UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported): May 12, 2015
PBF ENERGY INC.
PBF HOLDING COMPANY LLC
(Exact Name of Registrant as Specified in its Charter)
Delaware | 001-35764 | 45-3763855 | ||
Delaware | 333-186007 | 27-2198168 | ||
(State or other jurisdiction | (Commission | (I.R.S. Employer | ||
of incorporation or organization) | File Number) | Identification Number) |
One Sylvan Way, Second Floor
Parsippany, New Jersey 07054
(Address of the Principal Executive Offices) (Zip Code)
(973) 455-7500
(Registrants Telephone Number, including area code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K Filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. | Entry into a Material Definitive Agreement |
Delaware City Products Pipeline and Truck Rack Acquisition
Contribution Agreement
On May 14, 2015, PBF Energy Company LLC (PBF LLC), a subsidiary of PBF Energy Inc. (PBF Energy) closed the previously announced transactions contemplated by the Contribution Agreement dated as of May 5, 2015 between PBF LLC and PBF Logistics LP (the Partnership), a consolidated subsidiary of PBF Energy. Pursuant to the Contribution Agreement, PBF LLC contributed to the Partnership all of the issued and outstanding limited liability company interests of Delaware Pipeline Company LLC (DPC) and Delaware City Logistics Company LLC (DCLC), whose assets consist of a products pipeline, truck rack and related facilities located at PBF Energys Delaware City refinery (the Delaware City Products Pipeline and Truck Rack Assets) for total consideration payable to PBF LLC of $143.0 million, consisting of $112.5 million of cash and $30.5 million of Partnership common units, or 1,288,420 common units. The cash consideration was funded by the Partnership with $88.0 million in proceeds from the Partnerships 6.875% Senior Notes due 2023, sale of approximately $0.7 million in marketable securities and $23.8 million in borrowings under the Partnerships revolving credit facility. The Partnership borrowed an additional $0.7 million under its revolving credit facility to repay $0.7 million of its outstanding term loan in order to release the $0.7 million in marketable securities that had collateralized the Partnerships term loan.
Each of the parties to the Contribution Agreement is a direct or indirect subsidiary of PBF Energy. As a result, certain individuals, including officers of PBF Energy and officers and directors of PBF Logistics GP (PBF GP), the general partner of the Partnership, serve as officers and/or directors of one or more of such entities. Following the closing, PBF Energy, through its consolidated subsidiaries, owns 2,572,944 common units and 15,886,553 subordinated units of the Partnership, collectively representing an approximately 53.9% limited partner interest in the Partnership based on the number of common units and subordinated units outstanding. PBF Energy also indirectly owns the general partner interest in the Partnership, through its control and ownership of PBF GP, and all of the Partnerships incentive distribution rights.
The foregoing description is not complete and is subject to and qualified in its entirety by reference to the full text of the Contribution Agreement, a copy of which was filed as Exhibit 10.1 to PBF Energys Current Report on Form 8-K filed on May 5, 2015 and incorporated herein by reference.
In addition, in connection with the consummation of the transactions contemplated by the Contribution Agreement, PBF Energy or certain of its subsidiaries, as applicable, entered into the following material definitive agreements:
Third Amended and Restated Omnibus Agreement
On May 15, 2015, the Partnership, PBF GP, PBF Holding Company LLC (PBF Holding), and PBF LLC entered into the Third Amended and Restated Omnibus Agreement (the Third A&R Omnibus Agreement) to amend and restate the Second Amended and Restated Omnibus Agreement dated as of December 12, 2014, by and among the same parties. The Third A&R Omnibus Agreement updates the reimbursements to be made by the Partnership to PBF LLC and from PBF LLC to the Partnership. The Third A&R Omnibus Agreement incorporates the Delaware City Products Pipeline and Truck Rack Assets into its provisions and increases the annual fee to be paid by the Partnership to PBF Energy from $4.7 million to $4.85 million. All fees to be paid pursuant to the Third A&R Omnibus Agreement are indexed for inflation.
The foregoing description is not complete and is subject to and qualified in its entirety by reference to the full text of the Third A&R Omnibus Agreement, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
Third Amended and Restated Operation and Management Services and Secondment Agreement
On May 15, 2015, PBF Holding, Delaware City Refining Company LLC, Delaware City Terminaling Company LLC, DPC, DCLC, Toledo Terminaling Company LLC, Toledo Refining Company LLC, the Partnership and PBF GP entered into the Third Amended and Restated Operation and Management Services and Secondment Agreement (the Third A&R Services Agreement) to govern the provision of seconded employees to or from PBF Holding, the Partnership and its affiliates as applicable. The Third A&R Services Agreement also governs the use of certain facilities of the parties by the various entities and the services to be provided by the seconded employees to allow the Partnership to perform its obligations under its commercial agreements. The Third A&R Services Agreement incorporates the Delaware City Products Pipeline and Truck Rack Assets into its provisions and increases the annual fee to be paid by the Partnership from $4.4 million to $4.5 million. All fees to be paid pursuant to the Third A&R Services Agreement are indexed for inflation.
The foregoing description is not complete and is subject to and qualified in its entirety by reference to the full text of the Third A&R Services Agreement, which is filed as Exhibit 10.2 to this Current Report on Form 8-K and incorporated herein by reference.
Pipeline and Terminaling Services Agreements
On May 15, 2015, PBF Holding and DPC entered into an approximately ten-year pipeline services agreement (the Delaware Pipeline Services Agreement) under which the Partnership, through DPC, will provide pipeline services to PBF Holding. PBF Holding also entered into an approximately ten-year terminaling services agreement with DCLC (the Delaware Truck Loading Services Agreement) under which the Partnership, through DCLC, will provide terminaling services to PBF Holding. The Delaware Pipeline Services Agreement and Delaware Truck Loading Services Agreement (collectively, the Delaware City Pipeline and Terminaling Agreements) can be extended by PBF Holding for two additional five-year periods. Under the Delaware City Pipeline and Terminaling Agreements, the Partnership will provide PBF Holding with pipeline and terminaling services in return for throughput fees.
The minimum throughput commitment for the pipeline facility will be 50,000 barrels per day (bpd) for a fee equal to $0.5266 per barrel of product throughputted up to the minimum throughput commitment and in excess of the minimum throughput commitment. If PBF Holding does not throughput the aggregate amounts equal to the minimum throughput commitment described above, PBF Holding will be required to pay a shortfall payment equal to the shortfall volume multiplied by the fee of $0.5266 per barrel. The minimum throughput commitment for the truck rack will be approximately 30,000 bpd for refined clean products with a fee equal to approximately $0.462 per barrel and approximately 5,000 bpd for LPGs with a fee equal to approximately $2.52 per barrel of product loaded up to the minimum throughput commitment and for volumes in excess of the minimum throughput commitment.
The Partnership is required to maintain the Delaware City Products Pipeline and Truck Rack Assets in a condition and with a capacity sufficient to handle a volume of PBF Holdings products at least equal to their current operating capacity as a whole subject to interruptions for routine repairs and maintenance and force majeure events. Failure to meet such obligations may result in a reduction of fees payable under the Delaware City Pipeline and Terminaling Agreements.
The foregoing description is not complete and is subject to and qualified in its entirety by reference to the full text of the Delaware City Pipeline and Terminaling Agreements, which are filed as Exhibits 10.3 and 10.4 to this Current Report on Form 8-K and incorporated herein by reference.
Closing of 6.875% Senior Notes Offering
On May 12, 2015, the Partnership entered into an Indenture (the Indenture) among the Partnership, PBF Logistics Finance Corporation, a Delaware corporation and wholly-owned subsidiary of the Partnership (PBF Logistics Finance, and together with the Partnership, the Issuers), the Guarantors named therein and Deutsche Bank Trust Company Americas, as Trustee, under which the Issuers issued $350.0 million in aggregate principal amount of 6.875% Senior Notes due 2023 (the Notes). The initial purchasers in the offering purchased $330.090 million aggregate principal amount of Notes pursuant to a private placement transaction conducted under Rule 144A and Regulation S of the Securities Act of 1933, as amended, and certain of PBF Energys officers and directors and their affiliates and family members purchased the remaining $19.910 million aggregate principal amount of Notes in a separate private placement transaction. The Issuers received net proceeds of approximately $343.0 million from the offerings after deducting the initial purchasers discount and estimated offering expenses, and used such proceeds to pay $88.0 million of the cash consideration due in connection with Delaware City Products Pipeline and Truck Rack Acquisition and to repay $255.0 million of outstanding indebtedness under the Partnerships revolving credit facility.
The Notes are guaranteed on a senior unsecured basis by Delaware City Terminaling Company LLC and Toledo Terminaling Company LLC (each, a Guarantor). DPC and DCLC will also become guarantors under the Indenture. In addition, PBF LLC has provided a limited guarantee of collection of the principal amount of the Notes, but is not otherwise subject to the covenants of the Indenture, as discussed below. The Notes are general senior unsecured obligations of the Issuers and are equal in right of payment with all of the Issuers existing and future senior indebtedness, including amounts outstanding under the Partnerships revolving credit facility and term loan facility. The Notes will be senior to any future subordinated indebtedness the Issuers may incur. The Notes are effectively subordinated to all of the Issuers and the Guarantors existing and future secured debt, including the Partnerships revolving credit facility and term loan facility, to the extent of the value of the assets securing that secured debt and will be structurally subordinated to all indebtedness of the Partnerships subsidiaries that do not guarantee the Notes. The Partnership will pay interest on the Notes semi-annually in cash in arrears on May 15 and November 15 of each year, beginning on November 15, 2015. The Notes will mature on May 15, 2023.
The Indenture contains customary terms, events of default and covenants for an issuer of non-investment grade debt securities. These covenants include limitations on the Partnerships and its restricted subsidiaries ability to, among other things: (i) make investments, (ii) incur additional indebtedness or issue preferred units, (iii) pay dividends or make distributions on units or redeem or repurchase the Partnerships subordinated debt, (iv) create liens, (v) incur dividend or other payment restrictions affecting subsidiaries, (vi) sell assets, (vii) merge or consolidate with other entities and (viii) enter into transactions with affiliates. These covenants are subject to a number of important limitations and exceptions.
At any time prior to May 15, 2018, the Issuers may on any one or more occasions redeem up to 35% of the aggregate principal amount of the Notes in an amount not greater than the net cash proceeds of certain equity offerings at a redemption price equal to 106.875% of the principal amount of the Notes, plus any accrued and unpaid interest to the date of redemption. On or after May 15, 2018, the Issuers may redeem all or part of the Notes, in each case at the redemption prices described in the Indenture, together with any accrued and unpaid interest to the date of redemption. In addition, prior to May 15, 2018, the Issuers may redeem all or part of the Notes at a make-whole redemption price described in the Indenture, together with any accrued and unpaid interest to the date of redemption. If the Partnership undergoes certain change of control events, holders of the Notes will have the right to require the Issuers to purchase all or any part of the Notes at a price equal to 101% of the aggregate principal amount of the Notes, together with any accrued and unpaid interest to the date of purchase. In connection with certain asset dispositions, the Issuers will be required to use the net cash proceeds of the asset dispositions (subject to a right to reinvest such net cash proceeds) to make an offer to purchase the Notes at 100% of the principal amount, together with any accrued and unpaid interest to the date of purchase.
The Issuers may issue additional Notes from time to time pursuant to the Indenture.
Guaranty of Collection
On May 12, 2015, PBF LLC entered into a Guaranty of Collection (the Guaranty) in favor of the Issuers for the benefit of the holders of the Notes and the Trustee under the Indenture. Pursuant to the Guaranty, PBF LLC has provided a limited guarantee of collection of the principal amount of the Notes. Under the Guaranty, PBF LLC would not have any obligation to make principal payments with respect to the Notes unless all remedies, including in the context of bankruptcy proceedings, have first been fully exhausted against the Issuers with respect to such payment obligation, and holders of the Notes are still owed amounts in respect of the principal of the Notes. PBF LLC will not otherwise be subject to the covenants of the Indenture.
The foregoing description is not complete and is subject to and qualified in its entirety by reference to the full text of the Indenture and the Guaranty, which are filed as Exhibits 4.1 and 10.5, respectively, to this Current Report on Form 8-K and incorporated herein by reference.
Item 2.01. | Completion of Acquisition or Disposition of Assets |
The description in Item 1.01 above of the completion of the transactions set forth in the Contribution Agreement is incorporated in this item 2.01 by reference.
Item 2.03. | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of the Registrant |
The information required by Item 2.03 relating to the Notes, the Indenture and the Guaranty is contained in Item 1.01 of this Current Report on Form 8-K above and is incorporated herein by reference.
Item 9.01. | Financial Statements and Exhibits |
(d) Exhibits.
4.1 | Indenture dated May 12, 2015, among PBF Logistics LP, PBF Logistics Finance Corporation, the Guarantors named therein and Deutsche Bank Trust Company Americas, as Trustee | |
10.1 | Third Amended and Restated Omnibus Agreement dated as of May 15, 2015 among PBF Holding Company LLC, PBF Energy Company LLC, PBF Logistics GP LLC and PBF Logistics LP | |
10.2 | Third Amended and Restated Operation and Management Services and Secondment Agreement dated as of May 15, 2015 among PBF Holding Company LLC, Delaware City Refining Company LLC, Toledo Refining Company LLC, PBF Logistics GP LLC , PBF Logistics LP, Delaware City Terminaling Company LLC, Delaware Pipeline Company LLC, Delaware City Logistics Company LLC and Toledo Terminaling Company LLC | |
10.3 | Delaware Pipeline Services Agreement dated as of May 15, 2015 among PBF Holding Company LLC and Delaware Pipeline Company LLC | |
10.4 | Delaware City Truck Loading Services Agreement dated as of May 15, 2015 among PBF Holding Company LLC and Delaware City Logistics Company LLC | |
10.5 | Guaranty of Collection, dated as of May 12, 2015 |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrants have duly caused this report to be signed on their behalf by the undersigned hereunto duly authorized.
Dated: May 18, 2015
PBF Energy Inc. | ||
(Registrant) | ||
By: | /s/ Jeffrey Dill | |
Name: | Jeffrey Dill | |
Title: | Senior Vice President, General Counsel |
Dated: May 18, 2015
PBF Holding Company LLC | ||
(Registrant) | ||
By: | /s/ Jeffrey Dill | |
Name: | Jeffrey Dill | |
Title: | Senior Vice President, General Counsel |
Exhibit Index
Exhibit No. |
Description | |
4.1 | Indenture dated May 12, 2015, among PBF Logistics LP, PBF Logistics Finance Corporation, the Guarantors named therein and Deutsche Bank Trust Company Americas, as Trustee | |
10.1 | Third Amended and Restated Omnibus Agreement dated as of May 15, 2015 among PBF Holding Company LLC, PBF Energy Company LLC, PBF Logistics GP LLC and PBF Logistics LP | |
10.2 | Third Amended and Restated Operation and Management Services and Secondment Agreement dated as of May 15, 2015 among PBF Holding Company LLC, Delaware City Refining Company LLC, Toledo Refining Company LLC, PBF Logistics GP LLC , PBF Logistics LP, Delaware City Terminaling Company LLC, Delaware Pipeline Company LLC, Delaware City Logistics Company LLC and Toledo Terminaling Company LLC | |
10.3 | Delaware Pipeline Services Agreement dated as of May 15, 2015 among PBF Holding Company LLC and Delaware Pipeline Company LLC | |
10.4 | Delaware City Truck Loading Services Agreement dated as of May 15, 2015 among PBF Holding Company LLC and Delaware City Logistics Company LLC | |
10.5 | Guaranty of Collection, dated as of May 12, 2015 |
Exhibit 4.1
EXECUTION VERSION
PBF LOGISTICS LP
PBF LOGISTICS FINANCE CORPORATION
AND EACH OF THE GUARANTORS PARTY HERETO
6.875% SENIOR NOTES DUE 2023
INDENTURE
Dated as of May 12, 2015
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
CROSS-REFERENCE TABLE*
Trust Indenture Act Section |
Indenture Section | |||||||
310(a)(1) |
7.10 | |||||||
(a)(2) |
7.10 | |||||||
(a)(3) |
N.A. | |||||||
(a)(4) |
N.A. | |||||||
(a)(5) |
7.10 | |||||||
(b) |
7.10 | |||||||
311(a) |
7.11 | |||||||
(b) |
7.11 | |||||||
312(a) |
2.05 | |||||||
(b) |
12.03 | |||||||
(c) |
12.03 | |||||||
313(a) |
7.06 | |||||||
(b)(1) |
N.A. | |||||||
(b)(2) |
7.06; 7.07 | |||||||
(c) |
7.06; 12.02 | |||||||
(d) |
7.06 | |||||||
314 (a)(4) |
4.04; 12.05 | |||||||
(b) |
N.A | |||||||
(c)(1) |
12.05 | 12.04 | ||||||
(c)(2) |
12.05 | 12.04 | ||||||
(c)(3) |
12.05 | N.A. | ||||||
(d) |
12.05 | N.A. | ||||||
(e) |
N.A. | 12.05 | ||||||
(f) |
N.A. | N.A. | ||||||
315(a) |
N.A. | |||||||
(b) |
N.A. | |||||||
(c) |
N.A. | |||||||
(d) |
N.A. | |||||||
(e) |
N.A. | |||||||
316(a)(last sentence) |
|
2.06 | ||||||
(a)(1)(A) |
6.05 | |||||||
(a)(1)(B) |
6.04 | |||||||
(a)(2) |
N.A | |||||||
(b) |
6.07 | |||||||
(c) |
2.12; 9.04 | |||||||
317(a)(1) |
|
6.08 | ||||||
(a)(2) |
6.09 | |||||||
(b) |
2.04 | |||||||
318(a) |
|
12.01 | ||||||
(b) |
N.A. | |||||||
(c) |
12.01 |
N.A. means not applicable.
* | This Cross Reference Table is not part of the Indenture. |
TABLE OF CONTENTS
Page | ||||||
ARTICLE 1 | ||||||
DEFINITIONS AND INCORPORATION BY REFERENCE |
| |||||
Section 1.01 | Definitions. |
1 | ||||
Section 1.02 | Other Definitions |
25 | ||||
Section 1.03 | Incorporation by Reference of Trust Indenture Act |
25 | ||||
Section 1.04 | Rules of Construction |
26 | ||||
ARTICLE 2 | ||||||
THE NOTES | ||||||
Section 2.01 | Form and Dating |
26 | ||||
Section 2.02 | Execution and Authentication |
27 | ||||
Section 2.03 | Registrar and Paying Agent |
27 | ||||
Section 2.04 | Paying Agent to Hold Money in Trust |
28 | ||||
Section 2.05 | Holder Lists |
28 | ||||
Section 2.06 | Transfer and Exchange |
28 | ||||
Section 2.07 | Replacement Notes |
39 | ||||
Section 2.08 | Outstanding Notes |
39 | ||||
Section 2.09 | Treasury Notes |
39 | ||||
Section 2.10 | Temporary Notes |
39 | ||||
Section 2.11 | Cancellation |
40 | ||||
Section 2.12 | Defaulted Interest |
40 | ||||
Section 2.13 | Issuance of Additional Notes |
40 | ||||
Section 2.14 | CUSIP Numbers. |
40 | ||||
ARTICLE 3 | ||||||
REDEMPTION AND PREPAYMENT | ||||||
Section 3.01 | Notices to Trustee |
41 | ||||
Section 3.02 | Selection of Notes To Be Redeemed or Purchased |
41 | ||||
Section 3.03 | Notice of Redemption |
41 | ||||
Section 3.04 | Effect of Notice of Redemption |
42 | ||||
Section 3.05 | Deposit of Redemption or Purchase Price |
42 | ||||
Section 3.06 | Notes Redeemed or Purchased in Part |
43 | ||||
Section 3.07 | Optional Redemption |
43 | ||||
Section 3.08 | Mandatory Redemption |
44 | ||||
Section 3.09 | Offer to Purchase by Application of Excess Proceeds |
44 | ||||
ARTICLE 4 | ||||||
COVENANTS | ||||||
Section 4.01 | Payment of Notes |
45 | ||||
Section 4.02 | Maintenance of Office or Agency |
45 | ||||
Section 4.03 | Reports |
46 | ||||
Section 4.04 | Compliance Certificate |
47 | ||||
Section 4.05 | Taxes |
47 | ||||
Section 4.06 | Stay, Extension and Usury Laws |
47 |
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Page | ||||||
Section 4.07 | Restricted Payments |
47 | ||||
Section 4.08 | Dividend and Other Payment Restrictions Affecting Subsidiaries |
50 | ||||
Section 4.09 | Incurrence of Indebtedness and Issuance of Disqualified Stock and Certain Preferred Stock |
52 | ||||
Section 4.10 | Asset Sales |
56 | ||||
Section 4.11 | Transactions with Affiliates. |
58 | ||||
Section 4.12 | Liens |
60 | ||||
Section 4.13 | Limitations on Finance Corp. Activities |
60 | ||||
Section 4.14 | Corporate Existence |
60 | ||||
Section 4.15 | Offer to Repurchase Upon Change of Control Triggering Event |
60 | ||||
Section 4.16 | Additional Guarantors |
62 | ||||
Section 4.17 | Designation of Restricted and Unrestricted Subsidiaries |
62 | ||||
Section 4.18 | Covenant Termination |
63 | ||||
ARTICLE 5 | ||||||
SUCCESSORS | ||||||
Section 5.01 | Merger, Consolidation or Sale of Assets |
63 | ||||
Section 5.02 | Successor Person Substituted |
65 | ||||
ARTICLE 6 | ||||||
DEFAULTS AND REMEDIES | ||||||
Section 6.01 | Events of Default |
66 | ||||
Section 6.02 | Acceleration |
67 | ||||
Section 6.03 | Other Remedies |
68 | ||||
Section 6.04 | Waiver of Acceleration and/or Past Defaults |
68 | ||||
Section 6.05 | Control by Majority |
68 | ||||
Section 6.06 | Limitation on Suits |
68 | ||||
Section 6.07 | Rights of Holders of Notes to Receive Payment |
69 | ||||
Section 6.08 | Collection Suit by Trustee |
69 | ||||
Section 6.09 | Trustee May File Proofs of Claim |
69 | ||||
Section 6.10 | Priorities |
69 | ||||
Section 6.11 | Undertaking for Costs |
70 | ||||
ARTICLE 7 | ||||||
TRUSTEE | ||||||
Section 7.01 | Duties of Trustee |
70 | ||||
Section 7.02 | Rights of Trustee |
71 | ||||
Section 7.03 | Individual Rights of Trustee |
72 | ||||
Section 7.04 | Trustees Disclaimer |
72 | ||||
Section 7.05 | Notice of Defaults |
72 | ||||
Section 7.06 | Reports by Trustee to Holders of the Notes |
72 | ||||
Section 7.07 | Compensation and Indemnity |
73 | ||||
Section 7.08 | Replacement of Trustee |
73 | ||||
Section 7.09 | Successor Trustee by Merger, etc |
74 | ||||
Section 7.10 | Eligibility; Disqualification |
74 | ||||
Section 7.11 | Preferential Collection of Claims Against the Issuers |
74 |
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Page | ||||||
ARTICLE 8 | ||||||
LEGAL DEFEASANCE AND COVENANT DEFEASANCE | ||||||
Section 8.01 | Option to Effect Legal Defeasance or Covenant Defeasance |
74 | ||||
Section 8.02 | Legal Defeasance and Discharge |
75 | ||||
Section 8.03 | Covenant Defeasance |
75 | ||||
Section 8.04 | Conditions to Legal or Covenant Defeasance |
76 | ||||
Section 8.05 | Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions |
77 | ||||
Section 8.06 | Repayment to the Issuers |
77 | ||||
Section 8.07 | Reinstatement |
77 | ||||
ARTICLE 9 | ||||||
AMENDMENT, SUPPLEMENT AND WAIVER | ||||||
Section 9.01 | Without Consent of Holders of Notes |
78 | ||||
Section 9.02 | With Consent of Holders of Notes |
79 | ||||
Section 9.03 | Compliance with Trust Indenture Act |
80 | ||||
Section 9.04 | Revocation and Effect of Consents |
80 | ||||
Section 9.05 | Notation on or Exchange of Notes |
80 | ||||
Section 9.06 | Trustee to Sign Amendments, etc |
80 | ||||
ARTICLE 10 | ||||||
NOTE SUBSIDIARY GUARANTEES | ||||||
Section 10.01 | Guarantee |
81 | ||||
Section 10.02 | Limitation on Guarantor Liability |
82 | ||||
Section 10.03 | Note Subsidiary Guarantee |
82 | ||||
Section 10.04 | Evidenced by Indenture; No Notation of Subsidiary Guarantee. |
82 | ||||
Section 10.05 | [Reserved] |
82 | ||||
Section 10.06 | Releases |
82 | ||||
ARTICLE 11 | ||||||
SATISFACTION AND DISCHARGE | ||||||
Section 11.01 | Satisfaction and Discharge |
83 | ||||
Section 11.02 | Application of Trust Money |
84 | ||||
ARTICLE 12 | ||||||
MISCELLANEOUS | ||||||
Section 12.01 | Trust Indenture Act Controls |
84 | ||||
Section 12.02 | Notices |
84 | ||||
Section 12.03 | Communication by Holders of Notes with Other Holders of Notes |
86 | ||||
Section 12.04 | Certificate and Opinion as to Conditions Precedent |
86 | ||||
Section 12.05 | Statements Required in Certificate or Opinion |
86 | ||||
Section 12.06 | Rules by Trustee and Agents |
87 | ||||
Section 12.07 | No Personal Liability of Directors, Officers, Employees and Unitholders and No Recourse to General Partner |
87 | ||||
Section 12.08 | Governing Law |
87 |
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Page | ||||||
Section 12.09 | Waiver of Jury Trial |
87 | ||||
Section 12.10 | No Adverse Interpretation of Other Agreements |
87 | ||||
Section 12.11 | Successors |
87 | ||||
Section 12.12 | Severability |
87 | ||||
Section 12.13 | Counterpart Originals |
88 | ||||
Section 12.14 | PATRIOT Act |
88 | ||||
Section 12.15 | Table of Contents, Headings, etc |
88 |
EXHIBITS
Exhibit A | FORM OF NOTE | |
Exhibit B | FORM OF CERTIFICATE OF TRANSFER | |
Exhibit C | FORM OF CERTIFICATE OF EXCHANGE | |
Exhibit D | FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS |
-iv-
INDENTURE dated as of May 12, 2015 among PBF Logistics LP, a Delaware limited partnership (PBFX), and PBF Logistics Finance Corporation (Finance Corp. and, together with PBFX, the Issuers), the Subsidiary Guarantors and Deutsche Bank Trust Company Americas, as trustee.
The Issuers, the Subsidiary Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined) of the 6.875% Senior Notes due 2023 (the Notes):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
144A Global Note means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.
Acquired Debt means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Restricted Subsidiary of such specified Person, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Restricted Subsidiary of, such specified Person, but excluding Indebtedness which is extinguished, retired or repaid in connection with such Person merging with or becoming a Restricted Subsidiary of such specific Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person, but excluding Indebtedness which is extinguished, retired or repaid in connection with such asset being acquired by such Person.
Additional Hydrogen Plant means an additional hydrogen plant at the Delaware City refinery for the purpose of providing increased hydrogen for refining operations.
Additional Notes means additional Notes (other than the applicable Initial Notes) issued under this Indenture in accordance with Sections 2.02, 2.13 and 4.09 hereof, as part of the same series as the applicable Initial Notes.
Affiliate of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, control, as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms controlling, controlled by and under common control with have correlative meanings.
Agent means any Registrar, co-registrar, Paying Agent, additional paying agent, Transfer Agent and Authentication Agent.
Applicable Premium means, with respect to any Note on any Redemption Date, the greater of:
(1) 1.00% of the principal amount of the Note; and
(2) the excess of: (a) the present value at such Redemption Date of (i) the Redemption Price of the Note at May 15, 2018 (such redemption price being described in Section 3.07(b)) plus (ii) all required interest payments due on the Note through May 15, 2018 (excluding accrued and unpaid interest to, but excluding, the Redemption Date), computed using a discount rate equal to the Treasury Rate as of such Redemption Date plus 50 basis points; over (b) the principal amount of the Note.
Applicable Procedures means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer or exchange.
Asset Sale means:
(1) the sale, lease, conveyance or other disposition of any assets or rights; provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of PBFX and its Restricted Subsidiaries taken as a whole will be governed by Section 4.15 hereof and/or Section 5.01 hereof and not by Section 4.10 hereof; and
(2) the issuance of Equity Interests in any of PBFXs Restricted Subsidiaries or the sale of Equity Interests in any of its Restricted Subsidiaries.
Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale:
(1) any sale, assignment, lease, license, transfer, abandonment or other disposition of (A) damaged, worn-out, unserviceable or other obsolete or excess equipment or other property or assets or (B) other property or assets no longer necessary for the proper conduct of the business of PBFX or any of its Subsidiaries;
(2) any single transaction or series of related transactions that involves property or assets having a Fair Market Value of less than $25.0 million;
(3) a transfer of properties or assets between or among PBFX and its Restricted Subsidiaries;
(4) an issuance of Equity Interests by a Restricted Subsidiary of PBFX to PBFX or to a Restricted Subsidiary of PBFX;
(5) the sale, lease or other disposition of products, equipment, services, accounts receivable, inventory or other properties or assets in the ordinary course of business;
(6) the trade, sale, exchange or other disposition of cash or Cash Equivalents, Hedging Obligations or other financial instruments;
(7) a Restricted Payment that does not violate Section 4.07 hereof or a Permitted Investment;
(8) any lease of assets entered into in the ordinary course of business and with respect to which PBFX or any Restricted Subsidiary of PBFX is the lessor and the lessee has no option to purchase such assets for less than fair market value at any time the right to acquire such asset occurs;
(9) any trade or exchange by PBFX or any Restricted Subsidiary of properties or assets of any type for properties or assets of any type owned or held by another Person, including any disposition of some or all of the Equity Interests of a Restricted Subsidiary, provided that the fair market value of the properties or assets traded or exchanged by PBFX or such Restricted Subsidiary (together with any cash or Cash Equivalent together with the liabilities assumed) is reasonably equivalent to the fair market value of the properties or assets (together with any cash or Cash Equivalent together with liabilities assumed) to be received by PBFX or such Restricted Subsidiary; and provided further that any cash received must be applied in accordance with Section 4.10 hereof;
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(10) the disposition of assets received in settlement of debts accrued in the ordinary course of business;
(11) the creation or perfection of a Lien that is not prohibited by Section 4.12 hereof;
(12) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind;
(13) the grant in the ordinary course of business of any non-exclusive license of patents, trademarks, registrations therefor and other similar intellectual property;
(14) any disposition of defaulted receivables that arose in the ordinary course of business for collection;
(15) the sale or other disposition of Capital Stock or Indebtedness of an Unrestricted Subsidiary of PBFX;
(16) any disposition of property or assets pursuant to a condemnation, appropriation or other similar taking, including, without limitation, by deed in lieu of condemnation, or pursuant to the foreclosure or other enforcement of a Permitted Lien or exercise by the related lienholder of rights with respect thereto, including, without limitation, by deed or assignment in lieu of foreclosure; and
(17) any disposition of investments in Joint Ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements.
Attributable Debt in respect of a sale-and-leaseback transaction means, at the time of determination, the present value (discounted at the rate equal to the rate of interest implicit in such transactions, determined in accordance with GAAP) of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale-and-leaseback transaction including any period for which such lease has been extended or may, at the option of the lessor, be extended. As used in the preceding sentence, net rental payments under any lease for any such period shall mean the sum of rental and other payments required to be paid with respect to such period by the lessee thereunder, excluding any amounts required to be paid by such lessee on account of maintenance and repairs, insurance, taxes, assessments, water rates, utilities, operating and labor costs and other items that do not constitute payment for property rights. In the case of any lease that is terminable by the lessee upon payment of penalty, such net rental payment shall also include the amount of such penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated. Notwithstanding the foregoing, if such sale-and-leaseback transaction results in a Capital Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance with the definition of Capital Lease Obligation.
Available Cash has the meaning assigned to such term in the Partnership Agreement, as in effect on the Issue Date.
Bankruptcy Law means Title 11, U.S. Code, as amended, or any similar federal or state law for the relief of debtors.
Beneficial Owner has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act. The terms Beneficially Owns and Beneficially Owned have a corresponding meaning.
Board of Directors means:
(1) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;
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(2) with respect to a partnership, the Board of Directors or Board of Managers of the general partner of the partnership, or in the case of PBFX, the Board of Directors of the General Partner;
(3) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and
(4) with respect to any other Person, the board or committee of such Person serving a similar function.
Business Day means any day other than a Legal Holiday.
Capital Lease Obligation means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized on a balance sheet in accordance with GAAP, and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid by the lessee without payment of a penalty; provided that any obligations of PBFX or its Restricted Subsidiaries or of a special purpose or other entity not consolidated with PBFX and its Restricted Subsidiaries (i) that were not or would not have been included on the consolidated balance sheet of PBFX as capital lease obligations on the Issue Date and (ii) that are subsequently recharacterized as capital lease obligations of PBFX and its Restricted Subsidiaries on a consolidated basis due to a change in accounting treatment or otherwise after the Issue Date, may, in PBFXs sole discretion, be deemed not to be treated as a Capital Lease Obligation or Indebtedness.
Capital Stock means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and
(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person;
but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.
Cash Equivalents means:
(1) United States dollars;
(2) Canadian dollars and other local or foreign currencies held by PBFX and/or any of its Restricted Subsidiaries from time to time in the ordinary course of business;
(3) securities issued or fully guaranteed or insured by the United States government or any agency or instrumentality thereof having maturities of not more than twenty-four (24) months from the date of acquisition thereof;
(4) time deposits with, certificates of deposit, bankers acceptances or Eurodollar time deposits of, any commercial bank that (a) is organized under the laws of the United States of America, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States of America, any state thereof or the District of Columbia or any United States branch of a foreign bank, and is a member of the Federal Reserve System, (b) issues long term securities with a rating of at least A- (or the then-equivalent grade, in each case with a stable outlook) by S&P and A3 (or the then-equivalent grade, in each case with a stable outlook) by Moodys at the time of acquisition and (c) has combined capital and surplus of at least $250,000,000, in each case with maturities of not more than twenty-four (24) months from the date of acquisition thereof;
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(5) commercial paper of an issuer rated at least A-2 (or the then-equivalent grade) by S&P or P-2 (or the then-equivalent grade) by Moodys at the time of acquisition or guaranteed by a letter of credit issued by a financial institution rated at least A- (or the then-equivalent grade, in each case with stable outlook) by S&P and A3 (or the then-equivalent grade, in each case with stable outlook) by Moodys at the time of acquisition and such financial institution otherwise meets the requirements of subsections (a) and (c) of clause (3) of this definition, in each case having a tenor of not more than twenty-four (24) months from the date of acquisition thereof;
(6) taxable and tax-exempt municipal securities rated at least A- (or the then-equivalent grade) by S&P and A3 (or the then-equivalent grade) by Moodys, including variable rate municipal securities, having maturities or put rights of not more than twenty-four (24) months from the date of acquisition;
(7) corporate or bank debt of an issuer rated at least A- (or the then-equivalent grade, in each case with a stable outlook) by S&P and A3 (or the then-equivalent grade, in each case with stable outlook) by Moodys at the time of acquisition and having maturities of not more than twenty-four (24) months from the date of acquisition;
(8) repurchase agreements relating to any of the investments listed in clauses (1) through (7) above with a market value at least equal to the consideration paid in connection therewith, with any Person who regularly engages in the business of entering into repurchase agreements and has a combined capital and surplus of not less than $250,000,000 whose long term securities are rated at least A- (or the then-equivalent grade) by S&P and A3 (or the then-equivalent grade) by Moodys at the time of acquisition;
(9) asset-backed securities having as the underlying asset securities issued or guaranteed by the Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association rated at least A- (or the then-equivalent grade, in each case with stable outlook) by S&P and A3 (or the then-equivalent grade, in each case with case with stable outlook) by Moodys at the time of acquisition and having maturities of not more than twenty-four (24) months from the date of acquisition; and
(10) Investments, classified in accordance with GAAP as current assets of PBFX or any of its Subsidiaries, in money market mutual or similar funds having assets in excess of $100,000,000, at least 95% of the assets of which are comprised of assets specified in clauses (1) through (9) above of this definition.
Change of Control means the occurrence of any of the following:
(1) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of PBFX and its Subsidiaries taken as a whole (unless immediately following such sale, lease, transfer, conveyance or other disposition in compliance with this Indenture such assets are owned, directly or indirectly, by (A) PBFX or a Subsidiary of PBFX, (B) a Person controlled by PBFX or a Subsidiary of PBFX or (C) a Qualified Owner) to any person (as that term is used in Section 13(d) of the Exchange Act);
(2) the adoption of a plan relating to the liquidation or dissolution of PBFX or the removal of the General Partner by the limited partners of PBFX; or
(3) the consummation of any transaction (including, without limitation, any merger or consolidation), the result of which is that any person (as defined above), other than a Qualified Owner, becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the General Partner, measured by voting power rather than number of shares.
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Notwithstanding the preceding, a conversion of PBFX from a limited partnership to a corporation, limited liability company or other form of entity or an exchange of all of the outstanding limited partnership interests for capital stock in a corporation, for member interests in a limited liability company or for Equity Interests in such other form of entity shall not constitute a Change of Control, so long as following such conversion or exchange either (i) the persons (as defined above) who Beneficially Owned the Capital Stock of PBFX immediately prior to such transactions continue to Beneficially Own in the aggregate more than 50% of the Voting Stock of such entity, or continue to Beneficially Own sufficient Equity Interests in such entity to elect a majority of its directors, managers, trustees or other persons serving in a similar capacity for such entity or (ii) one or more Qualifying Owners in the aggregate own more than 50% of the Voting Stock of such entity.
Change of Control Triggering Event means the occurrence of a Change of Control, which occurrence is followed by a Ratings Decline within 90 days.
Clearstream means Clearstream Banking, société anonyme, and its successors.
Code means the Internal Revenue Code of 1986, as amended from time to time, and any successor statute.
Consolidated Cash Flow means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus, without duplication:
(1) an amount (to the extent not included in Consolidated Net Income for such period) equal to the dividends or distributions paid during such period in cash or Cash Equivalents to such Person or any of its Restricted Subsidiaries by a Person that is not a Restricted Subsidiary of such Person or that is accounted for by the equity method of accounting; plus
(2) (a) the Fixed Charges of such Person and its Restricted Subsidiaries for such period and (b) all items excluded from the definition of Fixed Charges for such Person and its Restricted Subsidiaries for such period pursuant to clauses (A)(1)(t) through (A)(1)(z) and clause (A)(2) thereof, in each case of clauses (a) and (b), to the extent that any such Fixed Charges or items reduced Consolidated Net Income for such period; plus
(3) provision for taxes based on income or profits of such Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes reduced Consolidated Net Income for such period; plus
(4) depreciation, amortization (including amortization of intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non-cash losses, charges or expenses (excluding any such non-cash expense to the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash expense that was paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent that such depreciation, amortization and other non-cash losses, charges or expenses reduced Consolidated Net Income for such period; plus
(5) all extraordinary, unusual or non-recurring losses, charges or expenses (including any loss realized in connection with (a) any asset sale (including dispositions pursuant to sale-and-leaseback transactions) or (b) the disposition of any securities by such Person or the extinguishment of any Indebtedness (including relating to any premium or penalty paid, write-off of deferred finance costs or other losses, charges or expenses in connection with redeeming or retiring any Indebtedness prior to its Stated Maturity) or Hedging Obligations), to the extent such losses, charges or expenses reduced Consolidated Net Income for such period; plus
(6) unrealized non-cash losses, charges or expenses resulting from foreign currency balance sheet adjustments required by GAAP, to the extent such losses, charges or expenses reduced Consolidated Net Income for such period; plus
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(7) any non-cash compensation losses, charges or expenses arising from any grants of stock appreciation or similar rights, stock options, restricted stock or other rights or equity incentive program, to the extent such losses, charges or expense reduced Consolidated Net Income for such period; plus
(8) unrealized losses under Hedging Obligations and/or derivative instruments (including, without limitation, those resulting from the application of Accounting Standards Codification No.815), to the extent such losses reduced Consolidated Net Income for such period; plus
(9) any impairment charge or asset write-off pursuant to Accounting Standards Codification No. 350, to the extent such charge or write-off reduced Consolidated Net Income for such period; minus
(10) (a) any non-cash gains (other than the accrual of revenue in the ordinary course of business and any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Consolidated Cash Flow in any prior period), (b) any extraordinary, unusual or non-recurring gain, (c) any gains, together with any related provision for taxes on such gain, realized in connection with (i) any asset sale (including dispositions pursuant to sale-and-leaseback transactions) or (ii) the disposition of any securities by such Person or the extinguishment of any Indebtedness or Hedging Obligations of such Person and (d) unrealized gains under Hedging Obligations and/or derivative instruments, in each case of clauses (a) through (d), to the extent such gain increased Consolidated Net Income for such period;
in each case, on a consolidated basis and determined in accordance with GAAP.
Consolidated Net Income means, with respect to any specified Person for any period, the aggregate of the Net Income attributable to such Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that:
(1) the aggregate Net Income (but not loss) of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting will be included only to the extent of the amount of dividends or distributions paid in cash or Cash Equivalents to the specified Person or a Restricted Subsidiary of the Person; and
(2) the cumulative effect of a change in accounting principles will be excluded.
Consolidated Net Tangible Assets means, with respect to any Person at any date of determination, the aggregate amount of total assets included in such Persons most recent quarterly or annual consolidated balance sheet prepared in accordance with GAAP less applicable reserves reflected in such balance sheet, after (i) adding the aggregate incremental amount of total assets that would have resulted from an acquisition of assets from an Affiliate that is accounted for as a transaction between entities under common control within the meaning of, and in accordance with, Accounting Standards Codification No. 805 had such transactions been accounted for using business combination accounting within the meaning of, and in accordance with, Accounting Standards Codification No. 805 and (ii) deducting the following amounts: (a) all current liabilities reflected in such balance sheet, and (b) all goodwill, trademarks, patents, unamortized debt discounts and expenses and other like intangibles reflected in such balance sheet, with such pro forma adjustments to total assets, reserves, current liabilities, goodwill, trademarks, patents, unamortized debt discounts and expenses and other like intangibles as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio.
Corporate Trust Office of the Trustee will be at the address of the Trustee specified in Section 12.02 hereof or such other address as to which the Trustee may give notice to the Issuers.
Credit Agreements means (x) that certain Revolving Credit Agreement, dated as of May 14, 2014 (as amended by that certain Increase Agreement, dated as of December 5, 2014, among PBFX, Wells Fargo Bank, National Association and the lenders party thereto, the Revolving Credit Agreement), among the Company, Wells Fargo Bank, National Association, as Administrative Agent, Swingline Lender and an L/C Issuer, Citigroup Global Markets Inc., as Syndication Agent, Deutsche Bank Securities Inc., as Documentation Agent, and the other lenders
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party thereto, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, and in each case as amended, restated, modified, renewed, refunded, replaced or refinanced from time to time and (y) that certain Collateralized Term Loan Credit Agreement, dated as of May 14, 2014 (the Collateralized Term Loan Credit Agreement), among the Company, Wells Fargo Bank, National Association, as Administrative Agent, and the other lenders party thereto, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, and in each case as amended, restated, modified, renewed, refunded, replaced or refinanced from time to time.
Credit Facilities means, one or more debt facilities (including, without limitation, the Credit Agreements) or commercial paper facilities or Debt Issuances, in each case, with banks, investment banks, insurance companies, mutual funds, other institutional lenders, institutional investors or any of the foregoing, providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders, other financiers or to special purpose entities formed to borrow from (or sell such receivables to) such lenders or other financiers against such receivables), letters of credit, bankers acceptances, other borrowings or Debt Issuances, in each case, as amended, restated, modified, renewed, extended, refunded, replaced or refinanced (in each case, without limitation as to amount), in whole or in part, from time to time (including through one or more Debt Issuances) and any agreements and related documents governing Indebtedness or Obligations incurred to refinance amounts then outstanding or permitted to be outstanding, whether or not with the original administrative agent, lenders, investment banks, insurance companies, mutual funds, other institutional lenders, institutional investors or any of the foregoing and whether provided under the original agreement, indenture or other documentation relating thereto.
Custodian means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.
Debt Issuances means, with respect to PBFX or any of its Restricted Subsidiaries, one or more issuances after the Issue Date of Indebtedness evidenced by notes, debentures, bonds or other similar securities or instruments.
Default means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.
Definitive Note means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A, as applicable, hereto except that the Note shall not bear the Global Note Legend and shall not have the Schedule of Exchanges of Interests in the Global Note attached thereto.
Delaware City Logistics Acquisition has the meaning assigned to such term in the Offering Memorandum.
Depositary means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as Depositary hereunder and having become such pursuant to the applicable provision of this Indenture.
Designated Non-Cash Consideration means the fair market value (as determined in good faith by PBFX) of non-cash consideration received by PBFX or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-Cash Consideration pursuant to an officers certificate, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of such Designated Non-Cash Consideration.
Disqualified Stock means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the date on which the Notes mature (except such Capital Stock that is solely redeemable with, or solely exchangeable for, any Capital Stock of such Person that is not Disqualified Stock); provided, however, that only the portion of any Capital Stock which so matures or is mandatorily redeemable, is so convertible or
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exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Stock. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require PBFX or any of its Restricted Subsidiaries to repurchase or redeem such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that PBFX or such Restricted Subsidiary may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 4.07 hereof.
Domestic Subsidiary means any Restricted Subsidiary of PBFX that was formed under the laws of the United States or any state of the United States or the District of Columbia.
Equity Interests means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
Equity Offering means any public or private sale of Equity Interests (other than Disqualified Stock) made for cash on a primary basis by PBFX after the Issue Date.
Euroclear means Euroclear Bank, S.A./N.V., as operator of the Euroclear system, and its successors.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Exchange Notes means the Notes issued in the Exchange Offer pursuant to Section 2.06(f) hereof.
Exchange Offer has the meaning set forth in the Registration Rights Agreement.
Exchange Offer Registration Statement has the meaning set forth in the Registration Rights Agreement.
Existing Indebtedness means the aggregate principal amount of Indebtedness of PBFX and its Subsidiaries (other than Indebtedness under the Credit Agreements and the Notes and the related Note Subsidiary Guarantees) in existence on the Issue Date.
Fair Market Value means, with respect to consideration received or to be received, or given or to be given, pursuant to any transaction by PBFX or any Restricted Subsidiary, the fair market value of such consideration as determined in good faith by the Board of Directors of the General Partner in the case of transactions involving $50.0 million or more and otherwise by an officer of PBFX.
Fixed Charge Coverage Ratio means with respect to any specified Person for any period, the ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such Person for such period. In the event that the specified Person or any of its Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise discharges any Indebtedness (other than ordinary working capital borrowings) or issues, repurchases or redeems Disqualified Stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the Calculation Date), then the Fixed Charge Coverage Ratio will be calculated giving pro forma effect to such incurrence, assumption, guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption of Disqualified Stock, and the use of the proceeds therefrom, as if the same had occurred at the beginning of the applicable Reference Period.
In addition, for purposes of calculating the Fixed Charge Coverage Ratio:
(1) acquisitions (including, without limitation, a single asset, a division or segment or an entire company) or Investments that have been made by the specified Person or any of its Restricted Subsidiaries, including through mergers, asset purchase transactions or consolidations and including any related financing transactions during the Reference Period or subsequent to such Reference Period and on or prior to the Calculation Date will be given pro forma effect as if they had occurred on the first day of the Reference
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Period, including any Consolidated Cash Flow and any pro forma expense and cost reductions and operating improvements that have occurred or are reasonably expected to occur, in the reasonable judgment of the chief financial or accounting officer of PBFX (regardless of whether those cost savings or operating improvements could then be reflected in pro forma financial statements in accordance with Regulation S-X promulgated under the Securities Act or any other regulation or policy of the SEC related thereto);
(2) the Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded;
(3) the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of the specified Person or any of its Restricted Subsidiaries following the Calculation Date;
(4) if any Indebtedness bears a floating rate of interest, the interest expense on such Indebtedness will be calculated as if the average rate in effect from the beginning of the applicable period to the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligation applicable to such Indebtedness if such Hedging Obligation has a remaining term as at the Calculation Date in excess of 12 months);
(5) if any Indebtedness is incurred or repaid under a revolving credit facility (other than ordinary working capital borrowings) and is being given pro forma effect, the interest on such indebtedness shall be calculated based on the average daily balance of such Indebtedness for the four fiscal quarters subject to the pro forma calculation; and
(6) interest income reasonably anticipated by such Person to be received during the Reference Period from cash or Cash Equivalents held by such Person or any Restricted Subsidiary of such Person, which cash or Cash Equivalents exist on the Calculation Date or will exist as a result of the transaction giving rise to the need to calculate the Fixed Charge Coverage Ratio will be included.
Fixed Charges means, with respect to any specified Person for any period, on a consolidated basis and determined in accordance with GAAP, (A) the sum, without duplication, of:
(1) the consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued, including, without limitation, amortization of debt issuance costs and original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, imputed interest with respect to Attributable Debt, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers acceptance financings, and net of the effect of all payments made or received pursuant to Hedging Obligations in respect of interest rates and excluding (t) penalties and interest relating to taxes, (u) any additional interest relating to customary registration rights with respect to securities, (v) non-cash interest expense attributable to movement in mark-to-market valuation of Hedging Obligations or other derivatives (in each case permitted hereunder and under GAAP), (w) accretion or accrual of discounts with respect to liabilities not constituting Indebtedness, (x) any expense resulting from the discounting of Indebtedness in connection with the application of recapitalization or purchase accounting, (y) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses and, with respect to Indebtedness issued in connection with the Transactions, original issue discount and (z) any expensing of bridge, commitment and other financing fees; plus
(2) the consolidated interest expense of such Person and its Restricted Subsidiaries that was capitalized during such period; plus
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(3) any interest expense on Indebtedness of another Person that is guaranteed by such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries, whether or not such guarantee or Lien is called upon; plus
(4) all dividends, whether paid or accrued and whether or not in cash, on any series of Disqualified Stock of such Person or any of its Restricted Subsidiaries, other than dividends on Equity Interests payable (i) solely in Equity Interests of PBFX (other than Disqualified Stock) or (ii) to PBFX or a Restricted Subsidiary of PBFX; minus
(B) to the extent included in (A) above, write-off of nonrecurring deferred financing costs of such Person and its Restricted Subsidiaries during such period and any charge related to, or any premium or penalty paid in connection with, paying any such Indebtedness of such Person and its Restricted Subsidiaries prior to its Stated Maturity.
GAAP means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, which are in effect on the Issue Date.
General Partner means PBF Logistics GP LLC, a Delaware limited liability company, and its successors and permitted assigns as general partner of PBFX or as the business entity with the ultimate authority to manage the business and operations of PBFX.
Global Note Legend means the legend set forth in Section 2.06(g)(2) hereof, which is required to be placed on all Global Notes issued under this Indenture.
Global Notes means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes deposited with or on behalf of and registered in the name of the Depositary or its nominee, substantially in the form of Exhibit A hereto, as applicable, and that bears the Global Note Legend and that has the Schedule of Exchanges of Interests in the Global Note attached thereto, issued in accordance with Sections 2.01 or 2.06 hereof.
Government Securities means direct obligations of, or obligations guaranteed by, the United States of America for the payment of which guarantee or obligations the full faith and credit of the United States of America is pledged.
guarantee means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness.
Hedging Obligations means, with respect to any specified Person, the obligations of such Person incurred under:
(1) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements, interest rate collar agreements and any other agreements or arrangements designed to manage interest rates or interest rate risk so long as the notional principal amount of such obligations does not exceed the aggregate principal amount of the Indebtedness to which such agreements relate at such time;
(2) foreign exchange contracts, currency protection agreements and any other agreements or arrangements designed to manage fluctuations in currency exchange rates; and
(3) commodity futures contracts, commodity options and any other agreements or arrangements designed to protect against fluctuations in commodity prices;
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provided that in the case of clauses (2) and (3) above, such agreements are intended to be economically appropriate to the reduction of risk in the conduct and management of PBFXs and its Restricted Subsidiaries business.
Holder means a Person in whose name a Note is registered.
Indebtedness means, with respect to any specified Person, any indebtedness of such Person, whether or not contingent, without duplication:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments;
(3) reimbursement obligations in respect of bankers acceptances or letters of credit;
(4) representing Capital Lease Obligations or Attributable Debt in respect of sale and leaseback transactions;
(5) representing the balance deferred and unpaid of the purchase price of any property or services due more than six months after such property is acquired or such services are completed, except any earn-out obligations until after becoming due and payable, has not been paid and such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP and if not paid within 30 days after becoming due and payable; or
(6) representing the net amount due under any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of credit, Attributable Debt and Hedging Obligations), but excluding amounts recorded in accordance with Accounting Standards Codification No. 815, would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term Indebtedness includes all Indebtedness of others secured by a Lien on any asset (other than Liens on and pledges of the Equity Interests of any Unrestricted Subsidiary or any Joint Venture owned by PBFX or any Restricted Subsidiary of PBFX, in each case, securing Indebtedness of such Unrestricted Subsidiary or Joint Venture, as applicable) of the specified Person (whether or not such Indebtedness is assumed by the specified Person), but in an amount not to exceed the lesser of the amount of such Persons obligation or indebtedness and the Fair Market Value of such assets, and, to the extent not otherwise included, the guarantee by the specified Person of any Indebtedness of any other Person.
Notwithstanding the foregoing, the following shall not constitute Indebtedness:
(1) accrued expenses and trade accounts payable arising in the ordinary course of business;
(2) the incurrence by PBFX or any of its Restricted Subsidiaries of Indebtedness in respect of bid, performance, surety, appeal, payment, insurance contracts and similar bonds issued for the account of PBFX and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of PBFX or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed);
(3) any Indebtedness which has been defeased in accordance with GAAP or defeased pursuant to the deposit of cash or Government Securities (in an amount sufficient to satisfy all such Indebtedness obligations at maturity or redemption, as applicable, and all payments of interest and Special Interest, if any, and premium, if any) in a trust or account created or pledged for the sole benefit of the holders of such indebtedness and subject to no other Liens, and the other applicable terms of the instrument governing such Indebtedness;
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(4) any obligation arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such obligation is extinguished within five Business Days of its incurrence; and
(5) any obligation arising from any agreement providing for indemnities, guarantees, purchase price adjustments, holdbacks, contingency payment obligations based on the performance of the acquired or disposed assets or similar obligations (other than guarantees of Indebtedness) incurred by any Person in connection with the acquisition or disposition of assets.
