Filed by Bowne Pure Compliance



 




Exhibit 10.68




ASSIGNMENT AGREEMENT (THE “AGREEMENT”) ENTERED INTO BY AND BETWEEN RIO VISTA OPERATING
PARTNERSHIP, L.P. (HEREINAFTER REFERRED TO AS THE “ASSIGNOR”), AND TRANSMONTAIGNE PARTNERS
L.P. AND. TRANSMONTAIGNE PRODUCT SERVICES, INC. (HEREINAFTER REFERRED TO AS THE
“ASSIGNEES”) PURSUANT TO THE FOLLOWING RECITALS, STATEMENTS AND CLAUSES:



R E C I T A L S





	A.	 	TLP and RVOP are parties to a Letter of Intent (the “LOI”) dated September 12. 2007
pursuant to which TLP is paying RVOP a refundable deposit in the amount of Six Million Five
Hundred Thousand Dollars ($6,500,000.00) (the “Deposit”) in connection with the
proposed purchase of certain of RVOP’s assets.







	B.	 	TPSI and RVOP are parties to that certain Restated and Amended Promissory Note (the
“Promissory Note”) in the principal sum of One Million Dollars ($1,000,000.00), dated
September 12, 2007, pursuant to which RVOP has agreed to pay to TPSI the principal sum
together with interest (the “Loan”) pursuant to the terms and conditions set forth in
the Promissory Note.







	C.	 	The obligations of RVOP under the LOI to refund the Deposit and under the Promissory Note to
repay the Loan (collectively, the “Secured Obligations”) are secured by a security
interest in specified collateral as set forth in that certain Restated and Amended Security
Agreement (as amended, restated, supplemented or otherwise modified from time to time, the
“Security Agreement”), dated September 12, 2007, entered into by and among RVOP and
the Pledgees.







	D.	 	Pursuant to the obligations assumed by RVOP under the RVOP Agreements, and as security for
the timely payment in full when due (whether at stated maturity, by acceleration or otherwise)
of the Secured Obligations, (i) Pledgor shall execute and deliver this Agreement in order to
assign, upon an event of default under the RVOP Agreements, certain rights and actions that
Pledgor is entitled in connection to the equity interests issued by Tergas, S. de R.L. de C.V.
(“Tergas”), and (ii) RVOP will cause certain other agreements (the “Other Mexican
Security Documents”) to be executed and delivered granting a perfected first priority pledges
and security interests to Pledgees in and to one hundred percent of the corporate capital of
Penn Octane de Mexico, S. de R.L. de C.V. and in Penn Octane de Mexico, S. de R.L. de C.V.







	E.	 	The LOI, the Promissory Note, the Security Agreement and the Other Mexican Security Documents
are referred to herein as the “RVOP Agreements”). Capitalized terms used herein and
not defined herein shall have the meaning assigned to such terms in the Security Agreement.







 


 









 







S T A T E M E N T S





	I.	 	The Assignor, through its trust delegates, hereby declares that:







	 	a)	 	It is a Delaware partnership organized under the laws of Delaware.







	 	b)	 	It has all the necessary and sufficient authority to enter into this Agreement
and to perform its obligations hereunder and has been authorized to enter into this
Agreement through all required internal resolutions.







	 	c)	 	It has executed certain option purchase agreements to purchase all the equity
interests that represent all the capital of Tergas (“Option Agreements”).







	 	d)	 	The partners of Tergas have granted irrevocable powers of attorney to the
Assignor to freely vote the equity interests that represent all the capital of Tergas
(“Stock Powers”).







	 	e)	 	The Option Agreements and the Stock Powers allow the Assignor to assign or
delegate its rights and actions under the Option Agreements and the Stock Powers
(“Tergas Rights”).







	 	f)	 	Its representative is duly authorized to enter into this Agreement on behalf of
the Trustee, which authority has not been limited, revoked or modified in any way.







	 	g)	 	The entering into this Agreement and the performance of its obligations
hereunder do not contravene or result in a breach of (i) its trust purpose or (ii) any
applicable law or any agreement to which it is a party.







	 	h)	 	This Agreement constitutes a legal, valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with its terms.







	II.	 	Each Assignee, through its legal representatives, hereby declares that:







	 	a)	 	It is a company or limited partnership duly organized, validly existing and in
good standing under the laws of the United States of America.







	 	b)	 	Its legal representative has the authority to obligate the Assignees in terms
of this Agreement, and such authority has not been limited or revoked in any way.







	 	c)	 	It has the power and authority to enter into this Agreement, it has obtained
the requisite corporate, other third party and governmental authorizations and
approvals, and has made all filings necessary to, enter into this Agreement, to perform
its obligations hereunder.







	 	d)	 	The entering into this Agreement and the performance of its obligations
hereunder do not contravene or result in any breach of (i) its by-laws and articles or
incorporation, (ii) any applicable law, rule, decree or authorization
(including any license or concession) applicable to Assignees, or (iii) any
agreement of any nature whatsoever to which Assignees may be a party.







	 	e)	 	This Agreement constitutes a legal, valid and binding obligation of Assignees,
enforceable against Assignees in accordance with its terms.






