EXHIBIT 2.2
AMENDMENT NO. 1 TO ASSET PURCHASE AND SALE AGREEMENT
This Amendment No. 1 to the Asset Purchase and Sale Agreement
("Amendment") is made the 31st day of August 2000 between Ultramar Diamond
Shamrock Corporation, a Delaware corporation, ("Ultramar") and Tosco
Corporation, a Nevada corporation, ("Tosco").
W I T N E S S E T H
WHEREAS, Ultramar and Tosco have entered into that certain Asset
Purchase and Sale Agreement dated August 4, 2000 ("the Agreement"); initially
capitalized terms used herein and not otherwise defined have the meanings
assigned to them in the Agreement; and
WHEREAS, Ultramar and Tosco desire to amend the Agreement in accordance
with the amendment provisions in Section 19.02 thereof as set forth herein;
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged parties hereto agree as follows:
(1) Amendment to Section 1.01 - Definitions
The definition "Effective Time" is deleted in its entirety and
replaced with the following:
"Effective Time" shall mean 11:59 P.M. Pacific
Daylight Time or Pacific Standard Time, as
applicable, on the day of the closing date.
(2) Amendment to Section 3.02
(a) Sections 3.02(a) and 3.02 (b) are amended by deleting
the word "Buyer" and replacing it with the words
"Buyer or Buyer's Affiliate, Ultramar Inc., a Nevada
corporation," wherever the word "Buyer" appears in
Sections 3.02(a) and 3.02(b).
(b) Section 3.02(b)(iv) is further amended by inserting
the words "or Nevada" in the second line after the
word "Delaware."
(c) Section 3.02(b)(v) is further amended by inserting
the words "or Nevada" in the second line after the
word "Delaware."
(d) Section 3.02(c) is deleted in its entirety and
replaced with the following:
"(c) At the Closing, Buyer or Buyer's Affiliates and
Seller or Seller's Affiliates shall enter into the
following agreements:
(i) Transition Services Agreement, as set
forth in Exhibit E.
(ii) California SJV Heavy Crude Oil Supply
Agreement, as set forth in Exhibit F.
(iii) Elk Hills Crude oil Supply Agreement,
as set forth in Exhibit G.
(iv) Product Offtake Agreements, as set forth
in
Exhibit H-1 Las Vegas.
Exhibit H-2 AZBob.
Exhibit H-3 CARBob.
Exhibit H-4 CARB GATX.
Exhibit H-5 ConvReno.
(v) Transportation Agreement for TRPP Pipe-
line, as set forth in Exhibit I.
(vi) Crude Re-injection Agreement, as set
forth in Exhibit J.
(vii) T-2 Diesel Fuel License Agreement, as
set forth in Exhibit K.
(viii) Tosco Diesel Fuel License Agreement, as
set forth in Exhibit L.
(ix) Lease with Option to Purchase, as set
forth in Exhibit M.
(x) Access Easement, as set forth in Exhibit
N.
(3) Amendment to Section 3.03(b). Section 3.03(b) is hereby
amended by deleting the words "two independent inspectors
("Testing Agents")" in the third line and replacing them with
"one independent inspector ("Testing Agent")". Section 3.03(b)
is further amended by replacing the term "Testing Agents" with
the term "Testing Agent" wherever such terms appear in Section
3.03(b).
(4) Amendment to Section 14.05.
--------------------------
(a) Section 14.05 is hereby amended by inserting the
following section:
"(c) Notwithstanding any provisions to the contrary
contained in this Article 14 or in any other
agreement, the parties agree that Buyer's sole and
exclusive remedy for breach of the representation and
warranty set forth in Section 5.10(c)(v) is set forth
in Section 3.3 of the Tosco Diesel Fuel License
Agreement executed as of even date herewith. Any
claim for breach of the representation and warranty
in Section 5.10(c)(v) must be made in accordance
with, and shall otherwise be governed by, the terms
of this Article 14."
(b) Section 14.05 is hereby amended by renumbering the last
section (Section 14.05(c) in the Agreement) as (d).
(5) Revision of Schedules. The Schedules to the Agreement listed
below are hereby deleted and replaced with the revised
Schedules which are attached to this Amendment.
Schedule 1.01A Contracts
Schedule 1.01H Excluded Contracts
Schedule 3.01(a)(i) Inventory Values
Schedule 5.10 Permits
Schedule 13.08(b) Seller's Remediation Projects
Schedule 19.16 Price Allocation
(6) Revision of and Addition of Exhibits. Exhibits A-I are deleted
in theier entirety and replaced with the revised Exhibits
attached hereto and incorporated into the Agreement. These
Exhibits are further supplemented by the additional Exhibits
set forth in Section 1(d) of this Amendment, also attached
hereto and incorporated into the Agreement.
(7) Construction. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York
without giving effect to its conflicts-of-laws principles
(other than any provisions thereof validating the choice of
the laws of the State of New York as the governing law). Both
parties submit to the jurisdiction of the federal district
courts of the Southern District of New York as the proper
venue for any and all litigation and or disputes related to
the Amendment or the Agreement.
(8) Effect of Amendment. Except as expressly amended hereby, the
Agreement shall remain unchanged and in full force and effect.
To the extent any terms or provisions of this Amendment
conflict with those of the Agreement, the terms and provisions
of this Amendment shall control. This Amendment shall be
deemed part of and is hereby incorporated into the Agreement.
(9) Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original
instrument.
(10) Amendments. This Amendment cannot be altered, amended, changed
or modified in any respect or particular unless each such
alteration, amendment, change or modification shall have been
agreed to by each of the parties hereto and reduced to writing
in its entirety and signed and delivered by each party.
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IN WITNESS WHEREOF, the parties have executed this Amendment on the day and
year first written above.
TOSCO CORPORATION
By: /s/ Dwight L. Wiggins
Its: Executive Vice President
ULTRAMAR DIAMOND SHAMROCK CORPORATION
By: /s/ William R. Klesse
Its: Executive Vice President