Indenture means this Indenture, as amended or supplemented from time to time.
Independent Financial Advisor means a nationally recognized accounting, appraisal or investment banking firm that is, in the reasonable judgment of the Board of Directors of the General Partner, qualified to perform the task for which such firm has been engaged hereunder and disinterested and independent with respect to PBFX and its Affiliates; provided, that providing accounting, appraisal or investment banking services to PBFX or any of its Affiliates or having an employee, officer or other representative serving as a member of the Board of Directors of the General Partner or any of its Affiliates will not disqualify any firm from being an Independent Financial Advisor.
Indirect Participant means a Person who holds a beneficial interest in a Global Note through a Participant.
Initial Notes means the $350,000,000 aggregate principal amount of Notes issued under this Indenture on the date hereof (which includes the Private Placement Notes).
Initial Purchasers means Deutsche Bank Securities Inc., Citigroup Global Markets Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Mitsubishi UFJ Securities (USA), Inc., RBC Capital Markets, LLC, Wells Fargo Securities, LLC, Barclays Capital Inc., BNP Paribas Securities Corp., Credit Agricole Securities (USA) Inc., Credit Suisse Securities (USA) LLC, Morgan Stanley & Co. LLC and UBS Securities LLC.
Interest Payment Date means May 15 and November 15 of each year to stated maturity.
Investment Grade Rating of the Notes, means that the Notes shall have been assigned a Moodys rating of Baa3 or higher or an S&P rating of BBB- or higher, or if either rating agency shall not make a rating on the Notes publicly available for reasons outside the control of the Issuers, an equivalent investment grade credit rating from any other nationally recognized statistical rating organization registered under Section 15E of the Exchange Act selected by the Issuers.
Investments means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including guarantees or other obligations), advances (other than advances to customers in the ordinary course of business which are recorded as accounts receivable on the balance sheet of the lender and commissions, moving, travel and similar advances to employees and officers made in the ordinary course of business) or capital contributions, purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP.
Issue Date means May 12, 2015.
Joint Venture means any Person that is not a direct or indirect Subsidiary of PBFX in which PBFX or any of its Restricted Subsidiaries makes any Investment.
Legal Holiday means a Saturday, a Sunday or a day on which commercial banking institutions are not required to be open in the City of New York or at the place of payment. If a payment date is on a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such payment for the intervening period.
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Letter of Transmittal means the letter of transmittal to be prepared by the Issuers and sent to all Holders for use by such Holders in connection with the Exchange Offer.
Lien means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction other than a precautionary financing statement respecting a lease not intended as a security agreement. In no event shall a right of first refusal be deemed to constitute a Lien.
Moodys means Moodys Investors Service, Inc., or any successor to the rating agency business thereof.
Net Income means, with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends.
Net Proceeds means the aggregate cash proceeds received by PBFX or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of:
(1) the direct costs relating to such Asset Sale, including, without limitation, legal, accounting and investment banking fees, and sales commissions, and any relocation expenses incurred as a result of the Asset Sale and any related severance and associated costs, expenses and charges of personnel related to the sold assets and related operations,
(2) taxes paid or payable as a result of the Asset Sale, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements,
(3) amounts required to be applied to the repayment of Indebtedness secured by a Lien on the asset or assets that were the subject of such Asset Sale and all distributions and payments required to be made to minority interest holders in Restricted Subsidiaries as a result of such Asset Sale, and
(4) any amounts to be set aside in any reserve established in accordance with GAAP or any amount placed in escrow, in either case for adjustment in respect of the sale price of such properties or assets or for liabilities associated with such Asset Sale and retained by PBFX or any of its Restricted Subsidiaries until such time as such reserve is reversed or such escrow arrangement is terminated, in which case Net Proceeds shall include only the amount of the reserve so reversed or the amount returned to PBFX or its Restricted Subsidiaries from such escrow arrangement, as the case may be.
Non-Recourse Debt means Indebtedness:
(1) as to which neither PBFX nor any of its Restricted Subsidiaries (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness) or (b) is directly or indirectly liable as a guarantor or otherwise, in each case, other than a pledge of the Equity Interests of an Unrestricted Subsidiary that is an obligor on such Indebtedness; and
(2) no default with respect to which (including any rights that the holders of the Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness of PBFX or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment of the Indebtedness to be accelerated or payable prior to its Stated Maturity.
For purposes of determining compliance with Section 4.09 hereof, in the event that any Non-Recourse Debt of any of PBFXs Unrestricted Subsidiaries ceases to be Non-Recourse Debt of such Unrestricted Subsidiary, such event will be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of PBFX.
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Non-U.S. Person means a Person who is not a U.S. Person.
Note Subsidiary Guarantee means the guarantee by each Subsidiary Guarantor of the Issuers obligations under this Indenture and the Notes pursuant to Article X.
Notes has the meaning assigned to it in the preamble to this Indenture. The Initial Notes and the Additional Notes shall be treated as a single class for all purposes under this Indenture, and unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional Notes.
Obligations means any principal, interest and Special Interest, if any, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.
Offering Memorandum means the final Offering Memorandum of the Issuers, dated May 7, 2015 with respect to the Notes.
Officer means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice President of such Person (or, if such Person is a limited partnership, the general partner of such Person).
Officers Certificate means a certificate signed on behalf of a Person by one Officer of such Person (or, if such Person is a limited partnership, the general partner of such Person) that meets the requirements set forth in this Indenture. An Officers Certificate required to be delivered by the Issuers shall be signed by one Officer of each Issuer (or, in the case of PBFX, one Officer of the General Partner).
Omnibus Agreement means the Second Amended and Restated Omnibus Agreement, dated as of December 12, 2014, among PBF Holding Company LLC, PBF Energy Company LLC, PBFX and the General Partner, as may be amended, supplemented or modified from time to time; provided such amendment, supplement or modification is not disadvantageous in any material respect to the holders of notes when taken as a whole as compared to the Omnibus Agreement as in effect on the Issue Date, as determined in good faith by PBFX.
Operating Surplus has the meaning assigned to such term in the Partnership Agreement, as in effect on the Issue Date.
Opinion of Counsel means an opinion from legal counsel who is reasonably acceptable to the Trustee, that meets the requirements of Section 12.05 hereof. The counsel may be an employee of or counsel to PBFX, the General Partner, any Subsidiary of PBFX or the General Partner.
Participant means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).
Participating Broker-Dealer has the meaning set forth in the Registration Rights Agreement.
Partnership Agreement means the Second Amended and Restated Agreement of Limited Partnership of PBF Logistics LP, dated as of September 15, 2014, as such may be further amended, modified or supplemented from time to time.
PBF LLC means PBF Energy Company LLC.
Permitted Business means either (1) marketing, gathering, distributing or transporting (by barge, pipeline, ship, truck or other modes of transportation), terminalling, storing, producing, acquiring, developing, exploring for, exploiting, processing, fractionation, treating, dehydrating and otherwise handling crude oil, gas, casinghead gas, drip gasoline, natural gasoline, condensates, distillates, liquid hydrocarbons, asphalt, gaseous hydrocarbons, petrochemicals, lubricants and all other constituents, elements, compounds, feedstocks, blendstocks or products
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refined or processed (including intermediate products) from any of the foregoing, which activities shall include, for the avoidance of doubt, constructing pipeline, platform, dehydration, processing, fractionation, storing and other energy-related facilities, and activities or services reasonably related or ancillary thereto, including entering into purchase and sale agreements, supply agreements and Hedging Obligations related to these businesses, (2) any other business that generates gross income at least 90% of which constitutes qualifying income under Section 7704(d) of the Code or (3) any activity that is ancillary, complementary or incidental to or necessary or appropriate for the activities described in clauses (1) or (2) of this definition.
Permitted Business Investments means Investments by PBFX or any of its Restricted Subsidiaries in any Unrestricted Subsidiary of PBFX or in any Joint Venture, provided that:
(1) either (a) at the time of such Investment and immediately thereafter, PBFX could incur $1.00 of additional Indebtedness under the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof or (b) such Investment does not exceed the aggregate amount of Incremental Funds (as defined in Section 4.07 hereof) not previously expended at the time of making such Investment;
(2) if such Unrestricted Subsidiary or Joint Venture has outstanding Indebtedness at the time of such Investment, either (a) all such Indebtedness is Non-Recourse Debt or (b) any such Indebtedness of such Unrestricted Subsidiaries or Joint Venture that is recourse to PBFX or any of its Restricted Subsidiaries could, at such time, be incurred at that time by PBFX and its Restricted Subsidiaries under Section 4.09 hereof (other than pursuant to clause (b)(8) thereof); and
(3) such Unrestricted Subsidiarys or Joint Ventures activities are not outside the scope of the Permitted Business.
Permitted Investments means:
(1) any Investment in PBFX or in a Restricted Subsidiary of PBFX;
(2) any Investment in cash and Cash Equivalents or deposit accounts;
(3) any Investment by PBFX or any Restricted Subsidiary of PBFX in a Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of PBFX; or
(b) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, PBFX or a Restricted Subsidiary of PBFX;
(4) any security or other Investment received or Investment made as a result of the receipt of non-cash consideration from:
(a) an Asset Sale that was made pursuant to and in compliance with Section 4.10 hereof; or
(b) a disposition of assets that does not constitute an Asset Sale;
(5) any Investment in any Person solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of PBFX;
(6) any Investments received in compromise, settlement or resolution of (A) obligations of trade creditors or customers that were incurred in the ordinary course of business of PBFX or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer, or as a result of a foreclosure, perfection or
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enforcement by PBFX or any of its Restricted Subsidiaries with respect to any secured Investment in default, (B) claims or disputes owed to PBFX or any Restricted Subsidiary of PBFX that arose out of transactions in the ordinary course of business or (C) litigation, arbitration or other disputes with Persons who are not Affiliates;
(7) Investments in the form of intercompany Indebtedness or guarantees of Indebtedness of a Restricted Subsidiary of PBFX permitted under clauses (6) and (11) of Section 4.09(b) hereof;
(8) Investments represented by Hedging Obligations permitted to be incurred in accordance with the provisions of this Indenture;
(9) loans or advances to employees made in the ordinary course of business of PBFX or any Restricted Subsidiary of PBFX in an aggregate principal amount not to exceed $5.0 million at any one time outstanding;
(10) repurchases of the Notes;
(11) any Investments in prepaid expenses, negotiable instruments held for collection and lease, utility, workers compensation and performance and other similar deposits and prepaid expenses made in the ordinary course of business;
(12) Permitted Business Investments;
(13) Investments pursuant to agreements and obligations of PBFX and any Restricted Subsidiary in effect on the Issue Date and any renewals or replacements thereof on terms and conditions not materially less favorable to PBFX or such Restricted Subsidiary, as the case may be, than the terms of the Investment being renewed or replaced;
(14) other Investments in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (14) that are at the time outstanding not to exceed the greater of (a) $100.0 million and (b) 12.5% of PBFXs Consolidated Net Tangible Assets;
(15) Investments owned by any Person at the time such Person merges with PBFX or any Restricted Subsidiary thereof; provided that such Investments (a) are not incurred in contemplation of such merger or acquisition and (b) are, in the good faith determination of PBFX, incidental to such merger or acquisition, and in each case renewals or extensions thereof; and
(16) Investments in Joint Ventures and/or Unrestricted Subsidiaries having an aggregate fair market value, when taken together with all other Investments made pursuant to this clause (16) that are at the time outstanding, not to exceed the greater of (a) $75.0 million and (b) 12.5% of PBFXs Consolidated Net Tangible Assets;
provided, however, that with respect to any Investment, PBFX may, in its sole discretion, allocate all or any portion of any Investment and later re-allocate all or any portion of any Investment to one or more of the above clauses (1) through (16) so that the entire Investment would be a Permitted Investment (including, without limitation, as a result of any Person becoming a Restricted Subsidiary). The amount of any Permitted Investment outstanding at any time shall be deemed to be the original cost of such Permitted Investment, reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash by PBFX or a Restricted Subsidiary in respect of such Permitted Investment.
Permitted Liens means:
(1) Liens securing any Indebtedness under any Credit Facility and all Obligations and Hedging Obligations relating to such Indebtedness and all Treasury Management Arrangements;
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(2) Liens in favor of PBFX or the Subsidiary Guarantors;
(3) Liens on property of a Person existing at the time (a) such Person is merged with or into or consolidated with PBFX or any Subsidiary of PBFX, (b) such Person becomes a Restricted Subsidiary or (c) such property is otherwise acquired by PBFX or a Restricted Subsidiary; provided that such Liens were in existence prior to such merger, consolidation or other acquisition and do not extend to any assets other than those of the Person merged into or consolidated with PBFX or the Subsidiary in the case of a merger or consolidation pursuant to clause (a) or such property in the case of such other acquisition in the case of clause (b) or (c);
(4) Liens and deposits to secure the performance of statutory obligations, surety or appeal bonds, workers compensation obligations, unemployment insurance, reimbursement obligations owed to insurers, bids, performance bonds, leases, statutory obligations, other types of social security or other obligations of a like nature incurred in the ordinary course of business (including Liens to secure letters of credit issued to assure payment of such obligations);
(5) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by clause (4), (12) or (18) of Section 4.09(b) hereof covering only the assets acquired, constructed, improved or developed with, or secured by, such Indebtedness;
(6) Liens existing on the Issue Date (other than Liens securing the Credit Facilities);
(7) Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings diligently pursued; provided that any reserve or other appropriate provision as is required in conformity with GAAP has been made therefor;
(8) Liens imposed by law, such as carriers, warehousemens, landlords, repairmans, materialmens, mechanics and other like Liens, in each case, incurred in the ordinary course of business;
(9) defects, irregularities and deficiencies in title of any rights of way or other property, survey exceptions, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions and other similar encumbrances as to the use of real property that were not incurred in connection with Indebtedness and that do not in the aggregate materially interfere with the ordinary conduct of the business of PBFX or any of its Subsidiaries and defects, irregularities and deficiencies in title to any property of PBFX or any of its Subsidiaries, which defects, irregularities or deficiencies have been cured by possession under applicable statutes of limitation;
(10) inchoate Liens arising under the Employee Retirement Income Security Act of 1974, and any amendments thereto;
(11) Liens created for the benefit of (or to secure) the Notes (or the Note Subsidiary Guarantees);
(12) Liens on any property or asset acquired, constructed or improved by PBFX or any of its Restricted Subsidiaries, which (a) are in favor of the seller of such property or assets, in favor of the Person developing, constructing, repairing or improving such asset or property, or in favor of the Person that provided the funding for the acquisition, development, construction, repair or improvement cost, as the case may be, of such asset or property, (b) are created within 360 days after the acquisition, development, construction, repair or improvement, (c) secure the purchase price or development, construction, repair or improvement cost, as the case may be, of such asset or property in an amount up to 100% of the Fair Market Value of such acquisition, construction or improvement of such asset or property, and (d) are limited to the asset or property so acquired, constructed or improved (including the proceeds thereof, accessions thereto and upgrades thereof);
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(13) Liens on and pledges of the Equity Interests of any Unrestricted Subsidiary or any Joint Venture owned by PBFX or any Restricted Subsidiary of PBFX to the extent securing Non-Recourse Debt or other Indebtedness of such Unrestricted Subsidiary or Joint Venture;
(14) Liens in favor of collecting or payor banks having a right of setoff, revocation, refund or chargeback with respect to money or instruments of PBFX or any of its Subsidiaries on deposit with or in possession of such bank;
(15) Liens to secure performance of Hedging Obligations of PBFX or any of its Restricted Subsidiaries;
(16) Liens on pipelines or pipeline facilities that arise by operation of law, rule or regulation;
(17) Liens incurred in the ordinary course of business of PBFX or any Restricted Subsidiary of PBFX with respect to obligations that at any one time outstanding do not exceed the greater of (a) $100.0 million and (b) 12.5% of Consolidated Net Tangible Assets;
(18) Liens resulting from the deposit of money or other Cash Equivalents or other evidence of Indebtedness in trust for the purpose of defeasing Indebtedness of PBFX or any of its Restricted Subsidiaries;
(19) Liens to secure any Permitted Refinancing Indebtedness permitted to be incurred under this Indenture; provided, however, that:
(a) the new Lien is limited to all or part of the same property and assets that secured or, under the written agreements pursuant to which the original Lien arose, could secure the original Lien (plus improvements and accessions to such property or proceeds or distributions thereof); and
(b) the Indebtedness secured by the new Lien is not increased to any amount greater than the sum of (x) the outstanding principal amount, or, if greater, committed amount, of the Indebtedness renewed, refunded, refinanced, replaced, redeemed, defeased or discharged with such Permitted Refinancing Indebtedness and (y) an amount necessary to pay accrued interest on such Indebtedness and any discounts, commissions, premiums, fees and other costs and expenses, related to such renewal, refunding, refinancing, replacement, defeasance or discharge;
(20) Liens relating to future escrow arrangements securing Indebtedness incurred in accordance with this Indenture;
(21) any interest or title of a lessor under any lease entered into by PBFX or any of its Subsidiaries in the ordinary course of its business and covering only the assets so leased;
(22) any Lien securing Indebtedness, neither assumed nor guaranteed by PBFX or any of its Subsidiaries nor on which it customarily pays interest, existing upon real estate or rights in or relating to real estate acquired by PBFX for substation, metering station, pump station, storage, gathering line, transmission line, transportation line, distribution line or for right-of-way purposes, any Liens reserved in leases for rent and for compliance with the terms of the leases in the case of leasehold estates, to the extent that any such Lien referred to in this clause (22) does not materially impair the use of the property covered by such Lien for the purposes of which such property is held by PBFX or any of its Subsidiaries;
(23) any obligations or duties affecting any of the property of PBFX or its Subsidiaries to any municipality or public authority with respect to any franchise, grant, license or permit which do not materially impair the use of such property for the purposes for which it is held;
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(24) Liens upon specific items of inventory, accounts receivables or other goods and proceeds of PBFX or any Restricted Subsidiary securing such Persons obligations in respect of bankers acceptances or receivables securitizations issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory, accounts receivables or other goods and proceeds;
(25) any Liens securing industrial development, pollution control or similar bonds;
(26) Liens arising from the deposit of funds or securities in trust for the purpose of decreasing, defeasing or discharging Indebtedness so long as such deposit of funds or securities and such decreasing, defeasing or discharging of Indebtedness are permitted under Section 4.07;
(27) Liens arising under construction contracts, interconnection agreements, operating agreements, joint venture agreements, partnership agreements, contracts for purchase, gathering, processing, sale, transportation, exchange or storage of crude oil, natural gas liquids, condensate and natural gas, real property leases and other agreements arising in the ordinary course of business of PBFX and its Restricted Subsidiaries that are customary in a Permitted Business;
(28) Liens securing Indebtedness equally and ratably with all Obligations due under the Notes or any Note Subsidiary Guarantee pursuant to a contractual covenant that limits Liens in a manner substantially similar to the covenant described under Section 4.07;
(29) Liens securing any insurance premium financing under customary terms and conditions, provided that no such Lien may extend to or cover any assets or property other than the insurance being acquired with such financing, the proceeds thereof and any unearned or refunded insurance premiums related thereto; and
(30) Liens renewing, extending, refinancing or refunding a Lien permitted by clauses (1) through (29) above; provided that (a) the principal amount of Indebtedness secured by such Lien does not exceed the principal amount of such Indebtedness outstanding immediately prior to the renewal, extension, refinance or refund of such Lien, plus all accrued interest on the Indebtedness secured thereby and the amount of all fees, expenses and premiums incurred in connection therewith, and (b) no assets encumbered by any such Lien other than the assets permitted to be encumbered immediately prior to such renewal, extension, refinance or refund are encumbered thereby.
Permitted Refinancing Indebtedness means any Indebtedness of PBFX or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge other Indebtedness of PBFX or any of its Restricted Subsidiaries (other than intercompany Indebtedness), including Indebtedness that extends, refinances, renews, replaces, defeases or refunds Permitted Refinancing Indebtedness; provided that:
(1) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount of (or accreted value, if applicable), plus accrued and unpaid interest on, the Indebtedness renewed, refunded, refinanced, replaced, defeased or discharged (plus all accrued interest on the Indebtedness and the amount of all discounts, commissions, premiums, fees and other costs and expenses incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged;
(3) if the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged is subordinated in right of payment to the Notes or the Note Subsidiary Guarantees, such Permitted Refinancing Indebtedness is subordinated in right of payment to, the Notes or the Note Subsidiary Guarantees, on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged; and
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(4) such Indebtedness is incurred either by PBFX or by a Restricted Subsidiary who is an obligor on or guarantor of the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged.
Permitted Term Loan Indebtedness means Indebtedness that is secured solely by assets constituting Term Loan Collateral that is incurred for the purpose of consummating a Lakehead structure or substantially similar structure.
Person means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.
Preferred Stock means any Capital Stock with preferential rights of payment of dividends or distributions or upon liquidation, dissolution or winding up.
Private Placement Legend means the legend set forth in Section 2.06(g)(1) hereof to be placed on all Notes issued under this Indenture except where otherwise permitted by the provisions of this Indenture.
Private Placement Notes means the $19,910,000 aggregate principal amount of Notes issued under this Indenture to certain of PBF Energy Inc.s officers and directors and their affiliates and family members.
QIB means a qualified institutional buyer as defined in Rule 144A.
Qualified Owner means, collectively (a) PBF Energy Inc., (b) each Person of which PBF Energy Inc. is a direct or indirect Subsidiary and (c) each Person which is a direct or indirect Subsidiary of any Person described in clause (a) or (b) of this definition.
Rating Agencies means Moodys and S&P.
Rating Categories means:
(1) with respect to S&P, any of the following categories: AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent successor categories); and
(2) with respect to Moodys, any of the following categories: Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories).
Rating Decline means a decrease in the rating of the Notes by either Moodys or S&P by one or more gradations (including gradations within Rating Categories as well as between Rating Categories). In determining whether the rating of the Notes has decreased by one or more gradations, gradations within Ratings Categories, namely + or - for S&P, and 1, 2, and 3 for Moodys, will be taken into account; for example, in the case of S&P, a rating decline either from BB+ to BB or BB -to B+ will constitute a decrease of one gradation.
Reference Period means, with respect to any date of determination, the four most recent fiscal quarters of PBFX for which internal financial statements are available.
Registration Rights Agreement means the Registration Rights Agreement, dated as of May 12, 2015, among the Issuers, the Subsidiary Guarantors and the other parties named on the signature pages thereof, as such agreement may be amended, modified or supplemented from time to time and, with respect to any Additional Notes, one or more registration rights agreements among the Issuers, the Subsidiary Guarantors and the other parties thereto, as such agreement(s) may be amended, modified or supplemented from time to time, relating to rights given by the Issuers to the purchasers of Additional Notes to register such Additional Notes under the Securities Act.
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Regulation S means Regulation S promulgated under the Securities Act.
Regulation S Global Note means a Global Note substantially in the form of Exhibit A, as applicable, hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Regulation S.
Reporting Default means a Default described in clause (4) under Section 6.01.
Responsible Officer when used with respect to the Trustee, means any officer within the Corporate Trust Administration of the Trustee (or any successor group of the Trustee) having direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.
Restricted Definitive Note means a Definitive Note bearing the Private Placement Legend.
Restricted Global Note means a Global Note bearing the Private Placement Legend.
Restricted Investment means an Investment other than a Permitted Investment.
Restricted Subsidiary of a Person means any Subsidiary of the referent Person that is not an Unrestricted Subsidiary.
Rule 144 means Rule 144 promulgated under the Securities Act.
Rule 144A means Rule 144A promulgated under the Securities Act.
Rule 903 means Rule 903 promulgated under the Securities Act.
Rule 904 means Rule 904 promulgated under the Securities Act.
S&P means Standard & Poors Ratings Services, a division of The McGraw-Hill Companies, Inc., or any successor to the rating agency business thereof.
SEC means the Securities and Exchange Commission.
Securities Act means the Securities Act of 1933, as amended.
Senior Indebtedness means with respect to any Person, Indebtedness or Hedging Obligations of such Person, unless the instrument creating or evidencing such Indebtedness or Hedging Obligations provides that such Indebtedness or Hedging Obligations is subordinate in right of payment to the Notes or the Note Subsidiary Guarantee of such Person, as the case may be.
Shelf Registration Statement means the Shelf Registration Statement as defined in the Registration Rights Agreement.
Significant Subsidiary means any Subsidiary that would be a significant subsidiary as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the Issue Date.
Special Interest has the meaning set forth in the Registration Rights Agreement.
Stated Maturity means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the documentation governing such Indebtedness as of the Issue Date, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.
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Subordinated Obligation means any Indebtedness of PBFX (whether outstanding on the Issue Date or thereafter incurred) which pursuant to a written agreement is subordinate or junior in right of payment to the Notes and any Indebtedness of a Subsidiary Guarantor (whether outstanding on the Issue Date or thereafter incurred) which pursuant to a written agreement is subordinate or junior in right of payment to its Note Subsidiary Guarantee.
Subsidiary means, with respect to any specified Person:
(1) any corporation, association or other business entity (other than a partnership or limited liability company) of which more than 50% of the total voting power of shares of the Voting Stock is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and
(2) any partnership (whether general or limited) or limited liability company (a) the sole general partner or managing member of which is such Person or a Subsidiary of such Person, or (b) if there are more than a single general partner or member, either (x) the only general partners or managing members of which are such Person or one or more Subsidiaries of such Person (or any combination thereof) or (y) such Person owns or controls, directly or indirectly, a majority of the outstanding general partner interests, member interests or other Voting Stock of such partnership or limited liability company, respectively.
Subsidiary Guarantors means each of:
(1) the Subsidiaries of PBFX, other than Finance Corp., executing this Indenture as initial Subsidiary Guarantors;
(2) each of PBFXs Restricted Subsidiaries that becomes a guarantor of the Notes pursuant to the covenant described above under Section 4.16; and
(3) each other Person executing a supplemental indenture in which such Person agrees to be bound by the terms of this Indenture;
provided that any Person constituting a Subsidiary Guarantor as described above shall cease to constitute a Subsidiary Guarantor when its respective Note Subsidiary Guarantee is released in accordance with the terms of this Indenture.
Synthetic Lease Obligation means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property (including sale and leaseback transactions), in each case, creating obligations that do not appear on the balance sheet of such Person but which, upon the application of any bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally to such Person, would be characterized as the Indebtedness of such Person (without regard to accounting treatment).
Term Loan Collateral means Collateral as defined in the Collateralized Term Loan Credit Agreement and substantially similar assets (including cash and Cash Equivalents).
TIA means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb), as in effect on the date on which this Indenture is qualified under the TIA; provided, however, that in the event the TIA is amended after such date, TIA means, to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended.
Transactions means the consummation of the Delaware City Logistics Acquisition, the issuance of the Notes and the application of the net proceeds therefrom.
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Treasury Management Arrangement means any agreement or other arrangement governing the provision of treasury or cash management services, including deposit accounts, overdraft, credit or debit cards, funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services.
Treasury Rate means, as of any Redemption Date, the yield to maturity as of such Redemption Date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to the Redemption Date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the Redemption Date to May 15, 2018; provided, however, that if the period from the redemption date to May 15, 2018 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.
Trustee means Deutsche Bank Trust Company Americas, as trustee, until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
Unrestricted Definitive Note means a Definitive Note that does not bear and is not required to bear the Private Placement Legend.
Unrestricted Global Note means a Global Note that does not bear and is not required to bear the Private Placement Legend.
Unrestricted Subsidiary means any Subsidiary of PBFX (other than Finance Corp. or any successor to it) that is designated by the Board of Directors of the General Partner as an Unrestricted Subsidiary pursuant to a resolution of the Board of Directors, but only to the extent that such Subsidiary:
(1) except to the extent permitted by subclause (2)(b) of the definition of Permitted Business Investments (excluding the parenthetical therein), has no Indebtedness other than Non-Recourse Debt;
(2) except as permitted by Section 4.11 hereof, is not party to any agreement, contract, arrangement or understanding with PBFX or any Restricted Subsidiary of PBFX unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to PBFX or such Restricted Subsidiary than those that might be obtained, in light of the circumstances, at the time from Persons who are not Affiliates of PBFX;
(3) is a Person with respect to which neither PBFX nor any of its Restricted Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Persons financial condition or to cause such Person to achieve any specified levels of operating results; and
(4) has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of PBFX or any of its Restricted Subsidiaries.
All Subsidiaries of an Unrestricted Subsidiary shall be also Unrestricted Subsidiaries. Any designation of a Subsidiary of PBFX as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a board resolution giving effect to such designation and an Officers Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of PBFX as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, PBFX will be in default of such covenant.
U S. Person means a U.S. Person as defined in Rule 902(k) promulgated under the Securities Act.
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Voting Stock of any specified Person as of any date means the Capital Stock of such Person that is at the time entitled (without regard to the occurrence of any contingency) to vote in the election of the Board of Directors of such Person.
Weighted Average Life to Maturity means, when applied to any Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount of each then-remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by
(2) the then-outstanding principal amount of such Indebtedness.
Section 1.02 Other Definitions.
Term |
Defined in Section |
|||
Affiliate Transaction |
4.11 | |||
Alternate Offer |
4.15 | |||
Asset Sale Offer |
3.09 | |||
Authentication Order |
2.02 | |||
Change of Control Offer |
4.15 | |||
Change of Control Payment |
4.15 | |||
Change of Control Payment Date |
4.15 | |||
Covenant Defeasance |
8.03 | |||
DTC |
2.03 | |||
Event of Default |
6.01 | |||
Excess Proceeds |
4.10 | |||
Incremental Funds |
4.07 | |||
incur |
4.09 | |||
Legal Defeasance |
8.02 | |||
Offer Amount |
3.09 | |||
Offer Period |
3.09 | |||
Paying Agent |
2.03 | |||
Payment Default |
6.01 | |||
Permitted Debt |
4.09 | |||
Purchase Date |
3.09 | |||
Redemption Date |
3.07 | |||
Registrar |
2.03 | |||
Release |
13.02 | |||
Restricted Payments |
4.07 | |||
Termination Date |
4.18 |
Section 1.03 Incorporation by Reference of Trust Indenture Act.
At all times after the effectiveness of a registration statement under the Registration Rights Agreement, this Indenture will be subject to the mandatory provisions of the TIA, which unless otherwise indicated are incorporated by reference in and made a part of this Indenture effective upon the effectiveness of any such registration statement. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture.
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The following TIA terms if used in this Indenture have the following meanings:
indenture securities means the Notes and the Note Subsidiary Guarantees;
indenture security Holder means a Holder of a Note;
indenture to be qualified means this Indenture;
indenture trustee or institutional trustee means the Trustee; and
obligor on the Notes and the Note Subsidiary Guarantees means the Issuers and the Subsidiary Guarantors, respectively, and any successor obligor upon the Notes and the Note Subsidiary Guarantees, respectively.
All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA have the meanings so assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(3) or is not exclusive;
(4) words in the singular include the plural, and in the plural include the singular;
(5) both shall and will shall be interpreted to express a command;
(6) provisions apply to successive events and transactions;
(7) references to sections of, or rules under, the Securities Act or the Exchange Act shall be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time;
(8) the words including, includes and include shall be deemed to be followed by the words without limitation; and
(9) the words asset and property shall be construed as having the same meaning and effect and shall include all tangible and intangible assets.
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating.
(a) General. The Notes and the Trustees certificate of authentication will be substantially in the form set forth in Exhibit A hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note will be dated the date of its authentication. The Notes shall be in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
The terms and provisions contained in the Notes will constitute, and are hereby expressly made, a part of this Indenture and the Issuers, the Subsidiary Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of the Notes conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
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(b) Global Notes. Notes issued in global form will be substantially in the form set forth in Exhibit A (including the Global Note Legend thereon and the Schedule of Exchanges of Interests in the Global Note attached thereto). Notes issued in definitive form will be substantially in the form set forth in Exhibit A (but without the Global Note Legend thereon and without the Schedule of Exchanges of Interests in the Global Note attached thereto). Each Global Note will represent such of the outstanding Notes as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby will be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.
(c) Euroclear and Clearstream Procedures Applicable. The provisions of the Operating Procedures of the Euroclear System and Terms and Conditions Governing Use of Euroclear and the General Terms and Conditions of Clearstream Banking and Customer Handbook of Clearstream will be applicable to transfers of beneficial interests in the Regulation S Global Notes that are held by Participants through Euroclear or Clearstream.
Section 2.02 Execution and Authentication.
At least one Officer must sign the Notes for each of the Issuers by manual, electronic (including through pdf) or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note will nevertheless be valid,
A Note will not be valid until authenticated by the manual signature of the Trustee. The signature will be conclusive evidence that the Note has been authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Issuers signed by an Officer of each Issuer (an Authentication Order), authenticate Notes for original issue that may be validly issued under this Indenture, including any Additional Notes and Exchange Notes. The aggregate principal amount of Notes outstanding at any time may not exceed the aggregate principal amount of Notes authorized for issuance by the Issuers pursuant to one or more Authentication Orders, except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the Issuers to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Issuers.
Section 2.03 Registrar and Paying Agent.
The Issuers will maintain an office or agency where Notes may be presented for registration of transfer or for exchange (Registrar) and an office or agency where Notes may be presented for payment (Paying Agent). The Registrar will keep a register of the Notes and of their transfer and exchange. The Issuers may appoint one or more co-registrars and one or more additional paying agents. The term Registrar includes any co-registrar and the term Paying Agent includes any additional paying agent. The Issuers may change any Paying Agent or Registrar without notice to any Holder. The Issuers will notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Issuers fail to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. PBFX, Finance Corp. or any of PBFXs Subsidiaries may act as Paying Agent or Registrar.
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The Issuers initially appoint The Depository Trust Company (DTC) to act as Depositary with respect to the Global Notes.
The Issuers initially appoint the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
The Issuers will require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, or interest and Special Interest, if any, on the Notes, and will notify the Trustee of any default by the Issuers in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Issuers at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than PBFX or a Subsidiary) will have no further liability for the money. If PBFX or a Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to PBFX, the Trustee will serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee will preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Issuers will furnish to the Trustee at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes and the Issuers shall otherwise comply with TIA § 312(a).
None of the Trustee, the Registrar, the Paying Agent or Transfer Agent shall have any responsibility or obligation to any beneficial owner of an interest in a Global Note, any Agent Member or other member of, or a participant in, DTC or other Person with respect to the accuracy of the records of DTC or any nominee or participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any Agent Member or other participant, member, beneficial owner or other Person (other than DTC) of any notice or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be DTC or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through DTC, subject to its applicable rules and procedures. The Trustee, Registrar, Paying Agent and Transfer Agent may rely and shall be fully protected in relying upon information furnished by DTC with respect to its Agent Members and other members, participants and any beneficial owners.
Neither the Trustee, nor the Registrar or Transfer Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Participants or Indirect Participants in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged by the Issuers for Definitive Notes in a minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof if:
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(1) the Issuers deliver to the Trustee notice from the Depositary that it is unwilling or unable to continue to act as Depositary or that it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Issuers within 90 days after the date of such notice from the Depositary;
(2) the Issuers in their sole discretion determine that the Global Notes (in whole but not in part) should be exchanged for Definitive Notes and delivers a written notice to such effect to the Trustee; or
(3) there has occurred and is continuing an Event of Default with respect to the Notes and the Depositary notifies the Trustee of its decision to exchange the Global Notes for Definitive Notes.
Upon the occurrence of either of the preceding events in (1) or (2) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Sections 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a); however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes will be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also will require compliance with either subparagraph (1) or (2) below, as applicable, as well as one or more of the other following subparagraphs of this Section 2.06, as applicable:
(1) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend. Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(1) above, the transferor of such beneficial interest must deliver to the Registrar either:
(A) both:
(i) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged; and
(ii) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase; or
(B) both:
(i) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged; and
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(ii) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (1) above.
Upon consummation of an Exchange Offer by the Issuers in accordance with Section 2.06(f) hereof, the requirements of this Section 2.06(b)(2) shall be deemed to have been satisfied upon receipt by the Registrar of the instructions contained in the Letter of Transmittal delivered by the Holder of such beneficial interests in the Restricted Global Notes. Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(h) hereof.
(3) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.06(b)(2) above and the Registrar receives the following:
(A) if the transferee will take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form of a beneficial interest in the Regulation S Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof;
(4) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 2.06(6)(2) above and:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and the holder of the beneficial interest to be transferred, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal (or via the Depositarys book-entry system) that it is not (i) a Participating Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Issuers;
(B) such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or
(ii) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
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and, in each such case set forth in this subparagraph (D), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above at a time when an Unrestricted Global Note has not yet been issued, the Issuers shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(1) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder substantially in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(a) thereof;
(E) [Reserved].
(F) if such beneficial interest is being transferred to PBFX or any of its Subsidiaries, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Issuers shall execute and the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(1) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.
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(2) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and the holder of such beneficial interest, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal (or via the Depositarys book-entry system) that it is not (i) a Participating Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Issuers;
(B) such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder substantially in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or
(ii) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder substantially in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(3) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction of the conditions set forth in Section 2.06(b)(2) hereof, the Trustee will cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Issuers will execute and the Trustee will authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(3) will be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest requests through instructions to the Registrar from or through the Depositary and the Participant or Indirect Participant. The Trustee will deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(3) will not bear the Private Placement Legend.
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(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(1) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder substantially in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(a) thereof;
(E) [Reserved].
(F) if such Restricted Definitive Note is being transferred to PBFX or any of its Subsidiaries, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(c) thereof,
the Trustee will cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global Note, in the case of clause (C) above, the Regulation S Global Note
(2) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal (or via the Depositarys book-entry system) that it is not (i) a Participating Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Issuers;
(B) such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or
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(D) the Registrar receives the following:
(i) if the Holder of such Definitive Notes proposes to exchange such Notes for a beneficial interest in the Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or
(ii) if the Holder of such Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(2), the Trustee will cancel the Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee will cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to subparagraphs (2)(B), (2)(D) or (3) above at a time when an Unrestricted Global Note has not yet been issued, the Issuers will issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holders compliance with the provisions of this Section 2.06(e), the Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer or exchange in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder must provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e).
(1) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A, then the transferor must deliver a certificate substantially in the form of Exhibit B hereto, including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate substantially in the form of Exhibit B hereto, including the certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate substantially in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (4) thereof, if applicable.
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(2) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal (or via the Depositarys book-entry system) that it is not (i) a Participating Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Issuers;
(B) any such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a Participating Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate from such Holder substantially in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or
(ii) if the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder substantially in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(3) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with the Registration Rights Agreement, the Issuers will issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will authenticate:
(1) one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of the beneficial interests in the Restricted Global Notes accepted for exchange in the Exchange Offer by Persons that certify in the applicable Letters of Transmittal that (A) they are not Participating Broker-Dealers, (B) they are not participating in a distribution of the Exchange Notes and (C) they are not affiliates (as defined in Rule 144) of the Issuers; and
(2) Unrestricted Definitive Notes in an aggregate principal amount equal to the principal amount of the Restricted Definitive Notes accepted for exchange in the Exchange Offer by Persons that certify in the applicable Letters of Transmittal that (A) they are not Participating Broker-Dealers, (B) they are not participating in a distribution of the Exchange Notes and (C) they are not affiliates (as defined in Rule 144) of the Issuers.
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Concurrently with the issuance of such Notes, the Trustee will cause the aggregate principal amount of the applicable Restricted Global Notes to be reduced accordingly, and the Issuers will execute and the Trustee will authenticate and deliver to the Persons designated by the Holders of Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate principal amount.
(g) Legends. The following legends will appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.
(1) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE RESALE RESTRICTION TERMINATION DATE) THAT IS SIX MONTHS (IN THE CASE OF RULE 144A SECURITIES) AFTER THE LATER OF THE ISSUE DATE OF THE NOTES INITIALLY ISSUED OR THE ISSUANCE DATE OF ANY ADDITIONAL NOTES ISSUED UNDER THE INDENTURE (AS APPLICABLE) AND THE LAST DATE ON WHICH THE ISSUERS OR ANY AFFILIATE OF THE ISSUERS WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) OR 40 DAYS (IN THE CASE OF REGULATION S SECURITIES), ONLY (A) TO THE ISSUERS, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)(I) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (II) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUERS AND THE TRUSTEES RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THE HOLDER AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER OR THE ISSUERS ON OR AFTER THE RESALE RESTRICTION TERMINATION DATE.
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BY ITS ACQUISITION AND HOLDING OF THIS SECURITY, THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED, WARRANTED AND AGREED THAT EITHER (I) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY (OR ANY INTEREST IN THIS SECURITY) CONSTITUTES THE ASSETS OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY REQUIREMENTS OF TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (ERISA), OF A PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE CODE), A GOVERNMENTAL, CHURCH, NON-U.S., OR OTHER PLAN WHICH IS SUBJECT TO ANY FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (SIMILAR LAWS), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE PLAN ASSETS BY REASON OF SUCH PLANS, ACCOUNTS OR OTHER ARRANGEMENTS INVESTMENT IN THE ENTITY, OR (II) THE ACQUISITION, HOLDING AND DISPOSITION OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE OR, IN THE CASE OF A PLAN THAT IS NOT SUBJECT TO ERISA OR SECTION 4975 OF THE CODE, A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.
IN THE CASE OF REGULATION S NOTES: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.
(B) Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraphs (b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) will not bear the Private Placement Legend.
(2) Global Note Legend. Each Global Note will bear a legend in substantially the following form:
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUERS.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (DTC), TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN
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AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(h) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole but not in part, each such Global Note will be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any beneficial interests in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interests in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note will be reduced accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interests in another Global Note, such other Global Note will be increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the Issuers will execute and the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 hereof or at the Registrars request.
(2) No service charge will be made to a Holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Issuers may require payment of a sum sufficient to cover any transfer or exchange tax or similar governmental charge payable in connection therewith (other than any such transfer or exchange taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof).
(3) The Registrar will not be required to register the transfer of or exchange of any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.
(4) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes will be the valid obligations of the Issuers, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(5) Neither the Registrar nor the Issuers will be required:
(A) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 hereof and ending at the close of business on the day of selection;
(B) to register the transfer of or to exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part; or
(C) to register the transfer of or to exchange a Note between a record date and the next succeeding Interest Payment Date.
(6) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuers may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Issuers shall be affected by notice to the contrary.
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(7) The Trustee will authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.02 hereof.
(8) All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Issuers and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Issuers will issue and the Trustee, upon receipt of an Authentication Order, will authenticate a replacement Note if the Trustees requirements are met. If required by the Trustee or the Issuers, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Issuers to protect the Issuers, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Issuers and the Trustee may charge for their expenses in replacing a Note.
Every replacement Note is an additional obligation of each of the Issuers and will be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because the Issuers or an Affiliate of the Issuers holds the Note; however, Notes held by PBFX or a Subsidiary of PBFX shall not be deemed to be outstanding for purposes of Section 3.07(a)(1) hereof.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest and Special Interest, if any, on it ceases to accrue.
If the Paying Agent (other than PBFX, a Subsidiary or an Affiliate of any thereof) holds, on a Redemption Date or maturity date, money sufficient to pay Notes payable on that date, then on and after that date such Notes will be deemed to be no longer outstanding and will cease to accrue interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuers or any Subsidiary Guarantor, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuers or any Subsidiary Guarantor, will be considered as though not outstanding, except that for the purposes of determining whether the Trustee will be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee knows are so owned will be so disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the Issuers may prepare and the Trustee, upon receipt of an Authentication Order, will authenticate temporary Notes. Temporary Notes will be substantially in the form of certificated Notes but may have variations that the Issuers consider appropriate for temporary Notes and as may be reasonably acceptable to the Trustee. Without unreasonable delay, the Issuers will prepare and the Trustee will authenticate definitive Notes in exchange for temporary Notes.
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Holders of temporary Notes will be entitled to all of the benefits of this Indenture.
Section 2.11 Cancellation.
The Issuers at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent will forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and will destroy canceled Notes (subject to the record retention requirement of the Exchange Act). At the written request of the Issuers, certification of the destruction of all canceled Notes will be delivered by the Trustee to the Issuers. The Issuers may not issue new Notes to replace Notes that they have paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Issuers default in a payment of interest on the Notes, they will pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01 hereof. The Issuers will notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Issuers will fix or cause to be fixed each such special record date and payment date; provided that no such special record date may be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Issuers (or, upon the written request of the Issuers, the Trustee in the name and at the expense of the Issuers) will mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid.
Section 2.13 Issuance of Additional Notes.
After the Issue Date, the Issuers shall be entitled, subject to their compliance with Section 4.09 hereof, to issue Additional Notes under this Indenture, which Notes shall have identical terms as the Notes issued on the Issue Date, other than with respect to the date of issuance and issue price. All the Notes issued under this Indenture shall be treated as a single class for all purposes of this Indenture including waivers, amendments, redemptions and offers to purchase.
With respect to any Additional Notes, each Issuer shall set forth in a board resolution and an Officers Certificate, a copy of each which shall be delivered to the Trustee, the aggregate principal amount of such Additional Notes to be issued, authenticated and delivered pursuant to this Indenture.
In authenticating such Additional Notes, and accepting the additional responsibilities under this Indenture in relation to such Additional Notes, the Trustee shall receive, and, subject to Section 7.01, shall be fully protected in relying upon:
(i) an executed supplemental indenture, if any; and
(ii) an Officers Certificate and Opinion of Counsel delivered in accordance with Section 12.04.
Section 2.14 CUSIP Numbers.
The Issuers in issuing Notes may use CUSIP numbers, as applicable (if then generally in use), and, if so, the Trustee shall use for the Securities CUSIP number in notices to the Holders as a convenience to such Holders; provided, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice and that reliance may be placed only on the other identification numbers printed on the Notes, and any such notice shall not be affected by any defect in or omission of such numbers. The Issuers will promptly notify the Trustee in writing of any changes in the CUSIP numbers.
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ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Issuers elect to redeem Notes pursuant to the optional redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at least 30 days but not more than 60 days before a Redemption Date, an Officers Certificate setting forth:
(1) the clause of this Indenture pursuant to which the redemption shall occur;
(2) the Redemption Date;
(3) the principal amount of Notes to be redeemed; and
(4) the redemption price.
Section 3.02 Selection of Notes To Be Redeemed or Purchased.
If less than all of the Notes are to be redeemed or purchased in an offer to purchase at any time, the Trustee will select Notes for redemption or purchase on a pro rata basis, by lot or such other similar method in accordance with the procedures of DTC.
No Notes of $2,000 or less can be redeemed in part. In the event of partial redemption or purchase by lot, the particular Notes to be redeemed or purchased will be selected, unless otherwise provided herein, not less than 15 nor more than 60 days prior to the redemption or purchase date by the Trustee from the outstanding Notes not previously called for redemption or purchase.
The Trustee will promptly notify the Issuers in writing of the Notes selected for redemption or purchase and, in the case of any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of Notes selected will be in amounts of $2,000 or whole multiples of $1,000 in excess thereof; except that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed or purchased. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase.
Section 3.03 Notice of Redemption.
Subject to the provisions of Section 3.09 hereof, at least 30 days but not more than 60 days before a Redemption Date, the Issuers will mail or cause to be mailed, by first class mail, or delivered via electronic transmission a notice of redemption to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed or delivered via electronic transmission more than 60 days prior to a Redemption Date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture pursuant to Articles 8 or 11 hereof. Notice of any redemption of the Notes, (including upon an Equity Offering, in connection with a transaction (or series of related transactions) that constitute a Change of Control or otherwise) may, at the Issuers discretion, be given prior to the completion thereof and be subject to one or more conditions precedent, including, but not limited to, completion of the related Equity Offering, Change of Control or such other transaction. In addition, if such redemption is subject to satisfaction of one or more conditions precedent, such notice shall state that, in the Issuers discretion, the Redemption Date may be delayed until such time (including more than 60 days after the date the notice of redemption was delivered) as any or all such conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the Redemption Date, or by the Redemption Date so delayed, or such notice may be rescinded at any time in the Issuers discretion if in the good faith judgment of the Issuers any or all of such conditions will not be satisfied. In addition, the Issuers may provide in such notice that payment of the redemption price and performance of the Issuers obligations with respect to such redemption may be performed by another Person.
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The notice will identify the Notes to be redeemed and will state:
(1) the Redemption Date;
(2) the redemption price, if then determinable, and, if not, then a method for determination;
(3) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the Redemption Date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued upon cancellation of the original Note;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(6) that, unless the Issuers default in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the Redemption Date;
(7) the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed; and
(8) that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Issuers request, the Trustee will give the notice of redemption in the Issuers names and at their expense; provided, however, that the Issuers have delivered to the Trustee, at least 45 days prior to the Redemption Date (or such shorter time period as the Trustee may agree), an Officers Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is delivered in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable on the Redemption Date at the redemption price, unless the redemption is subject to a condition precedent that is not satisfied or waived.
Section 3.05 Deposit of Redemption or Purchase Price.
Prior to 11:00 a.m. New York time on the redemption or purchase date, the Issuers will deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued interest and Special Interest, if any, on all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent will promptly return to the Issuers any money deposited with the Trustee or the Paying Agent by the Issuers in excess of the amounts necessary to pay the redemption or purchase price of, and accrued interest and Special Interest, if any, on, all Notes to be redeemed or purchased.
If the Issuers comply with the provisions of the preceding paragraph, on and after the redemption or purchase date, interest will cease to accrue on the Notes or the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after an interest record date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note was registered at the close of business on such record date. If any Note called for redemption or purchase is not so paid upon surrender for redemption or purchase because of the failure of the Issuers to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.
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Section 3.06 Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part, the Issuers will issue and, upon receipt of an Authentication Order, the Trustee will authenticate for the Holder at the expense of the Issuers a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered.
Section 3.07 Optional Redemption.
(a) At any time prior to May 15, 2018, the Issuers may on any one or more occasions redeem up to 35% of the aggregate principal amount of the outstanding Notes (including any Additional Notes) issued under this Indenture at a redemption price of 106.875% of the principal amount with an amount equal to or less than the net cash proceeds of one or more Equity Offerings, plus accrued and unpaid interest and Special Interest, if any, to, but excluding, the Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on an Interest Payment Date that is on or prior to the Redemption Date); provided that:
(1) at least 65% of the aggregate principal amount of Notes originally issued under this Indenture (excluding Notes held by PBFX and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and
(2) the redemption occurs within 180 days of the date of the closing of such Equity Offering.
(b) On or after May 15, 2018, the Issuers may, on one or more occasions, redeem all or a part of the Notes at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest and Special Interest, if any, on the Notes redeemed, to, but excluding, the applicable Redemption Date, if redeemed during the twelve-month period beginning on May 15 of each year indicated below, subject to the rights of Holders of Notes on the relevant record date to receive interest on the relevant Interest Payment Date:
Year |
Percentage | |||
2018 |
105.156 | % | ||
2019 |
103.438 | % | ||
2020 |
101.719 | % | ||
2021 and thereafter |
100.000 | % |
(c) At any time prior to May 15, 2018, the Issuers may, on one or more occasions, also redeem all or a part of the Notes at a redemption price equal to 100% of the principal amount of Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest and Special Interest, if any, thereon to, but excluding, the redemption date (the Redemption Date), subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant Interest Payment Date. The notice need not set forth the Applicable Premium but only the manner of calculation of the redemption price. With respect to any redemption pursuant to this Section 3.07(b)(3), the Issuers shall notify the Trustee of the Applicable Premium with respect to the Notes promptly after the calculation thereof and the Trustee shall not be responsible for such calculation.
(d) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
(e) Unless the Issuers default in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable Redemption Date.
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Section 3.08 Mandatory Redemption.
Neither of the Issuers is required to make mandatory redemption or sinking fund payments with respect to the Notes.
The Issuers are not prohibited from acquiring the Notes by means other than a redemption, whether pursuant to a tender offer, open market purchase or otherwise, so long as the acquisition does not violate the terms of this Indenture.
Section 3.09 Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Issuers are required to commence an offer to all Holders to purchase Notes (an Asset Sale Offer), it will follow the procedures specified below.
The Asset Sale Offer shall be made to (x) all Holders and (y) to the extent any other Indebtedness that is pari passu in right of payment with the Notes contains provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such Indebtedness with the proceeds of sales of assets and such provisions require the Issuers to make such an offer, to all holders of such other Indebtedness. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the Offer Period). No later than three Business Days after the termination of the Offer Period (the Purchase Date), the Issuers will apply all Excess Proceeds (the Offer Amount) to the purchase of Notes and, if applicable, such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest and Special Interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Issuers will send, by first class mail or via electronic transmission, a notice to the Trustee and each of the Holders. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:
(1) that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note not tendered or accepted for payment will continue to accrue interest;
(4) that, unless the Issuers default in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in denominations of $2,000 and integral multiples of $1,000 in excess thereof only;
(6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled Option of Holder to Elect Purchase attached to the Notes completed, or transfer by book-entry transfer, to the Issuers, a Depositary, if appointed by the Issuers, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
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(7) that Holders will be entitled to withdraw their election if the Issuers, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, facsimile transmission, letter or other specified means of communication setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes and, if applicable, other pari passu Indebtedness surrendered by holders thereof exceeds the Offer Amount, the Trustee will select the Notes and the representative of such other pari passu Indebtedness will select such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments in each case as may be deemed appropriate by the Issuers so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, will be purchased); and
(9) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Issuers will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers Certificate stating that such Notes or portions thereof were accepted for payment by the Issuers in accordance with the terms of this Section 3.09. The Issuers, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Issuers for purchase, and the Issuers will promptly issue a new Note, and the Trustee, upon written request from the Issuers, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Issuers to the Holder thereof. The Issuers will publicly announce the results of the Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes.
The Issuers will pay or cause to be paid the principal of, premium, if any, and interest and Special Interest, if any, on, the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest and Special Interest, if any, will be considered paid on the date due if the Paying Agent, if other than the PBFX or a Subsidiary thereof, holds as of 11:00 a.m. New York Time on the due date money deposited by the Issuers in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due. The Issuers will pay all Special Interest, if any, in the same manner on the dates and in the amounts set forth in the Registration Rights Agreement.
Section 4.02 Maintenance of Office or Agency.
The Issuers will maintain in the Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuers in respect of the Notes and this Indenture may be served. The Issuers will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuers fail to maintain any such required office or agency or fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.
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The Issuers may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission will in any manner relieve the Issuers of their obligation to maintain an office or agency in the Borough of Manhattan, the City of New York for such purposes. The Issuers will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
The Issuers hereby designate the Corporate Trust Office of the Trustee as one such office or agency of the Issuers in accordance with Section 2.03 hereof.
Section 4.03 Reports.
