreements and documents relating to the
Pipeline Facilities, insofar as the same are in TEPPCO's or its Affiliates'
possession or control, or insofar as TEPPCO or its Affiliates have access to
the same, and to the extent in each case that TEPPCO may do so without
violating legal constraints or any legal obligation, (ii) TEPPCO shall permit
Fina/BASF's Representatives to interview TEPPCO's and its Affiliates' employees
as well as the employees of Contractor and any Subcontractor, provided such
Contractor and Subcontractor allow such interview, with respect to the Pipeline
Facilities, and (iii) TEPPCO shall cooperate with Fina/BASF's Representatives
in connection with their interviews and examination of such records and other
items. TEPPCO agrees to use Best Efforts to fully disclose to Fina/BASF all
knowledge in its possession regarding all material matters affecting the
Pipeline Facilities which a reasonably prudent purchaser of the Pipeline
Facilities would want to know.
(b) Access to Property. Immediately following the exercise of the
Option until the Closing, and subject to any required consent of any Third
Party, TEPPCO shall xxxxx Xxxx/BASF and Fina/BASF's Representatives access to
the lands on which the Facilities are located and the right to observe all
operations thereon, to visually inspect and examine the Pipeline Facilities
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and to conduct environmental audits, inspections and other non-invasive
investigations thereon as reasonably necessary for Fina/BASF to evaluate the
physical and environmental condition of the Pipeline Facilities (collectively,
"Investigations"). Fina/BASF shall conduct the Investigations in accordance
with all applicable Laws and in accordance with the standards commonly employed
by professionals conducting investigations of such type with respect to
properties similar to the Pipeline Facilities and in accordance with all
applicable and reasonable requirements of TEPPCO.
(c) Environmental Investigation. Immediately following the
exercise of the Option until Closing, Fina/BASF and Fina/BASF's Representatives
may conduct Investigations of the Pipeline Facilities with respect to
environmental matters and the lands on which they are located, and in the event
that the consent of any landowner is required prior to conducting any such
Investigation, then TEPPCO shall assist Fina/BASF in obtaining any such
consents. However, Fina/BASF shall not conduct any invasive Investigations
including without limitation, core sampling of the surrounding soils or testing
of ground water in the area surrounding the Pipeline Facilities without
TEPPCO's prior written consent. TEPPCO shall have the right to have a
representative of TEPPCO present during any environmental Investigation and
TEPPCO shall have the right to approve all testing protocols.
(d) Notice. Fina/BASF shall provide to TEPPCO a minimum of
seventy-two (72) hours notice prior to entering the Facilities
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or any other property of TEPPCO to conduct any examination or Investigation
under this Section 5. The notice shall specify, as applicable, the locations
where the examination or Investigation is to be conducted, the activities
proposed to be conducted, any personnel of TEPPCO whom Fina/BASF wishes to
interview, and the estimated length of time necessary to accomplish the
examination or Investigation. The notice shall also specify an official
representative of Fina/BASF whom TEPPCO may contact to discuss the access
sought and the examinations or Investigations proposed to be conducted. Upon
receipt of such notice, TEPPCO shall allow Fina/BASF and Fina/BASF's
Representatives to enter the Pipeline Facilities or such other property of
TEPPCO during normal business hours to conduct such examinations and
Investigations, as long as Fina/BASF's activities shall not unreasonably
interfere with TEPPCO's operations or business and the other requirements of
this Section 5 are observed.
(e) Restoration of Property. Upon completion of its examinations
and Investigations, if any, Fina/BASF shall promptly restore all of TEPPCO's
property to its original condition immediately prior to such examinations and
Investigations to the extent practical and remove all equipment and materials
brought onto TEPPCO's property by Fina/BASF or Fina/BASF's Representatives.
(f) Protection of Persons. Fina/BASF shall be responsible for the
conduct and protection of all Persons involved in such examinations and
Investigations and studies. Fina/BASF will undertake all measures reasonably
necessary or appropriate to
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protect such Persons and any other Persons on TEPPCO's property during any such
examinations and Investigations. TEPPCO shall not have any right to control and
shall not exercise any responsibility with respect to such examinations and
Investigations.