Based on the above, the Parties hereby state that they consent that this Agreement is governed
by the aforementioned Recitals and Statements and by the following:




 


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C L A U S E S




FIRST. Assignment. Assignor, upon the occurrence of a default under any of the RVOP
Agreements (an “Event of Default”), by means of this Agreement irrevocably assigns and
transfers to the Assignees the Tergas Rights until the Secured Obligations under the RVOP
Agreements have been paid in satisfaction of the Assignees. The Assignor and the Assignees agree
(i) that the Tergas Rights shall not be modified without the prior written consent of Assignees;
and (ii) upon Assignees’ request and during the term of this Agreement, the Assignor shall carry
out any necessary act to guarantee that the Tergas Rights would not be modified or affected.



Assignor hereby agrees to grant an irrevocable power of attorney in favor of Assignees as the
exclusive authorized party to exercise the Stock Powers upon an Event of Default. In addition,
Assignor agrees that, upon an Event of the Default, all of its rights under such Stock Powers shall
be waived in favor of Assignees.



The assignment of the Tergas Rights shall not constitute payment, release or novation of the
obligations of RVOP under RVOP Agreements, unless such obligations are effectively being paid with
the proceeds of the sale of the Tergas Rights to a third party. The Assignees shall not assume any
obligations of the Assignor related to the Tergas Rights. Such obligations shall remain with the
Assignor, who shall comply with such in its totality. The Assignor does not have or retain any
rights to challenge the assignment of the Tergas Rights.



SECOND. Obligations. The Assignor, in addition to comply with any other obligations under
this Agreement or applicable law, shall:



(a) Give notices to the applicable parties and comply with the applicable requirements and
formalities in order to make effective such assignment of Tergas Rights, including notification
through Notary Public to Messrs. José Vicente Soriano García and Dennis Michael Sánchez, partners
of Tergas, of the assignment referred to herein.



(b) Carry out all the necessary or convenient acts to maintain the Tergas Rights and the rights of
the Assignees under this Agreement.



(c) Unless otherwise provided in this Agreement, not sell, pledge, assign, transfer, sell, lien or
in any other way convey the Tergas Rights, or accept a lien on the Tergas Rights by any person
other than the Assignees.


 


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THIRTH. Further Assurances. Parties hereto hereby agree to execute and deliver such
further documents and to take such further actions as may reasonably be required to effect the
transactions contemplated hereby.



FOURTH. Notifications. All notices, claims, instructions, or other communications to be
given under this Agreement shall be given in writing and will be deemed duly given when (a)
personally delivered, or (b) sent by courier to the address mentioned below or such other address
notified in writing from time to time to the other Parties, same which will be effective two days
after receipt.



To Assignor:




Rio Vista Operating Partnership, L.P.

902 Chemical Road,

Brownsville, Texas 78251

Attention: President



To Assignees:




c/o TransMontaigne Product Services, Inc.

1670 Broadway, Suite 3100

Denver, Colorado

Attention: President



FIFTH. Successors, Assignees and Beneficiaries. The Agreement herein shall be obligatory
and shall benefit the Assignor, the Assignees and their respective successors, assignees and
beneficiaries, in the understanding that Assignor shall not be able to assign, total or partially,
its rights or obligations deriving from this Agreement, without previous written consent from the
Assignees.



SIXTH. Amendments to the Agreement. The Parties hereby agree that none of the terms or
conditions established in this Agreement may be amended, unless such amendments are evidenced in
writing and signed by each Party and formalized as required by applicable law to be valid and
binding.



SEVENTH. Applicable Law and Jurisdiction. This Agreement will be governed by the laws of
Mexico. For the interpretation, execution and fulfillment of this Agreement, the Parties
irrevocably and expressly submit to the laws and courts of Mexico, City, Mexico, expressly waiving
any other jurisdiction that may correspond to them because of their actual or future domiciles or
for any other cause.



EIGHTH. Headings. Every title of the clauses, sections, subsections and any other division
of this Agreement, are used only to enable references, for which they shall not affect the contents
of the clauses, sections, subsections and other divisions of this Agreement, in the understanding
that its contents shall be ruled by the agreements of the Parties established in this Agreement.


 


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NINTH. Taxes. Each party hereto will pay the taxes, if any, deriving from the execution
of this Agreement, as provided by applicable law.



TENTH. Total Agreement. This Agreement contains the total agreement between the Assignor
and the Assignees and substitutes any and all previous agreements or understandings between such
Parties referred to this Agreement. There are no verbal agreements between the Parties. In case
there is any conflict or inconsistency between the previous written communication between the
Assignor and the Assignees and this Agreement, the terms used in this Agreement shall prevail for
all legal effects.



ELEVENTH. No Waiver. Except as expressly modified or amended herein, each of the Tergas
Rights shall continue to be, and shall remain in full force and effect. This Agreement shall not be
deemed to be a waiver of, or consent to, or a modification or amendment of, any other term and
condition contained in the Tergas Rights or to prejudice any other right or rights which the
parties may now have or may have in the future under or in connection with such documents or any
instruments or agreements referred to therein, as amended from time to time.


 


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IN WITNESS WHEREOF, the Parties execute this Agreement effective as of the 12th day of
September 2007.



ASSIGNOR:




Rio Vista Operating Partnership, L.P.

By Rio Vista Operating GP LLC,

its General Partner




 



 

Name: Ian T. Bothwell

Title: Vice President, Chief Financial Officer



 




ASSIGNEES:




TransMontaigne Partners L.P.

By TransMontaigne Operating GP L.L.C.,

its General Partner




 



 

Name: William S. Dickey

Title: Executive Vice President & Chief Operating Officer



 



TransMontaigne Product Services, Inc.



 



 

Name: William S. Dickey

Title: President and Chief Operating Officer




 


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