(a) Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, PBFX shall furnish (whether through hard copy or Internet access) to the Holders of Notes or cause the Trustee to furnish to the Holders of Notes, within the time periods specified in the SECs rules and regulations applicable to non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if PBFX were required to file such Forms, including a Managements Discussion and Analysis of Financial Condition and Results of Operations; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if PBFX were required to file such reports.
All such reports will be prepared in all material respects in accordance with all of the rules and regulations applicable to such reports. Each annual report on Form 10-K will include a report on PBFXs consolidated financial statements by PBFXs independent registered public accounting firm. In addition, PBFX will file a copy of each of the reports referred to in clauses (1) and (2) above with the SEC for public availability within the time periods specified in the rules and regulations applicable to such reports (unless the SEC will not accept such a filing) and will post the reports on its website within those time periods.
If, at any time PBFX is no longer subject to the periodic reporting requirements of the Exchange Act for any reason, PBFX will nevertheless continue filing the reports specified in the preceding paragraphs of this Section 4.03 with the SEC within the time periods specified above unless the SEC will not accept such a filing; provided that, for so long as PBFX is not subject to the periodic reporting requirements of the Exchange Act for any reason, the time period for filing reports on Form 8-K shall be five (5) Business Days after the event giving rise to the obligation to file such report. If the SEC will not accept PBFXs filings for any reason, PBFX will post the reports referred to in the preceding paragraphs on its website within the time periods that would apply if PBFX were required to file those reports with the SEC.
If PBFX has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Subsidiaries individually or collectively would be Significant Subsidiaries, then, to the extent material, the quarterly and annual financial information required by the preceding paragraph will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, or in Managements Discussion and Analysis of Financial Condition and Results of Operations, of the financial condition and results of operations of PBFX and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of PBFX.
(b) For so long as any Notes remain outstanding, if at any time they are not required to file with the SEC the reports required by Section 4.03(a), the Issuers and the Subsidiary Guarantors will furnish to the Holders of Notes and to securities analysts and prospective investors in the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
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PBFX will be deemed to have furnished such reports required in clauses (a) and (b) above to the Trustee and the Holders of the Notes if it has filed such reports with the SEC using the EDGAR filing system (or any successor thereto) and such reports are publicly available.
The Trustee shall have no obligation to determine if and when PBFXs financial statements or reports are publicly available and accessible electronically. Delivery of these reports, information and documents to the Trustee is for informational purposes only and the Trustees receipt of them will not constitute constructive notice of any information contained therein or determinable from information contained therein, including PBFXs compliance with any of its covenants in this Indenture (as to which the Trustee is entitled to rely exclusively on Officers Certificates).
Section 4.04 Compliance Certificate.
(a) The Issuers and each Subsidiary Guarantor (to the extent that such Subsidiary Guarantor is so required under the TIA) shall deliver to the Trustee, within 90 days after the end of each fiscal year, an Officers Certificate (which shall, in the case of PBFX, be signed by the principal executive officer, the principal financial officer, or the principal accounting officer of the General Partner) stating that a review of the activities of the Issuers and PBFXs Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Issuers have kept, observed, performed and fulfilled their obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Issuers have kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the tens, provisions and conditions of this Indenture (or, if a Default or Event of Default has occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Issuers are taking or propose to take with respect thereto).
(b) So long as any of the Notes are outstanding, the Issuers will deliver to the Trustee, within ten (10) Business Days of becoming aware of any Default or Event of Default, an Officers Certificate specifying such Default or Event of Default and what action the Issuers are taking or propose to take with respect thereto.
Section 4.05 Taxes.
The Issuers will pay or discharge, and will cause each of PBFXs Subsidiaries to pay or discharge, prior to delinquency, all material taxes, lawful assessments, and governmental levies except such as are contested in good faith and by appropriate proceedings or where the failure to effect such payment or discharge is not adverse in any material respect to the Holders.
Section 4.06 Stay, Extension and Usury Laws.
The Issuers and each of the Subsidiary Guarantors covenant (to the extent that they may lawfully do so) that they will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture and the Notes; and the Issuers and each of the Subsidiary Guarantors (to the extent that they may lawfully do so) hereby expressly waive all benefit or advantage of any such law, and covenants (to the extent that they may lawfully do so) that they will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted.
Section 4.07 Restricted Payments.
(a) PBFX will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of PBFXs or any of its Restricted Subsidiaries Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving PBFX or any of its Restricted Subsidiaries) or to the direct or indirect holders of PBFXs or any of its Restricted Subsidiaries Equity Interests in their capacity as such (other than distributions or dividends payable solely in Equity Interests of PBFX (other than Disqualified Stock) and other than distributions or dividends payable solely to PBFX or a Restricted Subsidiary);
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(2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving PBFX) any Equity Interests of PBFX or any direct or indirect parent of PBFX;
(3) make any payment to purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of PBFX or any Subsidiary Guarantor that is contractually subordinated to the Notes or to any Note Subsidiary Guarantee (excluding (a) any intercompany Indebtedness between or among PBFX and any of its Restricted Subsidiaries and (b) the payment of principal, purchase, repurchase or other acquisition of Indebtedness that is subordinated in right of payment to the Notes or the Note Subsidiary Guarantees acquired in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of payment, purchase, repurchase or other acquisition); or
(4) make any Restricted Investment
(all such payments and other actions set forth in clauses (1) through (4) above being collectively referred to as Restricted Payments), unless, at the time of and after giving effect to such Restricted Payment, no Default (except a Reporting Default) or Event of Default has occurred and is continuing and either:
(1) if the Fixed Charge Coverage Ratio for PBFXs Reference Period is not less than 1.75 to 1.00, such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by PBFX and its Restricted Subsidiaries (excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6), (7), (8), (9), (10), (11) and (12) of Section 4.07(b) hereof) during the quarter in which such Restricted Payment is made, is less than the sum, without duplication, of:
(A) Available Cash from Operating Surplus as of the end of the immediately preceding fiscal quarter; plus
(B) 100% of the aggregate net proceeds, or the Fair Market Value of assets or property, received by PBFX (including the Fair Market Value of any Permitted Business or long-term assets that are used or useful in a Permitted Business to the extent acquired in consideration of Equity Interests of PBFX (other than Disqualified Stock)) since the Issue Date as a contribution to its common equity capital or from the issue or sale of (i) Equity Interests of PBFX (other than Disqualified Stock) or (ii) convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of PBFX that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of PBFX); plus
(C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or Cash Equivalents or otherwise liquidated or repaid for cash or Cash Equivalents, the return of capital or similar payment made in cash or Cash Equivalents with respect to such Restricted Investment (less the cost of disposition, if any); plus
(D) the net reduction in Restricted Investments made after the Issue Date resulting from dividends, repayments of loans or advances, or other transfers of assets in each case to PBFX or any of its Restricted Subsidiaries from any Person (including, without limitation, Unrestricted Subsidiaries) or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries, to the extent such amounts have not been included in Available Cash from Operating Surplus for any period commencing on or after the Issue Date (items (B), (C) and (D) being referred to as Incremental Funds); minus
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(E) the aggregate amount of Incremental Funds previously expended pursuant to this clause (1) and clause (2) below; or
(2) if the Fixed Charge Coverage Ratio for PBFXs Reference Period-is less than 1.75 to 1.00, such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by PBFX and its Restricted Subsidiaries (excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6), (7), (8), (9), (10), (11) and (12) of Section 4.07(b) hereof) during the quarter in which such Restricted Payment is made (such Restricted Payments for purposes of this clause (2) meaning only distributions on common units and subordinated units of PBFX, plus the related distribution, if any, to the General Partner), is less than the sum, without duplication, of:
(A) $100.0 million less the aggregate amount of all Restricted Payments made by PBFX and its Restricted Subsidiaries pursuant to this clause (2)(A) since the Issue Date; plus
(B) Incremental Funds to the extent not previously expended pursuant to this clause (2) or clause (1) above.
(b) The provisions of Section 4.07(a) hereof will not prohibit:
(1) the payment of any dividend or distribution or the consummation of an irrevocable redemption of Subordinated Obligations within 60 days after the date of the declaration of such dividend or the delivery of the irrevocable notice of redemption, as the case may be, if at the date of declaration or the date on which such irrevocable notice is delivered, such dividend or redemption would have complied with the provisions of this Indenture (assuming, in the case of a redemption payment, the giving of the notice of such redemption payment would have been deemed to be a Restricted Payment at such time and such deemed Restricted Payment would have been permitted at such time);
(2) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of, a substantially concurrent (a) capital contribution to PBFX from any Person (other than a Restricted Subsidiary of PBFX) or (b) sale or issuance (other than to a Restricted Subsidiary of PBFX) of Equity Interests (other than Disqualified Stock) of PBFX, with a sale or issuance being deemed substantially concurrent if such Restricted Payment occurs not more than 120 days after such sale; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded or deducted from the calculation of Available Cash from Operating Surplus and Incremental Funds;
(3) the making of any principal payment on, or the defeasance, redemption, repurchase, retirement or other acquisition of, any Subordinated Obligation with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(4) the payment of any distribution or dividend by a Restricted Subsidiary of PBFX to the holders of such Restricted Subsidiarys Equity Interests (other than Disqualified Stock) on a pro rata basis;
(5) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of PBFX or any Restricted Subsidiary of PBFX held by any current or former officer, director, consultant or employee (seconded or otherwise) of the General Partner, PBFX or any of their respective Subsidiaries pursuant to any equity subscription agreement or plan, stock or unit option agreement, shareholders agreement, employment agreement or similar agreement; provided, that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $5.0 million in any calendar year (with unused amounts in any calendar year to be carried forward to successive calendar years and added to such amount); provided further that such amount in any calendar year may be increased by an amount not to exceed (a) the cash proceeds received by PBFX or any of its Restricted Subsidiaries from sales of Equity Interests of PBFX to members of management, employees or directors of the General Partner, PBFX or their respective Subsidiaries that occurs after the Issue Date (to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments by virtue of clauses (1)(B) or (2)(B) of Section 4.07(a) hereof), plus (b) the cash proceeds of key man life insurance policies received by PBFX or any of its Restricted Subsidiaries after the Issue Date;
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(6) the declaration and payment of dividends to Holders of any class or series of Disqualified Stock of PBFX or any of its Restricted Subsidiaries or any class or series of Preferred Stock of a Restricted Subsidiary issued pursuant to Section 4.09 hereof;
(7) repurchases of Equity Interests deemed to occur upon the cashless exercise of stock options, warrants or other convertible securities if such Equity Interests represent a portion of the exercise price of such options, warrants or other convertible securities;
(8) cash payments in lieu of the issuance of fractional shares or units, or the purchase by PBFX of fractional shares or units, in connection with (a) the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of PBFX or (b) stock or unit dividends, splits or combinations or business combinations;
(9) in connection with an acquisition by PBFX or any of its Restricted Subsidiaries, the return to PBFX or any of its Restricted Subsidiaries of Equity Interests of PBFX or any of its Restricted Subsidiaries constituting a portion of the purchase consideration in settlement of indemnification claims or pursuant to purchase price adjustments under the acquisition agreement;
(10) the repurchase, redemption or other acquisition or retirement for value of any Subordinated Obligations pursuant to Sections 4.10 or 4.15; provided that all Notes tendered by Holders and not withdrawn in connection with a Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value;
(11) the issuance of common Equity Interests upon the conversion of subordinated Equity Interests; and
(12) any purchases, redemptions or other acquisitions or retirements for value of Equity Interests made in lieu of withholding taxes in connection with any exercise or exchange of warrants, options or rights to acquire Equity Interests;
provided further, that, with respect to clauses (5), (6) and (10) of this Section 4.07(b), no Default (other than a Reporting Default) shall have occurred and be continuing.
The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by PBFX or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. For the purposes of determining compliance with this Section 4.07, in the event that a Restricted Payment or Investment (or a portion thereof) meets the criteria of more than one of the categories of Restricted Payments described in the preceding clauses (1) through (12) and/or one or more of the exceptions contained in the definition of Permitted Investments, or is permitted pursuant to the first paragraph of this covenant, PBFX will be permitted to divide or classify (or later divide, classify or reclassify in whole or in part in its sole discretion) such Restricted Payment or Investment (or portion thereof) among such clauses (1) through (12) and such first paragraph and/or one or more of the exceptions contained in the definition of Permitted Investments, in any manner that complies with this Section 4.07.
Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries.
(a) PBFX will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary of PBFX (other than Finance Corp.) that is not a Subsidiary Guarantor to:
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(1) pay dividends or make any other distributions on its Equity Interests to PBFX or any of its Restricted Subsidiaries that is a Subsidiary Guarantor, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to PBFX or any of its Restricted Subsidiaries that is a Subsidiary Guarantor; provided that the priority of any preferred equity or similar Equity Interest in receiving dividends or liquidating distributions prior to the payment of dividends or liquidating distributions on common equity shall not be deemed to be a restriction on the ability to make distributions on Capital Stock;
(2) make loans or advances to PBFX or any of its Restricted Subsidiaries that is a Subsidiary Guarantor; or
(3) sell, lease or transfer any of its properties or assets to PBFX or any of its Restricted Subsidiaries that is a Subsidiary Guarantor.
(b) The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements as in effect on the Issue Date, the Credit Agreements and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements or the Indebtedness to which they relate; provided that the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend, distribution and other payment restrictions than those contained in those agreements on the Issue Date;
(2) this Indenture, the Notes and the Note Subsidiary Guarantees;
(3) agreements governing other Indebtedness, Disqualified Stock or Preferred Stock, the incurrence or issuance of which is not prohibited by the covenant described above under Section 4.09 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the restrictions therein are not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Subsidiary Guarantees and, in the good faith judgment of PBFX determined at the time of the incurrence of such Indebtedness, Disqualified Stock or Preferred Stock, the encumbrances and restrictions contained therein will not materially impair PBFXs ability to make payments under the notes when due;
(4) applicable law, rule, regulation or order;
(5) any instrument governing Indebtedness or Equity Interest of a Person acquired by PBFX or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Equity Interest was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment provisions in contracts, agreements, licenses and leases entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a) hereof;
(8) any agreement for the sale or other disposition of a Restricted Subsidiary or assets of such Restricted Subsidiary that contains any such restrictions on that Restricted Subsidiary pending such sale or other disposition;
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(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements;
(12) any agreement or instrument relating to any property or assets acquired after the Issue Date, so long as such encumbrance or restriction relates only to the property or assets so acquired and is not and was not created in anticipation of such acquisitions;
(13) encumbrances or restrictions contained in, or in respect of, Hedging Obligations permitted under this Indenture from time to time;
(14) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and
(15) secured Indebtedness that limits the right of the debtor to dispose of the assets securing such Indebtedness and any related encumbrance or restriction contained in security agreements, mortgages or purchase money agreements.
Section 4.09 Incurrence of Indebtedness and Issuance of Disqualified Stock and Certain Preferred Stock.
(a) PBFX will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, incur) any Indebtedness (including Acquired Debt) and PBFX will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any Disqualified Stock or Preferred Stock; provided, however, that PBFX and any Restricted Subsidiary may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock and any Restricted Subsidiary may issue Preferred Stock, if the Fixed Charge Coverage Ratio for PBFXs Reference Period immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued, as the case may be, would have been at least 2.00 to 1.00, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock or Preferred Stock had been issued, as the case may be, at the beginning of such Reference Period.
(b) The provisions of Section 4.09(a) hereof will not apply to the following (collectively, Permitted Debt):
(1) the incurrence by PBFX and any Restricted Subsidiary of Indebtedness pursuant to one or more Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (1) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of PBFX and its Restricted Subsidiaries thereunder) not to exceed the sum of (x) the greater of (a) $500.0 million and (b) the sum of $375.0 million and 25.0% of Consolidated Net Tangible Assets (determined as of the date of incurrence and after giving effect to the use of proceeds therefrom) and (y) the aggregate amount of discounts, commissions, premiums, fees and other costs and expenses related to the refinancing of such Credit Facilities;
(2) the incurrence by PBFX, Finance Corp. and its Restricted Subsidiaries of Existing Indebtedness;
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(3) the incurrence by PBFX, Finance Corp. and the Subsidiary Guarantors of Indebtedness represented by the Notes and the related Note Subsidiary Guarantees to be issued on the Issue Date and the Exchange Notes and the related Note Subsidiary Guarantees to be issued pursuant to the Registration Rights Agreement in exchange therefor;
(4) the incurrence by PBFX or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, Synthetic Lease Obligations, mortgage financings or purchase money obligations (including any Acquired Debt), the issuance of Disqualified Stock by PBFX or any of its Restricted Subsidiaries or the issuance of Preferred Stock by any Restricted Subsidiary of PBFX, in each case, incurred in connection with the purchase of, or for the purpose of financing all or any part of the purchase price or cost of construction, improvement or development of, property, plant or equipment used or useful in the business of PBFX or any of its Restricted Subsidiaries and related financing costs, and Attributable Debt in respect of sale and leaseback transactions, in an aggregate principal amount at any time outstanding not to exceed the sum of (x) the greater of (a) $75.0 million and (b) 10.0% of PBFXs Consolidated Net Tangible Assets (determined as of the date of incurrence and after giving effect to the use of proceeds therefrom) and (y) the aggregate amount of discounts, commission, premiums, fees and other costs and expenses incurred to renew, refund, refinance, replace, redeem, defease or discharge any Indebtedness incurred, or Disqualified Stock or Preferred Stock issued, pursuant to this clause (4);
(5) the incurrence by PBFX or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, redeem, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a) hereof or clause (2), (3), (12) or (13) of this Section 4.09(b) or this clause (5);
(6) the incurrence by PBFX or any of its Restricted Subsidiaries of intercompany Indebtedness between or among PBFX and any of its Restricted Subsidiaries; provided, however, that:
(A) if PBFX or any Subsidiary Guarantor is the obligor on such Indebtedness and the payee is not PBFX or a Subsidiary Guarantor, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of PBFX, or the Note Subsidiary Guarantee, in the case of a Subsidiary Guarantor; and
(B) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than PBFX or a Restricted Subsidiary of PBFX and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either PBFX or a Restricted Subsidiary of PBFX, will be deemed, in each case, to constitute an incurrence of such Indebtedness by PBFX or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);
(7) the incurrence by PBFX or any of its Restricted Subsidiaries of Hedging Obligations, including any obligations with respect to letters of credit issued in connection therewith;
(8) the guarantee by PBFX or any of its Restricted Subsidiaries of (i) Indebtedness of PBFX or a Restricted Subsidiary of PBFX to the extent the incurrence of such Indebtedness is not otherwise prohibited by this covenant; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes or Note Subsidiary Guarantees, then such guarantee shall be subordinated or pari passu, as applicable, to the Notes or the Note Subsidiary Guarantees to the same extent as the Indebtedness guaranteed or (ii) Indebtedness incurred by Joint Ventures and/or Unrestricted Subsidiaries to the extent such guarantee of such Indebtedness is not prohibited by Section 4.07;
(9) the incurrence by PBFX or any of its Restricted Subsidiaries of Indebtedness in respect of workers compensation or similar liabilities, health or other types of social security benefits, unemployment or other insurance or self-insurance obligations, insurance contracts, reclamation, statutory obligations, bankers acceptances, and bid, performance, advance, payment, deposit, appeal and surety bonds in the ordinary course of business, including guarantees and obligations respecting standby letters of credit supporting such obligations, to the extent not drawn (in each case other than an obligation for money borrowed) and replacements of any of the foregoing;
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(10) the incurrence by PBFX or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within five Business Days;
(11) the issuance by PBFX or any of its Restricted Subsidiaries of Disqualified Stock or by any Restricted Subsidiary of PBFX of Preferred Stock, in each case, to PBFX or any of its Restricted Subsidiaries, as the case may be; provided, however, that:
(a) any subsequent issuance or transfer of Equity Interests of a Restricted Subsidiary that results in any such Disqualified Stock or Preferred Stock being held, directly or indirectly, by a Person other than PBFX or a Restricted Subsidiary of PBFX; and
(b) any sale or other transfer of any such Disqualified Stock or Preferred Stock to a Person that is not either PBFX or a Restricted Subsidiary of PBFX,
will be deemed, in each case, to constitute an issuance of such Disqualified Stock by PBFX or such Restricted Subsidiary or issuance of such Preferred Stock by such Restricted Subsidiary that was not permitted by this clause;
(12) Indebtedness, Disqualified Stock or Preferred Stock of (i) PBFX or a Restricted Subsidiary incurred to finance an acquisition or (ii) a Person that is acquired by PBFX or any Restricted Subsidiary or merged with or consolidated into PBFX or any Restricted Subsidiary; provided that after giving effect to such transaction on a pro forma basis, either:
(a) PBFX would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test described in this Section 4.09; or
(b) the Fixed Charge Coverage Ratio of PBFX would be equal to or greater than the Fixed Charge Coverage Ratio for PBFX immediately prior to such transaction;
(13) the incurrence by PBFX of Indebtedness in the ordinary course of business under documentary letters of credit, which are to be repaid in full not more than one year after the date on which such Indebtedness was originally incurred to finance the purchase of goods by PBFX or any of its Restricted Subsidiaries;
(14) the incurrence of Indebtedness arising from agreements with PBFX or any of its Restricted Subsidiaries providing for indemnification, adjustment of purchase price, earn-outs, or similar obligations, in each case, incurred or assumed in connection with the disposition or acquisition of any business, assets or a Subsidiary in accordance with the terms of this Indenture, other than guarantees of Indebtedness incurred or assumed by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition;
(15) the incurrence by PBFX or any of its Restricted Subsidiaries of additional Indebtedness, the issuance by PBFX or any of its Restricted Subsidiaries of Disqualified Stock or the issuance by any Restricted Subsidiary of PBFX of Preferred Stock in an aggregate principal amount at any time outstanding not to exceed the sum of (x) the greater of (a) $100.0 million and (b) 12.5% of Consolidated Net Tangible Assets (determined as of the date of incurrence and after giving effect to the use of proceeds therefrom) and (y) the aggregate amount of discounts, commission, premiums, fees and other costs and expenses incurred to renew, refund, refinance, replace, redeem, defease or discharge any Indebtedness incurred, or Disqualified Stock or Preferred Stock issued, pursuant to this clause (15);
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(16) the incurrence by PBFX or any of its Restricted Subsidiaries of obligations relating to net gas balancing positions arising in the ordinary course of business and consistent with past practice;
(17) the incurrence by PBFX or any of its Restricted Subsidiaries of obligations in respect of Treasury Management Arrangements;
(18) the incurrence by PBFX or any of its Restricted Subsidiaries of Indebtedness, the issuance by PBFX or any of its Restricted Subsidiaries of Disqualified Stock or the issuance by any Restricted Subsidiary of PBFX of Preferred Stock incurred in connection with the purchase of, or for the purpose of financing all or any part of the purchase price or cost of construction, improvement or development of the Additional Hydrogen Plant and related financing costs, in an aggregate principal amount at any time outstanding not to exceed the sum of (x) the greater of (a) $75.0 million and (b) 10.0% of PBFXs Consolidated Net Tangible Assets (determined as of the date of incurrence and after giving effect to the use of proceeds therefrom) and (y) the aggregate amount of discounts, commission, premiums, fees and other costs and expenses incurred to renew, refund, refinance, replace, redeem, defease or discharge any Indebtedness incurred, or Disqualified Stock or Preferred Stock issued, pursuant to this clause (18); and
(19) the incurrence by PBFX (and, if applicable, Finance Corp.) or any of its Restricted Subsidiaries of Permitted Term Loan Indebtedness.
PBFX will not incur, and will not permit any Subsidiary Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of PBFX or such Subsidiary Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the applicable Note Subsidiary Guarantee on substantially identical terms; provided, however, that no Indebtedness shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of PBFX solely by virtue of being unsecured or by virtue of being secured on a first or junior Lien basis.
For purposes of determining compliance with this Section 4.09, in the event that an item of proposed Indebtedness (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (19) above, or is entitled to be incurred pursuant to Section 4.09(a) hereof, PBFX will be permitted to classify all or a portion of such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.09; provided that Indebtedness under the Revolving Credit Agreement outstanding on the Issue Date will initially be deemed to have been incurred on such date in reliance on the exception provided by clause (1) of the definition of Permitted Debt.
The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of Preferred Stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of the same class of Disqualified Stock or Preferred Stock, as applicable, will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of this Section 4.09. Notwithstanding any other provision of this Section 4.09, the maximum amount of Indebtedness that PBFX or any Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values.
The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
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(3) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such assets at the date of determination; and
(B) the amount of the Indebtedness of the other Person.
For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (i) the principal amount of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing. The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing.
Section 4.10 Asset Sales.
PBFX will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) PBFX (or the Restricted Subsidiary, as the case may be) receives consideration at least equal to the Fair Market Value (such Fair Market Value to be determined on the date of contractually agreeing to such Asset Sale and which shall give effect to the assumption by another Person of any liabilities as provided for in clause (A) of the following paragraph) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the aggregate consideration received by PBFX or such Restricted Subsidiary, as the case may be, from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash or Cash Equivalents.
For purposes of the preceding clause (2) of this provision, each of the following shall be deemed to be cash or Cash Equivalents:
(A) any liabilities, as shown on PBFXs most recent consolidated balance sheet or in the footnotes thereto, or if incurred or increased subsequent to the date of such balance sheet, such liabilities that would have been shown on PBFXs consolidated balance sheet or footnotes thereto if such incurrence o increase had taken place on the date of such balance sheet as determined by PBFX, of PBFX or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Subsidiary Guarantees) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases PBFX or such Restricted Subsidiary from further liability;
(B) any securities, notes or other obligations received by PBFX or any such Restricted Subsidiary in connection with such transaction that within 180 days after the Asset Sale (subject to ordinary settlement periods) are converted by PBFX or such Restricted Subsidiary into cash or Cash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion;
(C) any stock or assets of the kind referred to in clauses (2) or (4) of the next succeeding paragraph received by PBFX or any such Restricted Subsidiary in connection with such transaction;
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(D) accounts receivable of a business retained by PBFX or any of its Restricted Subsidiaries, as the case may be, following the sale of such business, provided such accounts receivable (x) are not past due more than 60 days and (y) do not have a payment date greater than 90 days from the date of the invoices creating such accounts receivable; and
(E) any Designated Non-Cash Consideration received by PBFX or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by PBFX), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (e), not to exceed the greater of (i) $50.0 million and (ii) 10.0% of Consolidated Net Tangible Assets (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value)
Within 365 days after the receipt of any Net Proceeds from an Asset Sale, PBFX (or any Restricted Subsidiary) may apply such Net Proceeds at its option to any combination of the following:
(1) to prepay, repay, redeem or repurchase Senior Indebtedness (including the Notes) of PBFX and/or its Restricted Subsidiaries (or to make an offer to repurchase or redeem such Indebtedness, provided that such repurchase or redemption closes within 45 days after the end of such 365-day period or any permitted extension thereof as contemplated by the proviso to this paragraph);
(2) to acquire a controlling interest in another business or all or substantially all of the assets of, or any Capital Stock or operating line of, another business, in each case engaged in a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of PBFX;
(3) to make capital expenditures; or
(4) to acquire other assets or make Investments that are not classified as current assets under GAAP and that are used or useful in a Permitted Business;
provided that, in the case of clauses (2), (3) and (4) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as PBFX (or the applicable Restricted Subsidiary, as the case may be) enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an Acceptable Commitment); and such Net Proceeds are actually applied in such manner within the later of 365 days from the consummation of the Asset Sale and 180 days from the date of the Acceptable Commitment, and in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, PBFX (or the applicable Restricted Subsidiary, as the case may be) enters into another Acceptable Commitment (a Second Commitment) within 180 days of such cancellation or termination and such Net Proceeds are actually applied in such manner within 180 days from the date of the Second Commitment, it being understood that if a Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied then such Net Proceeds shall constitute Excess Proceeds.
Pending the final application of any Net Proceeds, PBFX or the applicable Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this Section 4.10 will constitute Excess Proceeds. Within five days after the date on which the aggregate amount of Excess Proceeds exceeds $50.0 million (or, at the Issuers option, any earlier date), the Issuers will make an Asset Sale Offer to purchase or redeem debt in an amount equal to such Excess Proceeds to (x) all Holders of Notes and (y) to the extent any other Indebtedness that is pari passu in right of payment with the Notes contains provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such Indebtedness with the proceeds of sales of assets and such provisions require the Issuers to make such an offer, to all Holders of such other
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Indebtedness. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount (or accreted value) thereof plus accrued and unpaid interest and Special Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, PBFX or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the representative of such other pari passu Indebtedness will select such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
PBFX will comply with the requirements of Rule 14e-l under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10, PBFX will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such compliance.
Section 4.11 Transactions with Affiliates.
(a) PBFX will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of PBFX (each, an Affiliate Transaction) if such Affiliate Transaction involves aggregate consideration in excess of $7.5 million, unless:
(1) the Affiliate Transaction is on terms that are no less favorable to PBFX or the relevant Restricted Subsidiary than those that could have been obtained in a comparable transaction by PBFX or such Restricted Subsidiary with an unrelated Person or, if no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to PBFX or the relevant Restricted Subsidiary from a financial point of view; and
(2) PBFX delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, a resolution of the Board of Directors of the General Partner set forth in an Officers Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with clause (1) of this Section 4.11(a) and that such Affiliate Transaction has been approved by either the Conflicts Committee of the Board of Directors of the General Partner (so long as the members of the Conflicts Committee approving the Affiliate Transaction are disinterested) or a majority of the disinterested members of the Board of Directors of the General Partner.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a) hereof:
(1) reasonable fees and compensation paid to or for the benefit of any employee, officer or director of PBFX, any of its Restricted Subsidiaries or the General Partner, and any employment agreement, customary benefit program or arrangement (including vacation plans, health and life insurance plans, deferred compensation plans and retirement or savings and similar plans), equity award, equity option or equity appreciation agreement or plan, officer or director indemnification agreement or any similar arrangement entered into by PBFX, any of its Restricted Subsidiaries or the General Partner existing on the Issue Date, or entered into thereafter in the ordinary course of business, and any indemnities or other transactions permitted or required by bylaw, statutory provisions or any of the foregoing agreements, plans or arrangements;
(2) transactions between or among PBFX and/or its Restricted Subsidiaries;
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(3) transactions with a Person (other than an Unrestricted Subsidiary of PBFX) that is an Affiliate of PBFX solely because PBFX owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(4) any issuance of Equity Interests (other than Disqualified Stock) of PBFX to Affiliates of PBFX;
(5) Restricted Payments or Permitted Investments that do not violate Section 4.07 hereof;
(6) customary compensation, indemnification and other benefits made available to officers, directors or employees of PBFX, a Restricted Subsidiary of PBFX or the General Partner, including reimbursement or advancement of out-of-pocket expenses and provisions of officers and directors liability insurance;
(7) in the case of purchases, sales, gathering, transportation, marketing, hedging, production handling, operating, construction, terminalling, processing, fractionation, storage, lease, platform use, or other operational contracts, any such contracts that are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by PBFX or any Restricted Subsidiary and third parties, or if neither PBFX nor any Restricted Subsidiary has entered into a similar contract with a third party, that the terms are no less favorable than those available from third parties on an arms-length basis, as determined by the Board of Directors of the General Partner;
(8) loans or advances to employees in the ordinary course of business not to exceed $5.0 million in the aggregate at any one time outstanding;
(9) the existence of, or the performance by PBFX or any Restricted Subsidiary of its obligations under the terms of, any written agreement in effect on the Issue Date, as such agreement may be amended, modified or supplemented from time to time and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by PBFX or any Restricted Subsidiary of its obligations under, any future amendment to such agreements or under any such similar agreements shall only be permitted by this clause (9) to the extent that the terms of any such amendment or new agreement, taken as a whole, are not less favorable to PBFX or such Restricted Subsidiary in any material respect as compared to the terms of the agreement in effect on the Issue Date;
(10) any transaction in which PBFX or any of its Restricted Subsidiaries, as the case may be, has obtained an opinion from an Independent Financial Advisor to the effect that such transaction is fair to PBFX or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of clause (1) of Section 4.11(a);
(11) guarantees of performance by PBFX or any of its Restricted Subsidiaries in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money;
(12) (A) guarantees by PBFX or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries or Joint Ventures in the ordinary course of business and (B) pledges by PBFX or any Restricted Subsidiary of Capital Stock in Unrestricted Subsidiaries or Joint Ventures for the benefit of lenders or other creditors of Unrestricted Subsidiaries or Joint Ventures as contemplated by clause (13) of the definition of Permitted Liens with respect to clause (B) so long as any such transaction, if involving aggregate consideration in excess of $50.0 million, has been approved by a majority of the disinterested members of the Board of Directors of the General Partner;
(13) any transactions between PBFX or any Restricted Subsidiary and any Person, a director of which is also a director of PBFX or a Restricted Subsidiary or any direct or indirect parent company of PBFX; provided that such director abstains from voting as a director of PBFX or the Restricted Subsidiary or any direct or indirect parent company of PBFX, as applicable, in connection with the approval of the transaction; and
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(14) any purchase or other acquisition or related transaction pursuant to the Omnibus Agreement.
Section 4.12 Liens.
PBFX will not and will not permit any Subsidiary Guarantor to, create, incur, assume or otherwise cause or suffer to exist or become effective any Lien of any kind (other than Permitted Liens) securing Indebtedness upon any of their property or assets (other than Term Loan Collateral securing Permitted Term Loan Indebtedness), now owned or hereafter acquired, unless:
(1) in the case of Liens securing Subordinated Obligations of PBFX or a Subsidiary Guarantor, the Notes or Note Subsidiary Guarantees, as applicable, are contemporaneously secured by a Lien on such property or assets on a senior basis to the Subordinated Obligations so secured with the same priority that the Notes or Note Subsidiary Guarantees, as applicable, have to such Subordinated Obligations until such time as such Subordinated Obligations are no longer so secured by a Lien (other than a Permitted Lien); and
(2) in the case of Liens securing Senior Indebtedness of PBFX or a Subsidiary Guarantor, the Notes or Note Subsidiary Guarantees, as applicable, are contemporaneously secured by a Lien on such property or assets on an equal and ratable basis with the Senior Indebtedness so secured until such time as such Senior Indebtedness is no longer so secured by a Lien (other than a Permitted Lien).
Any Lien on property or assets of PBFX or any Subsidiary Guarantor created for the benefit of Holders of the Notes pursuant to the preceding paragraph shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged at such time as there are no other Liens of any kind (other than Permitted Liens) on such property or assets securing Indebtedness.
Section 4.13 Limitations on Finance Corp. Activities.
Finance Corp. shall not incur Indebtedness unless (1) PBFX is a borrower, issuer, co-issuer or guarantor of such Indebtedness or (2) the net proceeds of such Indebtedness are loaned to PBFX, used to acquire outstanding debt securities issued by PBFX or used to repay Indebtedness of PBFX as permitted under Section 4.09 hereof. Finance Corp. may not engage in any business not related directly or indirectly to obtaining money or arranging financing for PBFX or its Restricted Subsidiaries.
Section 4.14 Corporate Existence.
Subject to Article 5 hereof, PBFX shall do or cause to be done all things necessary to preserve and keep in full force and effect:
(1) its limited partnership existence, and the corporate, partnership or other existence of each of its Restricted Subsidiaries, in accordance with the respective organizational documents (as the same may be amended from time to time) of PBFX or any such Restricted Subsidiary; and
(2) the rights (charter and statutory), licenses and franchises of PBFX and its Restricted Subsidiaries; provided, however, that PBFX shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Restricted Subsidiaries, if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of PBFX and its Restricted Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any material respect to the Holders of the Notes.
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Section 4.15 Offer to Repurchase Upon Change of Control Triggering Event
(a) Upon the occurrence of a Change of Control Triggering Event, the Issuers will make an offer (a Change of Control Offer) to each Holder of Notes to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holders Notes at a purchase price in cash equal to 101% (or, at the election of PBFX, a higher percentage) of the aggregate principal amount of Notes repurchased, plus accrued and unpaid interest and Special Interest, if any, on the Notes repurchased to, but excluding, the date of purchase, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant Interest Payment Date (the Change of Control Payment). Within 30 days following any Change of Control Triggering Event, the Issuers will mail or deliver via electronic transmission a notice to each Holder with a copy to the Trustee describing the transaction or transactions that constitute the Change of Control Triggering Event and stating:
(1) that the Change of Control Offer is being made pursuant to this Section 4.15 and that all Notes validly tendered and not validly withdrawn will be accepted for payment;
(2) the purchase price and the purchase date, which shall be no earlier than 20 Business Days and no later than 60 days from the date such notice is mailed (the Change of Control Payment Date);
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Issuers Default in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled Option of Holder to Elect Purchase attached to such Notes completed, or transfer by book-entry transfer, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have such Notes purchased; and
(7) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess thereof.
The Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.15 by virtue of such compliance.
(b) On the Change of Control Payment Date, the Issuers will, to the extent lawful:
(1) accept for payment all Notes or portions of Notes properly tendered and not validly withdrawn pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer; and
(3) deliver or cause to be delivered to the Trustee the Notes accepted for purchase together with an Officers Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Issuers.
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The Paying Agent will promptly mail to each Holder properly tendered the Change of Control Payment for such Notes (or, if all the Notes are then in global form, it will make such payment through the facilities of DTC), and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided, that each new Note will be in a principal amount of $2,000 or an integral multiple of $ 1,000 in excess thereof. The Issuers will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(c) Notwithstanding anything to the contrary in this Section 4.15, the Issuers will not be required to make a Change of Control Offer upon a Change of Control Triggering Event if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.15 and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer, (2) notice of redemption has been given pursuant to Section 3.07 hereof, unless and until there is a default in payment of the applicable redemption price or (3) in connection with, or in contemplation of, any publicly announced Change of Control, PBFX or a third party has made an offer to purchase (an Alternate Offer) any and all Notes properly tendered at a cash price equal to or higher than the Change of Control Payment and has purchased all Notes properly tendered in accordance with the terms of such Alternate Offer.
A Change of Control Offer may be made with respect to the Notes in advance of a Change of Control Triggering Event, and conditioned upon the occurrence of such Change of Control Triggering Event, if a definitive agreement for the Change of Control Triggering Event is in place at the time of making the Change of Control Offer.
In the event that Holders of not less than 90% of the aggregate principal amount of the outstanding Notes tender and do not withdraw such Notes in a Change of Control Offer or Alternate Offer and PBFX (or the third party making the Change of Control Offer or Alternate Offer as provided above) purchases all of the Notes validly tendered and not withdrawn by such Holders, PBFX or such third party shall have the right, upon not less than 30 days nor more than 60 days prior notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer or Alternate Offer described above, to redeem all of the Notes that remain outstanding following such purchase at a redemption price equal to the Change of Control Payment or Alternate Offer price, plus, to the extent not included in the Change of Control Payment or Alternate Offer price, accrued and unpaid interest on the Notes that remain outstanding to the date of redemption (subject to the right of Holders of record on the relevant record date to receive interest due on an Interest Payment Date that is on or prior to the Redemption Date).
Section 4.16 Additional Guarantors.
If, after the Issue Date, any Domestic Subsidiary (other than Finance Corp.) of PBFX that is not already a Subsidiary Guarantor, guarantees any other Indebtedness of either of the Issuers under a Credit Facility in an aggregate principal amount in excess of $25.0 million, then that Subsidiary will become a Subsidiary Guarantor by executing and delivering a supplemental indenture to the Trustee within 30 Business Days of the date on which it guaranteed or incurred such Indebtedness; provided that the preceding shall not apply to Subsidiaries of PBFX that have been properly designated as Unrestricted Subsidiaries in accordance with this Indenture for so long as they continue to constitute Unrestricted Subsidiaries. Notwithstanding the preceding, any Note Subsidiary Guarantee of a Restricted Subsidiary that was incurred pursuant to this Section 4.16 will be released in accordance with Section 10.06 hereof.
Section 4.17 Designation of Restricted and Unrestricted Subsidiaries.
The Board of Directors of the General Partner may designate any Subsidiary of PBFX to be an Unrestricted Subsidiary if that designation would not cause a Default. If a Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by PBFX and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by PBFX; provided that any designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
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Any designation of a Subsidiary of PBFX as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of the General Partner giving effect to such designation and an Officers Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of PBFX as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, PBFX will be in default of such covenant. The Board of Directors of the General Partner may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of PBFX; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of PBFX of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis and (2) no Default or Event of Default would be in existence following such designation.
Section 4.18 Covenant Termination.
If at any time (a) the Notes are assigned an Investment Grade Rating from both Rating Agencies, (b) no Default or Event of Default has occurred and is continuing under this Indenture and (c) the Issuers have delivered to the Trustee an Officers Certificate certifying as to matters specified in clauses (a) and (b) of this sentence as of the date of such certificate (the Termination Date), PBFX and its Restricted Subsidiaries will no longer be subject to the provisions of Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.16 and 5.01(a)(4) of this Indenture.
No Subsidiary shall be designated as an Unrestricted Subsidiary after the Termination Date. The Issuers will use commercially reasonable efforts to give the Trustee written notice of the occurrence of the Termination Date no later than five (5) business days thereafter. In the absence of the delivery of such written notice, the Trustee will assume the Termination Date has not occurred and that such covenants are in full force and effect; provided, however, that PBFX and its Restricted Subsidiaries shall not be required to comply with such covenants upon the occurrence of the Termination Date notwithstanding the failure to give such notice thereof to the Trustee.
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation or Sale of Assets.
(a) Neither of the Issuers may, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not such Issuer is the surviving entity) or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuers and the Restricted Subsidiaries, taken as a whole, in one or more related transactions, to another Person, unless:
(1) either:
(A) such Issuer is the surviving entity; or
(B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is a Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided, however, that Finance Corp. may not consolidate or merge with or into any Person other than a corporation satisfying such requirement so long as PBFX (or any successor entity) is not a corporation;
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(2) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes all the obligations of such Issuer under the Notes, this Indenture and, if then in effect, the Registration Rights Agreement, via supplemental indenture;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) in the case of a transaction involving PBFX and not Finance Corp., PBFX or the Person formed by or surviving any such consolidation or merger (if other than PBFX), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made, will:
(A) on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable Reference Period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); or
(B) have a Fixed Charge Coverage Ratio, on the date of such transaction and after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable Reference Period, not less than the Fixed Charge Coverage Ratio of PBFX immediately prior to such transaction; and
(5) such Issuer has delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and such supplemental indenture (if any) comply with this Indenture.
(b) This Section 5.01 will not apply to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among PBFX and its Restricted Subsidiaries, provided further that Sections 5.01(a)(3) and (4) will not apply to any merger or consolidation of either Issuer (A) with or into one of PBFXs Restricted Subsidiaries for any purpose or (B) with or into an Affiliate solely for the purpose of reincorporating such Issuer in another jurisdiction.
(c) Notwithstanding Section 5.01(a), PBFX is permitted to reorganize as any other form of entity in accordance with the procedures established in this Indenture; provided that:
(1) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of PBFX into a form of entity other than a limited partnership formed under Delaware law;
(2) the entity so formed by or resulting from such reorganization is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia;
(3) the entity so formed by or resulting from such reorganization assumes all the Obligations of PBFX under the Notes, this Indenture and, if then in effect, the Registration Rights Agreement, via supplemental indenture;
(4) immediately after such reorganization no Default or Event of Default exists; and
(5) such reorganization is not adverse to the Holders of the Notes (for purposes of this clause (5) it is stipulated that such reorganization shall not be considered adverse to the Holders of the Notes solely because the successor or survivor of such reorganization (a) is subject to federal or state income taxation as an entity or (b) is considered to be an includible corporation of an affiliated group of corporations within the meaning of Section 1504(b) of the Code, or any similar state or local law).
(d) Subject to Section 10.06, a Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the resulting, transferee or surviving Person), another Person, other than PBFX or another Subsidiary Guarantor, unless:
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(1) immediately after giving effect to such transaction, no Default or Event of Default exists; and
(2) either:
(A) the Person acquiring the assets in any such sale or disposition or the Person formed by or surviving any such consolidation or merger (if other than PBFX or another Subsidiary Guarantor), assumes all obligations of that Subsidiary Guarantor under this Indenture and its Note Subsidiary Guarantee and, if then in effect, the Registration Rights Agreement, pursuant to a supplemental indenture; or
(B) the transaction does not violate Section 4.10.
In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Note Subsidiary Guarantee endorsed upon the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Subsidiary Guarantor, such successor Person will succeed to and be substituted for the Subsidiary Guarantor with the same effect as if it had been named herein as a Subsidiary Guarantor. Such successor Person thereupon may cause to be signed any or all of the Note Subsidiary Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have been signed by the Issuers and delivered to the Trustee. All the Note Subsidiary Guarantees so issued will in all respects have the same legal rank and benefit under this Indenture as the Note Subsidiary Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Note Subsidiary Guarantees had been issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding clauses 2(A) and (B) above, nothing contained in this Indenture or in any of the Notes will prevent any consolidation or merger of a Subsidiary Guarantor with or into the Issuers or another Subsidiary Guarantor, or will prevent any sale or conveyance of the property of a Subsidiary Guarantor as an entirety or substantially as an entirety to the Issuers or another Subsidiary Guarantor.
(e) Notwithstanding anything in this Indenture to the contrary, in the event PBFX becomes a corporation or PBFX or the Person formed by or surviving any consolidation or merger (permitted in accordance with the terms of this Indenture) is a corporation, Finance Corp. may be merged into PBFX or it may be dissolved and cease to be an Issuer.
(f) Upon compliance with the foregoing requirements with respect to any consolidation or merger or any sale, assignment, transfer, conveyance, lease or other disposition of all or substantially all of the properties or assets of an Issuer in accordance with the foregoing in which such Issuer is not the surviving entity, the surviving Person formed by such consolidation or into or with which such Issuer is merged or to which such sale, assignment, transfer, conveyance, lease or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, such Issuer under this Indenture with the same effect as if such surviving Person had been named as such Issuer in this Indenture, and thereafter (except in the case of a lease of all or substantially all of such Issuers properties or assets), such Issuer will be relieved of all obligations and covenants under this Indenture and the Notes.
Section 5.02 Successor Person Substituted.
Upon any transaction or series of related transactions that are of the type described in, and are effected in accordance with, Section 5.01(a) hereof, the surviving Person (if other than such Issuer) shall succeed to, and be substituted for, and may exercise every right and power of, such Issuer under Indenture and the Notes with the same effect as if such surviving Person had been named as such Issuer herein, and when a surviving Person duly assumes all of the obligations and covenants of such Issuer pursuant to this Indenture and the Notes, the predecessor Person shall be relieved of all such obligations.
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ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
Each of the following is an Event of Default:
(1) default for 30 days in the payment when due of interest and Special Interest, if any, with respect to the Notes;
(2) default in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on, the Notes;
(3) failure by PBFX or any of its Restricted Subsidiaries for 30 days after written notice to PBFX by the Trustee or Holders of at least 25% in aggregate principal amount of the Notes then outstanding voting as a single class to make a Change of Control Offer within the time periods set forth, or consummate a purchase of Notes when required pursuant to the terms described, in Section 4.15 or comply with the provisions of Section 5.01 hereof;
(4) failure by PBFX for 180 days after written notice to PBFX by the Trustee or the Holders of at least 25% in aggregate principal amount of Notes then-outstanding voting as a single class to comply with Section 4.03;
(5) failure by PBFX or any of its Restricted Subsidiaries for 60 days after written notice to PBFX by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then-outstanding voting as a single class to comply with any of the other agreements herein; or
(6) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by PBFX or any of its Restricted Subsidiaries (or the payment of which is guaranteed by PBFX or any of its Restricted Subsidiaries), whether such Indebtedness or guarantee now exists, or is created after the Issue Date, if that default:
(A) is caused by a failure to pay principal on such Indebtedness prior to the expiration of the grace period provided in such Indebtedness (a Payment Default); or
(B) results in the acceleration of such Indebtedness prior to its express maturity,
and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates, without duplication, $50.0 million or more;
(7) failure by an Issuer or any of PBFXs Restricted Subsidiaries that is a Significant Subsidiary to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $50.0 million (excluding amounts covered by insurance policies issued by reputable and credit worthy insurance companies for which coverage has not been disclaimed), which judgments are not paid, discharged or stayed for a period of 60 days;
(8) an Issuer or any of PBFXs Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of PBFX that, taken together, would constitute a Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an involuntary case,
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(C) consents to the appointment of a custodian of it or for all or substantially all of its property,
(D) makes a general assignment for the benefit of its creditors, or
(E) generally is not paying its debts as they become due;
(9) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is for relief against an Issuer or any of PBFXs Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of PBFX that, taken together, would constitute a Significant Subsidiary in an involuntary case;
(B) appoints a custodian of an Issuer or any of PBFXs Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of PBFX that, taken together, would constitute a Significant Subsidiary or for all or substantially all of the property of an Issuer or any of PBFXs Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of PBFX that, taken together, would constitute a Significant Subsidiary; or
(C) orders the liquidation of an Issuer or any of PBFXs Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of PBFX that, taken together, would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive days; and
(10) except as permitted by this Indenture, any Note Subsidiary Guarantee from a Subsidiary Guarantor that is a Significant Subsidiary is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Subsidiary Guarantor that is a Significant Subsidiary, or any Person acting on behalf of any Subsidiary Guarantor that is a Significant Subsidiary, denies or disaffirms its Obligations under its Note Subsidiary Guarantee.
In the case of an Event of Default specified in clause (6) of the first paragraph of this Section 6.01 and all consequences thereof (excluding, however, any resulting payment default) will be annulled, waived and rescinded with respect to the Notes, automatically and without any action by the Trustee or the Holders of such Notes, if within 60 days after such Event of Default first arose PBFX delivers an Officers Certificate to the Trustee stating that (a) the Indebtedness or guarantee that is the basis for such Event of Default has been discharged, (b) the Holders of the Indebtedness that is the basis for such Event of Default have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default or (c) the default that is the basis for such Event of Default has been cured. The Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the notes unless a written notice of such Default or Event of Default shall have been given to a Responsible Officer by PBFX or any of its Restricted Subsidiaries or any Holder of Notes.
Section 6.02 Acceleration.
In the case of an Event of Default specified in clause (8) or (9) of Section 6.01 hereof, with respect to Finance Corp., PBFX or any Restricted Subsidiary of PBFX that is a Significant Subsidiary or any group of Restricted Subsidiaries of PBFX that, taken together, would constitute a Significant Subsidiary, all outstanding Notes will become due and payable immediately without further action or notice. If any other Event of Default with respect to the Notes occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then-outstanding Notes may declare all the Notes to be due and payable immediately.
Upon any such declaration, the Notes shall become due and payable immediately.
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Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium and interest and Special Interest, if any, on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
Section 6.04 Waiver of Acceleration and/or Past Defaults.
Holders of not less than a majority in aggregate principal amount of the then-outstanding Notes by notice to the Trustee may on behalf of the Holders of all of the Notes waive an existing Default or Event of Default and its consequences hereunder, except a continuing Default or Event of Default in the payment of the principal of, premium or interest and Special Interest, if any, on, the Notes (including in connection with an offer to purchase); provided, however, that the Holders of at least a majority in aggregate principal amount of the then-outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.05 Control by Majority.
Holders of at least a majority in aggregate principal amount of the then-outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture that the Trustee determines may be unduly prejudicial to the rights of other Holders of Notes or that may involve the Trustee in personal liability.
Section 6.06 Limitation on Suits.
A Holder may pursue a remedy with respect to this Indenture or the Notes only if:
(1) such Holder gives to the Trustee written notice that an Event of Default is continuing;
(2) Holders of at least 25% in aggregate principal amount of the then-outstanding Notes make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer and, if requested, provide to the Trustee security and/or indemnity satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after receipt of the request and the provision of any such security and indemnity; and
(5) during such 60-day period, Holders of at least a majority in aggregate principal amount of the then-outstanding Notes do not give the Trustee a direction inconsistent with such request.
A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a Note or to obtain a preference or priority over another Holder of a Note.
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Section 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of principal, premium and interest and Special Interest, if any, on the Note, on or after the respective due dates expressed in the Note (including in connection with an offer to purchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) hereof occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Issuers for the whole amount of principal of, premium and interest and Special Interest, if any, remaining unpaid on, the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Issuers (or any other obligor upon the Notes), their creditors or their property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the Trustees costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes for principal, premium and interest and Special Interest, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest and Special Interest, if any, respectively; and
Third: to the Issuers or to such party as a court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to Holders of Notes pursuant to this Section 6.10.
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Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in aggregate principal amount of the then-outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default with respect to the Notes has occurred and is continuing, the Trustee will exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise thereof, as a prudent person would exercise or use under the circumstances in the conduct of such persons own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee will be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee. To the extent of any conflict between the duties of the Trustee hereunder and under the TIA, the TIA shall control; and
(2) in the absence of willful misconduct or bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of this Section 7.01;
(2) the Trustee will not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability. The Trustee will be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holders, unless such Holder has offered to the Trustee security and/or indemnity satisfactory to it against any loss, liability or expense.
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(f) The Trustee will not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuers. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Section 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon any document (whether in its original, electronic (including pdf) or facsimile form) believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an Officers Certificate or an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such Officers Certificate or Opinion of Counsel. The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee will not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuers will be sufficient if signed by an Officer of each of the Issuers.
(f) The Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee indemnity and/or security satisfactory to it against the losses, liabilities and expenses that might be incurred by it in compliance with such request or direction.
(g) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuers, personally or by agent or attorney at the sole cost of the Issuers and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(h) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.
(i) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
(j) The Trustee may request that the Company deliver an Officers Certificate setting forth the names of individuals and/or titles of Officers authorized at such time to take specified actions pursuant to this Indenture, which Officers Certificate may be signed by any person authorized to sign an Officers Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
(k) The Trustee may consult with counsel of its selection, and the advice or opinion of counsel with respect to legal matters relating to this Indenture and the Notes shall be full and complete authorization and protection from liability in respect to any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
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(l) The permissive rights of the Trustee enumerated herein shall not be construed as duties.
(m) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether such Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(n) The Trustee shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Trustees (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuers or any Affiliate of the Issuers with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest (as defined in the TIA) it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as trustee (if this Indenture has been qualified under the TIA) or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustees Disclaimer.
The Trustee will not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Issuers use of the proceeds from the Notes or any money paid to the Issuers or upon the Issuers direction under any provision of this Indenture, it will not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it will not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is actually known to a Responsible Officer of the Trustee, the Trustee will mail to Holders of Notes a notice of the Default or Event of Default within 90 days after the later of (a) the date of the Default or Event of Default shall have occurred and (b) the date such Responsible Officer first had such actual knowledge. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest and Special Interest, if any, on, any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of the Notes.