(g) Confidentiality. Fina/BASF shall use its best efforts to
maintain the confidentiality of all information and documentation obtained
pursuant to this Section 5 and shall restrict the dissemination and circulation
of all information and documentation regarding the environmental and physical
condition of TEPPCO's property to the smallest number of people reasonably
practicable for Fina/BASF and Fina/BASF's Representatives to complete their
evaluation of the environmental and physical condition of the Pipeline
Facilities. If Fina/BASF for any reason does not acquire the Pipeline
Facilities, Fina/BASF will use its Best Efforts to cause all notes, samples,
reports, analyses, correspondence, and all other documents relating to the
environmental and physical condition of the Pipeline Facilities to be destroyed
and, if requested by TEPPCO following such termination, shall furnish TEPPCO,
within thirty (30) days following the date of Fina/BASF's receipt of such
request, a written certificate to the effect that to the best of Fina/BASF's
information, knowledge and belief based on Best Efforts inquiry all such items
have been destroyed.
(h) INDEMNIFICATION. FINA/BASF SHALL INDEMNIFY, DEFEND AND HOLD
HARMLESS TEPPCO AND ITS AFFILIATES FROM AND AGAINST ANY AND ALL LIABILITIES
RESULTING FROM CLAIMS AND LOSSES FOR PERSONAL
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INJURY OR DEATH OR PROPERTY DAMAGE ARISING OUT OF THE CONDUCT OF FINA/BASF'S
EXAMINATIONS AND INVESTIGATIONS PURSUANT TO THIS SECTION 5.
(i) Right to Withdraw. At any time prior to Closing, if Fina/BASF
determines in its sole judgment, based on its Investigations that it does not
desire to acquire the Pipeline Facilities, Fina/BASF upon written notice to
TEPPCO may withdraw its exercise of the Option, and the Closing shall be
cancelled. Upon Fina/BASF's withdrawal of the exercise of the Option, this
Agreement shall terminate and neither Party shall have any liability to the
other for any matters due to the cancellation of the Closing or the termination
of this Agreement, except for (1) any restoration pursuant to the provisions of
paragraph 5(e), (2) the confidentiality obligations of Fina/BASF under Section
5(g), and (3) any indemnification obligations pursuant to the provisions of
Section 5(h).
6. Representations and Warranties of TEPPCO. TEPPCO hereby represents
and warrants to Fina/BASF as follows (such representations and warranties being
deemed repeated at the Closing):
(a) Due Power, Authorizations, etc. TEPPCO has the requisite
power and authority to enter into and perform this Agreement. This Agreement
has been duly authorized by all necessary action on the part of TEPPCO and has
been duly executed by a duly authorized officer of Texas Eastern Products
Pipeline Company, the general partner of TEPPCO.
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(b) Conflicting Instruments. Neither the execution and delivery
of this Agreement nor the consummation of the transactions contemplated hereby
will violate or result in any violation of or be in conflict with or constitute
a default under any term of the Limited Partnership Agreement of TEPPCO or of
any judgment, decree, order, statute, rule or governmental regulation
applicable to TEPPCO.
(c) Property. TEPPCO shall deliver, transfer, assign and convey
the Pipeline Facilities free and clear of liens and encumbrances that would
have a material adverse effect on the operation of the Pipeline Facilities, and
TEPPCO shall remove any liens and encumbrances that can be fully discharged by
the payment of money.
(d) Easements. TEPPCO represents and warrants that all easements,
rights-of-way, permits and licenses will be in full force and effect with
respect to TEPPCO's ownership and operation of the Pipeline Facilities.
