EXHIBIT 2.2
AMENDMENT NO. 1 TO SALE OF ASSETS AGREEMENT
Amendment No. 1 dated as of June 30, 1999 (this "Amendment") to the Sale of
Assets Agreement (as defined below) between Amerada Xxxx Corporation, a Delaware
corporation ("Seller") and TransMontaigne Terminaling Inc., an Arkansas
corporation ("Buyer").
WITNESSETH:
WHEREAS Buyer and Seller have entered into a Sale of Assets Agreement dated
May 3, 1999 (the "Agreement"); and
WHEREAS, Buyer and Seller desire to amend the Agreement.
NOW, THEREFORE, in consideration of the premises, and intending to be
legally bound by this Amendment, the Buyer and Seller hereby agree as follows:
1. Definitions. All capitalized terms not defined herein shall have the
-----------
respective meanings assigned to such terms in the Agreement.
2. Amendments. Effective as of the date hereof, the Agreement is hereby
----------
amended as follows:
a) Article 1 on page 1 of the Agreement is hereby amended by
inserting the words "or, with respect to the Petroleum Inventory
(as defined in subparagraph (d) below), to Buyer's designee"
immediately after the first reference to Buyer; by inserting the
words "or its designee" after the second reference to Buyer in
the first line of such Article 1; and by adding the words "or,
with respect to the Petroleum Inventory, to Buyer's designee,"
after the reference to Buyer in the last line of Article 1.
b) Paragraph 2.3 on page 2 of the Agreement is hereby amended by
inserting the words "for itself and, with respect to the
Petroleum Inventory, on behalf of its designee" after the
reference to Buyer in the first line of said Paragraph.
c) Paragraph 2.4 on page 2 of the Agreement is hereby amended by
inserting the words "on behalf of its designee" after the
reference to Buyer in the first line of said Paragraph.
d) Paragraph 4.4 on page 6 of the Agreement is hereby amended by
deleting the word "Buyer" in the second line thereof and by
inserting in lieu thereof the words "Buyer's designee"; by
inserting the words "or its designee" after the reference to
Buyer in the last line of said Paragraph on page 6 of the
Agreement; by inserting the words "on behalf of its designee"
after the reference to Buyer in the first line of said Paragraph
at the top of page 7 of the Agreement; and by inserting the words
"on behalf of its designee" after the
reference to Buyer in the last sentence of said Paragraph on page
7 of the Agreement.
e) Paragraph 16.3 on page 37 of the Agreement is hereby amended by
adding the words "for itself and on behalf of its designee (with
respect to the Estimated Petroleum Inventory Price)" after the
reference to Buyer in the first line of said Paragraph.
f) A new Paragraph 26.4 shall be added as follows:
"26.4 Use Restrictions - Xxxxxx Property. With respect to that
----------------------------------
certain parcel of real property retained by Seller that is
contained within the parcels of real property purchased by Buyer
at Purvis, Mississippi consisting of approximately 29 acres and
as more fully described on the survey attached hereto as Exhibit
26.4 (the "Refinery Property"), Seller covenants and agrees
during the term of its ownership of such property not to use or
develop such Refinery Property for any commercial purpose which
in Buyer's reasonable judgment could constitute a hazard to or
significantly impair Buyer's ability to conduct its refined
product terminaling and storage business on property adjacent
thereto, or for residential purposes, including such commercial
uses as would have a similar effect, such as the construction or
operation of hotels, motels, hospitals, nursing homes and the
like so as to limit the utilization of such Refinery Property by
humans as much as possible, except as needed to conduct
operations or activities thereon as currently conducted by
Seller, including Cleanup activities to be conducted thereon by
Seller or its contractors or subcontractors pursuant to this
Agreement. Further, in the event Seller should lease or sell and
convey all or any portion of such Refinery Property, Seller
agrees to incorporate such use restrictions herein referenced in
the lease or other conveyance document such that any lessee or
acquiror of such Refinery Property shall agree to such use
limitations."
g) A new Article 26.5 shall be added as follows:
"26.5 Refinery Property-Right of First Refusal. Seller
----------------------------------------
grants Buyer, including its successors and assigns, a right of
first refusal to acquire the Refinery Property, which right shall
be perpetual. In the event Seller should receive a bona fide
third party offer for the Refinery Property which Seller desires
to accept (the "Bona Fide Offer"), Seller shall give prompt
written notice thereof to Buyer, including the material terms and
conditions thereof and the name and address of the offeror
("Seller's Notice"). Buyer shall have 30 days after receipt of
Seller's Notice to agree, in writing, to match the Bona Fide
Offer. Should Buyer fail to respond to Seller's Notice within the
required time period or refuse to match the Bona Fide Offer,
Seller may proceed to accept and consummate (the "Third Party
Closing") the Bona Fide Offer upon the terms and conditions
previously disclosed to Buyer. In the event any of the material
terms of the Bona Fide Offer should change prior to the Third
Party
2
Closing, then the right of first refusal granted herein shall be
reinstated and the procedures outlined above shall recommence."
h) A new Article 27 shall be added as follows:
"27. Buyer's Designee. For the purposes of Article 1 and
----------------
Paragraphs 2.3, 2.4, 3.4, 4.4, 15.10, 16.3 and 16.4 hereof, all
references to Buyer's designee shall be deemed to make reference
to TransMontaigne Product Services Inc., a Delaware corporation,
a wholly-owned subsidiary of TransMontaigne Inc. and an affiliate
of Buyer."
i) Exhibit 3.4 and Schedule 1.b shall be deleted in their entirety
and replaced by the Exhibit 3.4 and Schedule 1.b attached hereto.
Exhibit 4.4 shall be amended by adding the "Exhibit 4.4
(continued)" attached hereto.
j) Paragraph 26.3 shall be amended by adding the following phrase to
the end of the sentence:
", all in accordance with the procedures and schedules set
forth in Exhibit 4.4."
3. Governing Law. This Amendment shall be governed by and construed in
-------------
accordance with the internal laws of the State of New York applicable
to agreements made and to be performed entirely within such State,
without regard to the conflicts of law principles of such State.
4. Continuation. The parties hereto agree and acknowledge that the
------------
Agreement, as amended by this Amendment, continues in full force and
effect according to its terms.
5. Counterparts. This Amendment may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original, but all
such separate counterparts shall together constitute one and the same
instrument.
3
IN WITNESS WHEREOF, the parties hereto have each caused this Amendment to
be duly executed and delivered as of the day and year first above written.
AMERADA XXXX CORPORATION
By: /s/ F. Xxxxx Xxxxx
-------------------
Name: F. Xxxxx Xxxxx
---------------
Title: Senior Vice President
----------------------
TRANSMONTAIGNE TERMINALING INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------
Name: Xxxxxxx X. Xxxxx
-----------------
Title: Senior Vice President
----------------------
4