Section 7.06 Reports by Trustee to Holders of the Notes.
(a) Within 60 days after each November 15 beginning with the November 15 following the date of this Indenture, and for so long as Notes remain outstanding, the Trustee will mail to the Holders of the Notes a brief report dated as of such reporting date that complies with TIA § 313(a) (but if no event described in TIA § 313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted). The Trustee also will comply with TIA § 313(b)(2). The Trustee will also transmit by mail all reports as required by TIA § 313(c).
(b) A copy of each report at the time of its mailing to the Holders of Notes shall be filed with the SEC and each stock exchange on which the Notes are listed in accordance with TIA § 313(d). The Issuers will promptly notify the Trustee when the Notes are listed on any stock exchange.
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Section 7.07 Compensation and Indemnity.
(a) The Issuers will pay to the Trustee from time to time reasonable compensation for its acceptance of this Indenture and services hereunder as such parties shall agree in writing from time to time. The Trustees compensation will not be limited by any law on compensation of a trustee of an express trust. The Issuers will reimburse the Trustee promptly upon request for all reasonable and documented disbursements, advances and expenses incurred or made by it in addition to the compensation for its services, including the reasonable and documented compensation, disbursements and expenses of the Trustees agents and counsel.
(b) The Issuers and the Subsidiary Guarantors will jointly and severally indemnify the Trustee against any and all losses, liabilities or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against the Issuers and the Subsidiary Guarantors (including this Section 7.07) and defending itself against any claim (whether asserted by the Issuers, the Subsidiary Guarantors, any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense may be attributable to its negligence, willful misconduct or bad faith. The Trustee will notify the Issuers promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Issuers will not relieve the Issuers or any of the Subsidiary Guarantors of their obligations hereunder, except to the extent that the Issuers are materially prejudiced by such failure to promptly provide notice. The Issuers or such Subsidiary Guarantor will defend the claim and the Trustee will cooperate in the defense. The Trustee may have separate counsel and the Issuers will pay the reasonable and documented fees and expenses of such counsel. Neither the Issuers nor any Subsidiary Guarantor need pay for any settlement made without its consent, which consent will not be unreasonably withheld.
(c) The obligations of the Issuers and the Subsidiary Guarantors under this Section 7.07 will survive the satisfaction and discharge of this Indenture and the resignation and removal of the Trustee.
(d) To secure the Issuers and the Subsidiary Guarantors payment obligations in this Section 7.07, the Trustee will have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien will survive the satisfaction and discharge of this Indenture and the resignation and removal of the Trustee. The Trustees right to receive payment of any amounts under this Section 7.07 shall not be subordinate to any other liability or indebtedness of the Issuers or the Subsidiary Guarantors
(e) When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(8) or (9) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
(f) The Trustee will comply with the provisions of TIA § 313(b)(2) to the extent applicable.
Section 7.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustees acceptance of appointment as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Issuers. The Holders of at least a majority in aggregate principal amount of the then-outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuers in writing. The Issuers may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
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(3) a custodian or public officer takes charge of the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Issuers will promptly appoint a successor Trustee.
(d) If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee (at the Issuers expense), the Issuers, or the Holders of at least 10% in aggregate principal amount of the then-outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10 hereof, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(f) A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Issuers. Thereupon, the resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee will mail a notice of its succession to Holders. The retiring Trustee will promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuers obligations under Section 7.07 hereof will continue for the benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or sells or otherwise transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act will be the successor Trustee. As soon as practicable, the successor Trustee shall mail a notice of its succession to the Issuers and the Holders of the Notes.
Section 7.10 Eligibility; Disqualification.
There will at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50.0 million as set forth in its most recent published annual report of condition.
This Indenture will always have a Trustee who satisfies the requirements of TIA § 310(a)(1), (2) and (5). The Trustee is subject to TIA § 310(b).
Section 7.11 Preferential Collection of Claims Against the Issuers.
The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuers may at their option and at any time, elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes and all obligations of the Subsidiary Guarantors with respect to the Note Subsidiary Guarantees upon compliance with the conditions set forth below in this Article 8.
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Section 8.02 Legal Defeasance and Discharge.
Upon the Issuers exercise under Section 8.01 hereof of the option applicable to this Section 8.02, the Issuers and each of the Subsidiary Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations with respect to all outstanding Notes (including the Note Subsidiary Guarantees) and all Events of Default cured on the date the conditions set forth below are satisfied (hereinafter, Legal Defeasance). For this purpose, Legal Defeasance means that the Issuers and the Subsidiary Guarantors will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Note Subsidiary Guarantees), which will thereafter be deemed to be outstanding only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in clauses (1) and (2) below, and to have satisfied all their other obligations under the Notes, the Note Subsidiary Guarantees and this Indenture (and the Trustee, on demand of and at the expense of the Issuers, shall execute proper instruments acknowledging the same) and to have cured all then existing Events of Default, except for the following provisions which will survive until otherwise terminated or discharged hereunder:
(1) the rights of Holders of outstanding Notes to receive payments in respect of the principal of, or interest and Special Interest, if any, or premium, if any, on, such Notes when such payments are due from the trust referred to in Section 8.04 hereof;
(2) the Issuers obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money for security payments held in trust;
(3) the rights, powers, trusts, duties, indemnities and immunities of the Trustee hereunder and the Issuers and the Subsidiary Guarantors Obligations in connection therewith; and
(4) this Article 8.
Subject to compliance with this Article 8, the Issuers may exercise their option under this Section 8.02 notwithstanding the prior exercise of their option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Issuers exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Issuers and each of the Subsidiary Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from each of their obligations under the covenants contained in Sections 4.03, 4.04, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17 and 4.18 hereof and Section 5.01 hereof with respect to the outstanding Notes, and the Subsidiary Guarantors will be released from their obligations with respect to the Note Subsidiary Guarantees, on and after the date the conditions set forth in Section 8.04 hereof are satisfied (hereinafter, Covenant Defeasance), and the Notes will thereafter be deemed not outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but will continue to be deemed outstanding for all other purposes hereunder (it being understood that such Notes will not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and Note Subsidiary Guarantees, the Issuers and the Subsidiary Guarantors may omit to comply with and will have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply will not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes and Note Subsidiary Guarantees will be unaffected thereby. In addition, upon the Issuers exercise under Section 8.01 hereof of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections 6.01(3) through 6.01(7) inclusive and 6.01(10) hereof will not constitute Events of Default.
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Section 8.04 Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 hereof:
(1) the Issuers must irrevocably deposit with the Trustee or its designee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, or interest and premium, if any, on the outstanding Notes on the stated date for payment thereof or on the applicable Redemption Date, as the case may be, and the Issuers must specify whether the Notes are being defeased to such stated date for payment or to a particular Redemption Date;
(2) in the case of an election under Section 8.02 hereof, the Issuers must deliver to the Trustee an Opinion of Counsel confirming that, subject to customary assumptions and exclusions:
(A) the Issuers have received from, or there has been published by, the Internal Revenue Service a ruling; or
(B) since the Issue Date, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of an election under Section 8.03 hereof, the Issuers must deliver to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the incurrence of Indebtedness or other borrowing of funds or the grant of Liens securing such Indebtedness or other borrowing, all or a portion of the proceeds of which will be applied to such deposit);
(5) such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which PBFX or any of its Subsidiaries is a party or by which PBFX or any of its Subsidiaries is bound, or if such breach, violation or default would occur, which is not waived as of, and for all purposes, on and after, the date of such deposit;
(6) the Issuers must deliver to the Trustee an Officers Certificate stating that the deposit was not made by the Issuers with the intent of preferring the Holders of Notes over the other creditors of the Issuers with the intent of defeating, hindering, delaying or defrauding any creditors of the Issuers or others; and
(7) the Issuers must deliver to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.
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Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the Trustee) pursuant to Section 8.04 hereof in respect of the outstanding Notes will be held in trust and applied by the Trustee, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including either Issuer acting as Paying Agent) as the Trustee may determine, to the Holders of the Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest and Special Interest, if any, but such money need not be segregated from other funds except to the extent required by law.
The Issuers will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government Securities deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.
Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to the Issuers from time to time upon the request of the Issuers any money or non-callable Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(1) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to the Issuers.
Any money deposited with the Trustee or any Paying Agent, or then held by the Issuers, in trust for the payment of the principal of, premium, if any, or interest and Special Interest, if any, on, any Note and remaining unclaimed for two years after such principal, premium, if any, or interest and Special Interest, if any, has become due and payable shall be paid to the Issuers on their request or (if then held by the Issuers) will be discharged from such trust; and the Holder of such Note will thereafter be permitted to look only to the Issuers for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuers as trustee thereof, will thereupon cease; provided, however, that if any of the Notes then outstanding are in definitive form the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Issuers cause to be published once, in The New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Issuers.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuers and the Subsidiary Guarantors obligations under this Indenture and the Notes and the Note Subsidiary Guarantees will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that, if the Issuers make any payment of principal of, premium, if any, or interest and Special Interest, if any, on, any Note following the reinstatement of its obligations, the Issuers will be subrogated to the rights of the Holders of the Notes to receive such payment from the money held by the Trustee or Paying Agent.
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ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Issuers and the Trustee may amend or supplement this Indenture, the Notes or the Note Subsidiary Guarantees without the consent of any Holder of Note:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in place of certificated Notes;
(3) to provide for the assumption of the Issuers or a Subsidiary Guarantors obligations to the Holders of the Notes and Note Subsidiary Guarantees in the case of a merger or consolidation or sale of all or substantially all of the Issuers or such Subsidiary Guarantors assets, as applicable;
(4) to make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect the legal rights hereunder of any such Holder;
(5) to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA;
(6) to conform the text of this Indenture or the Note Subsidiary Guarantees to any provision of the Description of Notes section of the Offering Memorandum to the extent that such provision was intended to reflect such provision of the Description of Notes;
(7) to provide for the issuance of Additional Notes in accordance with the limitations set forth in this Indenture;
(8) to allow any Subsidiary Guarantor to execute a supplemental indenture and/or a Note Subsidiary Guarantee with respect to the Notes or to reflect the release of a Note Subsidiary Guarantee in accordance with this Indenture;
(9) to secure the Notes and/or the Note Subsidiary Guarantees;
(10) to comply with the rules of any applicable securities depository;
(11) to provide for the reorganization of PBFX as any other form of entity, in accordance with Section 5.01(a); or
(12) to evidence and provide for the acceptance and appointment under this Indenture of a successor Trustee pursuant to the requirements hereof.
Upon the request of the Issuers accompanied by a resolution of their Boards of Directors authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee will join with the Issuers and the Subsidiary Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee will not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise. Notwithstanding the foregoing, neither an Opinion of Counsel nor an Officers Certificate, nor a board resolution, shall be required in connection with the addition of a Subsidiary Guarantor under this Indenture upon execution and delivery by such Subsidiary Guarantor, the Issuers and the Trustee of a supplemental indenture to this Indenture, the form of which is attached as Exhibit D hereto.
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Section 9.02 With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Issuers and the Trustee may amend or supplement this Indenture (including, without limitation, Sections 3.09, 4.10 and 4.15 hereof), the Notes and the Note Subsidiary Guarantees with the consent of the Holders of at least a majority in aggregate principal amount of the then-outstanding Notes (including, without limitation, Additional Notes, if any) voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium or interest and Special Interest, if any, on, the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture, the Notes or the Note Subsidiary Guarantees may be waived with the consent of the Holders of at least a majority in aggregate principal amount of the then-outstanding Notes (including, without limitation, Additional Notes, if any) voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, such Notes). Section 2.08 hereof shall determine which Notes are considered to be outstanding for purposes of this Section 9.02.
Upon the request of the Issuers accompanied by a resolution of their Boards of Directors authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee will join with the Issuers in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the Trustees own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but will not be obligated to, enter into such amended or supplemental Indenture.
It is not be necessary for the consent of the Holders of Notes under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver, but it is sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Issuers will mail or deliver via electronic transmission to the Holders of Notes affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuers to mail such notice, or any defect therein, will not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of at least a majority in aggregate principal amount of the Notes then-outstanding voting as a single class may waive compliance in a particular instance by the Issuers with any provision of this Indenture or the Notes or the Note Subsidiary Guarantees. However, without the consent of each Holder affected, an amendment, supplement or waiver under this Section 9.02 may not (with respect to the Notes held by a non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any Note or alter the provisions with respect to the redemption of the Notes; provided, however, that any purchase or repurchase of Notes, including pursuant to Sections 4.10 or 4.15 hereof, shall not be deemed a redemption of the Notes;
(3) reduce the rate of or change the time for payment of interest or Special Interest, if any, on any Note;
(4) waive a Default or Event of Default in the payment of principal of, or interest, and Special Interest, if any, or premium on the Notes (except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the then-outstanding Notes and a waiver of the payment default that resulted from such acceleration);
(5) make any Note payable in currency other than that stated in the Notes;
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(6) make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders of Notes to receive payments of principal of, or interest and Special Interest, if any, or premium, if any, on, the Notes (other than as permitted by clause (7) below);
(7) waive a redemption payment with respect to any Note (other than a payment required by Sections 4.10 or 4.15 hereof);
(8) release any Subsidiary Guarantor with respect to its Note Subsidiary Guarantee of the Notes from any of its obligations under its Note Subsidiary Guarantee or this Indenture, except in accordance with the terms of this Indenture; or
(9) make any change in the preceding amendment and waiver provisions.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes will be set forth in an amended or supplemental indenture that complies with the TIA as then in effect.
Section 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holders Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms (except as provided in the second succeeding paragraph) and thereafter binds every Holder.
The Issuers may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver. If a record date is fixed, then notwithstanding the second to last sentence of the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies) and only those Persons, shall be entitled to consent to such amendment or waiver or revoke any consent previously given, whether or not such Persons continue to be Holders after such record date.
After an amendment, supplement or waiver becomes effective, it shall bind every Holder, unless it makes a change described in any of the clauses (1) through (9) of Section 9.02, in which case, the amendment, supplement or waiver shall bind only each Holder of a note who has consented to it and every subsequent Holder of a Note or portion of a Note that evidences the same indebtedness as the consenting Holders Note.
Section 9.05 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuers in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note will not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee will sign any amended or supplemental indenture authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. The Issuers may not sign an amended or supplemental indenture until the Boards of Directors of each of the Issuers approves it. In executing any amended or supplemental indenture, the Trustee will be entitled to receive and (subject to Section 7.01 hereof) will be fully protected in relying upon, in addition to the documents required by Section 12.04 hereof, an Officers Certificate and an Opinion of Counsel each stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture.
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ARTICLE 10
NOTE SUBSIDIARY GUARANTEES
Section 10.01 Guarantee.
(a) Subject to this Article 10, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees, in an unsecured senior basis, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuers hereunder or thereunder, that:
(1) the principal of, premium, if any, and interest and Special Interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Issuers to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) The Subsidiary Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. Each Subsidiary Guarantor further, to the extent permitted by law, hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of an Issuer, any right to require a proceeding first against an Issuer, protest, notice and all demands whatsoever and covenants that its Note Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to an Issuer, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to any of the Issuers or the Subsidiary Guarantors, any amount paid by an Issuer or any Subsidiary Guarantor to the Trustee or such Holder, this Note Subsidiary Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
(d) Each Subsidiary Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of its Note Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed thereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) will forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Note Subsidiary Guarantee. The Subsidiary Guarantors will have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Subsidiary Guarantee.
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Section 10.02 Limitation on Guarantor Liability.
Each Subsidiary Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Subsidiary Guarantee of such Subsidiary Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Note Subsidiary Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Subsidiary Guarantors hereby irrevocably agree that the obligations of such Subsidiary Guarantor will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Subsidiary Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under this Article 10, result in the obligations of such Subsidiary Guarantor under its Note Subsidiary Guarantee not constituting a fraudulent transfer or conveyance.
Section 10.03 Note Subsidiary Guarantee
The Note Subsidiary Guarantee of any Subsidiary Guarantor shall be evidenced solely by its execution and delivery of this Indenture (or, in the case of any Subsidiary Guarantor that is not party to this Indenture on the date of this Indenture, a supplemental indenture hereto) and not by an endorsement on, or attachment to, any Note of any Note Subsidiary Guarantee or notation thereof. To effect any Note Subsidiary Guarantee of any Subsidiary Guarantor not party to this Indenture on the date of this Indenture, such future Subsidiary Guarantor shall execute and deliver a supplemental indenture substantially in the form attached as Exhibit D hereto, which supplemental indenture shall be executed and delivered on behalf of such Subsidiary Guarantor by an Officer of such Subsidiary Guarantor.
Section 10.04 Evidenced by Indenture; No Notation of Subsidiary Guarantee.
Each Subsidiary Guarantor hereby agrees that its Note Subsidiary Guarantee set forth in Section 10.01 hereof will remain in full force and effect notwithstanding any failure to endorse on any Note a notation of such Note Subsidiary Guarantee.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Note Subsidiary Guarantee set forth in this Indenture on behalf of each of the Subsidiary Guarantors.
Section 10.05 [Reserved] .
Section 10.06 Releases .
The Note Subsidiary Guarantee of a Subsidiary Guarantor will be released:
(1) in connection with any sale or other disposition of all or substantially all of the assets of that Subsidiary Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) PBFX or a Restricted Subsidiary of PBFX, if the sale or other disposition does not violate Section 4.10 hereof;
(2) in connection with any sale or other disposition of the Capital Stock of that Subsidiary Guarantor after which the applicable Subsidiary Guarantor is no longer a Subsidiary of PBFX, if the sale or other disposition does not violate Section 4.10 hereof;
(3) if PBFX designates any Restricted Subsidiary that is a Subsidiary Guarantor to be an Unrestricted Subsidiary in accordance with Section 4.17 hereof;
(4) upon the release or discharge of the guarantee by such Subsidiary Guarantor with respect to the Indebtedness under the Credit Agreements or the guarantee that resulted in the creation of such Note Subsidiary Guarantee; provided, however, that if, at any time following such release, that Subsidiary Guarantor later guarantees Indebtedness of any Issuer under the Credit Agreements, then such Subsidiary Guarantor shall provide a Note Subsidiary Guarantee at such time if required in accordance with Section 4.16 hereof;
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(5) upon the merger, amalgamation or consolidation of such Subsidiary Guarantor with and into an Issuer or another Subsidiary Guarantor that is the surviving Person in such merger, amalgamation or consolidation, or upon the liquidation or dissolution of such Subsidiary Guarantor;
(6) upon Legal Defeasance or Covenant Defeasance in accordance with Article 8 hereof or upon satisfaction and discharge in accordance with Article 11 hereof; or
(7) in accordance with Article 9 hereof.
Any Subsidiary Guarantor not released from its obligations under its Note Subsidiary Guarantee as provided in this Section 10.06 will remain liable for the full amount of principal of and interest and Special Interest, if any, and premium, if any, on the Notes and for the other obligations of any Subsidiary Guarantor under this Indenture as provided in this Article 10.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further effect as to the Notes issued hereunder, when:
(1) either:
(a) all Notes that have been authenticated, except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust and thereafter repaid to the Issuers, have been delivered to the Trustee for cancellation; or
(b) all Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the mailing or delivery via electronic transmission of a notice of redemption or otherwise or will become due and payable within one year and the Issuers or any Subsidiary Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the applicable Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof in such amounts as will be sufficient, without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest and Special Interest, if any, to the date of maturity or redemption;
(2) no Default or Event of Default has occurred and is continuing on the date of the deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) and such deposit will not result in a breach or violation of, or constitute a default under, any other material instrument to which any Issuer or any Subsidiary Guarantor is a party or by which any Issuer or any Subsidiary Guarantor is bound;
(3) the Issuers or any Subsidiary Guarantor has paid or caused to be paid all sums payable by it with respect to the Notes under this Indenture; and
(4) the Issuers have delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or on the Redemption Date, as the case may be.
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In addition, the Issuers must deliver (a) an Officers Certificate stating that all conditions precedent set forth in clauses (1) through (4) above have been satisfied and (b) an Opinion of Counsel to the Trustee (which Opinion of Counsel may be subject to customary assumptions and qualifications), stating that all conditions precedent to satisfaction and discharge set forth in Section 11.01(2) and (4) have been satisfied; provided that the Opinion of Counsel with respect to 11.01(2) above may be to the knowledge of such counsel.
Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited with the Trustee pursuant to subclause (b) of clause (1) of this Section 11.01, the provisions of Sections 11.02 and 8.06 hereof will survive. In addition, nothing in this Section 11.01 will be deemed to discharge those provisions of Section 7.07 hereof, that, by their terms, survive the satisfaction and discharge of this Indenture.
Section 11.02 Application of Trust Money.
Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including either Issuer acting as Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium and Special Interest, if any) and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 11.01 hereof by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuers and any Subsidiary Guarantors obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof; provided that if the Issuers have made any payment of principal of, premium, if any, or interest and Special Interest, if any, on, the Notes because of the reinstatement of its obligations, the Issuers shall be subrogated to the rights of the Holders of the Notes to receive such payment from the money or Government Securities held by the Trustee or Paying Agent.
ARTICLE 12
MISCELLANEOUS
Section 12.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by TIA §318(c), the imposed duties will control.
Section 12.02 Notices.
Any notice or communication by the Issuers, any Subsidiary Guarantor or the Trustee to the others is duly given if in writing and delivered in Person or by first class mail (registered or certified, return receipt requested), facsimile transmission or overnight air courier guaranteeing next day delivery, to the others address:
If to the Issuers and/or any Subsidiary Guarantor:
PBF Logistics LP
PBF Logistics Finance Corporation
1 Sylvan Way, 2nd Floor
Parsippany, New Jersey 07054
Facsimile No.: 973-455-7562
Attention: General Counsel
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With a copy to:
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New York 10038
Facsimile No.: 212-806-6006
Attention: Todd Lenson
If to the Trustee:
Deutsche Bank Trust Company Americas
Trust & Agency Services
60 Wall Street, 16th Floor
Mail Stop: NYC60-1630
New York, New York 10005
Attn: Corporates Team Deal Manager PBF Indenture dated May 12, 2015
Fax: 732-578-4635
With a copy to:
Deutsche Bank Trust Company Americas
c/o Deutsche Bank National Trust Company
Trust & Agency Services
100 Plaza One, Mailstop JCY03-0699
Jersey City, New Jersey 07311
Attn: Corporates Team Deal Manager PBF Indenture dated May 12, 2015
Fax: 732-578-4635
The Issuers, any Subsidiary Guarantor or the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) will be deemed to have been duly given: at the time delivered by hand, if personally delivered; five calendar days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder will be electronically delivered, mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. Any notice or communication will also be so delivered or mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to deliver a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed or otherwise delivered in the manner provided above within the time prescribed, such notice or communication shall be deemed duly given, whether or not the addressee receives it.
If the Issuers deliver or mail a notice or communication to Holders, they will deliver or mail a copy to the Trustee and each Agent at the same time.
The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (Instructions) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Issuers shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (Authorized Officers) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Issuers whenever a person is to be added or deleted from the listing. If the Issuers elect to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustees understanding of such Instructions shall be deemed controlling. The Issuers understand and agree that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Issuer shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Issuers
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and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Issuers. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustees reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Issuers agree: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that they are fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Issuers; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee promptly upon learning of any compromise or unauthorized use of the security procedures.
Section 12.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture or the Notes. The Issuers, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Where this Indenture provides for notice of any event to a Holder of a Global Note, such notice shall be sufficiently given if given to the Depository for such Note (or its designee), not later than the latest date, if any, and not earlier than the earliest date, if any, prescribed for the giving of such notice.
Section 12.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuers to the Trustee to take any action under this Indenture, the Issuers shall furnish to the Trustee:
(1) an Officers Certificate in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.
Section 12.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) must comply with the provisions of TIA § 314(e) and must include:
(1) a statement that the Person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
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(3) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied.
Section 12.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
Section 12.07 No Personal Liability of Directors, Officers, Employees and Unitholders and No Recourse to General Partner.
Subject to the PBF LLC guaranty of collection, none of the General Partner or any past, present or future director, officer, partner, member, employee, incorporator, manager or unitholder or other owner of Equity Interest of the Issuers, PBF LLC, the General Partner or any of their Subsidiaries, as such, will have any liability for any obligations of the Issuers or any Subsidiary Guarantor under the Notes, this Indenture, the Note Subsidiary Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes and the Note Subsidiary Guarantees.
Section 12.08 Governing Law.
THIS INDENTURE, THE NOTES AND THE NOTE SUBSIDIARY GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 12.09 Waiver of Jury Trial
Each of the Issuers, the Subsidiary Guarantors, the Trustee, Paying Agent, Registrar and Transfer Agent hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Indenture, the Securities or the transactions contemplated hereby.
Section 12.10 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of PBFX or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 12.11 Successors.
All agreements of the Issuers and the Subsidiary Guarantors in this Indenture and the Notes will bind their successors. All agreements of the Trustee in this Indenture will bind its successors. All agreements of each Subsidiary Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 5.01(d) hereof.
Section 12.12 Severability.
In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
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Section 12.13 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy will be an original, but all of them together represent the same agreement. This Indenture may be executed in multiple counterparts which, when taken together, shall constitute one instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmissions shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
Section 12.14 PATRIOT Act
In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering, including Section 326 of the USA PATRIOT Act of the United States (Applicable Law), the Trustee and Agents are required to obtain, verify, record and update certain information relating to individuals and entities which maintain a business relationship with the Trustee and Agents. Accordingly, each of the parties agree to provide to the Trustee and Agents, upon their request from time to time such identifying information and documentation as may be available for such party in order to enable the Trustee and Agents to comply with Applicable Law.
Section 12.15 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and will in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
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SIGNATURES
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
PBF LOGISTICS LP | ||||
By: | PBF Logistics GP LLC its general partner | |||
By: | /s/ Jeffrey Dill | |||
Name: Jeffrey Dill | ||||
Title: Senior Vice President, Secretary | ||||
PBF LOGISTICS FINANCE CORPORATION | ||||
DELAWARE CITY TERMINALING COMPANY LLC | ||||
TOLEDO TERMINALING COMPANY LLC | ||||
By: | /s/ Jeffrey Dill | |||
Name: Jeffrey Dill | ||||
Title: Senior Vice President, Secretary |
[SIGNATURE PAGE TO THE INDENTURE]
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee, Paying Agent, Registrar and Transfer Agent | ||
By: Deutsche Bank National Trust Company | ||
By: | /s/ Rodney Gaughan | |
Name: Rodney Gaughan | ||
Title: Vice President | ||
By: | /s/ Linda Reale | |
Name: Linda Reale | ||
Title: Vice President |
[SIGNATURE PAGE TO THE INDENTURE]
EXHIBIT A
[THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUERS.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (DTC), TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE RESALE RESTRICTION TERMINATION DATE) THAT IS SIX MONTHS (IN THE CASE OF RULE 144A SECURITIES) AFTER THE LATER OF THE ISSUE DATE OF THE NOTES INITIALLY ISSUED OR THE ISSUANCE DATE OF ANY ADDITIONAL NOTES ISSUED UNDER THE INDENTURE AND THE LAST DATE ON WHICH THE ISSUERS OR ANY AFFILIATE OF THE ISSUERS WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) OR 40 DAYS (IN THE CASE OF REGULATION S SECURITIES), ONLY (A) TO THE ISSUERS, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)(I) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (II) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUERS AND THE TRUSTEES RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THE HOLDER AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER OR THE ISSUERS ON OR AFTER THE RESALE RESTRICTION TERMINATION DATE.]
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[BY ITS ACQUISITION AND HOLDING OF THIS SECURITY, THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED, WARRANTED AND AGREED THAT EITHER (I) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY (OR ANY INTEREST IN THIS SECURITY) CONSTITUTES THE ASSETS OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY REQUIREMENTS OF TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (ERISA), OF A PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE CODE), A GOVERNMENTAL, CHURCH, NON-U.S., OR OTHER PLAN WHICH IS SUBJECT TO ANY FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (SIMILAR LAWS), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE PLAN ASSETS BY REASON OF SUCH PLANS, ACCOUNTS OR OTHER ARRANGEMENTS INVESTMENT IN THE ENTITY, OR (II) THE ACQUISITION, HOLDING AND DISPOSITION OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE OR, IN THE CASE OF A PLAN THAT IS NOT SUBJECT TO ERISA OR SECTION 4975 OF THE CODE, A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.]
[IN THE CASE OF REGULATION S NOTES: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.]
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[RULE 144A][REGULATION S][GLOBAL] NOTE
CUSIP [ ]1
6.875% Senior Notes due 2023
No. | $ |
PBF LOGISTICS LP
and
PBF LOGISTICS FINANCE CORP.
promise to pay to [Cede & Co.]2, or its registered assigns,
the principal sum of DOLLARS[, as revised by the Schedule of Increases or Decreases in the Global Note attached hereto]1, on May 15, 2023.
Interest Payment Dates: May 15 and November 15, commencing on November 15, 2015
Record Dates: May 1 and November 1
Additional provisions of this Note are set forth on the other side of this Note.
Dated: , 20
PBF LOGISTICS LP | ||
By: | PBF Logistics GP LLC, its general partner | |
By: |
| |
Name: | ||
Title: | ||
PBF LOGISTICS FINANCE CORPORATION | ||
By: |
| |
Name: | ||
Title: |
This is one of the Notes referred to in the within-mentioned Indenture:
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
By: Deutsche Bank National Trust Company
By: | ||
Authorized Signatory |
1 | Rule 144A: 69318U AA3 |
Reg S: U7045P AA1
Private Placement: 69318U AC9
2 | Include if a global note. |
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[REVERSE OF NOTE]
Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
(1) INTEREST. PBF Logistics LP, a Delaware limited partnership (PBFX), and PBF Logistics Finance Corporation, a Delaware corporation (Finance Corp. and, together with PBFX, the Issuers), promise to pay interest on the principal amount of this Note at 6.875% per annum from May 12, 2015 until maturity and shall pay the Special Interest, if any, payable pursuant to Section 5 of the Registration Rights Agreement referred to below. The Issuers will pay interest and Special Interest, if any, semi-annually in arrears on May 15 and November 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an Interest Payment Date). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be November 15, 2015. Interest will be computed on the basis of a 360-day year of twelve 30-day months. The Issuers shall pay interest on overdue installments of interest and overdue principal and premium, if any, from time to time on demand at the interest rate set forth above in this Note.
(2) METHOD OF PAYMENT. The Issuers will pay interest on the Notes (except defaulted interest) and Special Interest, if any, to the Persons who are registered Holders of Notes at the close of business on the May 1 or November 1 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium and Special Interest, if any, and interest at the office or agency of the Issuers maintained for such purpose within or without the City and State of New York, or, at the option of the Issuers, payment of interest and Special Interest, if any, may be made by check mailed to the Holders at their addresses set forth in the register of Holders; provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest, premium and Special Interest, if any, on, all Global Notes and all other Notes the Holders of which will have provided wire transfer instructions to the Issuers or the Paying Agent to an account in the United States. Such payment will be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
(3) PAYING AGENT, REGISTRAR AND TRANSFER AGENT. Initially, Deutsche Bank Trust Company Americas, the Trustee under the Indenture, will act as Paying Agent, Registrar and Transfer Agent. The Issuers may change any Paying Agent, Registrar or Transfer Agent without notice to any Holder. PBFX or any of its Subsidiaries may act in any such capacity.
(4) INDENTURE. The Issuers issued the Notes under an Indenture dated as of May 12, 2015 (as amended, supplemented or otherwise modified from time to time, the Indenture) among the Issuers, the Subsidiary Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. The Notes are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are unsecured obligations of the Issuers. The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder.
(5) GUARANTEE. To guarantee the due and punctual payment of the principal, premium, if any, and interest (including post-petition interest in any proceeding under any Bankruptcy Law) on the Notes and all other amounts payable by the Issuers under the Indenture and the Notes when and as the same shall be due and payable, whether at maturity, by acceleration or otherwise, according to the terms of the Notes and the Indenture, the Subsidiary Guarantors have unconditionally guaranteed, jointly and severally, such obligations on an unsecured senior basis pursuant to the terms of the Indenture.
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(6) OPTIONAL REDEMPTION.
(a) On or after May 15, 2018, the Issuers may, on one or more occasions, redeem all or a part of the Notes, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest and Special Interest, if any, on the Notes redeemed to, but excluding, the applicable Redemption Date, if redeemed during the twelve-month period beginning on May 15 of each year indicated below, subject to the rights of Holders of Notes on the relevant record date to receive interest on the relevant Interest Payment Date:
Year |
Percentage | |||
2018 |
105.156 | % | ||
2019 |
103.438 | % | ||
2020 |
101.719 | % | ||
2021 and thereafter |
100.000 | % |
(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 6, at any time prior to May 15, 2018, the Issuers may on any one or more occasions redeem up to 35% of the aggregate principal amount of the outstanding Notes (including any Additional Notes) issued under the Indenture at a redemption price of 106.875% of the principal amount with an amount equal to or less than the net cash proceeds of one or more Equity Offerings, plus accrued and unpaid interest and Special Interest, if any, to, but excluding, the Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on an Interest Payment Date that is on or prior to the Redemption Date); provided that at least 65% of the aggregate principal amount of Notes originally issued under this Indenture (excluding Notes held by PBFX and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and the redemption occurs within 180 days of the date of the closing of such Equity Offering.
(c) Notwithstanding the provisions of subparagraph (a) of this Paragraph 6, at any time prior to May 15, 2018, the Issuers may, on one or more occasions, also redeem all or a part of the Notes, at a redemption price equal to 100% of the principal amount of Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest and Special Interest, if any, thereon to, but excluding, the Redemption Date, subject to the rights of Holders on the relevant record date to receive interest due on the relevant Interest Payment Date.
(d) Unless the Issuers default in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable Redemption Date.
(7) MANDATORY REDEMPTION.
Neither of the Issuers is required to make mandatory redemption or sinking fund payments with respect to the Notes.
(8) REPURCHASE AT THE OPTION OF HOLDER.
(a) If there is a Change of Control Triggering Event, the Issuers will be required to make an offer (a Change of Control Offer) to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holders Notes at a purchase price in cash equal to 101% (or, at the election of PBFX, a higher percentage) of the aggregate principal amount thereof, plus accrued and unpaid interest and Special Interest, if any, on the Notes repurchased to, but excluding, the date of purchase, subject to the rights of Holders on the relevant record date to receive interest due on the relevant Interest Payment Date (the Change of Control Payment). Within 30 days following any Change of Control Triggering Event, the Issuers will mail or deliver via electronic transmission a notice to each Holder with a copy to the Trustee setting forth the procedures governing the Change of Control Offer as required by the Indenture.
(b) If the Issuers or a Restricted Subsidiary of PBFX consummates any Asset Sales, within five days after the date on which the aggregate amount of Excess Proceeds exceeds $50.0 million (or, at the Issuers option, any earlier date), the Issuers will commence an offer pursuant to Section 3.09 of the Indenture to purchase or redeem debt in an amount equal to such Excess Proceeds to (x) all Holders of Notes and (y) to the extent any other Indebtedness that is pari passu in right of payment with the Notes contains provisions similar to those set forth in the Indenture with respect to offers to purchase or redeem such Indebtedness with the proceeds of sales of assets (an Asset Sale Offer) and such provisions require the Issuers to make such an offer, to all Holders of such other pari
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passu Indebtedness at an offer price in cash in an amount equal to 100% of the principal amount (or accreted value) thereof plus accrued and unpaid interest and Special Interest, if any, to the date of purchase, in accordance with the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes and other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, PBFX (or such Restricted Subsidiary) may use such deficiency for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the representative of such other pari passu Indebtedness will select such other pari passu Indebtedness to be purchased on a pro rata basis. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Issuers prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled Option of Holder to Elect Purchase attached to the Notes.
(9) NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with a defeasance of the Notes or a satisfaction or discharge of the Indenture. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000 and in excess of $2,000, unless all of the Notes held by a Holder are to be redeemed.
(10) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuers may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Issuers need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Issuers need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date.
(11) PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes. Only registered Holders shall have rights hereunder.
(12) AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture, the Note Subsidiary Guarantees and/or this Note may be amended, supplemented, waived or otherwise modified as provided in the Indenture.
(13) DEFAULTS AND REMEDIES. The Events of Default relating to the Notes are defined in Section 6.01 of the Indenture. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then-outstanding Notes may declare all the Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency, with respect to Finance Corp., PBFX or any Restricted Subsidiary of PBFX that is a Significant Subsidiary or any group of Restricted Subsidiaries of PBFX that, taken together, would constitute a Significant Subsidiary, all outstanding Notes will become due and payable immediately without further action or notice. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of at least a majority in aggregate principal amount of the then-outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default if it determines that withholding notice is in their interest, except a Default or Event of Default relating to the payment of principal, interest and Special Interest, if any, or premium, if any. The Holders of at least a majority in aggregate principal amount of the then-outstanding Notes by notice to the Trustee may, on behalf of the Holders of all of the Notes, rescind an acceleration or waive any existing Default or Event of Default in accordance with, and to the extent permitted by, Section 6.04 of the Indenture. The Issuers and the Subsidiary Guarantors are required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Issuers and the Subsidiary Guarantors are required, within ten Business Days becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.
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(14) TRUSTEE DEALINGS WITH THE ISSUERS. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Issuers or their Affiliates, and may otherwise deal with the Issuers or their Affiliates, as if it were not the Trustee.
(15) NO RECOURSE AGAINST OTHERS. None of the General Partner or any past, present or future director, officer, partner, member, employee, incorporator, manager or unitholder or other owner of Equity Interest of the Issuers, the General Partner or any of their Subsidiaries, as such, will have any liability for any obligations of the Issuers or any Subsidiary Guarantor under the Notes, the Indenture, the Note Subsidiary Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes and the Note Subsidiary Guarantees.
(16) AUTHENTICATION. This Note will not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
(17) ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (=joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=Uniform Gifts to Minors Act).
(18) ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders of Notes under the Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes will have all the rights set forth in the Registration Rights Agreement dated as of May 12, 2015, among the Issuers, the Subsidiary Guarantors and the other parties named on the signature pages thereof or, in the case of Additional Notes, Holders of Restricted Global Notes and Restricted Definitive Notes will have the rights set forth in one or more registration rights agreements, if any, among the Issuers, the Subsidiary Guarantors and the other parties thereto, relating to rights given by the Issuers and the Subsidiary Guarantors to the purchasers of any Additional Notes (collectively, the Registration Rights Agreement).
(19) CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuers have caused CUSIP numbers to be printed on the Notes, and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption, and reliance may be placed only on the other identification numbers placed thereon.
(20) GOVERNING LAw. THE INDENTURE, THIS NOTE AND THE NOTE SUBSIDIARY GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(21) INDENTURE. In the event of any conflict between the terms of this Note and the Indenture, the Indenture shall control.
The Issuers will furnish to any Holder upon written request and without charge a copy of the Indenture and/or the Registration Rights Agreement. Requests may be made to the Issuers at the following address:
PBF LOGISTICS LP
PBF LOGISTICS FINANCE CORPORATION
1 Sylvan Way, 2nd Floor
Parsippany, New Jersey 07054
Attention: General Counsel
A-4
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: |
| |
(Insert assignee(s) legal name) |
(Insert assignees soc. sec. or tax I.D. no.)
(Print or type assignees name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Issuers. The agent may substitute another to act for him.
Date:
Your Signature: | ||
(Sign exactly as your name appears on the face of this Note) |
Signature Guarantee*:
* | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
A-5
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuers pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box below:
¨ Section 4.10 ¨ Section 4.15
If you want to elect to have only part of the Note purchased by the Issuers pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount (in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof) you elect to have purchased:
Date: | $ |
Your Signature: | ||
(Sign exactly as your name appears on the face of this Note) | ||
Tax Identification No.: |
|
Signature Guarantee*:
* | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
A-6
SCHEDULE OF INCREASES OR DECREASES IN THE GLOBAL NOTE*
The initial principal amount of this Global Note is $[ ]. The following increases or decreases in this Global Note have been made:
Date of Increase/Decrease |
Amount of decrease in |
Amount of increase in Principal |
Principal Amount of this Global |
Signature of authorized officer |
* | This schedule should be included only if the Note is issued in global form. |
A-7
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
PBF Logistics LP
PBF Logistics Finance Corporation
1 Sylvan Way, 2nd Floor
Parsippany, New Jersey 07054
Deutsche Bank Trust Company Americas
DB Services Americas, Inc.
5022 Gate Parkway, Suite 200,
Jacksonville, FL 32256 USA
Attention: Transfer Dept.
Email: dwac.processing@db.com
With copy:
Deutsche Bank Trust Company Americas
c/o Deutsche Bank National Trust Company
100 Plaza One 6th floor
MSJCY03-0699
Jersey City, New Jersey 07311
Fax: 732-578-4635
Re: [6.875% Senior Notes due 2023]
Reference is hereby made to the Indenture, dated as of May 12, 2015 (the Indenture), among PBF Logistics LP, a Delaware limited partnership (PBFX), and PBF Logistics Finance Corporation, a Delaware corporation (Finance Corp. and, together with PBFX, the Issuers), the Subsidiary Guarantors party thereto and Deutsche Bank Trust Company Americas, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
(the Transferor) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $ in such Note[s] or interests (the Transfer), to (the Transferee), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. ¨ Check if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Restricted Definitive Note Pursuant to Rule 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the Securities Act), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a qualified institutional buyer within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.
B-1
2. ¨ Check if Transferee will take delivery of a beneficial interest in the Regulation S Global Note or a Restricted Definitive Note pursuant to Regulation S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a Person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act and (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.
3. ¨ Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) ¨ Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.
(b) ¨ Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.
(c) ¨ Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
4. ¨ Check if Transferee will take delivery of a beneficial interest in a Restricted Global Note or Restricted Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):
(a) ¨ such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;
or
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(b) ¨ such Transfer is being effected to the Issuer or a Subsidiary thereof;
or
(c) ¨ such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act;
or
(d) ¨ such Transfer is being effected pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Restricted Global Note or Restricted Definitive Notes and the requirements of the exemption claimed. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Note and/or the Restricted Definitive Notes and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuers.
[Insert Name of Transferor] | ||
By: |
| |
Name: | ||
Title: |
Dated:
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. | The Transferor owns and proposes to transfer the following: |
[CHECK ONE OF (a) OR (b)]
(a) ¨ | a beneficial interest in the: |
(i) ¨ | 144A Global Note (CUSIP ______), or |
(ii) ¨ | Regulation S Global Note (CUSIP _______); or |
(b) ¨ | a Restricted Definitive Note. |
2. | After the Transfer the Transferee will hold: |
[CHECK ONE]
(a) ¨ | a beneficial interest in the: |
(i) ¨ | 144A Global Note (CUSIP ______), or |
(ii) ¨ | Regulation S Global Note (CUSIP _______); or |
(b) ¨ | a Restricted Definitive Note; or |
(c) ¨ | an Unrestricted Definitive Note, |
in accordance with the terms of the Indenture.
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EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
PBF Logistics LP
PBF Logistics Finance Corporation
1 Sylvan Way, 2nd Floor
Parsippany, New Jersey 07054
Deutsche Bank Trust Company Americas
DB Services Americas, Inc.
5022 Gate Parkway, Suite 200,
Jacksonville, FL 32256 USA
Attention: Transfer Dept.
Email: dwac.processing@db.com
With copy:
Deutsche Bank Trust Company Americas
c/o Deutsche Bank National Trust Company
100 Plaza One 6th floor
MSJCY03-0699
Jersey City, New Jersey 07311
Fax: 732-578-4635
Re: | [6.875% Senior Notes due 2023] |
[(2023 Notes CUSIP 69318U AA33)]
Reference is hereby made to the Indenture, dated as of May 12, 2015 (the Indenture), among PBF Logistics LP, a Delaware limited partnership (PBFX), and PBF Logistics Finance Corporation, a Delaware corporation (Finance Corp. and, together with PBFX, the Issuers), the Subsidiary Guarantors party thereto and Deutsche Bank Trust Company Americas, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
______________, (the Owner) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of $_ in such Note[s] or interests (the Exchange). In connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note
(a) ¨ Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note. In connection with the Exchange of the Owners beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owners own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the Securities Act of 1933, as amended (the Securities Act), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
3 | The CUSIP No. is U7045P AA1 for the Regulation S Note. |
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(b) ¨ Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note. In connection with the Exchange of the Owners beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owners own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(c) ¨ Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note. In connection with the Owners Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owners own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(d) ¨ Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note. In connection with the Owners Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owners own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes
(a) ¨ Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note. In connection with the Exchange of the Owners beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owners own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.
(b) Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note. In connection with the Exchange of the Owners Restricted Definitive Note for a beneficial interest in the [CHECK ONE] ¨144A Global Note, ¨ Regulation S Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owners own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.
C-2
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuers.
[Insert Name of Transferor] | ||
By: |
| |
Name: | ||
Title: |
Dated:
C-3
EXHIBIT D
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL INDENTURE (this Supplemental Indenture), dated as of _ 20__, among [ ] (the Guaranteeing Subsidiary), PBF Logistics LP, a Delaware limited partnership (PBFX), PBF Logistics Finance Corporation, a Delaware corporation (together with PBFX, the Issuers), and Deutsche Bank Trust Company Americas, as trustee under the Indenture referred to below (the Trustee).
WITNESSETH
WHEREAS, the Issuers have heretofore executed and delivered to the Trustee an indenture (the Indenture), dated as of May 12, 2015 providing for the issuance of 6.875% Senior Notes due 2023 (the Notes);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Issuers Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the Note Guarantee); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
l. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary acknowledges that it has received and reviewed a copy of the Indenture and all other documents it deems necessary to review in order to enter into this Supplemental Indenture, and acknowledges and agrees to (i) join and become a party to the Indenture as indicated by its signature below; (ii) be bound by the Indenture, as of the date hereof, as if made by, and with respect to, each signatory hereto; and (iii) perform all obligations and duties required of a Subsidiary Guarantor pursuant to the Indenture. The Guaranteeing Subsidiary hereby agrees to provide an unconditional Note Subsidiary Guarantee on the terms and subject to the conditions set forth in the Indenture, including, but not limited to, Article 10 thereof.
3. EXECUTION AND DELIVERY. The Guaranteeing Subsidiary agrees that the Note Subsidiary Guarantee shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Subsidiary Guarantee on the Notes.
4. NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, employee, incorporator, stockholder or agent of the Guaranteeing Subsidiary, as such, shall have any liability for any obligations of the Issuers or any Guaranteeing Subsidiary under the Notes, any Note Subsidiary Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
5. NEW YORK LAW TO GOVERN. THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
6. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. This Supplemental Indenture may be executed in multiple counterparts which, when taken together, shall constitute one instrument.
D-1
The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmissions shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
7. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
8. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and the Issuers.
9. BENEFITS ACKNOWLEDGED. The Guaranteeing Subsidiarys Guarantee is subject to the terms and conditions set forth in the Indenture. The Guaranteeing Subsidiary acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this Supplemental Indenture and that the guarantee and waivers made by it pursuant to its Note Subsidiary Guarantee are knowingly made in contemplation of such benefits.
10. SUCCESSORS. All agreements of the Guaranteeing Subsidiary in this Supplemental Indenture shall bind its Successors, except as otherwise provided in this Supplemental Indenture. All agreements of the Trustee in this Supplemental Indenture shall bind its successors.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.
Dated: _________________, 20_
GUARANTEEING SUBSIDIARY: | ||||
[GUARANTEEING SUBSIDIARY] | ||||
By: |
| |||
Name: | ||||
Title: | ||||
ISSUERS: | ||||
PBF LOGISTICS LP | ||||
By: | PBF Logistics GP LLP, its general partner | |||
By: |
| |||
Name: | ||||
Title: | ||||
PBF LOGISTICS FINANCE CORPORATION | ||||
By: |
| |||
Name: | ||||
Title: | ||||
TRUSTEE: | ||||
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee | ||||
By: Deutsche Bank National Trust Company | ||||
By: |
| |||
Name: | ||||
Title: | ||||
By: |
| |||
Name: | ||||
Title: |
D-3
Exhibit 10.1
THIRD AMENDED AND RESTATED OMNIBUS AGREEMENT
among
PBF HOLDING COMPANY LLC,
PBF ENERGY COMPANY LLC,
PBF LOGISTICS GP LLC
and
PBF LOGISTICS LP
TABLE OF CONTENTS
ARTICLE I DEFINITIONS |
2 | |||||
1.1 |
Definitions | 2 | ||||
ARTICLE II BUSINESS OPPORTUNITIES |
5 | |||||
2.1 |
Restricted Activities | 5 | ||||
2.2 |
Permitted Exceptions | 6 | ||||
2.3 |
Procedures | 7 | ||||
2.4 |
Scope of Prohibition | 7 | ||||
2.5 |
Enforcement | 7 | ||||
ARTICLE III CORPORATE SERVICES |
8 | |||||
3.1 |
General. | 8 | ||||
ARTICLE IV CAPITAL AND OTHER EXPENDITURES |
10 | |||||
4.1 |
Reimbursement of Operating, Maintenance, Capital and Other Expenditures | 10 | ||||
4.2 |
Taxes | 10 | ||||
ARTICLE V RIGHT OF FIRST OFFER |
10 | |||||
5.1 |
Right of First Offer to Purchase Certain Assets retained by the Sponsor Entities | 10 | ||||
5.2 |
Procedures | 11 | ||||
ARTICLE VI GRANT OF INTELLECTUAL PROPERTY LICENSE |
13 | |||||
6.1 |
Grant of License | 13 | ||||
6.2 |
Restrictions and Additional Agreements with Respect to License | 13 | ||||
6.3 |
Covenants and Indemnification | 14 | ||||
ARTICLE VII MISCELLANEOUS |
14 | |||||
7.1 |
Choice of Law; Submission to Jurisdiction | 14 |
7.2 |
Arbitration Provision | 15 | ||||
7.3 |
Notice | 15 | ||||
7.4 |
Entire Agreement | 16 | ||||
7.5 |
Termination of Agreement | 17 | ||||
7.6 |
Amendment or Modification | 17 | ||||
7.7 |
Assignment | 17 | ||||
7.8 |
Counterparts | 17 | ||||
7.9 |
Severability | 17 | ||||
7.10 |
Further Assurances | 17 | ||||
7.11 |
Rights of Limited Partners | 17 |
SCHEDULES
Schedule 3.1(a) Schedule 5.1(a) Schedule 6.1 |
General and Administrative Services ROFO Assets PBF Logistics IP |
THIRD AMENDED AND RESTATED OMNIBUS AGREEMENT
This THIRD AMENDED AND RESTATED OMNIBUS AGREEMENT (Agreement) is entered into on, and effective as of May 15, 2015 (the Effective Date), among PBF Holding Company LLC, a Delaware limited liability company (PBF Holding), PBF Energy Company LLC, a Delaware limited liability company (PBF Energy), PBF Logistics GP LLC, a Delaware limited liability company (the General Partner), and PBF Logistics LP, a Delaware limited partnership (the Partnership). The above-named entities are sometimes referred to in this Agreement each as a Party and collectively as the Parties.
RECITALS:
1. | The Parties previously entered into that certain Second Amended and Restated Omnibus Agreement, dated December 12, 2014 (the Existing Agreement), and the Parties now desire the amend and restate the Existing Agreement as provided herein; |
2. | The Parties desire by their execution of this Agreement to evidence their understanding, as more fully set forth in Article II, with respect to certain business opportunities in which the Sponsor Entities (as herein defined) will not engage for so long as any Sponsor Entity controls the General Partner of the Partnership. |
3. | The Parties desire by their execution of this Agreement to evidence their understanding, as more fully set forth in Article III, with respect to the amount to be paid by the Partnership for the centralized corporate services to be performed by the General Partner and its Affiliates (as defined herein) for, and on behalf of, the Partnership Group. |
4. | The Parties desire by their execution of this Agreement to evidence their understanding, as more fully set forth in Article IV, with respect to certain operating, maintenance, capital and other expenditures to be reimbursed by the General Partner and its Affiliates to the Partnership Group. |
5. | The Parties desire by their execution of this Agreement to evidence their understanding, as more fully set forth in Article V, with respect to the Partnership Groups right of first offer with respect to the ROFO Assets (as defined herein). |
6. | The Parties desire by their execution of this Agreement to evidence their understanding, as more fully set forth in Article VI, with respect to the granting of the PBF Logistics IP to the Partnership. |
In consideration of the premises and the covenants, conditions, and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following terms shall have the respective meanings set forth below:
Administrative Fee is defined in Section 3.1(a)(iii).
Affiliate is defined in the Partnership Agreement.
Agreement is defined in the introduction to this Agreement.
Arbitrable Dispute means any and all disputes, controversies and other matters in question among the Parties arising under or in connection with this Agreement.
Board of Directors means for any Person the board of directors or other governing body of such Person.
Claimant is defined in Section 7.2.
Contribution Agreements means the IPO Contribution Agreement, the West Rack Drop Down Contribution Agreement, the Toledo Drop Down Contribution Agreement and the Delaware Logistics Contribution Agreement.
control (including with correlative meaning, the term controlled by) means, as used with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of a majority of the voting securities, by contract or otherwise.
Delaware Logistics Contribution Agreement means that certain Contribution Agreement, dated as of May 5, 2015, by and between PBF Energy and the Partnership, together with the additional conveyance documents and instruments contemplated or referenced thereunder.
Delaware Logistics Drop Down Closing Date means 11:59:59 p.m. (Eastern Time) on May 14, 2015.
Effective Date is defined in the introduction to this Agreement.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Existing Agreement is defined the recitals to this Agreement.
General Partner is defined in the introduction to this Agreement.
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Governmental Authority means any federal, state, local or foreign government or any provincial, departmental or other political subdivision thereof, or any entity, body or authority exercising executive, legislative, judicial, regulatory, administrative or other governmental functions or any court, department, commission, board, bureau, agency, instrumentality or administrative body of any of the foregoing.
HSR Act means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
IPO Closing Date means May 14, 2014.
IPO Contribution Agreement means that certain Contribution, Conveyance and Assumption Agreement, dated as of the IPO Closing Date, among the General Partner, the Partnership, PBF Energy, PBF Holding and the other entities named therein, together with the additional conveyance documents and instruments contemplated or referenced thereunder.
Licensees is defined in Section 6.1.
Limited Partner is defined in the Partnership Agreement.
Losses means any losses, damages, liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs and expenses (including, without limitation, court costs and reasonable attorneys and experts fees) of any and every kind or character, known or unknown, fixed or contingent.
Offer is defined in Section 2.3.
Offer Evaluation Period is defined in Section 2.3.
Partnership is defined in the introduction to this Agreement.
Partnership Agreement means the Second Amended and Restated Agreement of Limited Partnership of PBF Logistics LP, dated as of September 15, 2014, as such agreement is in effect on the Effective Date, to which reference is hereby made for all purposes of this Agreement.