7. Documents to be Delivered at Closing
At or prior to the Closing, TEPPCO shall deliver to Fina/BASF the
following documents in original form or if original form is not available, the
next best evidence of same that are in TEPPCO's possession and which pertain to
the Pipeline Facilities:
(a) Leases, easements, rights-of-way, rights-of-entry and access,
environmental permits and other permits, licenses and governmental agency
reports submitted by TEPPCO, franchises and other pertinent documents;
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(b) Fully executed assignments of all rights-of-way agreements
and easement agreements which cover the Pipeline Facilities; and, subject to
the provisions set forth below, consents to the assignments where necessary to
permit TEPPCO to assign such rights-of-way and easement agreements to
Fina/BASF. TEPPCO shall be responsible for all administrative costs in
obtaining such consents to assignment. Such administrative costs shall include,
but not be limited to, filing fees, travel, expenses, labor cost of employees
or contractors to contact grantors of the easements to be assigned and
attorneys' fees in preparation of conveyance instruments. Fina/BASF shall be
responsible for any consideration to be paid to any grantor of an easement for
that grantor's consent to the assignment of such easement to Fina/BASF. In that
regard, TEPPCO shall not agree to such a consideration payment with any grantor
without Fina/BASF's approval, which approval or disapproval shall be promptly
made by Fina/BASF after TEPPCO makes a request for a decision. In the event
TEPPCO is unable to get a consent to an assignment, Fina/BASF shall be
responsible for any condemnation or other action necessary to acquire such
rights-of-way;
(c) Surveys, plans, maps, drawings, certificates, inspection and
maintenance records and specifications of the Pipeline Facilities;
(d) Technical and service manuals relating to the operation and
maintenance of the Pipeline Facilities;
(e) Fully executed rights-of-way agreements granting
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Fina/BASF easements across TEPPCO's fee simple property on which the Pipeline
Facilities are situated. The basic terms of such rights-of-way agreements shall
include that grantor shall not have the right to relocate the pipeline and
appurtenances except upon consent of grantee, that grantor shall provide
grantee a direct and reasonably convenient access to the easement area and
grantor represents that the easement is capable of being used for its intended
purpose and that there are not paramount interests to which the easement is
subject that interfere with grantee's use for the intended purpose. The
foregoing terms shall be in addition to such other reasonable and customary
easement provisions granted to third parties for pipeline operations on fee
simple property owned by TEPPCO; and
(f) All additional documents or instruments that TEPPCO's counsel
and Fina/BASF's counsel may mutually determine are reasonably necessary for the
proper consummation of the transaction contemplated by this Agreement.
8. TEPPCO Covenants. So long as the Option remains in effect, TEPPCO
covenants and agrees that:
(a) TEPPCO shall operate the Pipeline Facilities only in a usual,
regular and ordinary manner; and
(b) TEPPCO will not take any action or enter into any agreement
which would have the effect of frustrating or adversely affecting Fina/BASF's
rights under this Agreement to acquire the Pipeline Facilities. From the time
of the exercise of the Option until Closing, TEPPCO shall not undertake any
actions as would
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adversely change or alter its rights relative to the Pipeline Facilities.
TEPPCO's representations as to the Pipeline Facilities will be based upon
TEPPCO having made a diligent inquiry and investigation into the matters with
respect to which the representations are given.
9. Fina/BASF Covenant. In the event that Fina/BASF exercises the
Option and acquires the Pipeline Facilities, Fina/BASF represents and covenants
that it will continue to operate the Pipeline Facilities after any such
acquisition and that the Pipeline Facilities will be operated as common carrier
pipeline facilities in all respects.
10. Environmental Indemnities.
(a) FINA/BASF INDEMNITY. AT CLOSING FINA/BASF SHALL ASSUME,
INDEMNIFY AND HOLD TEPPCO HARMLESS AGAINST ALL ENVIRONMENTAL LIABILITIES
RELATED TO THE PIPELINE FACILITIES THAT ARE ATTRIBUTABLE TO A FACT OR EVENT
WHICH OCCURS ON OR AFTER CLOSING.
(b) TEPPCO INDEMNITY. AT CLOSING TEPPCO SHALL RETAIN, INDEMNIFY
AND HOLD FINA/BASF HARMLESS AGAINST ALL ENVIRONMENTAL LIABILITIES RELATED TO
THE PIPELINE FACILITIES THAT ARE BASED ON A FACT OR EVENT WHICH OCCURRED PRIOR
TO CLOSING.
(c) Change in Laws. Notwithstanding anything herein to the
contrary, any indemnification by TEPPCO under this Agreement for any Losses to
Fina/BASF for Environmental Liabilities shall be deemed to specifically
exclude, and neither TEPPCO nor its Affiliates shall be liable for any Losses
to Fina/BASF for
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Environmental Liabilities resulting from a change in any Laws including
Environmental Laws on or after the Closing.