Partnership Assets means all ownership, leasehold or other interest in or right to use of terminal facilities and related equipment, real estate and other assets, or portions thereof, conveyed, contributed or otherwise transferred or intended to be conveyed, contributed or otherwise transferred pursuant to any Contribution Agreement to any member of the Partnership Group, or otherwise owned by, leased by or necessary for the operation of the business, properties or assets of any member of the Partnership Group, as of the Effective Date.
Partnership Change of Control means the Sponsor Entities cease to control the general partner of the Partnership.
Partnership Group means the General Partner, the Partnership and all of the Partnerships Subsidiaries, treated as a single consolidated entity.
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Partnership Interest is defined in the Partnership Agreement.
Party and Parties are defined in the introduction to this Agreement.
PBF Energy is defined in the introduction to this Agreement.
PBF Holding is defined in the introduction to this Agreement.
PBF Logistics IP means the names and trademarks set forth on Schedule 6.1.
PBF Name is defined in Section 6.2(b).
Person means any individual, corporation, partnership, limited partnership, limited liability company, joint venture, trust or unincorporated organization, joint stock company or any other private entity or organization, Governmental Authority, court or any other legal entity, whether acting in an individual, fiduciary or other capacity.
Proposed Transaction is defined in Section 5.2(a).
Producer Price Index shall have the meaning ascribed to such term by the United States Bureau of Labor Statistics.
Respondent is defined in Section 7.2.
Retained Assets means all assets, or portions thereof, owned or held by the Sponsor Entities as of the Effective Date that were not directly or indirectly conveyed, contributed or otherwise transferred to the Partnership Group pursuant to any of the Contribution Agreements.
ROFO Assets means (1) any asset, group of assets or business acquired or constructed by a Sponsor Entity pursuant to Section 2.2(d) or Section 2.2(e) and (2) the assets listed on Schedule 5.1(a) to this Agreement.
ROFO Governmental Approval Deadline is defined in Section 5.2(c).
ROFO Notice is defined in Section 5.2(a).
ROFO Period is defined in Section 5.1(a).
ROFO Response is defined in Section 5.2(a).
Sponsor Entities means PBF Energy, and any Person controlled, directly or indirectly, by PBF Energy, other than the General Partner or a member of the Partnership Group; and Sponsor Entity means any of the PBF Entities.
Subsidiary means, with respect to any Person, (a) a corporation of which more than 50% of the voting power of shares entitled (without regard to the occurrence of any contingency) to vote in the election of directors or other governing body of such corporation is owned, directly or indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such
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Person or a combination thereof, (b) a partnership (whether general or limited) in which such Person or a Subsidiary of such Person is, at the date of determination, a general or limited partner of such partnership, but only if such Person, directly or by one or more Subsidiaries of such Person, or a combination thereof, controls such partnership on the date of determination, or (c) any other Person (other than a corporation or a partnership) in which such Person, one or more Subsidiaries of such Person, or a combination thereof, directly or indirectly, at the date of determination, has (i) at least a majority ownership interest or (ii) the power to elect or direct the election of a majority of the directors, managers or other governing body of such Person.
Toledo Drop Down Contribution Agreement means that certain Contribution Agreement, dated as of December 2, 2014, by and between PBF Energy and the Partnership, together with the additional conveyance documents and instruments contemplated or referenced thereunder.
Toledo Drop Down Closing Date means December 11, 2014.
Trademark means the trademark set forth on Schedule 6.1.
Transfer means to, directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of, whether in one or a series of transactions; provided that a collateral assignment in connection with any debt financing shall not be deemed to be a Transfer.
Voting Securities of a Person means securities of any class of such Person entitling the holders thereof to vote in the election of, or to appoint, members of the board of directors or other similar governing body of the Person; provided that, if such Person is a limited partnership, Voting Securities of such Person shall be the general partner interest in such Person.
West Rack Drop Down Contribution Agreement means that certain Contribution Agreement, dated as of September 16, 2014, by and between PBF Energy and the Partnership, together with the additional conveyance documents and instruments contemplated or referenced thereunder.
West Rack Drop Down Closing Date means September 30, 2014.
ARTICLE II
BUSINESS OPPORTUNITIES
2.1 Restricted Activities. Except as permitted by Section 2.2, the Sponsor Entities shall be prohibited from owning, operating, engaging in, acquiring, or investing in any business that owns or operates crude oil or refined products pipelines, terminals or storage facilities in the United States.
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2.2 Permitted Exceptions. Notwithstanding Section 2.1, the Sponsor Entities may engage in the following activities under the following circumstances:
(a) the ownership, operation, expansion, replacement, return to service, repair, sale, divestment, merger with another entity, suspension, operation or shutdown of any of the Retained Assets;
(b) the acquisition, construction, ownership or operation of any assets that are within, substantially dedicated to, or an integral part of any refinery, commercial or marketing activity (except as identified in another subsection of this Section 2.2) owned, acquired or constructed by the Sponsor Entities;
(c) the acquisition, construction, ownership or operation of any asset, group of assets or business that has a fair market value (as determined in good faith by the Board of Directors of the Sponsor Entity that will own such asset, group of assets or business) of less than $25 million;
(d) the acquisition, construction, ownership or operation of any asset, group of assets or business that has a fair market value (as determined in good faith by the Board of Directors of the Sponsor Entity that will own such asset, group of assets or business) of $25 million or more if the Partnership has been offered the opportunity to purchase such asset, group of assets or business in accordance with the procedures set forth in Section 2.3 and the Partnership has elected not to purchase such asset, group of assets or business;
(e) the acquisition, construction, ownership or operation of any asset, group of assets or business that has a fair market value (as determined in good faith by the Board of Directors of the Sponsor Entity that will own such asset, group of assets or business) of $25 million or more but where such crude oil or refined products pipelines, terminals or storage facilities comprise less than half of the fair market value (as determined in good faith by the Board of Directors of the Sponsor Entity that will own such asset, group of assets or business) of the total package of assets and/or businesses acquired or constructed by the Sponsor Entities and its Subsidiaries if the Partnership has been offered the opportunity to purchase the crude oil or refined products pipelines, terminals or storage facility assets and/or businesses in accordance with the procedures set forth in Section 2.3 and the Partnership has elected not to purchase such asset, group of assets and/or businesses;
(f) the purchase and ownership of a non-controlling interest in any publicly traded entity;
(g) the ownership of equity interests in the General Partner and the Partnership Group;
(h) engaging with any crude oil or refined products pipelines, terminals or storage facilities in the capacity of a customer of such pipelines, terminals or storage facilities; and
(i) the acquisition, ownership or operation of any asset, group of assets or business that would be unlawful or contrary to an existing contractual arrangement of the Partnership Group for the Partnership Group to own or operate, for as long as it is unlawful or contrary to an existing contractual arrangement of the Partnership Group for the Partnership Group to own or operate such asset, group of assets or business.
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2.3 Procedures.
(a) If any Sponsor Entity acquires or constructs any crude oil or refined products pipelines, terminals or storage facilities in the United States, or acquires an interest in a business that owns such assets pursuant to Section 2.2(d) or Section 2.2(e), then (A) upon the consummation of such acquisition or completion of such construction, Schedule 5.1(a) shall automatically be amended to include such asset, group of assets and/or businesses as ROFO Assets subject to Article V and (B) such Sponsor Entity may, at any time after the consummation of the acquisition or the completion of construction by the Sponsor Entity, offer in writing to the Partnership Group the opportunity to purchase such asset, group of assets or business (the Offer). The Offer shall set forth the terms relating to the purchase of the asset, group of assets or business and, if the Sponsor Entity desires to utilize the asset or group of assets, the Offer will also include the terms on which the Partnership Group will provide services to the Sponsor Entity. As soon as practicable, but in any event within 90 days after receipt by the General Partner of such written notification (the Offer Evaluation Period), the General Partner shall notify the Sponsor Entity in writing that either (i) the General Partner has elected not to cause a member of the Partnership Group to purchase the asset, group of assets or business, or (ii) the General Partner has elected to cause a member of the Partnership Group to purchase such asset, group of assets or business, in which event the Parties will use their reasonable bests efforts to consummate the transaction within six months.
(b) Nothing herein shall impede or otherwise restrict the foreclosure, sale, disposition or other exercise of rights or remedies by or on behalf of any secured lender of any asset or interest in any business subject to a security interest in favor of such lender or any agent for or on behalf of such lender under any credit arrangement now or hereafter in effect (it being understood and agreed that no secured lender to the Sponsor Entities shall have any obligation to make an Offer or to sell or cause to be sold any asset or interest in any business to any member of the Partnership Group).
2.4 Scope of Prohibition. Except as provided in this Article II and the Partnership Agreement, the Sponsor Entities shall be free to engage in any business activity, including those that may be in direct competition with any member of the Partnership Group.
2.5 Enforcement . The Sponsor Entities agree and acknowledge that the Partnership Group does not have an adequate remedy at law for the breach by the Sponsor and its Subsidiaries (other than the Partnership Group) of the covenants and agreements set forth in this Article II, and that any breach by the Sponsor and its Subsidiaries (other than the Partnership Group) of the covenants and agreements set forth in this Article II may result in irreparable injury to the Partnership Group. The Sponsor and its Subsidiaries (other than the Partnership Group) further agree and acknowledge that any member of the Partnership Group may, in addition to the other remedies which may be available to the Partnership Group, file a suit in equity to enjoin the Sponsor and its Subsidiaries (other than the Partnership Group) from such breach, and consent to the Partnership Group seeking the issuance of injunctive relief under this Agreement.
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ARTICLE III
CORPORATE SERVICES
3.1 General.
(a) PBF Energy agrees to provide, and agrees to cause its Affiliates to provide, on behalf of the General Partner, for the Partnership Groups benefit, all of the centralized corporate services that PBF Energy and its Affiliates have traditionally provided in connection with the Partnership Assets including, without limitation, the general and administrative services listed on Schedule 3.1(a) to this Agreement. Consideration for the services provided hereunder effective as of the Delaware Logistics Drop Down Closing Date shall be an administrative fee (the Administrative Fee) of $4,850,000 per year, payable in equal monthly installments on or before the tenth business day of each calendar month, with any partial months prorated.
PBF Energy may increase or decrease the Administrative Fee effective as of January 1 of each calendar year following the Effective Date, by a percentage equal to the change in the Producer Price Index over the previous 12 calendar months or to reflect any increase in the cost of providing centralized corporate services to the Partnership Group due to changes in any law, rule or regulation applicable to PBF Energy or its Affiliates or the Partnership Group, including any interpretation of such laws, rules or regulations, including the rules of any exchange upon which the Partnership Groups debt or equity is listed or traded, or to reflect any increase in the scope and extent of the services provided to the Partnership Group, provided, however, that the Administrative Fee shall not be decreased below the initial fee provided in this Agreement unless the type or extent of such services materially decreases, subject to the provision in Section 3.1(b) whereby the Parties may mutually agree to reduce the Administrative Fee. The General Partner may agree on behalf of the Partnership to increases in the Administrative Fee in connection with expansions of the operations of the Partnership Group through the acquisition or construction of new assets or businesses.
(b) The Partnership shall have the right to terminate any or all of the services listed on Schedule 3.1(a) to this Agreement, without penalty, upon thirty (30) days prior written notice to PBF Energy. In addition, at the end of each calendar year, the Partnership will have the right to submit to PBF Energy a proposal to reduce the amount of the Administrative Fee for the upcoming year if the Partnership believes, in good faith, that the centralized corporate services performed by PBF Energy and its Affiliates for the benefit of the Partnership Group for the upcoming year will not justify payment of the full Administrative Fee for such year. If the Partnership submits such a proposal to PBF Energy, PBF Energy agrees that it will negotiate in good faith with the Partnership to determine if the Administrative Fee for the upcoming year should be reduced and, if so, the amount of such reduction. If the Parties agree that the Administrative Fee for that year should be reduced, then PBF Energy shall thereafter charge such reduced amount. If the Parties cannot agree to the amount of a reduction in the Administrative Fee for that year, then the reduction amount shall become an Arbitrable Dispute and governed in accordance with Section 7.2, provided, however, that the Administrative Fee shall not be decreased below the initial fee provided in this Agreement unless the type or extent of such services materially decreases.
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(c) The Partnership shall reimburse PBF Energy and its Affiliates for all other direct or allocated costs and expenses incurred by PBF Energy and its Affiliates on behalf of the Partnership Group including, but not limited to:
(i) salaries of employees of PBF Energy and its Affiliates who devote more than 50% of their business time to the business and affairs of the Partnership Group, to the extent, but only to the extent, such employees perform services for the Partnership Group, provided that for employees that do not devote substantially all of their business time to the Partnership Group, such expenses shall be based on the annual weighted average of time spent and number of employees devoting services to the Partnership Group;
(ii) the cost of employee benefits relating to employees of PBF Energy and its Affiliates who devote more than 50% of their business time to the business and affairs of the Partnership Group, including 401(k), pension, bonuses and health insurance benefits, to the extent, but only to the extent, such employees perform services for the Partnership Group, provided that for employees that do not devote substantially all of their business time to the Partnership Group, such expenses shall be based on the annual weighted average of time spent and number of employees devoting their services to the Partnership Group;
(iii) any expenses incurred or payments made by PBF Energy and its Affiliates for insurance coverage with respect to the Partnership Assets or the business of the Partnership Group;
(iv) all expenses and expenditures incurred by PBF Energy and its Affiliates, if any, as a result of the Partnership becoming and continuing as a publicly traded entity, including, but not limited to, costs associated with annual and quarterly reports, independent auditor fees, partnership governance and compliance, registrar and transfer agent fees, tax return and Schedule K-1 preparation and distribution, legal fees and independent director compensation;
(v) all sales, use, excise, value added or similar taxes, if any, that may be applicable from time to time with respect to the services provided by PBF Energy and its Affiliates to the Partnership Group pursuant to Section 3.1(a); and
(vi) all costs for outside services that are incurred for the Partnership Groups benefit.
Such reimbursements shall be made on or before the tenth business day of the month following the month such costs and expenses are incurred, other than reimbursements solely related to bonuses for employees of the Sponsor Entities, which shall be reimbursed on or prior to the last business day of the month that such bonuses are paid. For the avoidance of doubt, the costs and expenses set forth in Section 3.1(c) shall be paid by the Partnership Group in addition to, and not as a part of or included in, the Administrative Fee.
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(d) The Sponsor Entities makes no representations or warranties of any kind, express or implied, with respect to the services to be provided hereunder, except that the services shall be provided in a reasonably timely manner by personnel that the Sponsor Entities deem to be competent and qualified to perform such services.
ARTICLE IV
CAPITAL AND OTHER EXPENDITURES
4.1 Reimbursement of Operating, Maintenance, Capital and Other Expenditures. For five years following the IPO Closing Date, PBF Energy will reimburse the Partnership Group on a dollar-for-dollar basis, without duplication, for expenses (net of insurance recoveries, if any) incurred prior to the fifth anniversary of the IPO Closing Date by the Partnership Group for the repair of any condition (other than normal maintenance, wear and tear) caused by the failure of any Partnership Asset to operate in substantially the same manner and condition as such asset was operating as of (a) the IPO Closing Date (in the case of Partnership Assets conveyed to the Partnership Group pursuant to the IPO Contribution Agreement), (b) the West Rack Drop Down Closing Date (in the case of Partnership Assets conveyed to the Partnership Group pursuant to the West Rack Drop Down Contribution Agreement), (c) the Toledo Drop Down Closing Date (in the case of Partnership Assets conveyed to the Partnership Group pursuant to the Toledo Drop Down Contribution Agreement) and (d) the Delaware Logistics Drop Down Closing Date (in the case of Partnership Assets conveyed to the Partnership Group pursuant to the Delaware Logistics Contribution Agreement) or, in either case, any clean up related thereto; provided, however, that PBF Energy shall not be required to reimburse the Partnership Group for any expenses in excess of $20,000,000 per event.
4.2 Taxes. The Sponsor Entities will reimburse the Partnership for all taxes that the Partnership incurs in connection with this Agreement unless prohibited by applicable law.
ARTICLE V
RIGHT OF FIRST OFFER
5.1 Right of First Offer to Purchase Certain Assets retained by the Sponsor Entities.
(a) The Sponsor Entities hereby grant to the Partnership Group a right of first offer for a period of 10 years from the IPO Closing Date (the ROFO Period) on any ROFO Asset to the extent that the owner of such ROFO Asset proposes to Transfer any ROFO Asset (other than (1) to an Affiliate who agrees in writing that such ROFO Asset remains subject to the provisions of this Article V and such Affiliate assumes the obligations under this Article V with respect to such ROFO Asset, (2) in connection with a Transfer by the Sponsor Entities of all or substantially all of the refinery with respect to which such ROFO Asset is within, substantially dedicated to or an integral part of or (3) in connection with the foreclosure on such ROFO Asset by any lender under any credit arrangements of the Sponsor Entities) or enter into any agreement to do any of the foregoing during the ROFO Period.
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(b) The Parties acknowledge that all potential Transfers of ROFO Assets pursuant to this Article V are subject to obtaining any and all required written consents of Governmental Authorities and other third parties and to the terms of all existing agreements in respect of the ROFO Assets; provided, however, that the Sponsor Entities represents and warrants that, to its knowledge after reasonable investigation, there are no terms in such agreements that would materially impair the rights granted to the Partnership Group pursuant to this Article V with respect to any ROFO Asset.
5.2 Procedures.
(a) In the event the owner of any ROFO Asset proposes to Transfer a ROFO Asset (other than as permitted by Section 5.1(a)(1), (2) or (3)) or enter into any agreement to do so during the ROFO Period (a Proposed Transaction), the owner of such ROFO Asset shall, prior to entering into any such Proposed Transaction, first give notice in writing to the Partnership (the ROFO Notice) of its intention to enter into such Proposed Transaction. The ROFO Notice shall include any material terms, conditions and details as would be necessary for the Partnership Group to make a responsive offer to enter into the Proposed Transaction with the owner of the ROFO Asset, which terms, conditions and details shall at a minimum include any terms, condition or details that the owner of the ROFO Asset Owner would propose to provide to non-Affiliates in connection with the Proposed Transaction. The Partnership Group shall have 90 days following receipt of the ROFO Notice to propose an offer to enter into the Proposed Transaction with the owner of the ROFO Asset (the ROFO Response). The ROFO Response shall set forth the terms and conditions (including, without limitation, the purchase price the Partnership Group proposes to pay for the ROFO Asset and the other material terms of the purchase including, if requested by the owner of the ROFO Asset, the terms on which the Partnership Group will provide services to the Sponsor Entities to enable the Sponsor Entities to utilize the ROFO Asset) pursuant to which the Partnership Group would be willing to enter into a binding agreement for the Proposed Transaction. If no ROFO Response is delivered by the Partnership Group within such 90-day period, then the Partnership Group shall be deemed to have waived its right of first offer with respect to such ROFO Asset.
(b) Unless the ROFO Response is rejected pursuant to written notice delivered by the owner of the ROFO Asset to the Partnership Group within 90 days of the delivery of the ROFO Response, such ROFO Response shall be deemed to have been accepted by the owner of the ROFO Asset and the owner of the ROFO Asset shall enter into an agreement with the Partnership Group providing for the consummation of the Proposed Transaction upon the terms set forth in the ROFO Response and, if applicable, the Partnership Group will enter into an agreement with the Sponsor Entities setting forth the terms on which the Partnership Group will
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provide services to the Sponsor Entities to enable the Sponsor Entities to utilize the ROFO Asset. Unless otherwise agreed between the owner of the ROFO Asset and the Partnership Group, the terms of the purchase and sale agreement will include the following:
(i) the Partnership Group will agree to deliver the purchase price (in cash, Partnership Interests, an interest-bearing promissory note, or any combination thereof agreed to by the owner of the ROFO Asset);
(ii) the owner of the ROFO Asset will represent that it has good and marketable title to the ROFO Asset that is sufficient to operate the ROFO Asset in accordance with its historical use, subject to all recorded matters and all physical conditions in existence on the closing date for the purchase of the applicable ROFO Asset, plus any other such matters as the Partnership Group may approve. If the Partnership Group desires to obtain any title insurance with respect to the ROFO Asset, the full cost and expense of obtaining the same (including but not limited to the cost of title examination, document duplication and policy premium) shall be borne by the Partnership Group;
(iii) the owner of the ROFO Asset will grant to the Partnership Group the right, exercisable at the Partnership Groups risk and expense prior to the delivery of the ROFO Response, to make such surveys, tests and inspections of the ROFO Asset as the Partnership Group may deem desirable, so long as such surveys, tests or inspections do not damage the ROFO Asset or interfere with the activities of the owner of the ROFO Asset, and any invasive or destructive testing shall be subject to the reasonable approval of the owner of the ROFO Asset;
(iv) the Partnership Group will have the right to terminate its obligation to purchase the ROFO Asset under this Article V if the results of any searches under Section 5.2(b)(ii) or (iii) above are, in the reasonable opinion of the Partnership Group, unsatisfactory;
(v) the closing date for the purchase of the ROFO Asset shall occur no later than 180 days following receipt by the owner of the ROFO Asset of the ROFO Response pursuant to Section 5.2(a) unless otherwise agreed to by the Parties;
(vi) the owner of the ROFO Asset and the Partnership Group shall use commercially reasonable efforts to do or cause to be done all things that may be reasonably necessary or advisable to effectuate the consummation of any transactions contemplated by this Section 5.2(b), including causing its respective Affiliates to execute, deliver and perform all documents, notices, amendments, certificates, instruments and consents required in connection therewith; and
(vii) neither the owner of the ROFO Asset nor the Partnership Group shall have any obligation to sell or buy the ROFO Assets if any of the consents referred to in Section 5.1(b) has not been obtained.
(c) The Partnership Group and the owner of the ROFO Asset shall cooperate in good faith in obtaining all necessary governmental and other third party approvals, waivers and consents required for the closing. Any such closing shall be delayed, to the extent required, until the third business day following the expiration of any required waiting periods under the HSR Act; provided, however, that such delay shall not exceed 60 days following the 180 days referred to in Section 5.2(b)(v) (the ROFO Governmental Approval Deadline) and, if governmental approvals and waiting periods shall not have been obtained or expired, as the case may be, by such ROFO Governmental Approval Deadline, then the owner of the ROFO Asset shall be free to enter into a Proposed Transaction with any third party.
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(d) If the Partnership Group has not timely delivered a ROFO Response as specified above with respect to a Proposed Transaction that is subject to a ROFO Notice, the owner of the ROFO Asset shall be free to enter into a Proposed Transaction with any third party on terms and conditions no more favorable to such third party than those set forth in the ROFO Notice. If a ROFO Response with respect to such Proposed Transaction is rejected by the owner of the ROFO Asset, the owner of the ROFO Asset shall be free to enter into a Proposed Transaction with any third party (i) on terms and conditions (excluding those relating to price) that are not more favorable in the aggregate to such third party than those proposed in respect of the Partnership Group in the ROFO Response and (ii) at a price equal to no less than 110% of the price offered by the Partnership Group in the ROFO Response to the owner of the ROFO Asset.
(e) If a Proposed Transaction with a third party is not consummated as provided in Section 5.2 within one year of, as applicable, the Partnership Groups failure to timely deliver a ROFO Response with respect to such Proposed Transaction that is subject to a ROFO Notice, the rejection by the owner of the ROFO Asset of a ROFO Response with respect to such Proposed Transaction or the ROFO Governmental Approval Deadline, then, in each case, the owner of the ROFO Asset may not Transfer any ROFO Assets described in such ROFO Notice without complying again with the provisions of this Article V, if and to the extent then applicable.
ARTICLE VI
GRANT OF INTELLECTUAL PROPERTY LICENSE
6.1 Grant of License. PBF Holding hereby grants the Partnership Group and any future subsidiaries of the Partnership (collectively, the Licensees), and the Licensees hereby accept, a royalty-free, fully paid, nonexclusive and nontransferable right and license to use the PBF Logistics IP. Except for such license, all other rights in the PBF Logistics IP are hereby reserved to PBF Holding. The Licensees shall not grant any sublicenses or assign, delegate or otherwise transfer their rights or obligations hereunder or any interest herein (including any assignment or transfer occurring of law) without the prior written consent of PBF Holding.
6.2 Restrictions and Additional Agreements with Respect to License.
(a) PBF Holding and its other licensees shall have the right to use the PBF Logistics IP simultaneously with the use of the PBF Logistics IP by Licensees. PBF Holding does not warrant or represent that Licensees will have the sole and exclusive right to use the PBF Logistics IP. Other than as set forth in Section 6.3 herein, PBF Holding is not obligated to indemnify or reimburse Licensees for any expenses by Licensees in connection with Licensees use of the PBF Logistics IP.
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(b) Licensees license to use the PBF Logistics IP shall terminate 120 days after receipt by the General Partner, on behalf of the Licensees, of written notice of termination from the Sponsor Entities following a Partnership Change of Control. Licensees shall not thereafter use or otherwise exploit the PBF Logistics IP and shall not use any name incorporating the PBF name or any derivation thereof that would reasonably be expected to be confused therewith (the PBF Name), or any other trade names, domain name, trade dress, trademark or service mark confusingly similar thereto, and each Licensee shall promptly assign and transfer its rights in any ownership of the trade names incorporating the PBF Name to PBF Holding and each Licensee shall adopt a new trade name that does not use any PBF Name.
6.3 Covenants and Indemnification.
(a) The Partnership agrees, at the request and expense of the Sponsor Entities, to use commercially reasonable efforts to cooperate with the Sponsor Entities in the defense and conservation of the PBF Logistics IP as requested by the Sponsor Entities.
(b) The Sponsor Entities agree, at the request and expense of the Partnership, to use commercially reasonable efforts to cooperate with the Partnership in the defense and conservation of the PBF Logistics IP as requested by the Partnership.
(c) The Sponsor Entities agrees to use commercially reasonable efforts to cooperate with the Partnership in maintaining the Trademark in due force and duly registered.
(d) The Partnership agrees, and agrees to cause the other members of the Partnership Group, to use the PBF Logistics IP in accordance with such quality standards established by the Sponsor Entities and communicated to the Partnership from time to time.
(e) The Partnership agrees, and agrees to cause the other members of the Partnership Group, to use best efforts to act and operate in a manner consistent with good business ethics, and in a manner that will not reflect poorly on the goodwill and reputation of the Sponsor Entities and the PBF Logistics IP. The Partnership agrees, and agrees to cause the other members of the Partnership Group, to at all times refrain from engaging in any illegal, unethical, unfair or deceptive practices, whether with respect to the PBF Logistics IP or otherwise
(f) The Sponsor Entities shall, jointly and severally, defend, indemnify, and hold harmless the Partnership from and against any Losses suffered or incurred by the Partnership arising from (i) claims or causes of action brought by any third party alleging that the Partnerships use of the PBF Logistics IP as permitted in this Agreement violates any law, statute or rule, or infringes, dilutes, misappropriates or otherwise violates the intellectual property rights of such third party, and (ii) invalidity or unenforceability of any right with respect to the PBF Logistics IP.
ARTICLE VII
MISCELLANEOUS
7.1 Choice of Law; Submission to Jurisdiction. This Agreement shall be subject to and governed by the laws of the State of Delaware. The Parties agree to the venue and jurisdiction of the federal or state courts located in the State of Delaware for the adjudication of all disputes arising out of this Agreement.
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7.2 Arbitration Provision. Any and all Arbitrable Disputes shall be resolved through the use of binding arbitration using, in the case of an Arbitrable Dispute involving a dispute of an amount equal to or greater than $1,000,000, three arbitrators, and in the case of an Arbitrable Dispute involving a dispute of an amount less than $1,000,000, one arbitrator, in each case in accordance with the Commercial Arbitration Rules of the American Arbitration Association, as supplemented to the extent necessary to determine any procedural appeal questions by the Federal Arbitration Act (Title 9 of the United States Code). If there is any inconsistency between this Section 7.2 and the Commercial Arbitration Rules or the Federal Arbitration Act, the terms of this Section 7.2 will control the rights and obligations of the Parties. Arbitration must be initiated within the time limits set forth in this Agreement, or if no such limits apply, then within a reasonable time or the time period allowed by the applicable statute of limitations. Arbitration may be initiated by a Party (Claimant) serving written notice on the other Party (Respondent) that Claimant elects to refer the Arbitrable Dispute to binding arbitration. Claimants notice initiating binding arbitration must identify the arbitrator Claimant has appointed. Respondent shall respond to Claimant within thirty (30) days after receipt of Claimants notice, identifying the arbitrator Respondent has appointed. If Respondent fails for any reason to name an arbitrator within the 30-day period, Claimant shall petition the American Arbitration Association for appointment of an arbitrator for Respondents account. The two arbitrators so chosen shall select a third arbitrator within thirty (30) days after the second arbitrator has been appointed, and, in the case of an Arbitrable Dispute involving a dispute of an amount less than $1,000,000, such third arbitrator shall act as the sole arbitrator, and the sole role of the first two arbitrators shall be to appoint such third arbitrator. Claimant will pay the compensation and expenses of the arbitrator named by or for it, and Respondent will pay the compensation and expenses of the arbitrator named by or for it. The costs of petitioning for the appointment of an arbitrator, if any, shall be paid by Respondent. Claimant and Respondent will each pay one-half of the compensation and expenses of the third arbitrator. All arbitrators must (a) be neutral parties who have never been officers, directors or employees of the Sponsor Entities, the Partnership Group or any of their Affiliates and (b) have not less than seven (7) years experience in the energy industry. The hearing will be conducted in the State of Delaware or the Philadelphia Metropolitan area and commence within thirty (30) days after the selection of the third arbitrator. The Sponsor Entities, the Partnership Group and the arbitrators shall proceed diligently and in good faith in order that the award may be made as promptly as possible. Except as provided in the Federal Arbitration Act, the decision of the arbitrators will be binding on and non-appealable by the Parties hereto.
7.3 Notice. All notices, requests, demands, and other communications hereunder will be in writing and will be deemed to have been duly given: (a) if by transmission by facsimile or hand delivery, when delivered; (b) if mailed via the official governmental mail system, five (5) business days after mailing, provided said notice is sent first class, postage pre-paid, via certified or registered mail, with a return
15
receipt requested; (c) if mailed by an internationally-recognized overnight express mail service such as Federal Express, UPS, or DHL Worldwide, one (1) Business Day after deposit therewith prepaid; or (d) if by e-mail, one (1) business day after delivery with receipt confirmed. All notices will be addressed to the Parties at the respective addresses as follows:
If to PBF Holding:
PBF Holding Company LLC
One Sylvan Way, Second Floor
Parsippany, NJ 07054
Attn: Matthew Lucey, President
Telecopy No: (973) 455-7500
Email: matthew.lucey@pbfenergy.com
If to PBF Energy:
PBF Energy Company LLC
One Sylvan Way, Second Floor
Parsippany, NJ 07054
Attn: Jeffrey Dill, Esq., General Counsel
Telecopy No: (973) 455-7500
Email: jeffrey.dill@pbfenergy.com
If to the Partnership Group:
PBF Logistics GP LLC
222 Lakeview Avenue, Suite 1510
West Palm Beach, FL 33401
Attn: Todd OMalley, President
Telecopy No: (973) 455-7500
Email: todd.omalley@pbflogistics.com
with a copy, which shall not constitute notice, to:
PBF Logistics LP
c/o PBF Logistics GP LLC
One Sylvan Way, Second Floor
Parsippany, NJ 07054
Attn: Jim Fedena, Senior VP, Logistics
Telecopy No: (973) 455-7500
Email: jim.fedena@pbfenergy.com
or to such other address or to such other person as either Party will have last designated by notice to the other Party.
7.4 Entire Agreement. This Agreement constitutes the entire agreement of the Parties relating to the matters contained herein, superseding all prior contracts or agreements, whether oral or written, relating to the matters contained herein.
16
7.5 Termination of Agreement. This Agreement may be terminated by the Sponsor Entities or the Partnership Group upon a Partnership Change of Control. For the avoidance of doubt, PBF Energys reimbursement obligations pursuant to Section 4.1 and the Parties rights and obligations pursuant to Article VI shall survive the termination of this Agreement in accordance with their respective terms.
7.6 Amendment or Modification. This Agreement may be amended or modified from time to time only by the written agreement of all the Parties hereto. Each such instrument shall be reduced to writing and shall be designated on its face an Amendment or an Addendum to this Agreement.
7.7 Assignment. No Party shall have the right to assign its rights or obligations under this Agreement without the consent of the other Parties hereto; provided, however, that the Partnership may make a collateral assignment of this Agreement solely to secure financing for the Partnership Group.
7.8 Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all signatory parties had signed the same document. All counterparts shall be construed together and shall constitute one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile transmission or in portable document format (.pdf) shall be effective as delivery of a manually executed counterpart hereof.
7.9 Severability. If any provision of this Agreement shall be held invalid or unenforceable by a court or regulatory body of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect.
7.10 Further Assurances. In connection with this Agreement and all transactions contemplated by this Agreement, each signatory party hereto agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions and conditions of this Agreement and all such transactions.
7.11 Rights of Limited Partners. The provisions of this Agreement are enforceable solely by the Parties to this Agreement, and no Limited Partner of the Partnership shall have the right, separate and apart from the Partnership, to enforce any provision of this Agreement or to compel any Party to this Agreement to comply with the terms of this Agreement.
17
IN WITNESS WHEREOF, the Parties have executed this Agreement on, and effective as of, the Effective Date.
PBF HOLDING COMPANY LLC | ||
By: | /s/ Jeffrey Dill | |
Name: Jeffrey Dill | ||
Title: Secretary |
PBF ENERGY COMPANY LLC. | ||
By: | /s/ Jeffrey Dill | |
Name: Jeffrey Dill | ||
Title: Secretary |
PBF LOGISTICS GP LLC | ||
By: | /s/ James Fedena | |
Name: James Fedena | ||
Title: Senior Vice President |
PBF LOGISTICS LP | ||||
By: | PBF Logistics GP LLC, its general partner | |||
By: | /s/ James Fedena | |||
Name: James Fedena | ||||
Title: Senior Vice President |
SIGNATURE PAGE TO THIRD AMENDED AND RESTATED OMNIBUS AGREEMENT
Schedule 3.1(a)
General and Administrative Services
(1) | Executive management services of employees of PBF Energy and its Affiliates who devote less than 50% of their business time to the business and affairs of the Partnership Group, including PBF Energy equity-based compensation expense |
(2) | Financial and administrative services (including, but not limited to, treasury and accounting, and other administrative functions) |
(3) | Information technology services |
(4) | Legal services |
(5) | Health, safety and environmental services |
(6) | Human resources services |
(7) | Insurance administration |
(8) | Public relations/Government relations |
Schedule 3.1(a)-1
Schedule 5.1(a)
ROFO Assets
Asset | Owner | |
Delaware City Marine Terminal. Marine terminal located on the Delaware River for receipt of crude oil, feedstocks and products, and shipment of crude oil, feedstocks and products, by the Delaware City Refinery via ship and barge at docks located on the Delaware River. | Delaware City Refining Company LLC | |
Paulsboro Marine Terminal. Marine terminal located on the Delaware River for receipt of crude oil, feedstocks and products, and shipment of crude oil, feedstocks and products, by the Paulsboro Refinery. | Paulsboro Refining Company LLC | |
Delaware City LPG Rack. LPG rack consisting of a 6 rail loading and unloading positions located adjacent to the Delaware City Refinery. | Delaware City Refining Company LLC | |
Paulsboro Rail Terminal: Railcar terminal at the Paulsboro refinery used to transport refined products such as lube oils to various locations throughout the Northeast and other regions in the United States. | Paulsboro Refining Company LLC | |
Rail Cars. Owned or leased general purpose and coiled and insulated rail cars. | PBF Holding Company LLC | |
Delaware City Storage Facility. Storage facility with approximately 10.0 million barrels of total storage capacity. | Delaware City Refining Company LLC | |
Paulsboro Storage Facility. Storage facility with approximately 7.5 million barrels of total storage capacity. | Paulsboro Refining Company LLC |
Schedule 5.1(a)-1
Schedule 6.1
PBF Logistics IP
PBF ENERGY PARTNERS LP TRADEMARK INVENTORY
Trademark |
Country | Application No. | Filing Date | Registration No. | Registration Date | Renewal Date | ||||||||||||||||
PBF ENERGY |
United States of America |
85/502529 | 12/22/2011 | 4240811 | 11/13/2012 | 11/13/2022 | ||||||||||||||||
PBF ENERGY (Stylized in Circle Design |
Canada | 1408750 | 8/27/2008 | |||||||||||||||||||
PBF ENERGY (Stylized in Circle Design |
United States of America |
77/981705 | 4/16/2008 | 3971638 | 5/31/2011 | 5/31/2021 | ||||||||||||||||
PBF ENERGY (Stylized in Circle Design |
United States of America |
77/450012 | 4/16/2008 | 4115169 | 3/20/2012 | 3/20/2022 |
Schedule 6.1-1
Exhibit 10.2
THIRD AMENDED AND RESTATED
OPERATION AND MANAGEMENT
SERVICES AND SECONDMENT AGREEMENT
TABLE OF CONTENTS
Article 1 Definitions and Construction |
2 | |||||
Section 1.1 |
Definitions |
2 | ||||
Section 1.2 |
Construction of Agreement |
8 | ||||
Section 1.3 |
No Presumption |
8 | ||||
Article 2 Term |
8 | |||||
Section 2.1 |
Term of Agreement |
8 | ||||
Section 2.2 |
Termination of Services by the Operator |
8 | ||||
Section 2.3 |
Termination of Company Services and Ancillary Company Services by the Company |
9 | ||||
Section 2.4 |
Cessation of Company Services and Ancillary Company Services in connection with the Terminaling Agreements |
9 | ||||
Section 2.5 |
Effect of Termination |
10 | ||||
Article 3 Personnel, Personnel Duties and Company Services |
10 | |||||
Section 3.1 |
Seconded Employees |
10 | ||||
Section 3.2 |
Personnel Duties |
10 | ||||
Section 3.3 |
Secondment of Personnel |
11 | ||||
Section 3.4 |
Company Services |
12 | ||||
Section 3.5 |
Ancillary Company Services |
12 | ||||
Section 3.6 |
Third-Party Arrangements |
13 | ||||
Section 3.7 |
Interruption of Company Services |
13 | ||||
Section 3.8 |
Manner of Performing/Providing Personnel Duties |
13 | ||||
Article 4 Self-Provided Services and Shared Items |
13 | |||||
Section 4.1 |
Self-Provided Services |
13 | ||||
Section 4.2 |
Shared Items |
13 | ||||
Article 5 Pricing, Billing and Reimbursement |
14 | |||||
Section 5.1 |
Reimbursement for Personnel Duties, Company Services and Ancillary Company Services |
14 | ||||
Section 5.2 |
Annual Fee |
14 | ||||
Section 5.3 |
Billing |
14 | ||||
Section 5.4 |
Contents of Invoices |
15 | ||||
Section 5.5 |
Reimbursement Disputes |
15 | ||||
Article 6 Fee Adjustments |
15 | |||||
Section 6.1 |
Capital Expenditures |
15 |
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Article 7 Access and Audit Rights |
16 | |||||
Article 8 Additional Covenants |
16 | |||||
Section 8.1 |
Required Permits | 16 | ||||
Section 8.2 |
Existing Obligations | 16 | ||||
Section 8.3 |
Records | 17 | ||||
Article 9 Representations |
17 | |||||
Section 9.1 |
Representations of the Operator Parties | 17 | ||||
Section 9.2 |
Representations of the Company Parties | 17 | ||||
Article 10 Insurance |
18 | |||||
Article 11 Force Majeure |
18 | |||||
Section 11.1 |
Force Majeure | 18 | ||||
Article 12 Services Council |
18 | |||||
Section 12.1 |
Formation of Services Council | 18 | ||||
Section 12.2 |
Meetings | 19 | ||||
Article 13 Event of Default: Remedies Upon Event of Default |
19 | |||||
Section 13.1 |
Event of Default | 19 | ||||
Section 13.2 |
Termination | 19 | ||||
Section 13.3 |
Set Off | 19 | ||||
Section 13.4 |
No Preclusion of Rights | 20 | ||||
Article 14 Indemnification |
20 | |||||
Section 14.1 |
Indemnification by Operator | 20 | ||||
Section 14.2 |
Indemnification by Company | 20 | ||||
Section 14.3 |
EXPRESS REMEDY | 21 | ||||
Article 15 Limitation on Damages |
21 | |||||
Article 16 Confidentiality |
22 | |||||
Section 16.1 |
Obligations | 22 | ||||
Section 16.2 |
Required Disclosure | 22 | ||||
Section 16.3 |
Return and Destruction of Information | 22 | ||||
Section 16.4 |
Receiving Party Personnel | 22 | ||||
Section 16.5 |
Survival | 23 | ||||
Article 17 Choice of Law |
23 | |||||
Article 18 Assignment |
23 | |||||
Section 18.1 |
Succession and Assignment | 23 |
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Section 18.2 |
Terms of Assignment | 23 | ||||
Article 19 Notices |
23 | |||||
Article 20 No Waiver; Cumulative Remedies |
24 | |||||
Section 20.1 |
No Waivers | 24 | ||||
Section 20.2 |
Cumulative Remedies | 25 | ||||
Article 21 Nature of Transaction, Relationship of Parties and Regulatory Status |
25 | |||||
Section 21.1 |
Independent Contractor | 25 | ||||
Section 21.2 |
No Agency | 25 | ||||
Section 21.3 |
Regulatory Status | 25 | ||||
Article 22 Dispute Resolution |
25 | |||||
Section 22.1 |
Procedure | 25 | ||||
Section 22.2 |
Initial Resolution Attempts | 26 | ||||
Section 22.3 |
Arbitration | 26 | ||||
Article 23 General |
27 | |||||
Section 23.1 |
Severability | 27 | ||||
Section 23.2 |
Entire Agreement | 27 | ||||
Section 23.3 |
Time is of the Essence | 27 | ||||
Section 23.4 |
No Third-Party Beneficiaries | 27 | ||||
Section 23.5 |
Further Assurances | 27 | ||||
Section 23.6 |
Counterparts | 27 |
iii
Exhibit A | Stormwater Discharge and Wastewater Treatment | |
Exhibit B | Steam | |
Exhibit C | Potable Water | |
Exhibit D | Roads and Grounds | |
Exhibit E | Sanitary Sewer | |
Exhibit F | Electrical Power | |
Exhibit G | Emergency Response | |
Exhibit H | Filter Press | |
Exhibit I | Fuel Gas | |
Exhibit J | API Solids | |
Exhibit K | Fire Water | |
Exhibit L | Instrument/Compressed Air | |
Exhibit M | Rail Operations and Unloading | |
Exhibit N | Vent System | |
Exhibit O | Diesel | |
Exhibit P | Nitrogen | |
Exhibit Q | Natural Gas | |
Exhibit R | Propane |
iv
THIRD AMENDED AND RESTATED
OPERATION AND MANAGEMENT SERVICES AND SECONDMENT AGREEMENT
THIS THIRD AMENDED AND RESTATED OPERATION AND MANAGEMENT SERVICES AND SECONDMENT AGREEMENT (this Agreement), dated as of May 15, 2015 (the Commencement Date), is made by and among PBF Holding Company LLC, a Delaware limited liability company (the Company), Delaware City Refining Company LLC, a Delaware limited liability company (Delaware City Refining), Toledo Refining Company LLC, a Delaware limited liability company (Toledo Refining and, together with Delaware City Refining, the Company Subsidiaries, and together with the Company, collectively, the Company Parties), PBF Logistics GP LLC, a Delaware limited liability company (the General Partner), PBF Logistics LP, a Delaware limited partnership (the Operator), and Delaware City Terminaling Company LLC, a Delaware limited liability company (DCT), Toledo Terminaling Company LLC, a Delaware limited liability company (Toledo Terminaling), Delaware Pipeline Company LLC, a Delaware limited liability company (DPC) and Delaware City Logistics Company LLC (DCLC and, together with DCT, Toledo Terminaling and DPC, the Operator Subsidiaries). The Operator Subsidiaries, the General Partner and Operator are collectively referred to herein as the Operator Parties. The Company, the Company Subsidiaries, the General Partner, the Operator and each of the Operator Subsidiaries may be referred to herein individually as Party or collectively as the Parties.
RECITALS
WHEREAS, the Parties (other than DPC and DCLC) previously entered into that certain Second Amended and Restated Operation and Management Services and Secondment Agreement, dated December 12, 2014 (the Existing Agreement), and the Parties (including DPC and DCLC) now desire to amend and restate the Existing Agreement as provided herein;
WHEREAS, the Operator Parties own or lease the Terminal;
WHEREAS, the Company Parties own and operate the Refinery;
WHEREAS, the Operator Parties have agreed to provide logistics and terminaling services to the Company Parties pursuant to the terms of (a) the Delaware City Rail Terminaling Services Agreement and the Toledo Truck Unloading & Terminaling Agreement, each of which was entered into as of May 14, 2014, (b) the Delaware City West Ladder Rack Terminaling Services Agreement, which was entered into as of September 30, 2014, (c) the Toledo Storage & Terminaling Services Agreement, and (d) the Delaware Pipeline Services Agreement and the Delaware City Truck Loading Services Agreement, both of which have been entered into concurrently herewith;
WHEREAS, the Company Parties have experience and expertise in the operation and maintenance of the Delaware City Rail Terminal, the Toledo Truck Terminal, the West Ladder Rack and the Toledo Tank Farm Assets and can provide or make available to the Operator Parties the personnel necessary to operate and maintain the Delaware City Rail Terminal, the Toledo Truck Terminal, the West Ladder Rack and the Toledo Tank Farm; and
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WHEREAS, the Operator Parties desire that the Company Parties provide and make available to the Operator Parties the personnel necessary for the Operator Parties to provide the logistics and terminaling services.
NOW, THEREFORE, in consideration of the premises and the respective promises, conditions, terms and agreements contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties do hereby agree as follows:
Article 1 Definitions and Construction.
Section 1.1 Definitions. For purposes of this Agreement, including the foregoing recitals, the following terms shall have the meanings indicated below:
Affiliate means, with respect to a specified Person, any other Person controlling, controlled by or under common control with that first Person. As used in this definition, the term control includes (a) with respect to any Person having voting securities or the equivalent and elected directors, managers or Persons performing similar functions, the ownership of or power to vote, directly or indirectly, voting securities or the equivalent representing 50% or more of the power to vote in the election of directors, managers or Persons performing similar functions, (b) ownership of 50% or more of the equity or equivalent interest in any Person and (c) the ability to direct the business and affairs of any Person by acting as a general partner, manager or otherwise. Notwithstanding the foregoing, for purposes of this Agreement, each of the Company Parties, on the one hand, and each of the Operator Parties, on the other hand, shall not be considered Affiliates of each other.
Agreement has the meaning specified in the preamble to this document.
Ancillary Company Services has the meaning specified in Section 3.5.
Annual Fee has the meaning specified in Section 5.2.
Applicable Law means any applicable statute, law, regulation, Environmental Law, ordinance, rule, judgment, rule of law, order, decree, permit, approval, concession, grant, franchise, license, agreement, requirement, or other governmental restriction or any similar form of decision of, or any provision or condition of any permit, license or other operating authorization issued under any of the foregoing by, or any determination by, any Governmental Authority having or asserting jurisdiction over the matter or matters in question, whether now or hereafter in effect and in each case as amended (including all of the terms and provisions of the applicable common law of such Governmental Authority), as interpreted and enforced at the time in question.
Arbitrable Dispute means any and all disputes, controversies and other matters in question between the Operator Parties, on the one hand, and the Company Parties, on the other hand, arising under or in connection with this Agreement, which cannot be resolved by the Services Council within thirty (30) days (unless a longer duration is otherwise agreed to) from being submitted to the Services Council.
Barrel means forty-two (42) net U.S. gallons, measured at 60° F and 1 atmospheric pressure.
2
bpd means barrels per day.
Business Day means any day that is not a Saturday, Sunday, or other day on which banks are authorized or required to close in the State of New York, State of New Jersey, State of Ohio or the State of Delaware.
Capital Expenditure means any expenditure incurred to acquire or upgrade a fixed asset.
Claimant has the meaning specified in Article 22.
Commencement Date has the meaning specified in the preamble of this Agreement.
Company has the meaning specified in the preamble to this Agreement.
Company Parties has the meaning specified in the preamble of this Agreement.
Company Services has the meaning specified in Section 3.4.
Company Subsidiaries has the meaning specified in the preamble of this Agreement.
Company Indemnitees has the meaning specified in Section 14.1.
Confidential Information means all information, documents, records and data (including this Agreement, except to the extent required to be made public in a filing with the Securities and Exchange Commission or another Governmental Authority or pursuant to the rules and regulations of any national securities exchange) that a Party furnishes or otherwise discloses to the other Party (including any such items furnished prior to the execution of this Agreement), together with all analyses, compilations, studies, memoranda, notes or other documents, records or data (in whatever form maintained, whether documentary, computer or other electronic storage or otherwise) prepared by the receiving Party which contain or otherwise reflect or are generated from such information, documents, records and data; provided, however, that the term Confidential Information does not include any information that (a) at the time of disclosure or thereafter is or becomes generally available to or known by the public (other than as a result of a disclosure by the receiving Party), (b) is developed by the receiving Party without reliance on any Confidential Information or (c) is or was available to the receiving Party on a nonconfidential basis from a source other than the disclosing Party that, insofar as is known to the receiving Party after reasonable inquiry, is not prohibited from transmitting the information to the recipient by a contractual, legal or fiduciary obligation to the disclosing Party.
control (including with correlative meaning, the term controlled by) means, as used with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
Counterparty means, with respect to any of the Company Parties, the Operator, and with respect to any of the Operator Parties, the Company.
3
DCT has the meaning specified in the preamble of this Agreement.
Defaulting Party has the meaning specified in Section 13.2.
Delaware City Rail Terminal means the double-loop rail terminal located in Delaware City, Delaware (together with existing or future modifications or additions) owned and operated by DCT.
Delaware City Rail Terminaling Services Agreement means the Delaware City Rail Terminaling Services Agreement, dated as of May 14, 2014, by and between the Company and DCT.
Delaware City Refinery means the petroleum refinery located in Delaware City, Delaware owned and operated by Delaware City Refining.
Delaware City Refining has the meaning specified in the preamble of this Agreement.
Delaware City Truck Loading Services Agreement means the Delaware City Truck Loading Services Agreement, dated as of the date hereof, by and between the Company and DCLC.
Delaware City West Ladder Rack Terminaling Services Agreement means the Delaware City West Ladder Rack Terminaling Services Agreement, dated as of September 30, 2014, by and between the Company and DCT, as successor-in-interest to Delaware City Terminaling Company II LLC, a Delaware limited liability company.
Delaware Pipeline Services Agreement means the Delaware Pipeline Services Agreement, dated as of the date hereof, by and between the Company and DPC
Delaware Products Rack means the 15 lane, 76,000 barrel per day capacity truck loading rack located adjacent to the Delaware City Refinery
Delaware Products Pipeline means the 23.4 mile, 16-inch interstate petroleum products pipeline originating at the Delaware City Refinery with terminus at Sunoco Logistics Partners L.P.s Twin Oaks terminal
Environmental Law means all federal, state, and local laws, statutes, rules, regulations, orders, judgments, ordinances, codes, injunctions, decrees, Environmental Permits and other legally enforceable requirements and rules of common law now or hereafter in effect, relating to pollution or protection of human health and the environment, safety, and occupational health, including the federal Comprehensive Environmental Response, Compensation, and Liability Act, the Superfund Amendments Reauthorization Act, the Resource Conservation and Recovery Act, the Clean Air Act, the Federal Water Pollution Control Act, the Toxic Substances Control Act, the Oil Pollution Act, the Clean Water Act, the Safe Drinking Water Act, the Hazardous Materials Transportation Act, OSHA, and other similar federal, state or local health and safety, and environmental conservation and protection laws.
4
Environmental Permit means any permit, approval, identification number, license, registration, consent, exemption, variance or other authorization required under or issued pursuant to any applicable Environmental Law.
Event of Default has the meaning specified in Section 13.1.
Existing Agreement has the meaning specified in the recitals of this Agreement.
Force Majeure means acts of God, strikes, lockouts or other industrial disturbances, acts of a public enemy, wars, terrorism, blockades, insurrections, riots, storms, floods, interruptions in the ability to have safe passage in navigable waterways or rail lines, washouts, other interruptions caused by acts of nature or the environment, arrests, the order of any court or Governmental Authority claiming or having jurisdiction while the same is in force and effect, civil disturbances, explosions, fires, leaks, releases, breakage, accident to machinery, vessels, storage tanks or lines of pipe or rail lines, inability to obtain or unavoidable delay in obtaining material or equipment, inability to obtain or distribute crude oil, feedstocks, other products or materials necessary for operation because of a failure of third-party pipelines or rail lines or any other causes whether of the kind herein enumerated or otherwise not reasonably within the control of the Party claiming suspension and which by the exercise of commercially reasonable efforts such Party is unable to prevent or overcome; provided, however, a Partys inability to perform its economic obligations hereunder shall not constitute an event of Force Majeure.
Force Majeure Notice has the meaning specified in Section 11.1.
Force Majeure Party has the meaning specified in Section 11.1.
General Partner has the meaning specified in the preamble of this Agreement.
Governmental Authority means any federal, state, local or foreign government or any provincial, departmental or other political subdivision thereof, or any entity, body or authority exercising executive, legislative, judicial, regulatory, administrative or other governmental functions or any court, department, commission, board, bureau, agency, instrumentality or administrative body of any of the foregoing.
Liabilities means any losses, liabilities, charges, damages, deficiencies, assessments, interests, fines, penalties, costs and expenses (collectively, Costs) of any kind (including reasonable attorneys fees and other fees, court costs and other disbursements), including any Costs directly or indirectly arising out of or related to any suit, proceeding, judgment, settlement, cause of action, equitable or injunctive relief, or judicial or administrative order and any Costs arising from compliance or non-compliance with Environmental Law.
Non-Defaulting Party means the Counterparty to a Defaulting Party.
Omnibus Agreement means that certain Third Amended and Restated Omnibus Agreement, dated as of the date hereof, by and among the Company, the General Partner, the Operator and PBF Energy Company LLC.
Operator has the meaning specified in the preamble to this Agreement.
5
Operator Indemnitees has the meaning specified in Section 14.2.
Operator Parties has the meaning specified in the preamble of this Agreement.
Operator Subsidiaries has the meaning specified in the preamble of this Agreement.
OSHA means Occupational Safety and Health Act of 1970, 29 U.S.C. Section 651 et seq.