(d) Remediation. To the extent that remediation is required under
TEPPCO's Indemnity obligations pursuant to Section 10(b), TEPPCO shall be
responsible for and perform or cause to be performed all such remediation
activities. TEPPCO, in its sole judgment, shall determine the proper protocol
and plans for any such remediation and clean up work and shall be responsible
for conducting such work in accordance with applicable Environmental Laws.
(e) (1) TEPPCO's indemnity obligation under Section 10(b) shall
survive Closing for a period of five (5) years, provided that such
indemnification obligation shall continue as to any matter which Fina/BASF has
properly asserted a Claim under Section 10(f) during such five (5) year period.
(2) Fina/BASF's indemnity obligations under Section 10(a)
shall survive Closing without limitation.
(3) In the event Fina/BASF sells or otherwise transfers the
Pipeline System to a Third Party both Fina/BASF's indemnity obligations and
TEPPCO's indemnity obligations under Sections 10(a) and 10(b) of this
Agreement, respectively, shall thereupon terminate.
(f) All claims for indemnification by a party under this Section
10 (the party claiming indemnification and the party against whom such claims
are asserted being hereinafter called the "Indemnified Party" and the
"Indemnifying Party," respectively)
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shall be asserted and resolved as follows:
(1) In the event that any Claim for which an Indemnifying Party
would be liable to an Indemnified Party hereunder is asserted against or sought
to be collected from such Indemnified Party by a third party, such Indemnified
Party shall, within 45 calendar days of the receipt thereof, give notice (the
"Claim Notice") to the Indemnifying Party of such Claim, specifying the nature
of and specific basis for such Claim and the amount or the estimated amount
thereof to the extent then feasible, which estimate shall not be binding upon
the Indemnifying Party in its effort to collect the final amount of such Claim.
The failure to so notify the Indemnifying Party of any such Claims shall
relieve the Indemnifying Party from liability that it may have to the
Indemnified Party under the indemnification provisions contained in this
Section 10, but only to the extent of the loss directly attributable to such
failure to notify, and shall not relieve the Indemnifying Party from any
liability that it may have to the Indemnified Party otherwise than under this
Section 10.
(2) The Indemnifying Party shall be given the opportunity, at its
cost and expense, to contest and defend by all appropriate legal proceedings
any Claim with respect to which it is called upon to indemnify the Indemnified
Party under the provisions of this Agreement; provided, however, that notice of
the intention so to contest and defend shall be delivered by the Indemnifying
Party to the Indemnified Party within thirty (30) days following receipt of the
notice provided for in Section 10(f)(1) above. If
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the Indemnifying Party does not give notice to the Indemnified Party of its
election to contest and defend any such Claim within such period then the
Indemnifying Party shall be bound by the result obtained with respect thereto
by the Indemnified Party and shall be responsible for all costs incurred in
connection therewith. The Claim which the Indemnifying Party elects to contest
and defend may be conducted in the name and on behalf of the Indemnifying Party
or the Indemnified Party as may be appropriate. Such Claim shall be conducted
by counsel employed by the Indemnifying Party who shall be reasonably
satisfactory to the Indemnified Party, and the Indemnified Party shall have the
right to participate in such Claim and to be represented by counsel of its own
choosing at its cost and expense. If the Indemnified Party joins in any such
Claim, the Indemnifying Party shall have full authority to determine all action
to be taken with respect thereto; provided that if the Indemnifying Party
reserves its rights with respect to its indemnification obligations under this
Agreement as to such Claim, then the Indemnified Party shall have the full
authority to determine all action to be taken with respect thereto. At any time
after the commencement of defense of any Claim, the Indemnifying Party may
request the Indemnified Party to agree in writing to the abandonment of such
contest or to the payment or compromise by the Indemnifying Party of the
asserted Claim, provided the Indemnifying Party agrees in writing to be solely
liable for all losses relating to such Claim; whereupon such action shall be
taken unless the Indemnified Party determines that the
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contest should be continued and notifies the Indemnifying Party in writing
within fifteen (15) days of such request from the Indemnifying Party. In the
event that the Indemnified Party determines that the contest should be
continued, the amount for which the Indemnifying Party would otherwise be
liable hereunder shall not exceed the amount which the Indemnifying Party had
agreed to pay in payment or consideration of such Claim, provided the other
Person to the contested Claim had agreed in writing to accept such amount in
payment or compromise of the Claim as of the time the Indemnifying Party made
its request therefor to the Indemnified Party, and further provided that, under
such proposed compromise, the Indemnified Party would be fully and completely
released from any further liability or obligation with respect to the matters
which are the subject of such contested Claim.
(3) If requested by the Indemnifying Party, the Indemnified Party
agrees, at the Indemnifying Party's expense, to cooperate with the Indemnifying
Party and its counsel in contesting any Claim that the Indemnifying Party
elects to contest, or, if appropriate and related to the Claim in question, in
making any counterclaim against the Person asserting the Claim, or any
cross-complaint against any Person other than an Affiliate of the Indemnified
Party.
(4) If any Indemnified Party should have a Claim against the
Indemnifying Party hereunder that does not involve a Claim being asserted
against or sought to be collected from it by a Person not a party to this
Agreement, the Indemnified Party shall
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send a Claim Notice with respect to such Claim to the Indemnifying Party. If
the Indemnifying Party disputes such Claim, such dispute shall be resolved by
agreement or otherwise.
(5) The Indemnified Party agrees to afford the Indemnifying Party
and its counsel the opportunity, at the Indemnifying Party's expense, to be
present at, and to participate in, conferences with all Persons asserting any
action against the Indemnified Party and conferences with representatives of or
counsel for such Persons.
11. Miscellaneous.
(a) Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
(b) Further Assurances. From time to time after the Closing date,
at Fina/BASF's reasonable request and at Fina/BASF's sole expense, TEPPCO will
execute and deliver all such other instruments of conveyance, assignment,
transfer and delivery and take all such other actions as Fina/BASF may
reasonably request in order to more fully effectuate this Agreement, and to
place Fina/BASF in possession and control of the Pipeline Facilities and any
properties and rights thereof, or assist in the collection or reduction to
possession of any and all such assets, properties or rights or to enable
Fina/BASF to exercise and enjoy all rights and
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benefits of TEPPCO with respect thereto. In connection with any such
conveyance, assignment, transfer or delivery, Fina/BASF shall reimburse TEPPCO
for any costs and expenses TEPPCO incurs as a result of any such assistance to
Fina/BASF pursuant to this paragraph 11(b), except for any administrative costs
incurred by TEPPCO pursuant to Section 7(b).
(c) EXCEPT AS PROVIDED IN SECTION 11(H), TEPPCO AND FINA/BASF
AGREE THAT ONLY ACTUAL DAMAGES AND LOSSES SHALL BE RECOVERABLE UNDER THIS
AGREEMENT. TEPPCO AND FINA/BASF HEREBY WAIVE ANY RIGHT TO RECOVER SPECIAL,
PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES.
(d) Expenses. Except as otherwise provided herein, each Party
hereto shall pay its own expenses incurred in connection with this Agreement.
(e) Assignment. Neither Fina, BASF, LP nor TEPPCO may sell,
transfer, assign, pledge or hypothecate, in each case, by operation of law,
change in control or otherwise, its rights, interests or obligations under this
Agreement without the full consent of the other Parties; provided, however,
Fina, BASF, LP and TEPPCO shall have the right, without the consent of any of
the other Parties, to assign all its rights and obligations under this
Agreement to an Affiliate or to a Third Party purchaser of all the assets of a
Party to which this Agreement pertains provided that such Affiliate or Third
Party has sufficient assets and financial strength acceptable to the other
Parties, which acceptance shall not be unreasonably withheld; and further
provided that
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contemporaneously with the assignment of such interest, the Affiliate or Third
Party to whom such interest is being assigned shall deliver to the other
Parties to this Agreement a written agreement pursuant to which such Affiliate
or Third Party agrees (i) to be bound by all the terms and provisions of this
Agreement and any agreement referenced herein; and (ii) to perform and
discharge the obligations and liabilities set forth in this Agreement and such
other agreements. In the event TEPPCO should assign its rights and obligations
under the Transportation Agreement to a Third Party, TEPPCO shall likewise
assign its rights and obligations under this Agreement to such Third Party.