Overhead Expenses means all overhead costs and expenses of any of the Company Parties (including all compensation costs, including payroll, benefits and payroll taxes allocated to each of the Seconded Employees providing the Personnel Duties, or the Companys employees providing the Company Services or the Ancillary Company Services, multiplied by the proportion of such Persons business time spent providing Personnel Duties, Company Services or Ancillary Company Services, as applicable) to the extent related to the Personnel Duties, the Company Services or the Ancillary Company Services.
Party or Parties has the meaning specified in the preamble to this Agreement.
Period of Secondment has the meaning specified in Article 3.
Person means any individual, corporation, partnership, limited partnership, limited liability company, joint venture, trust or unincorporated organization, joint stock company or any other private entity or organization, Governmental Authority, court or any other legal entity, whether acting in an individual, fiduciary or other capacity.
Personnel Duties has the meaning specified in Article 3.
Prime Rate means the rate of interest quoted in The Wall Street Journal, Bonds, Rates & Yields Section as the Prime Rate.
Prudent Industry Practice means, as of the relevant time, those methods and acts generally engaged in or applied by the refining, pipeline or terminaling industries (as applicable) in the United States that, in the exercise of reasonable judgment in light of the circumstances known at the time of performance, would have been expected to accomplish the desired result at a reasonable cost consistent with functionality, reliability, safety and expedition with due regard for health, safety, security and environmental considerations. Prudent Industry Practice is not intended to be limited to the optimum practices, methods or acts to the exclusion of others, but rather is intended to include reasonably acceptable practices, methods and acts generally engaged in or applied by the refining, pipeline or terminaling industries (as applicable) in the United States.
Receiving Party Personnel has the meaning specified in Section 16.4.
Refinery means, collectively, the Delaware City Refinery and the Toledo Refinery. In addition, if any of the Company Parties acquires, leases or constructs assets directly connected to and leased or constructed to reasonably support the operation of, or to replace any portion of, the Delaware City Refinery or the Toledo Refinery, those assets shall automatically become a part of the Refinery.
6
Required Permits has the meaning specified in Section 8.1.
Respondent has the meaning specified in Article 22.
Seconded Employee has the meaning specified in Article 3.
Seconded Employee Schedule has the meaning specified in Section 3.3(a).
Services Council shall mean the council comprised of 2 representatives of the Operator Parties and 2 representatives of the Company Parties.
Special Damages has the meaning specified in Article 15.
Term has the meaning specified in Section 2.1.
Terminal means, collectively, the Delaware City Rail Terminal, the Toledo Tank Farm Assets, the Toledo Truck Terminal, the West Ladder Rack, the Delaware Products Rack and the Delaware Products Pipeline.
Toledo Refinery means the petroleum refinery, located in Toledo, Ohio owned and operated by Toledo Refining.
Toledo Refining has the meaning specified in the preamble of this Agreement.
Toledo Tank Farm Assets means the tank farm, commonly referred to as Tank Farm #2, and related facilities co-located with the tank farm, connected by pipelines to the Toledo Refinery located near Toledo, Ohio.
Toledo Terminaling has the meaning specified in the preamble of this Agreement.
Toledo Storage & Terminaling Services Agreement means that certain Storage and Terminaling Services Agreement, dated as of the date hereof, by and between the Company and Toledo Terminaling.
Toledo Truck Terminal means the truck unloading facility generally consisting of four crude truck unloading spots located in Toledo Refinerys north tank farm adjacent to the Toledo Refinery (together with existing or future modifications or additions) owned and operated by the Operator.
Toledo Truck Unloading & Terminaling Agreement means that certain Toledo Truck Unloading and Terminaling Agreement, dated as of May 14, 2014, by and between the Company and the Operator.
West Ladder Rack means the heavy crude oil rail unloading rack located in Delaware City, Delaware (together with existing or future modifications or additions) owned and operated by DCT II.
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Section 1.2 Construction of Agreement.
(a) Unless otherwise specified, all references herein are to the Articles, Sections and Exhibits of this Agreement and all Exhibits are incorporated herein.
(b) All headings herein are intended solely for convenience of reference and shall not affect the meaning or interpretation of the provisions of this Agreement.
(c) Unless expressly provided otherwise, the word including as used herein does not limit the preceding words or terms and shall be read to be followed by the words without limitation or words having similar import.
(d) Unless expressly provided otherwise, all references to days, weeks, months and quarters mean calendar days, weeks, months and quarters, respectively.
(e) Unless expressly provided otherwise, references herein to consent mean the prior written consent of the Party at issue.
(f) A reference to any Party to this Agreement or another agreement or document includes the Partys permitted successors and assigns.
(g) Unless the contrary clearly appears from the context, for purposes of this Agreement, the singular number includes the plural number and vice versa; and each gender includes the other gender.
(h) Except where expressly stated otherwise, any reference to any Applicable Law or agreement shall be a reference to the same as amended, supplemented or reenacted from time to time.
(i) The words hereof, herein and hereunder and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.
Section 1.3 No Presumption. The Parties acknowledge that they and their counsel have reviewed and revised this Agreement and that no presumption of contract interpretation or construction shall apply to the advantage or disadvantage of the drafter of this Agreement.
Article 2 Term.
Section 2.1 Term of Agreement. The term (the Term) shall commence on the Commencement Date and shall continue until the earlier of (a) written mutual agreement by the Parties to terminate this Agreement, (b) the termination of the Omnibus Agreement, (c) a termination pursuant to a default in accordance with Section 13.2 or (d) a termination pursuant to Section 2.4.
Section 2.2 Termination of Services by the Operator. In addition to the Operators right to adjust or terminate any of the Company Services or Ancillary Company Services pursuant to Section 6.1(c), the Operator shall have the right to terminate any or all of the Company Services, Ancillary Company Services or Personnel Duties, without penalty, upon thirty (30) days prior written notice to the Company.
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Section 2.3 Termination of Company Services and Ancillary Company Services by the Company.
(a) Except as provided in Section 2.3(b), the Company shall have the right to terminate any or all of the Company Services or Ancillary Company Services being performed by the Company Parties without penalty, upon one hundred eighty (180) days prior written notice to the Operator; provided, however, if one hundred eighty (180) days prior notice is not sufficient time for the Operator, using commercially reasonable efforts, to replace the Company Services or Ancillary Company Services that are being terminated, the Company shall make its equipment available to the Operator, at no cost, or continue to provide such Company Services or Ancillary Company Services, as applicable, under the terms of this Agreement, whichever is deemed practical by the Company in its reasonable discretion, for a reasonable period of time after such one hundred eighty (180) day period while replacement Company Services or Ancillary Company Services are being arranged.
(b) The Company may not terminate Company Services or Ancillary Company Services for Stormwater Discharge and Wastewater Treatment (Exhibit A), Steam (Exhibit B), Potable Water (Exhibit C), Roads and Grounds (Exhibit D), Sanitary Sewer (Exhibit E), Electrical Power (Exhibit F), Fuel Gas (Exhibit I), Fire Water (Exhibit K), Instrument/Compressed Air (Exhibit L), Vent System (Exhibit N) and Nitrogen (Exhibit P) pursuant to this Section 2.3.
Section 2.4 Cessation of Company Services and Ancillary Company Services in connection with the Terminaling Agreements. Upon the termination or expiration of the Term (as defined therein) of the Delaware City Rail Terminaling Services Agreement, the Company Services and the Ancillary Company Services that relate to the Delaware City Rail Terminal shall also terminate as of the termination or expiration of such Term. Upon the termination or expiration of the Term (as defined therein) of each of a) the Toledo Truck Unloading & Terminaling Agreement and b) the Toledo Storage & Terminaling Services Agreement, the Company Services and the Ancillary Company Services that respectively relate to the Toledo Tank Farm Assets and the Toledo Truck Terminal shall respectively also terminate as of the termination or expiration of such Term of a) and b). Upon the termination or expiration of the Term (as defined therein) of the Delaware City West Ladder Rack Terminaling Services Agreement, the Company Services and the Ancillary Company Services that relate to the West Ladder Rack shall also terminate as of the termination or expiration of such Term. Upon the termination or expiration of the Term (as defined therein) of the Delaware City Truck Loading Services Agreement, the Company Services and the Ancillary Company Services that relate to the Delaware Products Rack shall also terminate as of the termination or expiration of such Term. Upon the termination or expiration of the Term (as defined therein) of the Delaware Pipeline Services Agreement, the Company Services and the Ancillary Company Services that relate to the Delaware Products Pipeline shall also terminate as of the termination or expiration of such Term. If all six of the foregoing agreements terminate or expire, the Term hereof shall automatically terminate.
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Section 2.5 Effect of Termination. Upon termination or expiration of the Term, all rights and obligations of the Parties under this Agreement shall terminate; provided, however, Articles 14 through 23 shall survive the termination or expiration of the Term in accordance with their terms; provided, further, termination or expiration of the Term shall not discharge or relieve either Party from any obligations or liabilities which may have accrued under the terms of this Agreement prior to such termination.
Article 3 Personnel, Personnel Duties and Company Services.
Section 3.1 Seconded Employees. During the Term, the Company shall, directly or indirectly through the other Company Parties, designate (a) certain of employees or contractors of the Company Parties to be seconded to the Operator Parties to (x) perform the Operator Parties respective obligations under each of the Delaware City Rail Terminaling Services Agreement, the Toledo Truck Unloading & Terminaling Agreement, the Toledo Storage & Terminaling Services Agreement, the Delaware City West Ladder Rack Terminaling Services Agreement, the Delaware City Truck Loading Services Agreement and the Delaware Pipeline Services Agreement and (y) otherwise perform the Personnel Duties, and (b) such other Persons (including consultants and professionals, service or other organizations) as the Operator reasonably deems necessary or appropriate in order to permit the Operator to (x) perform the Operator Parties respective obligations under each of the Delaware City Rail Terminaling Services Agreement, the Toledo Truck Unloading & Terminaling Agreement, the Toledo Storage & Terminaling Services Agreement, the Delaware City West Ladder Rack Terminaling Services Agreement, the Delaware City Truck Loading Services Agreement and the Delaware Pipeline Services Agreement and (y) otherwise perform the Personnel Duties. Each employee or contractor who the Company seconds to the Operator Parties pursuant to this Article 3 shall, during the time that such employee or contractor is seconded to the Operator Parties under this Agreement (the Period of Secondment), be referred to individually herein as a Seconded Employee and, collectively, as the Seconded Employees.
Section 3.2 Personnel Duties. The Personnel Duties shall include the following:
(a) operation of the Terminal, procurement and furnishing of all materials, equipment, services, supplies and labor necessary for the operation and maintenance of the Terminal, engineering support for such activities, and related warehousing and security, including the following:
(i) maintain and operate flow and pressure control, monitoring, and over-pressure protection;
(ii) maintain, repair, recondition, overhaul, and replace equipment, as needed, to keep the Terminal in good working order; and
(iii) conduct all other routine day-to-day operations and maintenance at the Terminal; and
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(b) management and conduct of the business operations associated with the Terminal, including the following:
(i) transportation and logistics, including commercial operations;
(ii) project execution;
(iii) contract administration;
(iv) database mapping, reporting and maintenance;
(v) rights of way;
(vi) materials and capital management;
(vii) emergency response, security, permitting and all other health, safety and environmental services;
(viii) engineering support (including facility design and optimization); and
(ix) such other general services related to the Terminal as the Parties may mutually agree are necessary from time to time.
Section 3.3 Secondment of Personnel.
(a) The Company Parties shall maintain a true, complete and accurate list of the Seconded Employees on a schedule (the Seconded Employee Schedule). Seconded Employees may be added to or removed from the Seconded Employee Schedule from time to time by the Company Parties, as appropriate.
(b) Subject to the Company Parties right to be reimbursed by the Operator for such expenses in accordance with Section 5.1, each Company Party shall pay all expenses incurred by it in connection with the retention of the Seconded Employees and such other Persons, including compensation, salaries, wages and overhead and administrative expenses, charges to or incurred by such Company Party, and, if applicable, social security taxes, workers compensation insurance, retirement and insurance benefits and other such expenses. Any such Seconded Employees and other Persons retained by any Company Party may be union or non-union employees.
(c) Each Seconded Employee (other than contractors) will at all times remain an employee of the applicable Company Party. Each Seconded Employee will, during the applicable Period of Secondment, be called upon to perform services for both the Operator Parties and the Company Parties. The Company Parties retain the right to terminate the Secondment of any Seconded Employee for any reason and at any time or to hire or discharge the Seconded Employees with respect to their employment or engagement with the Company Parties. The Operator shall have the right to terminate the Secondment to it of any Seconded Employee (including any supervisor described in (e)) for any reason and at any time, upon prior written notice to the Company Parties, but at no time will the Operator have the right to terminate any Seconded Employees employment by the Company Parties or their respective contractor.
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(d) During a Period of Secondment, with respect to any Seconded Employee, such Seconded Employee will report into the Operators management structure, and will be under the direct management, supervision, direction and control of the Operator with respect to such Seconded Employees day-to-day activities with contractors remaining at the direction of the contracting entity.
(e) Those active employees whose titles in the Seconded Employee Schedule reflect that they serve as supervisors or managers and who are called upon to oversee the work of Seconded Employees working at the Terminal or to provide management support on behalf of the Operator are designated by the Operator as supervisors to act on the behalf of the Operator in supervising the Seconded Employees pursuant to Section 3.3(d) above. Any Seconded Employee so designated will be acting on behalf of the Operator when supervising the work of the Seconded Employees or when they are otherwise providing management or executive support on behalf of the Operator.
(f) The Operator shall not be a participating employer in any benefit plan of any Company Party. The Company Parties shall remain solely responsible for all obligations and liabilities arising with respect to any benefit plans relating to any Seconded Employees and the Operator shall not assume any benefit plan or have any obligations or liabilities arising thereunder, in each case except for costs properly chargeable to the Operator.
Section 3.4 Company Services. In addition to providing the Seconded Employees to the Operator Parties pursuant to Section 3.3, the Company Parties shall also provide (through employees, contractors, subcontractors or Affiliates) the services enumerated in the Exhibits to this Agreement (the Company Services) upon customary terms in accordance with Prudent Industry Practice. The Operator shall reimburse the Company for the Company Services in accordance with Section 5.1; provided, however, that in the event any Company Services requires the Company Parties to make Capital Expenditures, such Capital Expenditures shall be subject to Section 6.1 and the Company Parties shall not be required to provide such Company Services until the Company Parties are able to do so after using reasonable efforts in compliance with Section 6.1; provided, further, the Company Parties shall not be required to perform any additional Company Services if the Company reasonably believes the performance thereof will (i) materially adversely interfere with, or be detrimental to, the operation of the Refinery or (ii) violate Applicable Law.
Section 3.5 Ancillary Company Services. From time-to-time during the Term, the Operator may request that the Company Parties provide (through employees, contractors, subcontractors or Affiliates), ancillary services to the Operator Parties (Ancillary Company Services) upon customary terms in accordance with Prudent Industry Practice so long as such additional Ancillary Company Services are reasonably related to the Company Services or existing Ancillary Company Services. The Operator shall reimburse the Company for the Ancillary Company Services in accordance with Section 5.1; provided, however, that in the event any requested additional Ancillary Company Services requires the Company Parties to make Capital Expenditures, such Capital Expenditures shall be subject to Section 6.1 and the Company Parties shall not be required to provide such additional Ancillary Company Services until the Company Parties are able to do so after using reasonable efforts in compliance with Section 6.1; provided, further, the Company Parties shall not be required to perform any additional Ancillary Company Services if they reasonably believe the performance thereof will (i) materially adversely interfere with, or be detrimental to, the operation of the Refinery or (ii) violate Applicable Law.
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Section 3.6 Third-Party Arrangements. Nothing herein shall be deemed to prevent any of the Company Parties from providing services similar to the Company Services or Ancillary Company Services to third parties. Further, nothing herein shall be deemed to prohibit any of the Operator Parties from receiving services similar to the Company Services or Ancillary Company Services from third parties.
Section 3.7 Interruption of Company Services. The Parties shall use commercially reasonable efforts to minimize the interruption of Company Services or Ancillary Company Services. In addition, the Company shall inform the Operator at least sixty (60) days in advance (or promptly, in the case of an unplanned interruption) of any anticipated partial or complete interruption of Company Services or Ancillary Company Services at the applicable facility, including relevant information about the nature, extent, cause and expected duration of the interruption and the actions the Company is taking to resume full operations; provided, however, that the Company shall not have any liability for any failure to notify, or delay in notifying, the Operator of any such matters except to the extent, subject to Article 11, the Operator has been materially damaged by such failure or delay.
Section 3.8 Manner of Performing/Providing Personnel Duties. The Personnel Duties to be performed and provided by the Seconded Employees made available pursuant to Section 3.3 by the Company Parties hereunder shall be performed and provided consistent with Prudent Industry Practice.
Article 4 Self-Provided Services and Shared Items.
Section 4.1 Self-Provided Services. Subject to the Omnibus Agreement, except for the Company Services and the Ancillary Company Services set forth in Sections 3.4, and 3.5, respectively, the Operator shall provide for itself, at its sole cost and expense, any other services it requires as applicable for its operations, including telephone and fax services, computers and computer networks and tank gauging.
Section 4.2 Shared Items. Notwithstanding anything to the contrary contained in Section 4.1 above, the Parties have agreed to share certain of the following items:
(a) existing infrastructure for the Parties telephones and faxes, including telephone switch;
(b) existing fiber optics system;
(c) radio messages, at times, during their normal operations at the Refinery and the Terminals, respectively; and
(d) an emergency alarm system for the Parties respective operations at the Refinery and the Terminal, respectively, including existing infrastructure used by the Parties to connect to the emergency alarm system; provided, however, each Party shall be responsible, at its sole cost, for interconnecting into the emergency alarm system.
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Article 5 Pricing, Billing and Reimbursement.
Section 5.1 Reimbursement for Personnel Duties, Company Services and Ancillary Company Services. The Operator shall reimburse the Company for all third-party costs and expenses incurred by any of the Company Parties in connection with the performance by the Seconded Employees of the Personnel Duties, or the Companys employees of the Company Services and the Ancillary Company Services (including any Overhead Expenses) and if mutually agreeable to the Parties shall cause any third-party service providers to invoice the Operator Parties directly in connection with the performance of any Personnel Duties by such third party or the performance of any Company Service or Ancillary Company Services by such third party. The Operator shall reimburse the Company for all taxes (other than property taxes, ad valorem taxes, income taxes, gross receipt taxes, payroll taxes and other similar taxes) that the Company incurs on the Operator Parties behalf for the performance by the Seconded Employees of the Personnel Duties, or the Companys employees of the Company Services and the Ancillary Company Services, unless prohibited by Applicable Law; provided, however, that in no event shall the Company charge or be entitled to pass-through costs that (i) result from any criminal act, willful misconduct or negligence of the Company or any of its agents, employees or representatives, or (ii) are in the nature of fines, late fees, penalties, interest or similar obligations that could have been avoided by the Company in the exercise of Prudent Industry Practice. If the Operator is exempt from the payment of any taxes allocated to it under this Section 5.1, the Operator shall furnish the Company with the proper exemption certificates.
Section 5.2 Annual Fee. In addition to reimbursement under Section 5.1, the Operator shall pay to the Company an annual fee for the services as set forth herein and in connection with the provision of certain utilities and other infrastructure-related services equal to $4,486,000 (the Annual Fee) payable in equal monthly installments in accordance with Section 5.3, commencing in the first month following the Commencement Date. The Annual Fee for the 2015 fiscal year shall be prorated based on the number of days from the Commencement Date to December 31, 2015. At the end of each calendar year, the Company will have the right to submit to the Operator a proposal to increase the amount of the Annual Fee for the upcoming year if the Company believes, in good faith, that for the services as set forth herein, the utilities and other infrastructure-related services performed by the Company Parties for the benefit of the Operator Parties for the upcoming year justify payment greater than the Annual Fee for such year. If the Company submits such a proposal to the Operator, the Operator agrees that it will negotiate in good faith with the Company to determine if the Annual Fee for the upcoming year should be increased and, if so, the amount of such increase. If the Parties cannot agree to the amount of an increase in the Annual Fee for that year, then the increase amount shall become an Arbitrable Dispute and governed in accordance with Section 22.3. Until the Parties are able to agree on the Annual Fee increase amount, if any, the Annual Fee for the preceding year shall continue to be the applicable fee and any subsequent increase decided upon shall be applied retroactively to the start of the year.
Section 5.3 Billing. The Company shall provide monthly invoices to the Operator for all reimbursements payable under this Agreement and the Operator shall reimburse the Company as specified in the monthly invoices within ten (10) days after its receipt of such invoice; provided, however, that notwithstanding anything herein to the contrary, no reimbursements shall be made hereunder to the extent such reimbursements are made pursuant to the Omnibus Agreement. The
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Company shall also include in such monthly invoices the applicable amount of the Annual Fee owed by the Operator and the Operator shall pay the Annual Fee as specified in the monthly invoices within ten (10) days after its receipt of such invoice. Any past due reimbursements or fees owed to the Company hereunder shall accrue interest, payable on demand, at the Prime Rate plus 400 basis points from the due date of the reimbursement or fee through the actual date of reimbursement or payment of the fee. Reimbursement or payment of any fee pursuant to this Section 5.3 shall be made by wire transfer of immediately available funds to an account designated in writing by the Company. If any such reimbursement or fee shall be due and payable on a day that is not a Business Day, such reimbursement or fee shall be due and payable on the next succeeding Business Day. Notwithstanding any other provision in this Agreement, the Company shall have up to thirty (30) days after the end of a calendar quarter to issue an invoice to true-up all amounts owed by each party under this Agreement during the calendar quarter so ended.
Section 5.4 Contents of Invoices. Any invoice delivered by the Company to the Operator pursuant to Section 5.3 above shall set forth in detail the Companys calculation of the charges for the Personnel Duties, the Company Services and the Ancillary Company Services, and shall be accompanied by information reasonably sufficient for the Operator to determine the accuracy of such invoice.
Section 5.5 Reimbursement Disputes. Notwithstanding any other provision of this Article 5, if the Operator in good faith disputes the correctness of any invoice submitted by the Company, the Operator shall promptly submit to the Company a written statement detailing the specific items disputed and shall reimburse the undisputed portion of the invoice within the time period specified for reimbursement hereunder. Any disputed items shall be subject to the dispute resolution procedures in Article 22, and any reimbursement determined to be due pursuant to said dispute resolution shall bear interest at the Prime Rate plus 400 basis points from the date on which said reimbursement otherwise would have been payable hereunder to the date such reimbursement is actually received by the Company.
Article 6 Fee Adjustments.
Section 6.1 Capital Expenditures.
(a) If during the course of the Term the Company determines that it is necessary to make certain Capital Expenditures related to the Company Services and the Ancillary Company Services, the Company may notify the Operator in writing of its desire to have the Operator pay for the Operators applicable portion of the cost of such Capital Expenditure.
(b) If within sixty (60) days after the Company provides the written notice requesting Capital Expenditures the Parties have not reached agreement on the need for such Capital Expenditures, then the matter shall become an Arbitrable Dispute and governed in accordance with Article 22. For the avoidance of doubt, if the Companys Capital Expenditures are not approved, and the Company chooses to make such Capital Expenditures, the Company agrees to bear all costs associated therewith.
(c) Notwithstanding anything to the contrary contained herein, in lieu of participating in the Capital Expenditures the Operator may choose at any time to terminate all of the Personnel Duties, Company Services and the Ancillary Company Services related to such Capital Expenditure.
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Article 7 Access and Audit Rights.
The Parties and their respective representatives, upon reasonable notice and during normal working hours, shall have access to the accounting records and other documents maintained by the Counterparty, or any of its contractors and agents, which relate to this Agreement, and shall have the right to audit such records at any reasonable time or times during the Term and for a period of up to two (2) years after termination of this Agreement. The Party performing such audit shall have the right to conduct such audit no more than twice per calendar year and each audit shall be limited in time to no more than the present and prior two (2) calendar years. Claims as to defects in quality shall be made by written notice within ninety (90) days after the delivery in question or shall be deemed to have been waived. The right to inspect or audit such records shall survive termination of this Agreement for a period of two (2) years following the end of the Term. Each Party shall preserve, and shall cause all contractors or agents to preserve, all of the aforesaid documents for a period of at least two (2) years from the end of the Term. Notwithstanding any of the foregoing, if an Event of Default has occurred and is continuing with respect to a specific Party, the Counterparty shall have unlimited and unrestricted access to the accounting records and other documents maintained by the Counterparty, for so long as such Event of Default continues.
Article 8 Additional Covenants.
Section 8.1 Required Permits. During the Term, unless required by Applicable Law to be held by the Company Parties, the Operator shall, at its sole cost and expense, obtain, apply for, maintain, monitor, renew, and modify, as appropriate, any license, authorization, certification, filing, recording, permit, waiver, exception, variance, franchise, order or other approval with or of any Governmental Authority pertaining or relating to the operation of the Terminal (the Required Permits) as currently operated; provided, however, that if any Required Permits require the signature of, or any action by, any of the Company Parties, the Company shall cause such Company Party to reasonably cooperate with the Operator (at the Operators expense) so that the Operator may obtain and maintain such Required Permits either for the Operator or the applicable Operator Party. Neither the Company nor the Operator shall do anything in connection with the performance of their respective obligations under this Agreement that causes a termination or suspension of the Required Permits.
Section 8.2 Existing Obligations. The execution of this Agreement by the Parties does not reduce any existing obligations of such Parties and does not confer any obligation or responsibility on (a) the Company Parties in connection with: (i) any existing or future environmental condition at the Terminal, including, the presence of a regulated or hazardous substance on or in environmental media at the Terminal (including the presence in surface water, groundwater, soils or subsurface strata, or air), including the subsequent migration of any such substance; (ii) any Environmental Law; (iii) the Required Permits; or (iv) any requirements arising under or relating to any Applicable Law pertaining or relating to the ownership and operation of the Terminal, or (b) the Operator Parties in connection with: (i) any existing or future environmental condition at the Refinery, including, the presence of a regulated or hazardous substance on or in environmental media at the Refinery (including the presence in surface water,
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groundwater, soils or subsurface strata, or air), including the subsequent migration of any such substance; (ii) any Environmental Law; (iii) the Required Permits; or (iv) any requirements arising under or relating to any Applicable Law pertaining or relating to the ownership and operation of the Refinery.
Section 8.3 Records.
(a) Each Party shall (i) maintain the records required to be maintained by Applicable Law and shall make such records available to the other Parties upon reasonable request and (ii) immediately notify the other Parties of any violation or alleged violation of any Applicable Law relating to this Agreement and, upon request, shall provide to the other Parties all evidence of environmental inspections or audits by any Governmental Authority relating to this Agreement.
(b) All records or documents provided by any Party to any other Party shall, to the reasonable knowledge of the providing Party, accurately and completely reflect the facts about the activities and transactions to which they relate. Notwithstanding anything herein to the contrary, no Party shall be required to provide to any other Party any document that is determined by the disclosing Partys legal counsel to be protected by an attorney-client privilege or attorney work product doctrine. Each Party shall promptly notify the other Parties if at any time such Party has reason to believe that any records or documents previously provided to the other Party are no longer accurate or complete.
Article 9 Representations.
Section 9.1 Representations of the Operator Parties. The Operator Parties jointly and severally represent and warrant to the Company Parties that (a) this Agreement, the rights obtained and the duties and obligations assumed by the Operator Parties hereunder, and the execution and performance of this Agreement by the Operator Parties, do not directly or indirectly violate any Applicable Law with respect to the Operator Parties or any of their properties or assets, the terms and provisions of the Operator Parties organizational documents or any agreement or instrument to which the Operator Parties or any of their properties or assets are bound or subject; (b) the execution and delivery of this Agreement by the Operator Parties has been authorized by all necessary action; (c) the Operator Parties have the full and complete authority and power to enter into this Agreement and to provide the services hereunder; (d) no further action on behalf of the Operator Parties, or consents of any other party, are necessary for the provision of services hereunder; and (e) upon execution and delivery by the Operator Parties, this Agreement shall be a valid and binding agreement of the Operator Parties enforceable in accordance with its terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law).
Section 9.2 Representations of the Company Parties. The Company Parties jointly and severally represent and warrant to the Operator Parties that (a) this Agreement, the rights obtained and the duties and obligations assumed by the Company Parties hereunder, and the execution and performance of this Agreement by the Company Parties, do not directly or indirectly violate any Applicable Law with respect to the Company Parties or any of their property or assets,
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the terms and provisions of the Company Parties organizational documents or any agreement or instrument to which the Company Parties or any of their property or assets are bound or subject; (b) the execution and delivery of this Agreement by the Company Parties has been authorized by all necessary action; (c) the Company Parties have the full and complete authority and power to enter into this Agreement; (d) no further action on behalf of the Company Parties, or consents of any other party, are necessary for the provision of services hereunder; and (e) upon execution and delivery by the Company Parties, this Agreement shall be a valid and binding agreement of the Company Parties enforceable in accordance with its terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law).
Article 10 Insurance.
Unless the Operator Parties provide notice that they will obtain insurance coverage independently from the Company Parties, the Company, directly or through one of its Affiliates, shall procure and maintain in full force and effect throughout the Term insurance in sufficient amounts and coverage consistent with Prudent Industry Practice similar to the coverage currently in place for the officers, directors, and assets of the Operator Parties; provided, however, that in either case, each Operator Party shall be the insured party under its respective insurance policy.
Article 11 Force Majeure.
Section 11.1 Force Majeure. In the event that a Party (the Force Majeure Party) is rendered unable, wholly or in part, by a Force Majeure event to perform its obligations under this Agreement, then such Party shall within a reasonable time after the occurrence of such event of Force Majeure deliver to the Counterparty written notice (a Force Majeure Notice) including full particulars of the Force Majeure event, and the obligations of the Parties, to the extent they are affected by the Force Majeure event, shall be suspended for the duration of any inability so caused. The Force Majeure Party shall identify in such Force Majeure Notice the approximate length of time that it believes in good faith such Force Majeure event shall continue. The Operator shall be required to pay any amounts accrued and due under this Agreement at the time of the start of the Force Majeure event. The cause of the Force Majeure event shall so far as possible be remedied with all reasonable efforts, except that no Party shall be compelled to resolve any strikes, lockouts or other industrial or labor disputes other than as it shall determine to be in its best interests. Prior to the second (2nd) anniversary of the Commencement Date, any suspension of the obligations of the Parties under this Section 11.1 as a result of a Force Majeure event that adversely affects the Companys ability to perform the services it is required to perform under this Agreement shall extend the Term for the same period of time as such Force Majeure event continues (up to a maximum of one year) unless this Agreement is terminated under in accordance with Section 2.4.
Article 12 Services Council.
Section 12.1 Formation of Services Council. The Parties agree to form a Services Council to handle the matters as described in this Article 12. Each Party may choose to include in the Services Council meetings such knowledgeable Persons as may assist either Party in their consultations.
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Section 12.2 Meetings. The Services Council shall meet at such times as either Party may reasonably request, or at such times as agreed by the Parties, to discuss any aspect of the subject matter of this Agreement. It is the Parties intent that the Services Council shall serve as the vehicle for complete and timely communications about the operating plans of one Party that could materially affect the operations of the other (including maintenance or repair activities, approval of Capital Expenditures, or major changes in operations that could result in a disruption of any Service or Ancillary Service), as well as a forum for prompt resolution of any disputes in the initial meeting between the Parties.
Article 13 Event of Default: Remedies Upon Event of Default.
Section 13.1 Event of Default. Notwithstanding any other provision of this Agreement, but subject to Article 22, the occurrence of any of the following shall constitute an Event of Default:
(a) Operator fails to make a reimbursement or pay the Annual Fee when due (i) under Article 5 within five (5) Business Days after a written demand therefor or (ii) under any other provision hereof within seven (7) Business Days;
(b) other than a default described in Sections 13.1(a) or 13.1(c), if the Company Parties or the Operator Parties fail to perform any material obligation or covenant made to the Counterparty under this Agreement, which is not cured to the reasonable satisfaction of the Counterparty within fifteen (15) Business Days after the date that such Party receives written notice that such obligation or covenant has not been performed;
(c) any Party breaches any representation or warranty made by such Party hereunder, or such warranty or representation proves to have been incorrect or misleading in any material respect when made; provided, however, that if such breach is curable, such breach is not cured to the reasonable satisfaction of the Counterparty within fifteen (15) Business Days after the date that such Party receives notice that corrective action is needed; or
(d) any Party files a petition or otherwise commences or authorizes the commencement of a proceeding or case under any bankruptcy, reorganization or similar law for the protection of creditors, or have any such petition filed or proceeding commenced against it and such proceeding is not dismissed for sixty (60) days.
Section 13.2 Termination. Except as set forth in Section 13.1(d), without limiting any other provision of this Agreement, if an Event of Default with respect to any Party (such defaulting Party, the Defaulting Party) has occurred and is continuing, the Non-Defaulting Party shall have the right, immediately and at any time(s) thereafter, to suspend its performance or terminate this Agreement upon written notice to the Defaulting Party.
Section 13.3 Set Off. If an Event of Default occurs, the Non-Defaulting Party may, without limitation on its rights under this Article 13, set off amounts which the Defaulting Party owes to it against any amounts which it owes to the Defaulting Party (whether hereunder, under any other agreement or contract or otherwise and whether or not then due). Any net amount due hereunder shall be payable by the Party owing such amount within one (1) Business Day of termination.
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Section 13.4 No Preclusion of Rights. The Non-Defaulting Partys rights under this Section 13.4 shall be in addition to, and not in limitation of, any other rights which the Non-Defaulting Party may have (whether by agreement, operation of law or otherwise), including any rights of recoupment, setoff, combination of accounts, as a secured party or under any other credit support. The Defaulting Party shall indemnify and hold the Non-Defaulting Party harmless from all costs and expenses, including reasonable attorney fees, incurred in the exercise of any remedies hereunder.
Article 14 Indemnification.
Section 14.1 Indemnification by Operator. The Operator shall defend, indemnify and hold harmless the Company Parties, their respective Affiliates, and their respective directors, officers, employees, representatives, agents, contractors, successors and permitted assigns (collectively, the Company Indemnitees) from and against any Liabilities directly or indirectly arising out of (a) any breach by the Operator Parties of any covenant or agreement contained herein or made in connection herewith or any representation or warranty of the Operator Parties made herein or in connection herewith proving to be false or misleading, (b) any personal injury incurred by any representative of the Operator Parties (including any Operator Inspector) while at the Refinery, (c) any failure by the Operator Parties, their Affiliates or any of their respective employees, representatives (including any Operator Inspector), agents or contractors to comply with or observe any Applicable Law, or (d) injury, disease, or death of any Person or damage to or loss of any property, fine or penalty, any of which is caused by the Operator Parties, their Affiliates or any of their respective employees, representatives (including any Operator Inspector), agents or contractors in the exercise of any of the rights or obligations hereunder or the handling or transportation of any crude oil hereunder, except to the extent of the Companys obligations under Section 14.2 below, and except to the extent that such injury, disease, death, or damage to or loss of property, fine or penalty was caused by the gross or sole negligence or willful misconduct on the part of the Company Indemnitees, their Affiliates or any of their respective employees, representatives, agents or contractors. Notwithstanding the foregoing, the Operators liability to the Company Indemnitees pursuant to this Section 14.1 shall be net of any insurance proceeds actually received by the Company Indemnitees or any of their respective Affiliates from any third party with respect to or on account of the damage or injury which is the subject of the indemnification claim. The Company agrees that it shall, and shall cause the other Company Indemnitees to, (i) use all commercially reasonable efforts to pursue the collection of all insurance proceeds to which any of the Company Indemnitees are entitled with respect to or on account of any such damage or injury, (ii) notify the Operator of all potential claims against any third party for any such insurance proceeds, and (iii) keep the Operator fully informed of the efforts of the Company Indemnitees in pursuing collection of such insurance proceeds.
Section 14.2 Indemnification by Company. The Company shall defend, indemnify and hold harmless the Operator Parties, their respective Affiliates, and their respective directors, officers, employees, representatives, agents, contractors, successors and permitted assigns (collectively, the Operator Indemnitees) from and against any Liabilities directly or indirectly arising out of (a) any breach by the Company Parties of any covenant or agreement contained herein or made in connection herewith or any representation or warranty of the Company Parties made herein or in connection herewith proving to be false or misleading, (b) any personal injury incurred by any representative of the Company Parties (including any Company Inspector) while
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at the Terminal, (c) any failure by the Company Parties, their respective Affiliates or any of their respective employees, representatives (including any Company Inspector), agents or contractors to comply with or observe any Applicable Law, or (d) injury, disease, or death of any Person or damage to or loss of any property, fine or penalty, any of which is caused by the Company Parties, their respective Affiliates or any of their respective employees, representatives (including any Company Inspector), agents or contractors in the exercise of any of the rights or obligations hereunder or the refining, transportation, handling and storage of any crude oil hereunder, except to the extent of the Operators obligations under Section 14.1 above, and except to the extent that such injury, disease, death, or damage to or loss of property, fine or penalty was caused by the gross or sole negligence or willful misconduct on the part of the Operator Indemnitees, their Affiliates or any of their respective employees, representatives, agents or contractors. Notwithstanding the foregoing, the Companys liability to the Operator Indemnitees pursuant to this Section 14.2 shall be net of any insurance proceeds actually received by the Operator Indemnitees or any of their respective Affiliates from any third party with respect to or on account of the damage or injury which is the subject of the indemnification claim. The Operator agrees that it shall, and shall cause the other Operator Indemnitees to, (i) use all commercially reasonable efforts to pursue the collection of all insurance proceeds to which any of the Operator Indemnitees are entitled with respect to or on account of any such damage or injury, (ii) notify the Company of all potential claims against any third party for any such insurance proceeds, and (iii) keep the Company fully informed of the efforts of the Operator Indemnitees in pursuing collection of such insurance proceeds.
Section 14.3 EXPRESS REMEDY. THE FOREGOING INDEMNITIES ARE INTENDED TO BE ENFORCEABLE AGAINST THE PARTIES IN ACCORDANCE WITH THE EXPRESS TERMS AND SCOPE THEREOF NOTWITHSTANDING ANY EXPRESS NEGLIGENCE RULE OR ANY SIMILAR DIRECTIVE THAT WOULD PROHIBIT OR OTHERWISE LIMIT INDEMNITIES BECAUSE OF THE SOLE, CONCURRENT, ACTIVE OR PASSIVE NEGLIGENCE, STRICT LIABILITY OR FAULT OF ANY OF THE INDEMNIFIED PARTIES.
Article 15 Limitation on Damages.
Notwithstanding anything to the contrary contained herein, neither Party shall be liable or responsible to any Counterparty or such other Partys affiliated Persons for any consequential, punitive, special, incidental or exemplary damages, or for loss of profits or revenues (collectively referred to as Special Damages) incurred by such Party or its affiliated Persons that arise out of or relate to this Agreement, regardless of whether any such claim arises under or results from contract, tort, or strict liability; provided, however, that the foregoing limitation is not intended and shall not affect Special Damages in connection with any third-party claim or imposed in favor of unaffiliated Persons that are not Parties to this Agreement; provided, further, that to the extent an indemnitor hereunder receives insurance proceeds with respect to Special Damages that would be indemnified hereunder if not for this Article 15, such indemnitor shall be liable up to the amount of such insurance proceeds (net any deductible and premiums paid with respect thereto).
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Article 16 Confidentiality.
Section 16.1 Obligations. Each Party shall use commercially reasonable efforts to retain the Counterpartys Confidential Information in confidence and not disclose the same to any third party nor use the same, except as authorized by the disclosing Party in writing or as expressly permitted in this Section 16.1. Each Party further agrees to take the same care with the Counterpartys Confidential Information as it does with its own, but in no event less than a reasonable degree of care.
Section 16.2 Required Disclosure. Notwithstanding Section 16.1 above, if the receiving Party becomes legally compelled to disclose the Confidential Information by a court, Governmental Authority or Applicable Law, including the rules and regulations of the Securities and Exchange Commission, or is required to disclose pursuant to the rules and regulations of any national securities exchange upon which the receiving Party or its parent entity is listed, any of the disclosing Partys Confidential Information, the receiving Party shall promptly advise the disclosing Party of such requirement to disclose Confidential Information as soon as the receiving Party becomes aware that such a requirement to disclose might become effective, in order that, where possible, the disclosing Party may seek a protective order or such other remedy as the disclosing Party may consider appropriate in the circumstances. The receiving Party shall disclose only that portion of the disclosing Partys Confidential Information that it is required to disclose and shall reasonably cooperate with the disclosing Party (at the disclosing Partys cost) in allowing the disclosing Party to obtain such protective order or other relief.
Section 16.3 Return and Destruction of Information. Upon written request by the disclosing Party, all of the disclosing Partys Confidential Information in whatever form shall be returned to the disclosing Party upon termination of this Agreement or destroyed with destruction certified by the receiving Party, without the receiving Party retaining copies thereof except that one copy of all such Confidential Information may be retained by a Partys legal department solely to the extent that such Party is required to keep a copy of such Confidential Information pursuant to Applicable Law, and the receiving Party shall be entitled to retain any Confidential Information in the electronic form or stored on automatic computer back-up archiving systems during the period such backup or archived materials are retained under such Partys customary procedures and policies; provided, however, that notwithstanding any termination or expiration of this Agreement, any Confidential Information retained by the receiving Party shall be maintained subject to confidentiality pursuant to the terms of this Section 16.3, and such archived or back-up Confidential Information shall not be accessed except as required by Applicable Law for so long as such Confidential Information is retained.
Section 16.4 Receiving Party Personnel. The receiving Party shall limit access to the Confidential Information of the disclosing Party to those of its employees, attorneys and contractors that have a need to know such information in order for the receiving Party to exercise or perform its rights and obligations under this Agreement (the Receiving Party Personnel). The Receiving Party Personnel who have access to any Confidential Information of the disclosing Party shall be made aware of the confidentiality provision of this Agreement, and shall be required to abide by the terms thereof. Any third-party contractors that are given access to Confidential Information of a disclosing Party pursuant to the terms hereof shall be required to sign a written agreement pursuant to which such Receiving Party Personnel agree to be bound by the provisions of this Agreement, which written agreement shall expressly state that it is enforceable against such Receiving Party Personnel by the disclosing Party.
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Section 16.5 Survival. All audit rights under Article 7 and the obligation of confidentiality under this Article 16 shall survive the termination of this Agreement for a period of two (2) years.
Article 17 Choice of Law.
This Agreement shall be subject to and governed by the laws of the State of Delaware, excluding any conflicts-of-law rule or principle that might refer the construction or interpretation of this Agreement to the laws of another state. Subject to Article 22, the Parties agree to the venue and jurisdiction of the federal or state courts located in the State of Delaware for the adjudication of all disputes arising out of this Agreement.
Article 18 Assignment.
Section 18.1 Succession and Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties named herein. No Party shall have the right to assign its rights or obligations under this Agreement without the prior written consent of the other Parties hereto; provided, however, that the Operator may make a collateral assignment of this Agreement solely to secure financing for the Operator and its subsidiaries; provided, however, the Company may subcontract any of the Company Services, Personnel Duties or Ancillary Company Services provided by the Company hereunder so long as such Company Services, Personnel Duties or Ancillary Company Services continue to be provided in a manner consistent with past practices and Prudent Industry Practice.
Section 18.2 Terms of Assignment. Any assignment that is not undertaken in accordance with the provisions set forth above shall be null and void ab initio. A Party making any assignment shall promptly notify the other Party of such assignment, regardless of whether consent is required. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
Article 19 Notices.
All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed to have been duly given: (a) if by transmission by facsimile or hand delivery, when delivered; (b) if mailed via the official governmental mail system, five (5) Business Days after mailing, provided said notice is sent first class, postage pre-paid, via certified or registered mail, with a return receipt requested; (c) if mailed by an internationally recognized overnight express mail service such as Federal Express or UPS, one (1) Business Day after deposit therewith prepaid; or (d) if by email, one (1) Business Day after delivery with receipt confirmed. All notices shall be addressed to the Parties at the respective addresses as follows:
If to the Company Parties:
PBF Holding Company LLC
One Sylvan Way, Second Floor
Parsippany, NJ 07054
Attn: Matthew Lucey, President
Telecopy No: (973) 455-7500
Email: matthew.lucey@pbfenergy.com
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with a copy, which shall not constitute notice, to:
PBF Energy Company LLC
One Sylvan Way, Second Floor
Parsippany, NJ 07054
Attn: Jeffrey Dill, General Counsel
Telecopy No: (973) 455-7500
Email: jeffrey.dill@pbfenergy.com
If to the Operator Parties:
PBF Logistics LP
c/o PBF Logistics GP LLC
222 Lakeview Avenue, Suite 1510
W. Palm Beach, FL 33401
Attn: Todd OMalley, President
Telecopy No: (561) 899-4335
Email: todd.omalley@pbflogistics.com
with a copy, which shall not constitute notice, to:
PBF Logistics GP LLC
One Sylvan Way, Second Floor
Parsippany, NJ 07054
Attn: Jim Fedena, Senior Vice President
Telecopy No: (973) 455-7500
Email: jim.fedena@pbfenergy.com
or to such other address or to such other person as either Party shall have last designated by notice to the other Party.
Article 20 No Waiver; Cumulative Remedies.
Section 20.1 No Waivers. The failure of a Party hereunder to assert a right or enforce an obligation of the other Party shall not be deemed a waiver of such right or obligation. The waiver by any Party of a breach of any provision of, or Event of Default under, this Agreement shall not operate or be construed as a waiver of any other breach of that provision or as a waiver of any breach of another provision of, Event of Default or potential Event of Default under, this Agreement, whether of a like kind or different nature.
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Section 20.2 Cumulative Remedies. Each and every right granted to the Parties under this Agreement or allowed it by law or equity, shall be cumulative and may be exercised from time to time in accordance with the terms thereof and Applicable Law.
Article 21 Nature of Transaction, Relationship of Parties and Regulatory Status.
Section 21.1 Independent Contractor. This Agreement shall not be construed as creating a partnership, association or joint venture among the Parties. It is understood that with respect to the services to be performed hereunder (a) the Operator Parties are an independent contractor with complete charge of its employees and agents in the performance of its duties hereunder, and nothing herein shall be construed to make the Operator Parties, or any employee or agent of the Operator Parties, an agent or employee of the Company Parties, and (b) the Company Parties are an independent contractor with complete charge of its employees and agents in the performance of its duties hereunder, and nothing herein shall be construed to make the Company Parties, or any employee or agent of the Company Parties, an agent or employee of the Operator Parties.
Section 21.2 No Agency. No Party shall have the right or authority to negotiate, conclude or execute any contract or legal document with any third person in the name of other Party; to assume, create, or incur any liability of any kind, express or implied, against or in the name of any of the other Party; or to otherwise act as the representative of the other Party, unless expressly authorized in writing by the other Party.
Section 21.3 Regulatory Status. It is understood and agreed that neither Party is a utility and is not holding itself out to the other Party, to any entity or to the public at large to provide any utility service, and that by entering into this Agreement and taking the actions it takes pursuant to this Agreement shall not make it a utility or constitute providing utility service. Each Party agrees that it shall not propose, advocate, support or claim in any manner that any Service or Ancillary Service provided hereunder is a utility service or should be regulated in any manner. In the event that any government agency issues a decision, order or finding in any form that any Service provided herein is a utility service or is subject to regulation, the Service or Ancillary Service in question shall immediately terminate, and the Parties agree to work with each other and any public utility commission to provide transition services.
Article 22 Dispute Resolution.
Section 22.1 Procedure. In the event a dispute arises between the Company Parties and the Operator Parties regarding the application or interpretation of any provision of this Agreement, the Parties agree to use the procedures in this Article 22 to resolve any such disputes. Notwithstanding anything to the contrary contained herein, either Party may seek a restraining order, temporary injunction, or other provisional judicial relief if the Party in its sole judgment believes that such action is necessary to avoid irreparable injury or to preserve the status quo. The Parties will continue to participate in good faith in the procedures in this Article 22 despite any request for provisional relief.
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Section 22.2 Initial Resolution Attempts. Either Party may initiate the dispute resolution procedures by sending written notice to the Counterparty specifically stating the complaining Partys claim and requesting dispute resolution in accordance with this Article 22. The applicable statute of limitations shall be tolled as of the date of such written notice. No Event of Default shall occur if the subject matter underlying such potential Event of Default is the subject matter of any dispute that is pending resolution or arbitration under this Article 22 until such time that such dispute is resolved in accordance with this Article 22.
(a) Within fourteen (14) days after the complaining Party delivers the complaint, the Services Council shall hold a meeting to resolve the dispute.
(b) If the matter has not been resolved by the Services Council within thirty (30) days of notice being delivered in accordance with Section 22.2(a), unless the Services Council agrees to a longer period of time, the dispute shall become an Arbitrable Dispute and become subject to Section 22.3.
Section 22.3 Arbitration. Any and all Arbitrable Disputes (except to the extent injunctive relief is sought) shall be resolved through the use of binding arbitration using, in the case of an Arbitrable Dispute involving a dispute of an amount equal to or greater than $1,000,000 or non-monetary relief, three arbitrators, and in the case of an Arbitrable Dispute involving a dispute of an amount less than $1,000,000, one arbitrator, in each case in accordance with the Commercial Arbitration Rules of the American Arbitration Association, as supplemented to the extent necessary to determine any procedural appeal questions by the Federal Arbitration Act (Title 9 of the United States Code). If there is any inconsistency between this Article 22 and the Commercial Arbitration Rules or the Federal Arbitration Act, the terms of this Article 22 shall control the rights and obligations of the Parties. Arbitration must be initiated within the time limits set forth in this Agreement, or if no such limits apply, then within a reasonable time or the time period allowed by the applicable statute of limitations. Arbitration may be initiated by a Party (Claimant) serving written notice on the other Party (Respondent) that Claimant elects to refer the Arbitrable Dispute to binding arbitration. Claimants notice initiating binding arbitration must identify the arbitrator Claimant has appointed. Respondent shall respond to Claimant within thirty (30) days after receipt of Claimants notice, identifying the arbitrator Respondent has appointed. If Respondent fails for any reason to name an arbitrator within the 30-day period, Claimant shall petition the American Arbitration Association for appointment of an arbitrator for Respondents account. The two arbitrators so chosen shall select a third arbitrator within thirty (30) days after the second arbitrator has been appointed, and, in the of an Arbitrable Dispute involving a dispute of an amount less than $1,000,000, such third arbitrator shall act as the sole arbitrator, and the sole role of the first two arbitrators shall be to appoint such third arbitrator. Claimant shall pay the compensation and expenses of the arbitrator named by or for it, and Respondent shall pay the compensation and expenses of the arbitrator named by or for it. The costs of petitioning for the appointment of an arbitrator, if any, shall be paid by Respondent. Claimant and Respondent shall each pay one-half of the compensation and expenses of the third arbitrator. All arbitrators must (a) be neutral parties who have never been officers, directors or employees of the Operator, the Company or any of their Affiliates and (b) have not less than seven (7) years experience in the energy industry. The hearing shall be conducted in the State of Delaware or the Philadelphia Metropolitan area and commence within thirty (30) days after the selection of the third arbitrator. The Company, the Operator and the arbitrators shall proceed diligently and in good faith in order that the award may be made as promptly as possible. Except as provided in the Federal Arbitration Act, the decision of the arbitrators shall be binding on and
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non-appealable by the Parties hereto. The arbitrators shall have no right to grant or award Special Damages. Notwithstanding anything herein the contrary, the Company may not dispute any amounts with respect to an invoice delivered in accordance with Article 5 that the Company has not objected to within one hundred twenty (120) days of receipt thereof.
Article 23 General.
Section 23.1 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be valid and effective under Applicable Law, but if any provision of this Agreement or the application of any such provision to any person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and the Parties shall negotiate in good faith with a view to substitute for such provision a suitable and equitable solution in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
Section 23.2 Entire Agreement. This Agreement and the Omnibus Agreement together constitute the entire agreement among the Parties pertaining to the subject matter hereof and supersede all prior agreements and understandings of the Parties in connection therewith. No promise, representation or inducement has been made by any of the Parties concerning the subject matter of this Agreement and none of the Parties shall be bound by or liable for any alleged representation, promise or inducement not so set forth.
Section 23.3 Time is of the Essence. Time is of the essence with respect to all aspects of each Partys performance of any obligations under this Agreement.
Section 23.4 No Third-Party Beneficiaries. It is expressly understood that the provisions of this Agreement do not impart enforceable rights in anyone who is not a Party or successor or permitted assignee of a Party.
Section 23.5 Further Assurances. In connection with this Agreement and all transactions contemplated by this Agreement, each signatory Party hereto agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions and conditions of this Agreement and all such transactions.
Section 23.6 Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or portable document format (pdf)) for the convenience of the Parties hereto, each of which counterparts will be deemed an original, but all of which counterparts together will constitute one and the same agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each Party hereto as caused this Agreement to be as of the date first above written.
COMPANY: | ||
PBF HOLDING COMPANY LLC | ||
By: | /s/ Jeffrey Dill | |
Name: | Jeffrey Dill | |
Title: | Secretary |
DELAWARE CITY REFINING: | ||
DELAWARE CITY REFINING COMPANY LLC | ||
By: | /s/ Jeffrey Dill | |
Name: | Jeffrey Dill | |
Title: | Secretary |
TOLEDO REFINING: | ||
TOLEDO REFINING COMPANY LLC | ||
By: | /s/ Jeffrey Dill | |
Name: | Jeffrey Dill | |
Title: | Secretary |
SIGNATURE PAGE TO THE THIRD AMENDED AND RESTATED
OPERATION AND MANAGEMENT SERVICES AND SECONDMENT AGREEMENT
GENERAL PARTNER: | ||
PBF LOGISTICS GP LLC | ||
By: | /s/ James Fedena | |
Name: | James Fedena | |
Title: | Senior Vice President |
OPERATOR: | ||
PBF LOGISTICS LP By: PBF LOGISTICS GP LLC, its general partner | ||
By: | /s/ James Fedena | |
Name: | James Fedena | |
Title: | Senior Vice President |
OPERATOR SUBSIDIARIES: | ||
DELAWARE CITY TERMINALING COMPANY LLC | ||
By: | /s/ James Fedena | |
Name: | James Fedena | |
Title: | Senior Vice President |
TOLEDO TERMINALING COMPANY LLC | ||
By: | /s/ James Fedena | |
Name: | James Fedena | |
Title: | Senior Vice President |
SIGNATURE PAGE TO THE THIRD AMENDED AND RESTATED
OPERATION AND MANAGEMENT SERVICES AND SECONDMENT AGREEMENT
DELAWARE PIPELINE COMPANY LLC | ||
By: | /s/ James Fedena | |
Name: | James Fedena | |
Title: | Senior Vice President |
DELAWARE CITY LOGISTICS COMPANY LLC | ||
BY: | /s/ James Fedena | |
NAME: | James Fedena | |
TITLE: | Senior Vice President |
SIGNATURE PAGE TO THE THIRD AMENDED AND RESTATED
OPERATION AND MANAGEMENT SERVICES AND SECONDMENT AGREEMENT
Exhibit A
Stormwater discharge and wastewater treatment
Delaware City Refinery
West Ladder Rack
Delaware Products Rack
| Sewer collection sumps in the area of the West Ladder Rack and the connecting piping to the Refinery waste water treatment plant |
Delaware Products Rack
| Sewer collection sumps in the area of the Delaware Products Rack and the connecting piping to the Refinery waste water treatment plant |
Delaware Products Pipeline
| Valved connection from the Delaware Products Pipeline storm sewer catch basin to the Refinery landfill area. |
| Treatment at the Refinery Waste Water Treatment Plant or Offtest oil system for oil accumulated and removed form the Delaware Products Pipeline storm water catch basin or product collection sumps. |
Toledo Refinery
| Sewer line and piping to transport wastewater from sewer manhole #2004, located at Tank Farm #2 to Veolia for treatment |
| Operating agreement with Veolia for on-site treatment of wastewater |
Exhibit B
Steam
Delaware City Refinery
West Ladder Rack
| 175 psig steam piping delivery system at 75,000 lbs/hr from the natural gas fired package boiler |
| Natural gas piping system to the package boiler |
Delaware Products Rack
| 175 psig steam piping delivery system from the refinery steam system |
Delaware Products Pipeline
| 175 psig steam piping delivery system from the refinery steam system to the Pipeline Booster Station |
Exhibit C
Potable Water
Delaware City Refinery
Delaware Products Rack
| Water supply contract with United Water (for bathroom use, not potable) |
| Potable water supply from the Refinery water system |
Toledo Refinery
| Potable water supply and firewater make up to #2 Tank Farm |
Exhibit D
Roads and Grounds
Delaware City Refinery
| Access roads and associated grounds through the refinery property to the West Ladder Rack property, Delaware Products Rack and Delaware Products Pipeline |
Exhibit E
Sanitary Sewer
| Not applicable |
Exhibit F
Electrical Power
Delaware City Refinery
| One boiler and one turbo generator of the refinery electric power generation unit. |
| LoopElectrical distribution system from the Boiler House, through switchgear 2 and feeder 66 |
| WLRElectrical distribution system from the Boiler House, through switchgears 14 and 15, feeders 70 and 71 and switchgear 450 |
Delaware Products Pipeline
| Electrical distribution system from the Boiler House, through switchgears 7 & 10, feeders 44 & 45, sub-station 401, 2400v MCA 401-C and 401-D, to the Booster Pump Station pump motors |
| Electrical distribution system from the Boiler House, through switchgears 7 & 10, feeders 40/41, sub-station 402, 480v MCC 402-A, to the Booster Pump Station MOVs. |
Toledo Refinery
| Electrical power supply from Toledo Edison |
| Electrical distribution system through substation 2, located on refinery property to substation 8, located on Tank Farm #2 property |
Exhibit G
Emergency Response
Delaware City Refinery
| Mutual Aid responders and equipment which would be needed in the event of a spill, fire, medical or other emergency, including ambulance, foam and pumper truck, foam supply |
Toledo Refinery
| Mutual Aid responders and equipment which would be needed in the event of a spill, fire, medical or other emergency, including ambulance, foam and pumper truck, foam supply |
Exhibit H
Filter Press
| Not applicable |
Exhibit I
Fuel Gas
| Not applicable |
Exhibit J
API Solids
| Not applicable |
Exhibit K
Fire Water
Delaware City Refinery
| Raw water supply from United Water |
| Fire water supply from the refinery firewater pumps and system piping |
Toledo Refinery
| Fire water supply and connected refinery pumps P-1916, P-1917, P-1918 and P-1919 |
Exhibit L
Instrument/Compressed Air
Delaware City Refinery
| Single instrument air compressor rated at 350scfm at 85psig and associated piping delivery system to the West Ladder Rack and Delaware Products Rack |
Exhibit M
Rail Operations and Unloading
Delaware City Refinery
| Railcar switching services to move railcars to and from the loop track, as needed and unloading crude from railcars |
| West Ladder Rack |
| Railcar switching services to move railcars to and from the West Ladder Rack, as needed, and unloading crude from railcars |
Toledo Refinery
| Maintenance and operational assistance to track crude unloading |
Exhibit N
Vent System
Delaware City Refinery
West Ladder Rack
| Piping and compressor associated with the refinery lowline vent system |
Delaware Products Rack
| Piping and compressor associated with the refinery lowline vent system from the loading arms |
Exhibit O
Diesel
Delaware City Refinery
West Ladder Track
| The supply and delivery of diesel fuel for the use in locomotive engines supplied by the refinery through third party contract arrangement |
Exhibit P
Nitrogen
Delaware City Refinery
West Ladder Rack
| The supply and delivery of nitrogen by the refinery through third party contract arrangements |
Exhibit Q
Natural Gas
Toledo Refinery
| Natural gas supply to the operator building located on Tank Farm #2 property |
Exhibit R
Propane
Delaware City Refinery
| Piping system from refinery propane storage tanks to the Delaware Products Rack Vapor Combustion Unit |
Exhibit 10.3
DELAWARE PIPELINE SERVICES AGREEMENT
TABLE OF CONTENTS
Article 1 |
Definitions and Construction | 1 | ||||
Article 2 |
Term | 9 | ||||
Article 3 |
Shipping Rights | 10 | ||||
Article 4 |
Minimum Throughput Commitments; Throughput Fees | 10 | ||||
Article 5 |
Custody, Title and Risk of Loss | 13 | ||||
Article 6 |
Specification and Contamination | 13 | ||||
Article 7 |
Condition and Maintenance of the Pipeline | 14 | ||||
Article 8 |
Inspection, Access and Audit Rights | 15 | ||||
Article 9 |
Scheduling | 16 | ||||
Article 10 |
Intentionally Omitted | 16 | ||||
Article 11 |
Additional Covenants | 16 | ||||
Article 12 |
Representations | 18 | ||||
Article 13 |
Insurance | 19 | ||||
Article 14 |
Force Majeure, Damage or Destruction | 19 | ||||
Article 15 |
Suspension of Refinery Operations | 20 | ||||
Article 16 |
Right of First Refusal | 21 | ||||
Article 17 |
Shutdown or Idling of Refinery | 24 | ||||
Article 18 |
Event of Default: Remedies Upon Event of Default | 26 | ||||
Article 19 |
Indemnification | 27 | ||||
Article 20 |
Limitation on Damages | 28 | ||||
Article 21 |
Confidentiality | 29 | ||||
Article 22 |
Choice of Law | 30 | ||||
Article 23 |
Assignment | 30 | ||||
Article 24 |
Notices | 31 | ||||
Article 25 |
No Waiver; Cumulative Remedies | 32 | ||||
Article 26 |
Nature of Transaction and Relationship of Parties | 33 | ||||
Article 27 |
Arbitration Provision | 33 | ||||
Article 28 |
General | 34 |
i
Exhibit A | Product and Product Quality | |
Exhibit B | Designated Refinery Assets |
ii
DELAWARE PIPELINE SERVICES AGREEMENT
This Delaware Pipeline Services Agreement (this Agreement) is made and entered into as of the Commencement Date, by and between PBF Holding Company LLC, a Delaware limited liability company (the Company), and Delaware Pipeline Company LLC, a Delaware limited liability company (the Operator) (each referred to individually as a Party or collectively as the Parties).
WHEREAS, the Operator owns and operates a petroleum products pipeline originating in Delaware City, Delaware (as described on Exhibit D to the Contribution Agreement (as defined below), and together with existing or future modifications or additions thereto, the Pipeline);
WHEREAS, the Parties are entering into this Agreement to provide for the rights and obligations of the Parties with respect to the Pipeline; and
WHEREAS, the Parties desire to record the terms and conditions upon which the Operator shall provide pipeline services to the Company for the Pipeline on a non-exclusive basis and the Operator shall serve as operator of the Pipeline and bailee of all Product in the custody of the Operator and owned or held by the Company or any of the Company Designees.
NOW, THEREFORE, in consideration of the premises and the respective promises, conditions, terms and agreements contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties do hereby agree as follows:
Article 1 Definitions and Construction.
Section 1.1 Definitions. For purposes of this Agreement, including the foregoing recitals, the following terms shall have the meanings indicated below:
Acquisition Proposal has the meaning specified in Section 16.3(a).
Affiliate means, with respect to a specified Person, any other Person controlling, controlled by or under common control with that first Person. As used in this definition, the term control includes (a) with respect to any Person having voting securities or the equivalent and elected directors, managers or Persons performing similar functions, the ownership of or power to vote, directly or indirectly, voting securities or the equivalent representing 50% or more of the power to vote in the election of directors, managers or Persons performing similar functions, (b) ownership of 50% or more of the equity or equivalent interest in any Person and (c) the ability to direct the business and affairs of any Person by acting as a general partner, manager or otherwise. Notwithstanding the foregoing, for purposes of this Agreement, the Company and its subsidiaries (other than PBF Logistics LP and its subsidiaries), on the one hand, and PBF Logistics LP and its subsidiaries (including the Operator), on the other hand, shall not be considered Affiliates of each other.
Agreement has the meaning specified in the preamble to this document.
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Applicable Law means any applicable statute, law, regulation, Environmental Law, ordinance, rule, judgment, rule of law, order, decree, permit, approval, concession, grant, franchise, license, agreement, requirement, tariff, or other governmental restriction or any similar form of decision of, or any provision or condition of any permit, license or other operating authorization issued under any of the foregoing by, or any determination by, any Governmental Authority having or asserting jurisdiction over the matter or matters in question, whether now or hereafter in effect and in each case as amended (including all of the terms and provisions of the applicable common law of such Governmental Authority), as interpreted and enforced at the time in question.
Arbitrable Dispute means any and all disputes, controversies and other matters in question between the Operator, on the one hand, and the Company, on the other hand, arising under or in connection with this Agreement.
Actual Shipment means the volume of Product that is delivered on the Pipeline under this Agreement.
Barrel means forty-two (42) net U.S. gallons, measured at 60° F and 1 atmospheric pressure.
bpd means barrels per day.
Business Day means any day that is not a Saturday, Sunday, or other day on which banks are authorized or required to close in the State of New York, State of New Jersey or the State of Delaware.
Capital Improvement means (a) any modification, improvement, expansion or increase in the capacity of the Pipeline, or (b) any connection, or new point of receipt or delivery of Product, including any terminal, lateral pipeline or extension of the Pipeline.
Change of Control means PBF Energy Company LLC or any of its majority owned direct or indirect subsidiaries ceases to control the general partner of PBF Logistics LP.
Claimant has the meaning specified in Article 27.
Commencement Date means May 15, 2015.
Company has the meaning specified in the preamble to this Agreement.
Company Designee means, collectively, each Person designated by the Company, including any Person acting as an intermediator of all or any portion of the Product or any third party.
Company Indemnitees has the meaning specified in Section 19.1.
Company Inspectors has the meaning specified in Section 8.1.
Companys Share means a number, expressed as a percentage, equal to the quotient of (a) the greater of (i) the total Barrels throughput by the Company and any Company Designee on the Pipeline, in the aggregate, during the sixth-month period preceding the date of determination or (ii) the Minimum Throughput Commitment during such period, and (b) the total Barrels throughput by all Persons on the Pipeline during such period.
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Confidential Information means all information, documents, records and data (including this Agreement, except to the extent required to be made public in a filing with the Securities and Exchange Commission or another Governmental Authority or pursuant to the rules and regulations of any national securities exchange) that a Party furnishes or otherwise discloses to the other Party (including any such items furnished prior to the execution of this Agreement), together with all analyses, compilations, studies, memoranda, notes or other documents, records or data (in whatever form maintained, whether documentary, computer or other electronic storage or otherwise) prepared by the receiving Party which contain or otherwise reflect or are generated from such information, documents, records and data; provided, however, that the term Confidential Information does not include any information that (a) at the time of disclosure or thereafter is or becomes generally available to or known by the public (other than as a result of a disclosure by the receiving Party), (b) is developed by the receiving Party without reliance on any Confidential Information or (c) is or was available to the receiving Party on a nonconfidential basis from a source other than the disclosing Party that, insofar as is known to the receiving Party after reasonable inquiry, is not prohibited from transmitting the information to the recipient by a contractual, legal or fiduciary obligation to the disclosing Party.
Contract Quarter means a three-month period that commences on January 1, April 1, July 1 or October 1, and ends on March 31, June 30, September 30 or December 31, respectively.
Contract Year means a year that commences on January 1 and ends on December 31st of such year, except that the initial Contract Year shall commence on the Commencement Date and the final Contract Year shall end on the last day of the Term.
Contribution Agreement means the Contribution Agreement, dated May 5, 2015, by and between PBF Energy Company LLC and PBF Logistics LP.
control (including with correlative meaning, the term controlled by) means, as used with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
Defaulting Party has the meaning specified in Section 18.2.
Designated Refinery Assets has the meaning specified in Section 17.1.
Disposition Notice has the meaning specified in Section 16.3(a).
Environmental Law means all federal, state, and local laws, statutes, rules, regulations, orders, judgments, ordinances, codes, injunctions, decrees, Environmental Permits and other legally enforceable requirements and rules of common law now or hereafter in effect, relating to pollution or protection of human health and the environment, safety, and occupational health, including the federal Comprehensive Environmental Response, Compensation, and Liability Act, the Superfund Amendments Reauthorization Act, the Resource Conservation and Recovery Act, the Clean Air Act, the Federal Water Pollution Control Act, the Toxic Substances Control Act, the Oil Pollution Act, the Clean Water Act, the Safe Drinking Water Act, the Hazardous Materials Transportation Act, OSHA, and other similar federal, state or local health and safety, and environmental conservation and protection laws, each as amended from time to time.
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Environmental Permit means any permit, approval, identification number, license, registration, consent, exemption, variance or other authorization required under or issued pursuant to any applicable Environmental Law.
EPT means the prevailing time in the Eastern time zone.
Event of Default has the meaning specified in Section 18.1.
First ROFR Acceptance Deadline has the meaning specified in Section 16.3(a).
Force Majeure means acts of God, strikes, lockouts or other industrial disturbances, acts of a public enemy, wars, terrorism, blockades, insurrections, riots, storms, floods, interruptions in the ability to have safe passage in navigable waterways or rail lines, washouts, other interruptions caused by acts of nature or the environment, arrests, the order of any court or Governmental Authority claiming or having jurisdiction while the same is in force and effect, civil disturbances, explosions, fires, leaks, releases, breakage, accident to machinery, vessels, storage tanks or lines of pipe or rail lines, inability to obtain or unavoidable delay in obtaining material or equipment, inability to obtain or distribute Products, feedstocks, other products or materials necessary for operation because of a failure of third-party pipelines or rail lines or any other causes whether of the kind herein enumerated or otherwise not reasonably within the control of the Party claiming suspension and which by the exercise of commercially reasonable efforts such Party is unable to prevent or overcome; provided, however, a Partys inability to perform its economic obligations hereunder shall not constitute an event of Force Majeure.
Force Majeure Notice has the meaning specified in Section 14.1.
Force Majeure Party has the meaning specified in Section 14.1.
Force Majeure Period has the meaning specified in Section 14.1.
Governmental Authority means any federal, state, local or foreign government or any provincial, departmental or other political subdivision thereof, or any entity, body or authority exercising executive, legislative, judicial, regulatory, administrative or other governmental functions or any court, department, commission, board, bureau, agency, instrumentality or administrative body of any of the foregoing.
Hart-Scott-Rodino Act means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.
Initial Term has the meaning specified in Section 2.1.
Liabilities means any losses, liabilities, charges, damages, deficiencies, assessments, interests, fines, penalties, costs and expenses (collectively, Costs) of any kind (including reasonable attorneys fees and other fees, court costs and other disbursements), including any Costs directly or indirectly arising out of or related to any suit, proceeding, judgment, settlement, cause of action, equitable or injunctive relief, or judicial or administrative order and any Costs arising from compliance or non-compliance with Environmental Law.
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Minimum Throughput Capacity means, with respect to each Contract Quarter, an aggregate amount of throughput capacity equal to 50,000bpd of Product, multiplied by the number of calendar days in such Contract Quarter.
Minimum Throughput Commitment means, with respect to each Contract Quarter, an aggregate amount of Product received on the Pipeline equal to at least 50,000bpd of Product, multiplied by the number of calendar days in such Contract Quarter.
Nomination Procedure has the meaning specified in Exhibit C.
Non-Defaulting Party means the Party other than the Defaulting Party.
Notice Period has the meaning specified in Section 15.1.
Off-Specification Product means Product that fails to meet the specifications set forth in Exhibit A.
Offer Price has the meaning specified in Section 16.3(a).
Omnibus Agreement means that Third Amended and Restated Omnibus Agreement, dated as of May 15, 2015, by and among the Company, PBF Energy Company LLC, PBF Logistics GP LLC, and PBF Logistics LP., as amended and restated as of the date hereof and as further amended or amended and restated from time to time.
Operation and Management Services and Secondment Agreement means that Third Amended and Restated Operation and Management Services and Secondment Agreement dated May 15, 2015, by and among the Company, Delaware City Refining Company LLC, Toledo Refining Company LLC, PBF Logistics GP LLC, PBF Logistics LP, Delaware City Terminaling Company LLC, Toledo Terminaling Company LLC, Delaware Logistics Company LLC, and the Operator as amended and restated as of the date hereof and as further amended or amended and restated from time to time.
Operator has the meaning specified in the preamble to this Agreement.
Operator Indemnitees has the meaning specified in Section 19.2.
OSHA means Occupational Safety and Health Act of 1970, 29 U.S.C. Section 651 et seq.
Party or Parties has the meaning specified in the preamble to this Agreement.
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Permitted Lien means (a) liens for real estate taxes, assessments, sewer and water charges or other governmental charges and levies not yet delinquent; (b) liens for taxes, assessments, judgments, governmental charges or levies, or claims not yet delinquent or the non-payment of which is being diligently contested in good faith by appropriate proceedings and for which adequate reserves have been set aside; (c) liens of mechanics, laborers, suppliers, workers and materialmen incurred in the ordinary course of business for sums not yet due or being diligently contested in good faith; and (d) liens incurred in the ordinary course of business in connection with workers compensation and unemployment insurance or other types of social security benefits.
Permanent Refinery Shutdown has the meaning specified in Section 17.1(a).
Person means any individual, corporation, partnership, limited partnership, limited liability company, joint venture, trust or unincorporated organization, joint stock company or any other private entity or organization, Governmental Authority, court or any other legal entity, whether acting in an individual, fiduciary or other capacity.
Pipeline means the interstate petroleum products 16 pipeline which is 23.4 miles in length that commences at the pipeline inlet meter adjacent to the Refinery in Delaware and terminates at the Twin Oaks connection to the Sunoco Logistics pipeline in Pennsylvania, and as further described in the Contribution Agreement.
Pipeline Maintenance has the meaning specified in Section 7.2(a).
Prime Rate means the rate of interest quoted in The Wall Street Journal, Bonds, Rates & Yields Section as the Prime Rate.
Product means any of the products listed, and meeting the specifications set forth, in Exhibit A, as from time to time amended by mutual agreement of the Parties.
Product Linefill means, at any time and for any grade of Product, the aggregate volume of linefill of that Product on the Pipeline for which the Company, a Company Designee or their assignees are treated as the exclusive owner by the Pipeline; provided that such volume shall be determined by using the volumes reported on the most recent monthly or daily statements, as applicable, from the Pipeline.
Proposed Transferee has the meaning specified in Section 16.3(a).
Prudent Industry Practice means, as of the relevant time, those methods and acts generally engaged in or applied by the refining, pipeline or terminaling industries (as applicable) in the United States that, in the exercise of reasonable judgment in light of the circumstances known at the time of performance, would have been expected to accomplish the desired result at a reasonable cost consistent with functionality, reliability, safety and expedition with due regard for health, safety, security and environmental considerations. Prudent Industry Practice is not intended to be limited to the optimum practices, methods or acts to the exclusion of others, but rather is intended to include reasonably acceptable practices, methods and acts generally engaged in or applied by the refining, pipeline or terminaling industries (as applicable) in the United States.
Receiving Party Personnel has the meaning specified in Section 21.4.
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Refinery means the petroleum refinery located in Delaware City, Delaware owned and operated by the Companys Affiliates.
Refinery Asset Option Notice has the meaning specified in Section 17.1(b).
Refinery Asset Option Period has the meaning specified in Section 17.1(f).
Refinery Asset Purchase Option has the meaning specified in Section 17.1(b).
Renewal Term has the meaning specified in Section 2.1.
Required Permits has the meaning specified in Section 11.1.
Respondent has the meaning specified in Article 27.
Restoration has the meaning specified in Section 7.2(b).
ROFR Acceptance Deadlines has the meaning specified in Section 16.3(a).
ROFR Asset means the Pipeline and each asset that comprises the Pipeline and is material to the operation thereof.
ROFR Governmental Approval Deadline has the meaning specified in Section 16.3(c).
ROFR Response has the meaning specified in Section 16.3(a).
Sale Assets has the meaning specified in Section 16.3(a).
Second ROFR Acceptance Deadline has the meaning specified in Section 16.3(a).
Services means shipment on the Pipeline in accordance with the terms, conditions, and procedures set forth in this Agreement and the Tariff.
Shortfall Payment has the meaning specified in Section 4.3.
Special Damages has the meaning specified in Article 20.
Supplier Inspector means any Person selected by the Company to perform any and all inspections required by the Company or the Company Designee in a commercially reasonable manner at the Companys own cost and expense that is acting on behalf of the Company or the Company Designee and that (a) is a Person who performs sampling, quality analysis and quantity determination or similar services of the Product purchased and sold under any agreement between the Company (or its Affiliates) and the Company Designee, (b) is not an Affiliate of any Party and (c) in the reasonable judgment of the Company, is qualified and reputed to perform its services in accordance with Applicable Law and Prudent Industry Practice.
Suspension Notice has the meaning specified in Section 15.1.
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Tariff means the Tariff published by the Operator with respect to the Pipeline prior to the Commencement Date and filed with the Federal Energy Regulatory Commission (FERC), including all current and future supplements to and successive issues thereof.
Term has the meaning specified in Section 2.1.
Termination Notice has the meaning specified in Section 14.2.
Throughput Fee is defined in Section 4.2.
Transfer means to, directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of, whether in one or a series of transactions.
Section 1.2 Construction of Agreement.
(a) Unless otherwise specified, all references herein are to the Articles, Sections and Exhibits of this Agreement and all Exhibits are incorporated herein.
(b) All headings herein are intended solely for convenience of reference and shall not affect the meaning or interpretation of the provisions of this Agreement.
(c) Unless expressly provided otherwise, the word including as used herein does not limit the preceding words or terms and shall be read to be followed by the words without limitation or words having similar import.
(d) Unless expressly provided otherwise, all references to days, weeks, months and quarters mean calendar days, weeks, months and quarters, respectively.
(e) Unless expressly provided otherwise, references herein to consent mean the prior written consent of the Party at issue.
(f) A reference to any Party to this Agreement or another agreement or document includes the Partys permitted successors and assigns.
(g) Unless the contrary clearly appears from the context, for purposes of this Agreement, the singular number includes the plural number and vice versa; and each gender includes the other gender.
(h) Except where specifically stated otherwise, any reference to any Applicable Law or agreement shall be a reference to the same as amended, supplemented or reenacted from time to time.
(i) The words hereof, herein and hereunder and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.
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Section 1.3 No Presumption. The Parties acknowledge that they and their counsel have reviewed and revised this Agreement and that no presumption of contract interpretation or construction shall apply to the advantage or disadvantage of the drafter of this Agreement.
Article 2 Term.
Section 2.1 Term. The initial term of this Agreement (the Initial Term) shall commence at 12:00:01 a.m., EPT, on the Commencement Date and shall continue until 11:59:59 p.m., EPT, on the first December 31 following the tenth (10th) anniversary of the Commencement Date. Thereafter, subject to the last sentence of this paragraph, the Company shall have a unilateral option to extend this Agreement for two additional five (5) year periods on the same terms and conditions set forth herein (each, a Renewal Term). The Initial Term and the Renewal Terms are sometimes referred to collectively herein as the Term. In order to exercise its option to extend this Agreement for a Renewal Term, the Company shall notify the Operator in writing not less than twelve (12) months prior to the expiration of the Initial Term or any Renewal Term, as applicable.
Section 2.2 Termination. The Parties may terminate this Agreement prior to the end of the Term (but are under no obligation to do so) (a) as they may mutually agree in writing, (b) pursuant to a Termination Notice in accordance with Section 14.2, (c) pursuant to a Suspension Notice in accordance with Section 15.1, or (d) pursuant to a default in accordance with Section 18.2.
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Article 3 Shipping Rights.
Subject to the terms and conditions hereof, the Company agrees to take service on the Pipeline in accordance with the terms, conditions and procedures set forth in the Tariff.
Article 4 Minimum Throughput Commitments; Throughput Fees.
Section 4.1 Minimum Throughput Commitments. During each Contract Quarter during the Term and subject to the terms and conditions of this Agreement, the Company agrees that commencing on the Commencement Date, the Company will ship on the Pipeline, the Minimum Throughput Commitment.
Section 4.2 Throughput Fees.
(a) The throughput fee applicable to transportation of Products on the Pipeline (the Throughput Fee) shall be the rate specified in the Tariff, which is $0.5266 per Barrel. Subject to Sections 4.3 and 4.4, the Company shall pay the Operator an amount equal to the Throughput Fee multiplied by the Actual Shipments on the Pipeline.
(b) All fees set forth in this Agreement may be increased or decreased, as applicable, effective on July 1 of each year of the Term, (i) by the change in any inflationary index promulgated by FERC in accordance with FERCs indexing methodology currently set forth at 18 CFR § 342.3, including future amendments or modifications thereof or (ii) in the event that FERC terminates its indexing methodology during the Term of this Agreement, by a percentage equal to the change in the CPI-U (All Urban Consumers), as reported by the U.S. Bureau of Labor Statistics.
(c) During the Term, if new laws or regulations are enacted that require the Operator to make substantial and unanticipated capital expenditures (other than maintenance capital expenditures) with respect to the Pipeline, the Operator may file with FERC to increase its Tariff rates to recover such expenditures. The Operator shall provide notice to the Company of its intention to request such a rate increase. Upon receipt of such notice, the Parties will negotiate in good faith to reach a settlement rate. If the Parties agree to a settlement rate within thirty (30) days, or within such additional time as mutually agreed to by the Parties, the Company shall agree in writing to the proposed rate change and the Operator shall file the rate change with FERC and submit a verified statement to FERC indicating the support of the Company. If the Parties do not agree to a settlement rate, the Operator reserves the right to file a cost-based rate increase with FERC to recover such capital expenditures.
(d) Operator may, from time to time, apply to change its rates pursuant to the FERC ratemaking methodologies pursuant to 18 C.F.R Section 342.
Section 4.3 Shortfall Payments. If, for any Contract Quarter, Actual Shipments for such Contract Quarter on the Pipeline are less than the applicable Minimum Throughput Commitment, then the Company shall pay the Operator an amount (a Shortfall Payment) with respect to the Pipeline equal to the difference between (i) the Minimum Throughput Commitment multiplied by the Throughput Fee and (ii) the aggregate Throughput Fees for such Contract Quarter payable with respect to the Pipeline under Section 4.2. The Parties acknowledge and agree that there shall be no carry-over of deficiency volumes with respect to the applicable Minimum Throughput
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Commitment and the payment of the Shortfall Payment shall relieve the Company of any obligation to meet the Minimum Throughput Commitment for the relevant Contract Quarter. The Parties further acknowledge and agree that there shall not be any carry-over of volumes in excess of the Minimum Throughput Commitment to any subsequent Contract Quarter.
Section 4.4 Invoicing and Timing of Payments. The Operator shall invoice the Company monthly (or in the case of Shortfall Payments, quarterly). The Company will make payments to the Operator on a monthly basis (or in the case of Shortfall Payments, on a quarterly basis) during the Term with respect to services rendered by the Operator under this Agreement in the prior month (or in the case of Shortfall Payments, Contract Quarter) upon the later of (i) ten (10) days after its receipt of such invoice and (ii) thirty (30) days following the end of the calendar month or Contract Quarter, as applicable, during which the invoiced services were performed. Any past due payments owed to the Operator hereunder shall accrue interest, payable on demand, at the Prime Rate from the due date of the payment through the actual date of payment. Payment of any Throughput Fees or Shortfall Payment pursuant to this Section 4.4 shall be made by wire transfer of immediately available funds to an account designated in writing by Operator. If any such fee shall be due and payable on a day that is not a Business Day, such payment shall be due and payable on the next succeeding Business Day.
Section 4.5 Change in Pipelines Direction; Product Service or Origination and Destination; Capital Improvements.
(a) (i) The Operator shall obtain the Companys prior written consent, which shall not be unreasonably withheld, conditioned or delayed, before the Operator shall (A) reverse the direction of the Pipeline; (B) change, alter or modify the product service of the Pipeline; or (C) change, alter or modify the origination or destination of the Pipeline; provided, however, that the Operator may take any necessary emergency action to prevent or remedy a release of Products from the Pipeline without obtaining the consent required by this Section 4.5(a)(i). The Company may request that the Operator reverse the direction of the Pipeline, and the Operator shall determine, in its sole discretion, whether to complete the proposed reversal.
(ii) Should the Operator determine to proceed with a Company proposed reversal, the Operator will notify the Company of the total estimated costs necessary to complete the reversal and the proposed adjustment to the Throughput Fee and the Minimum Throughput Commitment or the Minimum Throughput Capacity required by the Operator to recover such costs. The Operator may file with FERC to increase its Tariff rates to recover such expenditures and if so, the Operator shall provide notice to the Company of their intention to request such a rate increase. Upon receipt of such notice, the Parties will negotiate in good faith to reach a settlement rate. If the Parties agree to a settlement rate within thirty (30) days, or within such additional time as mutually agreed to by the Parties, the Company shall agree in writing to the proposed rate change and the Operator shall file the rate change with FERC and submit a verified statement to FERC indicating the support of the Company. If the Parties do not agree to a settlement rate, the Operator reserves the right to file a cost-based rate increase with FERC to recover such costs or to not proceed with the reversal.
(b) (i) During the term of this Agreement, the Company shall be entitled to designate Capital Improvements to be made to the Pipelines. For any Capital Improvement designated by the Company, the Company shall submit a written proposal, including all specifications then available
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to it, for the proposed Capital Improvement to the Pipeline. The Operator will review such proposal to determine, in its sole discretion, whether it will consent to proceed with the proposed Capital Improvement. In connection with the construction of any Capital Improvement pursuant to this Section 4.5(b), the Company shall be entitled to participate in all stages of planning, scheduling, implementing, and oversight of the construction.
(ii) Should the Operator determine to proceed and construct or cause to be constructed the approved Capital Improvement, the Operator will obtain bids from two or more general contractors reasonably acceptable to the Company for the construction of the Capital Improvement. Based upon the bids, the Operator will notify the Company of the total estimated amount necessary to construct such Capital Improvement (which amount shall include the costs of capital, a reasonable rate of return over the remaining Term and any other costs necessary to place such Capital Improvement in service) and the proposed adjustment to the Throughput Fee and the Minimum Throughput Commitment or the Minimum Throughput Capacity required by the Operator to recover such costs. The Operator may file with FERC to increase its Tariff rates to recover such expenditures. The Operator shall provide notice to the Company of their intention to request such a rate increase. Upon receipt of such notice, the Parties will negotiate in good faith to reach a settlement rate. If the Parties agree to a settlement rate within thirty (30) days, or within such additional time as mutually agreed to by the Parties, the Company shall agree in writing to the proposed rate change and the Operator shall file the rate change with FERC and submit a verified statement to FERC indicating the support of the Company. If the Parties do not agree to a settlement rate, the Operator reserves the right to file a cost-based rate increase with FERC to recover such capital expenditures or to not proceed with the construction of the Capital Improvement.
(iii) Upon completion of the construction of any Capital Improvement, the Operator will own such Capital Improvement, and will operate and maintain the Capital Improvement in accordance with Applicable Law and recognized industry standards.
Section 4.6 Marketing of Transportation to Third Parties. During the Term the Operator may market transportation services to third parties on the Pipeline, provided that, (i) the provision of such transportation services to third parties is not reasonably likely to negatively affect the Companys ability to use the Pipeline in accordance with the terms of this Agreement in any material respect, and (ii) such third-party usage will not reduce the ability of the Operator to provide the applicable Minimum Throughput Capacity or the applicable Minimum Throughput Commitment to the Company. Nothing in this Section 4.6 shall be construed to limit any obligation of the Operator under the Interstate Commerce Act. Notwithstanding the foregoing, to the extent the Company is not using any portion of the Pipeline (the Open Assets ) during a Force Majeure event set forth in Article 14 or the twelve-month Notice Period set forth in Article 15, the Operator may market transportation services to third parties on the Open Assets pursuant to one or more third party agreements without the consent of the Company and the applicable Minimum Throughput Commitment will be proportionately reduced to the extent of such third party usage; provided that such third party agreements shall terminate following the end of the Force Majeure Period or the restoration of Refinery operations, as applicable.
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Article 5 Custody, Title and Risk of Loss.
Section 5.1 Title. Subject to Section 23.2, the Company or the Company Designee shall at all times during the Term retain title to the Products handled or throughput by the Company or the Company Designee at the Pipeline, and such Products shall remain the Companys or the Company Designees exclusive property. The Company hereby represents that, at all times during the Term, the Company or the Company Designee holds exclusive title to the Products throughput or handled by the Company on the Pipeline; provided, however, that each of the Company and the Company Designee may at any time permit liens on the Companys or the Company Designees Products at the Pipeline.
Section 5.2 Compliance with Laws. During the time any Products are held or throughput on the Pipeline, the Operator, in its capacity as operator of the Pipeline shall be solely responsible for compliance with (and the Operator shall comply with) all Applicable Laws pertaining to the receipt, shipment, handling, and delivery of such Products on the Pipeline.
Section 5.3 Volumetric Losses and Gains. Subject to the other provisions in this Agreement, title and risk of loss to all of the Products handled or throughput by the Company or the Company Designee on the Pipeline shall remain at all times with the Company or the Company Designee, as applicable. Unless the Operator experiences a spill or other release of Product while Product is in the Operators custody, all volumetric losses and gains in Product shall be for the Companys or the Company Designees account, as applicable. Operator reserves the right to amend this Agreement to allocate such gains and losses between Operator and all shippers on the Pipeline (including Company) in accordance with industry standards and FERC regulations subject to Companys consent which shall not be unreasonably withheld, delayed or conditioned.
Section 5.4 Custody. During the Term, the Operator shall hold all Products at the Pipeline solely as bailee, and agrees that when any such Products are redelivered to the Company or the Company Designee, the Company or the Company Designee shall have good title thereto (to the extent the Company had good title prior to delivery on the Pipeline) free and clear of any liens, security interests, encumbrances and claims of any kind whatsoever created or caused to be created by the Operator, other than Permitted Liens; provided, however, that notwithstanding anything herein to the contrary the Operator hereby waives, relinquishes and releases any and all liens, including, any and all warehousemans liens, custodians liens, rights of retention or similar rights under all applicable laws, which the Operator would or might otherwise have under or with respect to any Products handled hereunder. During the Term, none of the Operator or any of its Affiliates shall (and the Operator shall not permit any of its Affiliates or any other Person to) use any such Products for any purpose. Solely in its capacity as bailee, the Operator shall have custody of Product throughput under this Agreement from the time the Products pass the inlet flange of the Pipeline from the Refinery until such time that the Products pass the outlet flange of the Pipeline.
Article 6 Specification and Contamination.
Section 6.1 Delivery Specifications. The Company shall not (and shall cause the Company Designee to not) deliver to the Pipeline any Off-Specification Product; provided, however, that in the event Off-Specification Product is delivered by the Company or the Company Designee to the Pipeline, and the Company or the Company Designee instructs, or fails to instruct,
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the Operator to return such Off-Specification Product to the Company or the Company Designee, as applicable, the Operator shall provide the Off-Specification Product to the Company or the Company Designee, as applicable, and the Operator will deliver, and the Company will receive on its or the Company Designees behalf, such Off-Specification Product at the Companys own expense. In the event Off-Specification Product is delivered by the Company or the Company Designee, and in the reasonable opinion of the Operator, the Services are unable to be provided as a result of the Off-Specification Product (whether due to a failure to comply with law, safety considerations or otherwise), the Operator shall notify the Company and the Company shall be responsible for taking possession of such Off-Specification Product without the Services being provided.
Section 6.2 Offloading Specifications. If all Product meets the relevant specifications set forth in Exhibit A when it enters the Pipeline, it is the responsibility of the Operator to ensure that all Products leaving the Pipeline shall meet the same relevant specifications set forth in Exhibit A, and shall not leave the Pipeline with different specifications.
Section 6.3 Contamination. The Operator shall use at least Prudent Industry Practice to ensure that no Products shall be contaminated with scale or other materials, chemicals, water or any other impurities.
Section 6.4 Mechanical Integrity Inspection. The Company acknowledges that the Operator is required to periodically perform mechanical integrity inspection (smart pig run), which creates Off-Specification Product. The Company agrees to provide Product for the inspection and receive the Off-Specification Product at no cost.
Article 7 Condition and Maintenance of the Pipeline.
Section 7.1 Interruption of Service. The Operator shall use commercially reasonable efforts to (i) minimize the interruption of service on the Pipeline and (ii) notwithstanding any such interruption of service, make the Pipeline available to the Minimum Throughput Capacity. The Operator shall inform the Company at least sixty (60) days in advance (or promptly, in the case of an unplanned interruption) of any anticipated partial or complete interruption of service at the Pipeline, including relevant information about the nature, extent, cause and expected duration of the interruption and the actions the Operator is taking to resume full operations; provided, however, that the Operator shall not have any liability for any failure to notify, or delay in notifying, the Company of any such matters except to the extent the Company has been materially damaged by such failure or delay.
Section 7.2 Maintenance and Repair Standards.
(a) Subject to Article 14, during the Term the Operator shall maintain the Pipeline with sufficient aggregate capacity to throughput a volume of Product at least equal to the Minimum Throughput Capacity; provided, however, that the Operators obligations may be temporarily suspended during the occurrence of, and for the entire duration of, routine repair and maintenance consistent with Prudent Industry Practice that prevents the Operator from providing the Minimum Throughput Capacity (Pipeline Maintenance) so long as the Operator has complied with its obligations set forth in Section 7.1. In the event the Pipeline Maintenance is not as a result of Force Majeure, the Parties shall reasonably cooperate with each other so as to reasonably minimize the effect of such Pipeline Maintenance on the ability of Operator to provide the Minimum Throughput Capacity or the Minimum Throughput Commitment.
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(b) To the extent the Company is prevented for seven (7) consecutive or more days in any Contract Quarter from throughputting volumes on the Pipeline equal to at least the Minimum Throughput Commitment for reasons caused by the Operator (or any of its employees, agents or contractors) other than Force Majeure and other than causes due to actions of the Company or the Company Designee (and any of their respective contractors, employees or representatives excluding the Operator and its employees, agents and representatives), then the Minimum Throughput Commitment shall be proportionately reduced to the extent of the difference between the Minimum Throughput Capacity and the amount that the Operator can effectively throughput at the Pipeline (prorated for the portion of the Contract Quarter during which the Minimum Throughput Capacity was unavailable) regardless of whether actual throughput amounts prior to the reduction were below the Minimum Throughput Commitment. At such time as the Operator is capable of throughputting volumes equal to at least the Minimum Throughput Commitment on the Pipeline, the Companys obligation to throughput the full Minimum Throughput Commitment shall be restored as of such time. To the extent the Company is prevented for seven (7) consecutive or more days in any Contract Quarter from throughputting volumes at the Pipeline equal to at least the Minimum Throughput Commitment, other than due to a Force Majeure event, and the throughput at the Pipeline falls below the Minimum Throughput Capacity as described above in this paragraph (b), the Operator shall make all commercially reasonable repairs on the Pipeline to restore the capacity of the Pipeline to that required for throughput of the Minimum Throughput Capacity (Restoration). All of such Restoration shall be at the Operators cost and expense, unless any damage creating the need for such repairs was caused by the negligence or willful misconduct of the Company, the Company Designee or their respective contractors, employees, agents (excluding for the avoidance of doubt, the Operator and its contractors, employees and agents) or customers, in which case such Restoration shall be at the Companys cost and expense to the extent caused by the negligence or willful misconduct of the Company, the Company Designee or their respective employees, agents or customers.
Article 8 Inspection, Access and Audit Rights.
Section 8.1 Inspection. At any reasonable times during normal business hours and upon reasonable prior notice, the Company, the Company Designee and their respective representatives (including one or more Supplier Inspectors, collectively, the Company Inspectors) shall have the right to enter and exit the Operators premises in order to have access to the Pipeline, to observe the operations of the Pipeline and to conduct such inspections as the Company or the Company Designee may wish to have performed in connection with this Agreement, including to enforce its rights and interests under this Agreement; provided, however, that (a) each of the Company Inspectors shall follow routes and paths to be reasonably designated by the Operator or security personnel retained by the Operator, (b) each of the Company Inspectors shall observe all security, fire and safety regulations while on, around or about the Pipeline, (c) when accessing the facilities of the Operator, the Company Inspectors shall at all times comply with Applicable Law and such safety directives and guidelines as may be furnished to the Company or the Company Designee by the Operator by any means (including in writing, orally, electronically or through the posting of signs) from time to time, and (d) the Company or the
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Company Designee shall be liable for any personal injury to its representatives or any damage caused by such Company Inspectors in connection with such access to the Pipeline. Without limiting the generality of the foregoing, the Operator shall regularly grant the Company Inspectors reasonable access and Operator shall have the right to accompany the Company Inspectors.
Section 8.2 Access. The Company, the Company Designee and their respective representatives, upon reasonable notice and during normal working hours, shall have access to the accounting records and other documents maintained by the Operator, or any of its contractors and agents, which relate to this Agreement, and shall have the right to audit such records at any reasonable time or times during the Term and for a period of up to two (2) years after termination of this Agreement. The Company or the Company Designee shall have the right to conduct such audit no more than once per calendar quarter and each audit shall be limited in time to no more than the present and prior two (2) calendar years. Claims as to defects in quality shall be made by written notice within ninety (90) days after the delivery in question or shall be deemed to have been waived. The right to inspect or audit such records shall survive termination of this Agreement for a period of two (2) years following the end of the Term. The Operator shall preserve, and shall cause all contractors or agents to preserve, all of the aforesaid documents for a period of at least two (2) years from the end of the Term. Additionally, the Operator shall make available a copy of any meter calibration report, to be available for inspection upon reasonable request by the Company or the Company Designee on the Pipeline following any calibration. Notwithstanding any of the foregoing, if an Event of Default with respect to the Operator has occurred and is continuing, the Company Inspectors shall have unlimited and unrestricted access to the accounting records and other documents maintained by the Operator with respect to the Pipeline, for so long as such Event of Default continues.
Article 9 Scheduling.
The Operator shall provide the Company and the Company Designee non-discriminatory, priority access rights at the Pipeline to throughput the Companys and the Company Designees Products up to the Minimum Throughput Capacity. All deliveries, receipts, handling and throughput of Product hereunder shall be made in strict accordance with the Operators current reasonable operating, scheduling and nomination procedures for the Pipeline, which (a) the Operator shall provide to the Company on the date hereof, (b) the Operator shall not materially modify without the prior written consent of the Company, not to be unreasonably withheld, modified or delayed; provided, however, that the Operator may make any modifications it reasonably deems necessary to comply with or observe any Applicable Law or for health, safety, environmental, security or other similar concerns consistent with Prudent Industry Practice, and (c) shall allow the throughput of the grades and qualities of Product specified in Exhibit A.
Article 10 Intentionally Omitted
Article 11 Additional Covenants.
Section 11.1 Required Permits. During the Term, unless the Company has agreed to maintain such for the benefit of the Operator, the Operator shall, at its sole cost and expense (directly or through one of its or the Companys Affiliates), obtain, apply for, maintain, monitor, renew, and modify, as appropriate, any license, authorization, certification, filing, recording,
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permit, waiver, exception, variance, franchise, order or other approval with or of any Governmental Authority or Third Parties pertaining or relating to the operation of the Pipeline (the Required Permits) as currently operated; provided, however, that if any Required Permits require the signature of, or any action by, the Company or the Company Designee, the Company shall reasonably cooperate with the Operator (at the Operators expense) so that the Operator may obtain and maintain such Required Permits. The Operator shall not do anything in connection with the performance of its obligations under this Agreement that causes a termination or suspension of the Required Permits.
Section 11.2 Additional Operator Covenants. The Operator hereby:
(a) (i) confirms that it will post at the Pipeline such reasonable placards as the Company or the Company Designee, as applicable, requests stating that the Company or the Company Designee is the owner of specific Products held at the Pipeline; (ii) agrees that it will take all actions necessary to maintain such placards in place for the Term; and (iii) agrees to furnish documents reasonably acceptable to the Company, the Company Designee and their respective lenders and intermediators and to cooperate with the Company in ensuring and demonstrating that Product titled in the Companys or the Company Designees name shall not be subject to any lien on the Pipeline;
(b) acknowledges and agrees that the Company or the Company Designee may file a UCC-1 or other financing statement with respect to the Products handled or throughput at the Pipeline, and the Operator shall cooperate with the Company in executing such financing statements as the Company or the Company Designee deems necessary or appropriate;
(c) agrees that, subject to Section 5.3, no loss allowances shall be applied to the Products handled or throughput on the Pipeline;
(d) agrees to maintain all necessary leases, easements, licenses and rights-of-way necessary for the operation and maintenance of the Pipeline; and
(e) agrees that, in the event of any Product spill, leak or discharge or any other environmental pollution caused by or in connection with the use of the Pipeline, the Operator shall promptly commence containment or clean-up operations as required by any Governmental Authorities or Applicable Law or as the Operator deems appropriate or necessary and shall notify or arrange to notify the Company or the Company Designee immediately of any such spill, leak or discharge and of any such operations.
The Company and the Company Designee shall take all reasonable steps to cooperate with the Operator in connection with the Operators performance of each of the covenants in this Section 11.2, in each case, at the Operators sole expense.
Section 11.3 Additional Company Covenants. The Company hereby agrees:
(a) to replace or repair, at its own expense, any part of the Pipeline that is destroyed or damaged through any negligence or willful misconduct of the Company, the Company Designee (acting in such capacity), or any of their agents or employees (acting in such capacity), or any Company Inspector; and
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(b) to not make any alteration, additions or improvements to the Pipeline or remove any part thereof, without the prior written consent of the Operator, such consent to be at the Operators sole discretion.
Section 11.4 Existing Obligations. The execution of this Agreement by the Parties does not reduce any existing obligations of such Parties and does not confer any additional obligation or responsibility on the Company in connection with: (a) any existing or future environmental condition on the Pipeline, including, the presence of a regulated or hazardous substance on or in environmental media on the Pipeline (including the presence in surface water, groundwater, soils or subsurface strata, or air), including the subsequent migration of any such substance; (b) any Environmental Law; (c) the Required Permits; or (d) any requirements arising under or relating to any Applicable Law pertaining or relating to the ownership and operation of the Pipeline.
Section 11.5 Records.
(a) Each Party shall (i) maintain the records required to be maintained by Applicable Law and shall make such records available to the other Party upon reasonable request and (ii) immediately notify the other Party of any violation or alleged violation of any Applicable Law relating to any Products throughput and handled under this Agreement and, upon request, shall provide to the other Party all evidence of environmental inspections or audits by any Governmental Authority with respect to such Products.
(b) All records or documents provided by any Party to any other Party shall, to the reasonable knowledge of the providing Party, accurately and completely reflect the facts about the activities and transactions to which they relate. Notwithstanding anything herein to the contrary, no Party shall be required to provide to the other Party any document that is determined by the disclosing Partys legal counsel to be protected by an attorney-client privilege or attorney work product doctrine. Each Party shall promptly notify the other Party if at any time such Party has reason to believe that any records or documents previously provided to the other Party are no longer accurate or complete.
Article 12 Representations.
Section 12.1 Representations of the Operator. The Operator represents and warrants to the Company that (a) this Agreement, the rights obtained and the duties and obligations assumed by the Operator hereunder, and the execution and performance of this Agreement by the Operator, do not directly or indirectly violate any Applicable Law with respect to the Operator or any of its properties or assets, the terms and provisions of the Operators organizational documents or any agreement or instrument to which the Operator or any of its properties or assets are bound or subject; (b) the execution and delivery of this Agreement by the Operator has been authorized by all necessary action; (c) the Operator has the full and complete authority and power to enter into this Agreement and to provide the services hereunder; (d) no further action on behalf of the Operator, or consents of any other party, are necessary for the provision of services hereunder; and (e) upon execution and delivery by the Operator, this Agreement shall be a valid and binding agreement of the Operator enforceable in accordance with its terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law).
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Section 12.2 Representations of the Company. The Company represents and warrants to the Operator that (a) this Agreement, the rights obtained and the duties and obligations assumed by the Company hereunder, and the execution and performance of this Agreement by the Company, do not directly or indirectly violate any Applicable Law with respect to the Company or any of its property or assets, the terms and provisions of the Companys organizational documents or any agreement or instrument to which the Company or any of its property or assets are bound or subject; (b) the execution and delivery of this Agreement by the Company has been authorized by all necessary action; (c) the Company has the full and complete authority and power to enter into this Agreement; and (d) upon execution and delivery by the Company, this Agreement shall be a valid and binding agreement of the Company enforceable in accordance with its terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law).
Article 13 Insurance.
The Operator, directly or through one of its or the Companys Affiliates, shall procure and maintain in full force and effect throughout the Term insurance in sufficient amounts and coverage to be in accordance with Prudent Industry Practice. Such policies shall be endorsed to name the Company and any Company Designee as a loss payee with respect to any of the Companys or the Company Designees Products in the care, custody or control of the Operator.
Article 14 Force Majeure, Damage or Destruction.
Section 14.1 Force Majeure. In the event that a Party (the Force Majeure Party) is rendered unable, wholly or in part, by a Force Majeure event to perform its obligations under this Agreement, then such Party shall within a reasonable time after the occurrence of such event of Force Majeure deliver to the other Party written notice (a Force Majeure Notice) including full particulars of the Force Majeure event, and the obligations of the Parties, to the extent they are affected by the Force Majeure event, shall be suspended for the duration of any inability so caused; provided, however, that (a) prior to the second (2nd) anniversary of the Commencement Date, the Company shall be required to continue to make payments (i) for the Throughput Fees for volumes actually throughput under this Agreement, and (ii) for any Shortfall Payments unless, in the case of (ii), the Force Majeure event is an event that adversely affects the Operators ability to perform the Services (including making the Minimum Throughput Capacity available to the Company), in which case Shortfall Payments shall not be paid to the extent of the Force Majeure events effect on the Operators ability to perform the Services and the Throughput Fees shall only be paid as provided under (a)(i) above, and (b) from and after the second (2nd) anniversary of the Commencement Date, the Company shall be required to continue to make payments for the Throughput Fees for volumes actually throughput under this Agreement. The Force Majeure Party shall identify in such Force Majeure Notice the approximate length of time that it believes in good faith such Force Majeure event shall continue (the Force Majeure Period). The Company shall be required to pay any amounts accrued and due under this Agreement at the time of the start of the Force Majeure event. The cause of the Force Majeure event shall so far as
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possible be remedied with all reasonable efforts, except that no Party shall be compelled to resolve any strikes, lockouts or other industrial or labor disputes other than as it shall determine to be in its best interests. Prior to the second (2nd) anniversary of the Commencement Date, any suspension of the obligations of the Parties under this Section 14.1 as a result of a Force Majeure event that adversely affects the Operators ability to perform the services it is required to perform under this Agreement shall extend the Term for the same period of time as such Force Majeure event continues (up to a maximum of one year) unless this Agreement is terminated under Section 14.2.
Section 14.2 Termination due to Force Majeure. If the Force Majeure Party advises in any Force Majeure Notice that it reasonably believes in good faith that the Force Majeure Period shall continue for more than twelve (12) consecutive months beyond the second (2nd) anniversary of the Commencement Date, then at any time after the delivery of such Force Majeure Notice, either Party may deliver to the other Party a notice of termination (a Termination Notice), which Termination Notice shall become effective not earlier than twelve (12) months after the later to occur of (a) delivery of the Termination Notice and (b) the second (2nd) anniversary of the Commencement Date; provided, however, that such Termination Notice shall be deemed cancelled and of no effect if the Force Majeure Period ends before the Termination Notice becomes effective, and, upon the cancellation of any Termination Notice, the Parties respective obligations hereunder shall resume as soon as reasonably practicable thereafter, and the Term shall be extended by the same period of time as is required for the Parties to resume such obligations. After the second (2nd) anniversary of the Commencement Date and following delivery of a Termination Notice, the Operator may terminate this Agreement, to the extent affected by the Force Majeure event, upon sixty (60) days prior written notice to the Company in order to enter into an agreement to provide any third party the services provided to the Company under this Agreement; provided, however, that the Operator shall not have the right to terminate this Agreement for so long as the Company continues to make Shortfall Payments.
Article 15 Suspension of Refinery Operations.
Section 15.1 Suspension of Refinery Operations. From and after the second (2nd) anniversary of the Commencement Date, in the event that the Company decides to permanently or indefinitely suspend all or substantially all crude oil refining operations at the Refinery for a period that shall continue for at least twelve (12) consecutive months, the Company may provide written notice to the Operator of the Companys intent to terminate this Agreement (the Suspension Notice). Such Suspension Notice shall be sent at any time (but not prior to the second (2nd) anniversary of the Commencement Date) after the Company has notified the Operator of such suspension and, upon the expiration of the period of twelve (12) months (which may run concurrently with the twelve (12) month period described in the immediately preceding sentence) following the date such notice is sent (the Notice Period), this Agreement shall terminate. If the Company notifies the Operator more than two (2) months prior to the expiration of the Notice Period of its intent to resume operations at the Refinery, then the Suspension Notice shall be deemed revoked and this Agreement shall continue in full force and effect as if such Suspension Notice had never been delivered. During the Notice Period, the Company shall remain liable for Shortfall Payments and all payments per Section 4.5 with respect of Capital Improvements hereunder. Subject to Section 15.1 and after the fifth (5th) anniversary of the Commencement Date, during the Notice Period, the Operator may terminate this Agreement upon sixty (60) days prior written notice to the Company in order to enter into an agreement to provide any third party the services provided to the Company under this Agreement.