(f) Amendments. This Agreement may not be modified, amended,
altered or supplemented except upon the execution and delivery of a written
agreement executed by the Parties hereto. However, any Party may waive any
condition to the obligations of such Party hereunder.
(g) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by personal delivery or by mail
(registered or certified mail, postage prepaid, return receipt requested) to
the respective Parties as follows:
If to Fina/BASF:
Fina Oil and Chemical Company
0000 Xxxxxx Xxxxx
Xxxxx, Xxxxx 00000-0000
Attention: General Counsel
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BASF Corporation
0000 Xxxxxxxxxxx Xxxxx - Xxxxx
Xxxxx Xxxxx, Xxx Xxxxxx 00000-0000
Attention: Vice President - Special Projects
BASF Fina Petrochemicals, Limited Partnership
Xxx 000 @ Gate 00 xxx Xxx 00
Xxxx Xxxxxx, Xxxxx 00000
Attention: Plant Manager
If to TEPPCO:
Texas Eastern Products Pipeline Company
0000 Xxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Vice President - Business Development
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address as any Party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt.
(h) Remedies. TEPPCO agrees that if for any reason Fina/BASF
shall have exercised its rights under the Option and TEPPCO shall have failed
to sell and transfer the Pipeline Facilities to Fina/BASF in accordance
therewith or to perform its other obligations under the Option, then Fina/BASF
shall be entitled to specific performance and injunctive and other equitable
relief.
(i) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Texas without
giving effect to the principles of conflict of laws thereof. (j) Counterparts.
This Agreement may be executed in several counterparts, each of which shall be
an original, but all
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of which together shall constitute one and the same agreement.
(k) Effect of Headings. The paragraph headings herein are for
convenience only and shall not affect the construction thereof.
(l) Third Party Beneficiaries. Except to the extent a Third Party
is expressly given rights herein, any agreement contained, expressed or implied
in this Agreement shall be only for the benefit of the Parties hereto and their
respective legal representatives, successors and assigns, and such agreements
shall not inure to the benefit of the obligees of any indebtedness of any Party
hereto, it being the intention of the Parties hereto that no person or entity
shall be deemed a Third Party beneficiary of this Agreement, except to the
extent a Third Party is expressly given rights herein.
(m) TEPPCO's Notification Obligation. In the event TEPPCO should
sell the Pipeline Facilities to a Third Party, TEPPCO shall prior to such sale
notify such Third Party of the provisions of this Agreement and upon the
consummation of such sale assign its rights and obligations under this
Agreement to such Third Party. TEPPCO agrees to indemnify and hold Fina/BASF
harmless from and against any Claims or Losses Fina/BASF incurs as a result of
TEPPCO not complying with the provisions of this Section 11(m).
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IN WITNESS WHEREOF, Fina/BASF and TEPPCO have executed the
Agreement as of the date first written above.
Fina Oil and Chemical Company
By: /s/ XXXXXXX X. XXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxx
-------------------------------------
Title: SENIOR VICE PRESIDENT
------------------------------------
BASF CORPORATION
By: /s/ XXXX X. XXXXXXXX
---------------------------------------
Name: Xxxx X. Xxxxxxxx
-------------------------------------
Title: EXECUTIVE VICE PRESIDENT
------------------------------------
BASF FINA PETROCHEMICALS
LIMITED PARTNERSHIP BY ITS
GENERAL PARTNERS
FINA OIL AND CHEMICAL COMPANY
By: /s/ XXXXXXX X. XXXXX
------------------------------
Name: Xxxxxxx X. Xxxxx
----------------------------
Title: SENIOR VICE PRESIDENT
---------------------------
BASF CORPORATION
By: /s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------
Title: VICE PRESIDENT
---------------------------
TE PRODUCTS PIPELINE COMPANY,
LIMITED PARTNERSHIP, BY TEXAS
EASTERN PRODUCTS PIPELINE COMPANY,
GENERAL PARTNER
By: /s/ XXXXX XXXXXXX
---------------------------------------
Name: Xxxxx Xxxxxxx
-------------------------------------
Title: VICE PRESIDENT
------------------------------------
23