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Section 15.2 Notice of Suspension. If all or substantially all refining operations at the Refinery are suspended for any reason (including refinery turnaround operations and other scheduled maintenance), then the Company shall remain liable for Shortfall Payments under this Agreement for the duration of the suspension, unless and until this Agreement is terminated as provided in Section 15.1. The Company shall provide at least ninety (90) days prior written notice whenever practical of any suspension of operations at the Refinery due to a planned turnaround or scheduled maintenance that affects or will affect the Services; provided, however, that the Company shall not have any liability for any failure to notify, or delay in notifying, the Operator of any such suspension except to the extent the Operator has been materially damaged by such failure or delay.
Article 16 Right of First Refusal.
Section 16.1 Grant of ROFR. The Operator hereby grants to the Company a right of first refusal on any proposed Transfer (other than a grant of a security interest to a bona fide third-party lender or a Transfer to an Affiliate of the Operator) of any ROFR Asset; provided, however, that the Parties acknowledge and agree that nothing in this Article 16 shall prevent or restrict the Transfer of partnership interests, limited liability interests, equity or ownership interests or other securities of the Operator or create a right of first refusal as a result thereof; provided, further, that the Company may, without consent or approval from the Operator, assign its rights under this Article 16 to any Affiliate of the Company.
Section 16.2 Acknowledgement regarding Consents. The Parties acknowledge that all potential Transfers of ROFR Assets pursuant to this Article 16 are subject to obtaining any and all required written consents of Governmental Authorities and other third parties and to the terms of all existing agreements in respect of the ROFR Assets, as applicable; provided, however, that the Operator represents and warrants that, to its knowledge after reasonable investigation, there are no terms in such agreements that would materially impair the rights granted to the Company pursuant to this Article 16 with respect to any ROFR Asset.
Section 16.3 Procedures for Transfer of ROFR Asset.
(a) In the event the Operator proposes to Transfer any of the ROFR Assets (other than a grant of a security interest to a bona fide third-party lender or a Transfer to an Affiliate of the Operator) pursuant to a bona fide third-party offer (an Acquisition Proposal), then the Operator shall, prior to entering into any such Acquisition Proposal, first give notice in writing to the Company (a Disposition Notice) of its intention to enter into such Acquisition Proposal. The Disposition Notice shall include any material terms, conditions and details as would be necessary for the Company to determine whether to exercise its right of first refusal with respect to the Acquisition Proposal, which terms, conditions and details shall at a minimum include: the name and address of the prospective acquirer (the Proposed Transferee), the ROFR Assets subject to the Acquisition Proposal (the Sale Assets), the purchase price offered by such Proposed Transferee (the Offer Price), reasonable detail concerning any non-cash portion of the proposed consideration, if any, to allow the Company to reasonably determine the fair market value of such
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non-cash consideration, the Operators estimate of the fair market value of any non-cash consideration and all other material terms and conditions of the Acquisition Proposal that are then known to the Operator. To the extent the Proposed Transferees offer consists of consideration other than cash (or in addition to cash), the Offer Price shall be deemed equal to the amount of any such cash plus the fair market value of such non-cash consideration. In the event the Company and the Operator are able to agree on the fair market value of any non-cash consideration or if the consideration consists solely of cash, the Company will provide written notice of its decision regarding the exercise of its right of first refusal to purchase the Sale Assets (the ROFR Response) to the Operator within sixty (60) days of its receipt of the Disposition Notice (the First ROFR Acceptance Deadline). In the event the Company and the Operator are unable to agree on the fair market value of any non-cash consideration prior to the First ROFR Acceptance Deadline, the Company shall indicate its desire to determine the fair market value of such non-cash consideration pursuant to the procedures outlined in the remainder of this Section 16.3 in a ROFR Response delivered prior to the First ROFR Acceptance Deadline. If no ROFR Response is delivered by the Company prior to the First ROFR Acceptance Deadline, then the Company shall be deemed to have waived its right of first refusal with respect to such Sale Asset. In the event (i) the Companys determination of the fair market value of any non-cash consideration described in the Disposition Notice is less than the fair market value of such consideration as determined by the Operator in the Disposition Notice and (ii) the Company and the Operator are unable to mutually agree upon the fair market value of such non-cash consideration within sixty (60) days after the Company notifies the Operator of its determination thereof, the Operator and the Company will engage a mutually agreed upon, nationally recognized investment banking firm that is not currently engaged in business with either of the Parties to determine the fair market value of the non-cash consideration. In the event the Parties are unable to agree upon an investment banking firm, each Party will select a nationally recognized investment banking firm, and the two investment banking firms so chosen will select a third investment banking firm to serve as the investment banking firm for purposes of this Article 16. The investment banking firm will determine the fair market value of the non-cash consideration within thirty (30) days of its engagement and furnish the Company and the Operator its determination. The fees of the investment banking firm will be split equally between Parties. Once the investment banking firm has submitted its determination of the fair market value of the non-cash consideration, the Company will provide a ROFR Response to the Operator within thirty (30) days after the investment banking firm has submitted its determination (the Second ROFR Acceptance Deadline and together with the First ROFR Acceptance Deadline, the ROFR Acceptance Deadlines). If no ROFR Response is delivered by the Company prior to the Second ROFR Acceptance Deadline, then the Company shall be deemed to have waived its right of first refusal with respect to such Sale Asset.
(b) If the Company elects in a ROFR Response delivered prior to the First ROFR Acceptance Deadline or Second ROFR Acceptance Deadline, as applicable, to exercise its right of first refusal with respect to a Sale Asset, within sixty (60) days of the delivery of the ROFR Response, such ROFR Response shall be deemed to have been accepted by the Operator and the Operator shall thereafter enter into a purchase and sale agreement with the Company providing for the consummation of the Acquisition Proposal upon the terms set forth in the ROFR Response. Unless otherwise agreed between the Company and the Operator, the terms of the purchase and sale agreement will include the following:
(i) the Company will agree to deliver the Offer Price in cash (unless the Company and the Operator agree that such consideration will be paid, in whole or in part, in equity securities of the Company or of an Affiliate of the Company, an interest-bearing promissory note or similar instrument, or any combination thereof);
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(ii) the Operator will represent that it has valid fee or leasehold title, as applicable, to the Sale Asset that is sufficient to operate the Sale Assets in accordance with their historical use, subject to all recorded matters and all physical conditions in existence on the closing date for the purchase of the applicable Sale Asset, plus any other such matters as the Company may approve (and if the Company desires to obtain any title insurance with respect to the Sale Asset, the full cost and expense of obtaining the same (including the cost of title examination, document duplication and policy premium) shall be borne by the Company);
(iii) the Operator will grant to the Company the right, exercisable at the Companys risk and expense prior to the delivery of the ROFR Response, to make such surveys, tests and inspections of the Sale Asset as the Company may deem desirable, so long as such surveys, tests or inspections are neither destructive nor invasive and do not damage the Sale Asset or interfere with the activities of the Operator;
(iv) the Company will have the right to terminate its obligation to purchase the Sale Asset under this Article 16 if the results of any searches under Section 16.3(b)(ii) or (iii) above are, in the reasonable opinion of the Company, unsatisfactory;
(v) the closing date for the purchase of the Sale Asset shall occur no later than one hundred eighty (180) days following receipt by the Operator of the ROFR Response pursuant to Section 16.3(a);
(vi) the Operator and the Company shall use commercially reasonable efforts to do or cause to be done all things that may be reasonably necessary or advisable to effectuate the consummation of any transactions contemplated by this Section 16.3(b), including causing its respective Affiliates to execute, deliver and perform all documents, notices, amendments, certificates, instruments and consents required in connection therewith;
(vii) except to the extent modified in the Acquisition Proposal, the sale of any Sale Assets shall be made on an as is, where is and with all faults basis, and the instruments conveying such Sale Assets shall contain appropriate disclaimers; and
(viii) neither the Operator nor the Company shall have any obligation to sell or buy the Sale Assets if any of the consents referred to in Section 16.2 has not been obtained.
(c) The Company and the Operator shall cooperate in good faith in obtaining all necessary governmental and other third-party approvals, waivers and consents required for the closing of the purchase and sale agreement described in Section 17.1(b). Any such closing shall be delayed, to the extent required, until the third (3rd) Business Day following the expiration of any required waiting periods under the Hart-Scott-Rodino Act; provided, however, that such delay shall not exceed sixty (60) days following the one hundred eighty (180) days referred to
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in Section 16.3(b)(v) (the ROFR Governmental Approval Deadline) and, if governmental approvals and waiting periods shall not have been obtained or expired, as the case may be, by such ROFR Governmental Approval Deadline, then the Company shall be deemed to have waived its right of first refusal with respect to the Sale Assets described in the Disposition Notice and thereafter the Operator shall be free to consummate the Transfer to the Proposed Transferee, subject to Section 16.3(d)(ii).
(d) If the Transfer to the Proposed Transferee (i) in the case of a Transfer other than a Transfer permitted under Section 16.3(c), is not consummated in accordance with the terms of the Acquisition Proposal within the later of (A) one hundred eighty (180) days after the applicable ROFR Acceptance Deadline and (B) three (3) Business Days after the satisfaction of all governmental approval or filing requirements, if any, or (ii) in the case of a Transfer permitted under Section 16.3(c), is not consummated within the later of (A) sixty (60) days after the ROFR Governmental Approval Deadline and (B) three (3) Business Days after the satisfaction of all governmental approval or filing requirements, if any, then in each case the Acquisition Proposal shall be deemed to lapse, and the Operator may not Transfer any of the Sale Assets described in the Disposition Notice without complying again with the provisions of this Article 16 if and to the extent then applicable.
Article 17 Shutdown or Idling of Refinery.
Section 17.1 Shutdown or Idling of Refinery. In the event of a Permanent Refinery Shutdown, the Operator shall have the right to purchase the assets identified in Exhibit B and such other assets as the Operator reasonably determines in good faith to be necessary to operate the Pipeline (the Designated Refinery Assets) at their fair market value at the time of sale in accordance with this Section 17.1.
(a) A Permanent Refinery Shutdown shall be deemed to have occurred upon the earlier of (i) the cessation of all or substantially all commercial operation of the Refinery with no current intent on the part of the Company to resume all or substantially all commercial operation thereof or (ii) a change to the Refinerys current SIC code (i.e., 4610) applicable to crude oil refining. The Company shall exercise commercially reasonable efforts to provide the Operator with at least sixty (60) days advance notice of a Permanent Refinery Shutdown.
(b) The Operator may at any time during the two-year period following notice of a Permanent Refinery Shutdown exercise its purchase option pursuant to this Section 16.3(d) (the Refinery Asset Purchase Option) by providing written notice (a Refinery Asset Option Notice) to the Company. Promptly upon receipt of such Refinery Asset Option Notice, the Company shall provide the Operator and its designees with access to such information regarding the Designated Refinery Assets as shall be reasonable and customary for the Operator to conduct diligence in accordance with Prudent Industry Practice on assets such as the Designated Refinery Assets. The Operator shall have a period of not less than ninety (90) days to evaluate such information.
(c) The Operator and the Company shall, for a period of thirty (30) days following completion of Operators diligence in accordance with Prudent Industry Practice, negotiate in good faith to reach agreement on the terms for a purchase of the Designated Refinery Assets by the
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Operator; provided, however, that the Parties agree that: (i) the terms (including price) of any such purchase and sale will be on terms customary for the sale of assets of this nature and otherwise agreeable to both the Operator and the Company; (ii) the purchase price shall be paid at closing in cash; (iii) the Company shall not be obligated to make any representations as to the condition of the Designated Refinery Assets or any portion thereof; (iv) the Operator shall not be required to purchase the real property on which the Designated Refinery Assets are located (in which case the Operator shall be entitled to lease or be granted easements to all or a portion of such real property); (v) the Company shall convey all operating and maintenance records reasonably necessary for the operation of the Designated Refinery Assets; and (vi) the Company shall convey the Designated Refinery Assets free and clear of any charge, claim, covenant, equitable interest, equitable servitude, lien, option, pledge security interest, right of first refusal, or other restriction of any kind, including any restriction on use, transfer, receipt of income, or exercise of any other attribute of ownership; provided, however, that the Company shall receive a reasonable easement with respect to the Designated Refinery Assets in order to access such Designated Refinery Assets in connection with the Company or its Affiliates potential refining operations.
(d) If the Operator and the Company are unable to agree on the terms (including price) for a sale of the Designated Refinery Assets, the Operator and the Company shall engage a mutually agreed upon, nationally recognized investment banking firm to determine any terms (including price) as to which the Parties are unable to agree with respect to the sale of the Designated Refinery Assets. In the event the Parties are unable to agree upon an investment banking firm, each Party will select a nationally recognized investment banking firm, and the two investment banking firms so chosen will select a third investment banking firm to serve as the investment banking firm for purposes of this Section 17.1. The investment banking firm shall: (i) base the terms of purchase and sale on those that are reasonable and customary for the sale of industrial assets such as the Designated Refinery Assets, subject to the provisions of this Section 17.1; (ii) determine the fair market value of the Designated Refinery Assets based on their then-current operations; and (iii) consider the age, condition, maintenance history, replacement cost, ongoing operating costs, regulatory enforcement actions or fines in effect and other factors the investment banking firm considers relevant to fair market value.
(e) All fees of the investment banking firm incurred in connection with the Refinery Asset Purchase Option will be split equally between the Operator and the Company.
(f) Once the investment banking firm resolves all terms of the sale regarding the Refinery Asset Purchase Option that the Parties are unable to agree upon, the Operator will have the right, but not the obligation, for a period of ninety (90) days from the investment banking firms resolution (such period, the Refinery Asset Option Period) to purchase the Designated Refinery Assets on terms (including price) agreed to by the Parties (as supplemented by any terms determined by the investment banking firm). The Operator shall notify the Company, in writing delivered during the Refinery Asset Option Period, of its intention to purchase the Designated Refinery Assets. Failure to provide such notice within the Refinery Asset Option Period shall be deemed to constitute a decision by the Operator not to exercise its Refinery Asset Purchase Option.
(g) If the Operator notifies the Company in writing during the Refinery Asset Option Period of its intention to exercise its Refinery Asset Purchase Option, both Parties shall be obligated to enter into an agreement incorporating the terms (including price) either agreed to by
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the Parties or determined by the investment banking firm. If the Operator fails to execute and deliver such an agreement within sixty (60) days of expiration of the Refinery Asset Option Period, the Operators Refinery Asset Purchase Option shall be deemed to have lapsed.
Article 18 Event of Default: Remedies Upon Event of Default.
Section 18.1 Event of Default. Notwithstanding any other provision of this Agreement, but subject to Article 27, the occurrence of any of the following shall constitute an Event of Default:
(a) any Party fails to make payment when due (i) under Article 4 within five (5) Business Days after a written demand therefor or (ii) under any other provision hereof within seven (7) Business Days;
(b) other than a default described in Sections 18.1(a) or 18.1(c), if the Company or the Operator fails to perform any material obligation or covenant to the other under this Agreement, which is not cured to the reasonable satisfaction of any other Party within fifteen (15) Business Days after the date that such Party receives written notice that such obligation or covenant has not been performed;
(c) any Party breaches any representation or warranty made by such Party hereunder, or such warranty or representation proves to have been incorrect or misleading in any material respect when made; provided, however, that if such breach is curable, such breach is not cured to the reasonable satisfaction of the other Party within fifteen (15) Business Days after the date that such Party receives notice that corrective action is needed;
(d) any Party files a petition or otherwise commences or authorizes the commencement of a proceeding or case under any bankruptcy, reorganization or similar law for the protection of creditors, or have any such petition filed or proceeding commenced against it and such proceeding is not dismissed for sixty (60) days; and
(e) the Operator sells or permits the creation of, or suffers to exist any security interest, lien, encumbrance, charge or other claim of any nature (other than Permitted Liens or liens or liens that existed with respect to such Product prior to the throughput by the Company or the Company Designee hereunder) with respect to any of the Products.
Section 18.2 Termination in the Event of Default. Except as set forth in Section 18.1(d), without limiting any other provision of this Agreement, if an Event of Default with respect to the Company or the Operator (such defaulting Party, the Defaulting Party) has occurred and is continuing, the Non-Defaulting Party shall have the right, immediately and at any time(s) thereafter, to terminate this Agreement upon written notice to the Defaulting Party.
Section 18.3 Other Remedies. Without limiting any other rights or remedies hereunder, if an Event of Default occurs and the Company is the Non-Defaulting Party, the Company may, in its discretion, (a) withhold or suspend its obligations, including any of its delivery or payment obligations, under this Agreement, (b) reclaim and repossess any and all of its Products held at the Pipeline or elsewhere on the Operators premises, and (c) otherwise arrange for the disposition of any of its Products in such manner as it elects.
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Section 18.4 Set Off. If an Event of Default occurs, the Non-Defaulting Party may, without limitation on its rights under this Article 18, set off amounts which the Defaulting Party owes to it against any amounts which it owes to the Defaulting Party (whether hereunder, under any other agreement or contract or otherwise and whether or not then due). Any net amount due hereunder shall be payable by the Party owing such amount within one (1) Business Day of termination.
Section 18.5 No Preclusion of Rights. The Non-Defaulting Partys rights under this Section 18.5 shall be in addition to, and not in limitation of, any other rights which the Non-Defaulting Party may have (whether by agreement, operation of law or otherwise), including any rights of recoupment, setoff, combination of accounts, as a secured party or under any other credit support. The Defaulting Party shall indemnify and hold the Non-Defaulting Party harmless from all costs and expenses, including reasonable attorney fees, incurred in the exercise of any remedies hereunder.
Article 19 Indemnification.
Section 19.1 Indemnification by Operator. The Operator shall defend, indemnify and hold harmless the Company, the Company Designee, their respective Affiliates, and their respective directors, officers, employees, representatives, agents, contractors, successors and permitted assigns (collectively, the Company Indemnitees) from and against any Liabilities directly or indirectly arising out of (a) any breach by the Operator of any covenant or agreement contained herein or made in connection herewith or any representation or warranty of the Operator made herein or in connection herewith proving to be false or misleading, (b) any failure by the Operator, its Affiliates or any of their respective employees, representatives, agents or contractors to comply with or observe any Applicable Law, or (c) injury, disease, or death of any Person or damage to or loss of any property, fine or penalty, any of which is caused by the Operator, its Affiliates or any of their respective employees, representatives, agents or contractors in the exercise of any of the rights granted hereunder or the handling or transportation of any Products hereunder, except to the extent of the Companys obligations under Section 19.2 below, and except to the extent that such injury, disease, death, or damage to or loss of property, fine or penalty was caused by the gross or sole negligence or willful misconduct on the part of the Company Indemnitees, their Affiliates or any of their respective employees, representatives, agents or contractors. Notwithstanding the foregoing, the Operators liability to the Company Indemnitees pursuant to this Section 19.1 shall be net of any insurance proceeds actually received by the Company Indemnitees or any of their respective Affiliates from any third party with respect to or on account of the damage or injury which is the subject of the indemnification claim. The Company agrees that it shall, and shall cause the other Company Indemnitees to, (i) use all commercially reasonable efforts to pursue the collection of all insurance proceeds to which any of the Company Indemnitees are entitled with respect to or on account of any such damage or injury, (ii) notify the Operator of all potential claims against any third party for any such insurance proceeds, and (iii) keep the Operator fully informed of the efforts of the Company Indemnitees in pursuing collection of such insurance proceeds.
Section 19.2 Indemnification by Company. The Company shall defend, indemnify and hold harmless the Operator, its Affiliates, and their respective directors, officers, employees, representatives, agents, contractors, successors and permitted assigns (collectively, the Operator
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Indemnitees) from and against any Liabilities directly or indirectly arising out of (a) any breach by the Company of any covenant or agreement contained herein or made in connection herewith or any representation or warranty of the Company made herein or in connection herewith proving to be false or misleading, (b) any personal injury incurred by any representative of the Company or the Company Designee (including any Supplier Inspector or Company Inspector) while on the Operators property, (c) any failure by the Company, the Company Designee, their respective Affiliates or any of their respective employees, representatives (including any Supplier Inspector or Company Inspector), agents or contractors to comply with or observe any Applicable Law, or (d) injury, disease, or death of any Person or damage to or loss of any property, fine or penalty, any of which is caused by the Company, the Company Designee, their respective Affiliates or any of their respective employees, representatives (including any Supplier Inspector or Company Inspector), agents or contractors in the exercise of any of the rights granted hereunder or the refining or storage of any Products hereunder, except to the extent of the Operators obligations under Section 19.1 above, and except to the extent that such injury, disease, death, or damage to or loss of property, fine or penalty was caused by the gross or sole negligence or willful misconduct on the part of the Operator Indemnitees, their Affiliates or any of their respective employees, representatives, agents or contractors. Notwithstanding the foregoing, the Companys liability to the Operator Indemnitees pursuant to this Section 19.2 shall be net of any insurance proceeds actually received by the Operator Indemnitees or any of their respective Affiliates from any third party with respect to or on account of the damage or injury which is the subject of the indemnification claim. The Operator agrees that it shall, and shall cause the other Operator Indemnitees to, (i) use all commercially reasonable efforts to pursue the collection of all insurance proceeds to which any of the Operator Indemnitees are entitled with respect to or on account of any such damage or injury, (ii) notify the Company of all potential claims against any third party for any such insurance proceeds, and (iii) keep the Company fully informed of the efforts of the Operator Indemnitees in pursuing collection of such insurance proceeds.
Section 19.3 EXPRESS REMEDY. THE FOREGOING INDEMNITIES ARE INTENDED TO BE ENFORCEABLE AGAINST THE PARTIES IN ACCORDANCE WITH THE EXPRESS TERMS AND SCOPE THEREOF NOTWITHSTANDING ANY EXPRESS NEGLIGENCE RULE OR ANY SIMILAR DIRECTIVE THAT WOULD PROHIBIT OR OTHERWISE LIMIT INDEMNITIES BECAUSE OF THE SOLE, CONCURRENT, ACTIVE OR PASSIVE NEGLIGENCE, STRICT LIABILITY OR FAULT OF ANY OF THE INDEMNIFIED PARTIES.
Article 20 Limitation on Damages.
Notwithstanding anything to the contrary contained herein, neither Party shall be liable or responsible to the other Party or such other Partys affiliated Persons for any consequential, punitive, special, incidental or exemplary damages, or for loss of profits or revenues (collectively referred to as Special Damages) incurred by such Party or its affiliated Persons that arise out of or relate to this Agreement, regardless of whether any such claim arises under or results from contract, tort, or strict liability; provided, however, that the foregoing limitation is not intended and shall not affect Special Damages in connection with any third-party claim or imposed in favor of unaffiliated Persons that are not Parties to this Agreement; provided, further, that to the extent an indemnitor hereunder receives insurance proceeds with respect to Special Damages that would be indemnified hereunder if not for this Article 20, such indemnitor shall be liable up to the amount of such insurance proceeds (net any deductible and premiums paid with respect thereto).
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Article 21 Confidentiality.
Section 21.1 Obligations. Each Party shall use commercially reasonable efforts to retain the other Partys Confidential Information in confidence and not disclose the same to any third party (other than a Company Designee, provided the Company Designee has agreed to adhere to this Article 21, or any Receiving Party Personnel) nor use the same, except as authorized by the disclosing Party in writing or as expressly permitted in this Section 21.1. Each Party further agrees to take the same care with the other Partys Confidential Information as it does with its own, but in no event less than a reasonable degree of care.
Section 21.2 Required Disclosure. Notwithstanding Section 21.1 above, if the receiving Party becomes legally compelled to disclose the Confidential Information by a court, Governmental Authority or Applicable Law, including the rules and regulations of the Securities and Exchange Commission, or is required to disclose pursuant to the rules and regulations of any national securities exchange upon which the receiving Party or its parent entity is listed, any of the disclosing Partys Confidential Information, the receiving Party shall promptly advise the disclosing Party of such requirement to disclose Confidential Information as soon as the receiving Party becomes aware that such a requirement to disclose might become effective, in order that, where possible, the disclosing Party may seek a protective order or such other remedy as the disclosing Party may consider appropriate in the circumstances. The receiving Party shall disclose only that portion of the disclosing Partys Confidential Information that it is required to disclose and shall reasonably cooperate with the disclosing Party (at the disclosing Partys cost) in allowing the disclosing Party to obtain such protective order or other relief.
Section 21.3 Return and Destruction of Information. Upon written request by the disclosing Party, all of the disclosing Partys Confidential Information in whatever form shall be returned to the disclosing Party upon termination of this Agreement or destroyed with destruction certified by the receiving Party, without the receiving Party retaining copies thereof except that one copy of all such Confidential Information may be retained by a Partys legal department solely to the extent that such Party is required to keep a copy of such Confidential Information pursuant to Applicable Law, and the receiving Party shall be entitled to retain any Confidential Information in the electronic form or stored on automatic computer back-up archiving systems during the period such backup or archived materials are retained under such Partys customary procedures and policies; provided, however, that notwithstanding any termination or expiration of this Agreement, any Confidential Information retained by the receiving Party shall be maintained subject to confidentiality pursuant to the terms of this Section 21.3, and such archived or back-up Confidential Information shall not be accessed except as required by Applicable Law for so long as such Confidential Information is retained.
Section 21.4 Receiving Party Personnel. The receiving Party will limit access to the Confidential Information of the disclosing Party to those of its employees, attorneys and contractors that have a need to know such information in order for the receiving Party to exercise or perform its rights and obligations under this Agreement (the Receiving Party Personnel). The Receiving Party Personnel who have access to any Confidential Information of the disclosing
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Party will be made aware of the confidentiality provisions of this Agreement, and will be required to abide by the terms thereof. Any third-party contractors that are given access to Confidential Information of a disclosing Party pursuant to the terms hereof shall be required to sign a written agreement pursuant to which such Receiving Party Personnel agree to be bound by the provisions of this Agreement, which written agreement will expressly state that it is enforceable against such Receiving Party Personnel by the disclosing Party.
Section 21.5 Survival. The obligation of confidentiality under this Article 21 shall survive the termination of this Agreement for a period of two (2) years.
Article 22 Choice of Law.
This Agreement shall be subject to and governed by the laws of the State of Delaware, excluding any conflicts-of-law rule or principle that might refer the construction or interpretation of this Agreement to the laws of another state. Subject to Article 27, the Parties agree to the venue and jurisdiction of the federal or state courts located in the State of Delaware for the adjudication of all disputes arising out of this Agreement.
Article 23 Assignment.
Section 23.1 Assignment by the Company. Except as set forth in this Article 23, the Company shall not assign its rights or obligations hereunder without the Operators prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that (a) the Company may assign this Agreement without the Operators consent in connection with a sale by the Company of its inventory of Products, or all or substantially all of the Refinery, including by merger, equity sale, asset sale or otherwise, so long as the transferee: (1) agrees to assume all of the Companys obligations under this Agreement; and (ii) is financially and operationally capable of fulfilling the terms of this Agreement, which determination shall be made by the Company in its reasonable judgment; and (b) the Company shall be permitted to make a collateral assignment of this Agreement solely to secure financing for itself or any of its Affiliates.
Section 23.2 Company Designee.
(a) Without the Operators consent, the Company shall be permitted to assign the Companys rights to use, hold the Products in, and transport the Products through, the Pipeline pursuant to this Agreement, to the Company Designee.
(b) The Company shall act as the Company Designees counterparty for all purposes of this Agreement, and the Operator shall be entitled to follow the Companys instructions with respect to all of the Company Designees Products that are transported or handled by the Operator pursuant to this Agreement unless and until the Operator is notified by the Company Designee in writing that the Company is no longer authorized to act as the Company Designees counterparty, in which case the Operator shall thereafter follow the instructions of the Company Designee (or such other agent as the Company Designee may appoint) with respect to all the Company Designees Products that are transported or handled by the Operator pursuant to this Agreement. The Company shall be responsible for all the Company Designees payments to the Operator hereunder; provided, however, that the Operator shall accept payment in connection with this Agreement directly from any Company Designee and apply such payments against amounts owed
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by the Company hereunder. All volumes throughput by the Company Designee will be taken into account in the determination of whether the Company has satisfied its Minimum Throughput Commitment. During any time that this Agreement is assigned to the Company Designee, all provisions of this Agreement, as amended or adjusted by this Article 23, shall be in full force and effect with respect to the Company Designee and the Company Designees Products as if the Company Designee were Party hereto in place of the Company.
Section 23.3 Assignment by the Operator. The Operator shall not assign its rights or obligations under this Agreement without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that (a) subject to Article 16 hereof and Article VI of the Omnibus Agreement, the Operator may assign this Agreement without such consent in connection with a sale by the Operator of all or substantially all of the Pipeline, including by merger, equity sale, asset sale or otherwise, so long as the transferee: (i) agrees to assume all of the Operators obligations under this Agreement; (ii) is financially and operationally capable of fulfilling the terms of this Agreement, which determination shall be made by the Operator in its reasonable judgment; and (iii) is not a competitor of the Company, as determined by the Company in good faith; and (b) the Operator shall be permitted to make a collateral assignment of this Agreement solely to secure financing for the Operator and its Affiliates.
Section 23.4 Terms of Assignment. Any assignment that is not undertaken in accordance with the provisions set forth above shall be null and void ab initio. A Party making any assignment shall promptly notify the other Party of such assignment, regardless of whether consent is required. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
Section 23.5 Change of Control. The Parties obligations hereunder shall not terminate in connection with a Change of Control; provided, however, that in the case of a Change of Control, the Company shall have the option to extend the Term as provided in Section 2.1, without regard to the notice period provided in the fourth sentence of Section 2.1.
Article 24 Notices.
All notices, requests, demands, and other communications hereunder will be in writing and will be deemed to have been duly given: (a) if by transmission by facsimile or hand delivery, when delivered; (b) if mailed via the official governmental mail system, five (5) Business Days after mailing, provided said notice is sent first class, postage pre-paid, via certified or registered mail, with a return receipt requested; (c) if mailed by an internationally recognized overnight express mail service such as Federal Express or UPS, one (1) Business Day after deposit therewith prepaid; or (d) if by email, one (1) Business Day after delivery with receipt confirmed. All notices will be addressed to the Parties at the respective addresses as follows:
If to the Company:
PBF Holding Company LLC
One Sylvan Way, Second Floor
Parsippany, NJ 07054
Attn: Matt Lucey, President
Telecopy No: (973) 455-7500
Email: matt.lucey@pbfenergy.com
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with a copy, which shall not constitute notice, to:
PBF Energy Company LLC
One Sylvan Way, Second Floor
Parsippany, NJ 07054
Attn: Jeffrey Dill, General Counsel
Telecopy No: (973) 455-7500
Email: jeffrey.dill@pbfenergy.com
If to the Operator:
Delaware Pipeline Company LLC
c/o PBF Logistics GP LLC
222 Lakeview Avenue, Suite 1510
West Palm Beach, FLA 33401
Attn: Todd OMalley, President
Telecopy No: (561) 659-5462
Email: Todd.OMalley@pbflogistics.com
with a copy, which shall not constitute notice, to:
PBF Logistics GP LLC
One Sylvan Way, Second Floor
Parsippany, NJ 07054
Attn: Jim Fedena, Senior VP, Logistics
Telecopy No: (973) 455-7500
Email: jim.fedena@pbfenergy.com
or to such other address or to such other person as either Party will have last designated by notice to the other Party.
Article 25 No Waiver; Cumulative Remedies.
Section 25.1 No Waivers. The failure of a Party hereunder to assert a right or enforce an obligation of the other Party shall not be deemed a waiver of such right or obligation. The waiver by any Party of a breach of any provision of, or Event of Default under, this Agreement shall not operate or be construed as a waiver of any other breach of that provision or as a waiver of any breach of another provision of, Event of Default or potential Event of Default under, this Agreement, whether of a like kind or different nature.
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Section 25.2 Cumulative Remedies. Each and every right granted to the Parties under this Agreement or allowed it by law or equity, shall be cumulative and may be exercised from time to time in accordance with the terms thereof and Applicable Law.
Article 26 Nature of Transaction and, Relationship of Parties.
Section 26.1 Independent Contractor. This Agreement shall not be construed as creating a partnership, association or joint venture among the Parties. It is understood that the Operator is an independent contractor with complete charge of its employees and agents in the performance of its duties hereunder, and nothing herein shall be construed to make the Operator, or any employee or agent of the Operator, an agent or employee of the Company.
Section 26.2 No Agency. No Party shall have the right or authority to negotiate, conclude or execute any contract or legal document with any third person in the name of the other Party; to assume, create, or incur any liability of any kind, express or implied, against or in the name of any of the other Party; or to otherwise act as the representative of the other Party, unless expressly authorized in writing by the other Party.
Article 27 Arbitration Provision.
Any and all Arbitrable Disputes (except to the extent injunctive relief is sought) shall be resolved through the use of binding arbitration using, in the case of an Arbitrable Dispute involving a dispute of an amount equal to or greater than $1,000,000 or non-monetary relief, three arbitrators, and in the case of an Arbitrable Dispute involving a dispute of an amount less than $1,000,000, one arbitrator, in each case in accordance with the Commercial Arbitration Rules of the American Arbitration Association, as supplemented to the extent necessary to determine any procedural appeal questions by the Federal Arbitration Act (Title 9 of the United States Code). If there is any inconsistency between this Article 27 and the Commercial Arbitration Rules or the Federal Arbitration Act, the terms of this Article 27 will control the rights and obligations of the Parties. Arbitration must be initiated within the time limits set forth in this Agreement, or if no such limits apply, then within a reasonable time or the time period allowed by the applicable statute of limitations. Arbitration may be initiated by a Party (Claimant) serving written notice on the other Party (Respondent) that Claimant elects to refer the Arbitrable Dispute to binding arbitration. Claimants notice initiating binding arbitration must identify the arbitrator Claimant has appointed. Respondent shall respond to Claimant within thirty (30) days after receipt of Claimants notice, identifying the arbitrator Respondent has appointed. If Respondent fails for any reason to name an arbitrator within the 30-day period, Claimant shall petition the American Arbitration Association for appointment of an arbitrator for Respondents account. The two arbitrators so chosen shall select a third arbitrator within thirty (30) days after the second arbitrator has been appointed, and, in the of an Arbitrable Dispute involving a dispute of an amount less than $1,000,000, such third arbitrator shall act as the sole arbitrator, and the sole role of the first two arbitrators shall be to appoint such third arbitrator. Claimant will pay the compensation and expenses of the arbitrator named by or for it, and Respondent will pay the compensation and expenses of the arbitrator named by or for it. The costs of petitioning for the appointment of an arbitrator, if any, shall be paid by Respondent. Claimant and Respondent will each pay one-half of the compensation and expenses of the third arbitrator. All arbitrators must (a) be neutral parties who have never been officers, directors or employees of the Operator, the Company or any of their
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Affiliates and (b) have not less than seven (7) years experience in the energy industry. The hearing will be conducted in the State of Delaware or the Philadelphia Metropolitan area and commence within thirty (30) days after the selection of the third arbitrator. The Company, the Operator and the arbitrators shall proceed diligently and in good faith in order that the award may be made as promptly as possible. Except as provided in the Federal Arbitration Act, the decision of the arbitrators will be binding on and non-appealable by the Parties hereto. The arbitrators shall have no right to grant or award Special Damages. Notwithstanding anything herein the contrary, the Company may not dispute any amounts with respect to an invoice delivered in accordance with Article 4 that the Company has not objected to within one hundred twenty (120) days of receipt thereof. No Event of Default shall occur if the subject matter underlying such potential Event of Default is the subject matter of any dispute that is pending resolution or arbitration under this Article 27 until such time that such dispute is resolved in accordance with this Article 27.
Article 28 General.
Section 28.1 Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be valid and effective under Applicable Law, but if any provision of this Agreement or the application of any such provision to any person or circumstance will be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision hereof, and the Parties will negotiate in good faith with a view to substitute for such provision a suitable and equitable solution in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
Section 28.2 Entire Agreement. This Agreement, the Operation and Management Services and Secondment Agreement and the Omnibus Agreement together constitute the entire agreement among the Parties pertaining to the subject matter hereof and supersede all prior agreements and understandings of the Parties in connection therewith. No promise, representation or inducement has been made by any of the Parties concerning the subject matter of this Agreement and none of the Parties shall be bound by or liable for any alleged representation, promise or inducement not so set forth.
Section 28.3 Time is of the Essence. Time is of the essence with respect to all aspects of each Partys performance of any obligations under this Agreement.
Section 28.4 No Third-Party Beneficiaries. It is expressly understood that the provisions of this Agreement do not impart enforceable rights in anyone who is not a Party or successor or permitted assignee of a Party; provided, however, that upon written request from the Company, this Agreement will be amended by the Parties to make any Company Designee or lender or intermediator of the Company or any Company Designee a third-party beneficiary hereof.
Section 28.5 Further Assurances. In connection with this Agreement and all transactions contemplated by this Agreement, each signatory Party hereto agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions and conditions of this Agreement and all such transactions.
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Section 28.6 Survival. All audit rights, payment, confidentiality and indemnification obligations under this Agreement shall survive the expiration or termination of this Agreement in accordance with their terms.
Section 28.7 Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or portable document format (pdf)) for the convenience of the Parties hereto, each of which counterparts will be deemed an original, but all of which counterparts together will constitute one and the same agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Parties have duly executed this Agreement on the date first set forth above.
COMPANY: | ||
PBF HOLDING COMPANY LLC | ||
By: | /s/ Jeffrey Dill |
Name: | Jeffrey Dill |
Title: | Secretary |
OPERATOR: | ||
DELAWARE PIPELINE COMPANY LLC | ||
By: | /s/ James Fedena |
Name: | James Fedena |
Title: | Senior Vice President |
SIGNATURE PAGE TO THE PIPELINE SERVICES AGREEMENT
Exhibit A
Product
Gasoline, petroleum distillates and other like hydrocarbons which meet the Product specifications for shipments in the current Delaware Pipeline Company Tariff as well as the specifications in the then current Buckeye and/or Sunoco Logistics tariffs, depending on the ultimate product destination.
B-1
Exhibit B
Designated Refinery Assets
| Any or all of the tanks located in the product tank farms, located east of Route 9, along with all associated equipment, including pumps, interconnecting piping, utility systems, control system and operator shelter. |
| Refinery piers 1,2,3, hoses, pumps, vapor combustion unit, associated equipment and interconnecting piping with the refinery tank farms. |
| Waste Water Treatment Plant (WWTP) and oily water/storm sewer system connections to Pipeline assets. |
| Rail unloading facilities, associated pumps and other equipment, including interconnecting piping |
| Steam generation and distribution system to the tanks, WWTP and Pipeline Booster Station |
| Electrical distribution system to the Pipeline booster station from the Boiler House through switchgears 7 & 10, feeders 40,41,44 & 45, substations 401/402, MCA 401-C/D and MCC 402-A. |
| Electrical distribution system to the tanks and WWTP |
| Instrument Air compressor, dryer and distribution system to the tanks |
| Firewater supply pump, piping system, including associated tank 403, pumps and associated equipment |
| Fresh water system, including interconnection to United Water supply, pumps and distribution piping |
| Control and Knock Laboratories, including testing apparatus and equipment |
| Emergency response equipment, including boats, boom, hazmat trailers, fire fighting equipment and associated protective housing |
| Domestic water supply piping system, including United Water connection, piping and pumps. |
| Warehouse equipment compatible with Pipeline systems |
| IT Servers and associated equipment, including UPS backup systems |
| Relevant operating and other environmental permits |
B-1
Exhibit 10.4
DELAWARE CITY TRUCK LOADING SERVICES AGREEMENT
TABLE OF CONTENTS
Article 1 |
Definitions and Construction | 1 | ||||
Article 2 |
Term | 9 | ||||
Article 3 |
Terminaling; Ancillary Services | 9 | ||||
Article 4 |
Custody, Title and Risk of Loss | 13 | ||||
Article 5 |
Specification and Contamination | 14 | ||||
Article 6 |
Condition and Maintenance of the Terminal | 14 | ||||
Article 7 |
Inspection, Access and Audit Rights | 16 | ||||
Article 8 |
Scheduling | 17 | ||||
Article 9 |
Intentionally Omitted | 17 | ||||
Article 10 |
Additional Covenants | 17 | ||||
Article 11 |
Representations | 19 | ||||
Article 12 |
Insurance | 19 | ||||
Article 13 |
Force Majeure, Damage or Destruction | 20 | ||||
Article 14 |
Suspension of Refinery Operations | 21 | ||||
Article 15 |
Right of First Refusal | 21 | ||||
Article 16 |
Shutdown or Idling of Refinery | 24 | ||||
Article 17 |
Event of Default: Remedies Upon Event of Default | 26 | ||||
Article 18 |
Indemnification | 27 | ||||
Article 19 |
Limitation on Damages | 29 | ||||
Article 20 |
Confidentiality | 29 | ||||
Article 21 |
Choice of Law | 30 | ||||
Article 22 |
Assignment | 30 | ||||
Article 23 |
Notices | 32 | ||||
Article 24 |
No Waiver; Cumulative Remedies | 33 | ||||
Article 25 |
Nature of Transaction and, Relationship of Parties | 33 | ||||
Article 26 |
Arbitration Provision | 33 | ||||
Article 27 |
General | 34 |
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Exhibit A |
Ancillary Services Fees | |
Exhibit B |
Product and Product Quality | |
Exhibit C |
Terminal Access Obligations and Procedures | |
Exhibit D |
Designated Refinery Assets |
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DELAWARE CITY TRUCK LOADING SERVICES AGREEMENT
This Delaware City Truck Loading Services Agreement (this Agreement) is made and entered into as of the Commencement Date, by and between PBF Holding Company LLC, a Delaware limited liability company (the Company), and Delaware City Logistics Company LLC, a Delaware limited liability company (the Operator) (each referred to individually as a Party or collectively as the Parties).
WHEREAS, the Operator owns and operates a petroleum product truck loading rack located in Delaware City, Delaware (as described on Exhibit D to the Contribution Agreement (as defined below), and together with existing or future modifications or additions thereto, the Terminal);
WHEREAS, the Parties are entering into this Agreement to provide for the rights and obligations of the Parties with respect to the Terminal; and
WHEREAS, the Parties desire to record the terms and conditions upon which the Operator shall provide terminaling services to the Company at the Terminal on a non-exclusive basis and the Operator shall serve as operator of the Terminal and bailee of all Products in the custody of the Operator and owned or held by the Company or any of the Company Designees.
NOW, THEREFORE, in consideration of the premises and the respective promises, conditions, terms and agreements contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties do hereby agree as follows:
Article 1 Definitions and Construction.
Section 1.1 Definitions. For purposes of this Agreement, including the foregoing recitals, the following terms shall have the meanings indicated below:
Acquisition Proposal has the meaning specified in Section 15.3(a).
Adjustment has the meaning specified in Section 3.6(a).
Affiliate means, with respect to a specified Person, any other Person controlling, controlled by or under common control with that first Person. As used in this definition, the term control includes (a) with respect to any Person having voting securities or the equivalent and elected directors, managers or Persons performing similar functions, the ownership of or power to vote, directly or indirectly, voting securities or the equivalent representing 50% or more of the power to vote in the election of directors, managers or Persons performing similar functions, (b) ownership of 50% or more of the equity or equivalent interest in any Person and (c) the ability to direct the business and affairs of any Person by acting as a general partner, manager or otherwise. Notwithstanding the foregoing, for purposes of this Agreement, the Company and its subsidiaries (other than PBF Logistics LP and its subsidiaries), on the one hand, and PBF Logistics LP and its subsidiaries (including the Operator), on the other hand, shall not be considered Affiliates of each other.
Agreement has the meaning specified in the preamble to this document.
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Ancillary Services means the services to be provided by the Operator to the Company at the Terminal that are set forth on Exhibit A, as well as any other ancillary services requested in accordance with Section 3.4.
Ancillary Services Fees means, for any month during the Term, the fees set forth on Exhibit A, to be paid by the Company pursuant to Section 3.4 during that month for Ancillary Services.
Applicable Law means any applicable statute, law, regulation, Environmental Law, ordinance, rule, judgment, rule of law, order, decree, permit, approval, concession, grant, franchise, license, agreement, requirement, or other governmental restriction or any similar form of decision of, or any provision or condition of any permit, license or other operating authorization issued under any of the foregoing by, or any determination by, any Governmental Authority having or asserting jurisdiction over the matter or matters in question, whether now or hereafter in effect and in each case as amended (including all of the terms and provisions of the applicable common law of such Governmental Authority), as interpreted and enforced at the time in question.
Arbitrable Dispute means any and all disputes, controversies and other matters in question between the Operator, on the one hand, and the Company, on the other hand, arising under or in connection with this Agreement.
Barrel means forty-two (42) net U.S. gallons, measured at 60° F and 1 atmospheric pressure.
bpd means Barrels per day.
Business Day means any day that is not a Saturday, Sunday, or other day on which banks are authorized or required to close in the State of New York, State of New Jersey or the State of Delaware.
Capital Expenditure means any expenditure incurred to acquire or upgrade a fixed asset.
Change in Law has the meaning specified in Section 3.6(a).
Change of Control means PBF Energy Company LLC or any of its majority owned direct or indirect subsidiaries ceases to control the general partner of PBF Logistics LP.
Claimant has the meaning specified in Article 26.
Commencement Date means May 15, 2015.
Company has the meaning specified in the preamble to this Agreement.
Company Designee means, collectively, each Person designated by the Company, including any Person acting as an intermediator of all or any portion of the Products or any third party.
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Company Indemnitees has the meaning specified in Section 18.1.
Company Inspectors has the meaning specified in Section 7.1.
Companys Share means a number, expressed as a percentage, equal to the quotient of (a) the greater of (i) the total Barrels throughput by the Company and any Company Designee at the Terminal, in the aggregate, during the sixth-month period preceding the date of determination or (ii) the Minimum Throughput Commitment during such period, and (b) the total Barrels throughput by all Persons at the Terminal during such period.
Confidential Information means all information, documents, records and data (including this Agreement, except to the extent required to be made public in a filing with the Securities and Exchange Commission or another Governmental Authority or pursuant to the rules and regulations of any national securities exchange) that a Party furnishes or otherwise discloses to the other Party (including any such items furnished prior to the execution of this Agreement), together with all analyses, compilations, studies, memoranda, notes or other documents, records or data (in whatever form maintained, whether documentary, computer or other electronic storage or otherwise) prepared by the receiving Party which contain or otherwise reflect or are generated from such information, documents, records and data; provided, however, that the term Confidential Information does not include any information that (a) at the time of disclosure or thereafter is or becomes generally available to or known by the public (other than as a result of a disclosure by the receiving Party), (b) is developed by the receiving Party without reliance on any Confidential Information or (c) is or was available to the receiving Party on a nonconfidential basis from a source other than the disclosing Party that, insofar as is known to the receiving Party after reasonable inquiry, is not prohibited from transmitting the information to the recipient by a contractual, legal or fiduciary obligation to the disclosing Party.
Contract Quarter means a three-month period that commences on January 1, April 1, July 1 or October 1, and ends on March 31, June 30, September 30 or December 31, respectively.
Contract Year means a year that commences on January 1 and ends on December 31 of such year, except that the initial Contract Year shall commence on the Commencement Date and the final Contract Year shall end on the last day of the Term.
Contribution Agreement means the Contribution Agreement, dated May 5, 2015, by and between PBF Energy Company LLC and PBF Logistics LP.
control (including with correlative meaning, the term controlled by) means, as used with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
Customer means any customer of Company, or of a Company Designee, which has been granted access to the Terminal to permit Operator to load Product in accordance with the requirements of Exhibit C.
Defaulting Party has the meaning specified in Section 17.2.
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Designated Refinery Assets has the meaning specified in Section 16.1.
Disposition Notice has the meaning specified in Section 15.3(a).
Environmental Law means all federal, state, and local laws, statutes, rules, regulations, orders, judgments, ordinances, codes, injunctions, decrees, Environmental Permits and other legally enforceable requirements and rules of common law now or hereafter in effect, relating to pollution or protection of human health and the environment, safety, and occupational health, including the federal Comprehensive Environmental Response, Compensation, and Liability Act, the Superfund Amendments Reauthorization Act, the Resource Conservation and Recovery Act, the Clean Air Act, the Federal Water Pollution Control Act, the Toxic Substances Control Act, the Oil Pollution Act, the Clean Water Act, the Safe Drinking Water Act, the Hazardous Materials Transportation Act, OSHA, and other similar federal, state or local health and safety, and environmental conservation and protection laws, each as amended from time to time.
Environmental Permit means any permit, approval, identification number, license, registration, consent, exemption, variance or other authorization required under or issued pursuant to any applicable Environmental Law.
EPT means the prevailing time in the Eastern time zone.
Excess Throughput has the meaning specified in Section 3.3.
Event of Default has the meaning specified in Section 17.1.
First ROFR Acceptance Deadline has the meaning specified in Section 15.3(a).
Force Majeure means acts of God, strikes, lockouts or other industrial disturbances, acts of a public enemy, wars, terrorism, blockades, insurrections, riots, storms, floods, interruptions in the ability to have safe passage in navigable waterways or rail lines, washouts, other interruptions caused by acts of nature or the environment, arrests, the order of any court or Governmental Authority claiming or having jurisdiction while the same is in force and effect, civil disturbances, explosions, fires, leaks, releases, breakage, accident to machinery, vessels, storage tanks or lines of pipe or rail lines, inability to obtain or unavoidable delay in obtaining material or equipment, inability to obtain or distribute Products, feedstocks, other products or materials necessary for operation because of a failure of third-party pipelines or rail lines or any other causes whether of the kind herein enumerated or otherwise not reasonably within the control of the Party claiming suspension and which by the exercise of commercially reasonable efforts such Party is unable to prevent or overcome; provided, however, a Partys inability to perform its economic obligations hereunder shall not constitute an event of Force Majeure.
Force Majeure Notice has the meaning specified in Section 13.1.
Force Majeure Party has the meaning specified in Section 13.1.
Force Majeure Period has the meaning specified in Section 13.1.
Gallon means one net U.S. gallon, measured at 60° F and 1 atmospheric pressure.
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Governmental Authority means any federal, state, local or foreign government or any provincial, departmental or other political subdivision thereof, or any entity, body or authority exercising executive, legislative, judicial, regulatory, administrative or other governmental functions or any court, department, commission, board, bureau, agency, instrumentality or administrative body of any of the foregoing.
Hart-Scott-Rodino Act means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.
Index Change means the Producer Price Index is no longer published or the method of calculating the Producer Price Index is changed so that the Producer Price Index no longer reflects general increases in prices in the broad United States economy.
Initial Term has the meaning specified in Section 2.1.
Liabilities means any losses, liabilities, charges, damages, deficiencies, assessments, interests, fines, penalties, costs and expenses (collectively, Costs) of any kind (including reasonable attorneys fees and other fees, court costs and other disbursements), including any Costs directly or indirectly arising out of or related to any suit, proceeding, judgment, settlement, cause of action, equitable or injunctive relief, or judicial or administrative order and any Costs arising from compliance or non-compliance with Environmental Law.
Minimum Throughput Capacity means, with respect to each Contract Quarter, an aggregate amount of throughput capacity of Products loaded into trucks at the Terminal equal to 1) at least 30,000bpd of gasoline, diesel and heating oil, and 2) at least 5,000bpd of propane and propylene bpd of Products, each multiplied by the number of calendar days in such Contract Quarter.
Minimum Throughput Commitment means, with respect to each Contract Quarter, an aggregate amount of Products loaded into trucks at the Terminal equal to 1) at least 30,000bpd of gasoline, diesel and heating oil, and 2) at least 5,000bpd of propane and propylene, each multiplied by the number of calendar days in such Contract Quarter.
Non-Defaulting Party means the Party other than the Defaulting Party.
Notice Period has the meaning specified in Section 14.1.
Off-Specification Product means Product that fails to meet the specifications set forth in Exhibit B.
Offer Price has the meaning specified in Section 15.3(a).
Omnibus Agreement means that Third Amended & Restated Omnibus Agreement, dated as of May 15, 2015, by and among the Company, PBF Energy Company LLC, PBF Logistics GP LLC, and PBF Logistics LP., as amended and restated as of the date hereof and as further amended or amended and restated from time to time.
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Operation and Management Services and Secondment Agreement means that Third Amended and Restated Operation and Management Services and Secondment Agreement dated May 15, 2015, by and among the Company, Delaware City Refining Company LLC, Toledo Refining Company LLC, PBF Logistics GP LLC, PBF Logistics LP, Delaware City Terminaling Company LLC, Toledo Terminaling Company LLC, , Delaware Pipeline Company LLC, and the Operator as amended and restated as of the date hereof and as further amended or amended and restated from time to time.
Operator has the meaning specified in the preamble to this Agreement.
Operator Indemnitees has the meaning specified in Section 18.2.
OSHA means Occupational Safety and Health Act of 1970, 29 U.S.C. Section 651 et seq.
Party or Parties has the meaning specified in the preamble to this Agreement.
Permitted Lien means (a) liens for real estate taxes, assessments, sewer and water charges or other governmental charges and levies not yet delinquent; (b) liens for taxes, assessments, judgments, governmental charges or levies, or claims not yet delinquent or the non-payment of which is being diligently contested in good faith by appropriate proceedings and for which adequate reserves have been set aside; (c) liens of mechanics, laborers, suppliers, workers and materialmen incurred in the ordinary course of business for sums not yet due or being diligently contested in good faith; and (d) liens incurred in the ordinary course of business in connection with workers compensation and unemployment insurance or other types of social security benefits.
Permanent Refinery Shutdown has the meaning specified in Section 16.1(a).
Person means any individual, corporation, partnership, limited partnership, limited liability company, joint venture, trust or unincorporated organization, joint stock company or any other private entity or organization, Governmental Authority, court or any other legal entity, whether acting in an individual, fiduciary or other capacity.
Prime Rate means the rate of interest quoted in The Wall Street Journal, Bonds, Rates & Yields Section as the Prime Rate.
Producer Price Index shall have the meaning ascribed to such term by the United States Bureau of Labor Statistics.
Product means any of the products listed on Exhibit B, as from time to time amended by mutual agreement of the Parties.
Proposed Transferee has the meaning specified in Section 15.3(a).
Prudent Industry Practice means, as of the relevant time, those methods and acts generally engaged in or applied by the refining, pipeline or terminaling industries (as applicable) in the United States that, in the exercise of reasonable judgment in light of the circumstances known
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at the time of performance, would have been expected to accomplish the desired result at a reasonable cost consistent with functionality, reliability, safety and expedition with due regard for health, safety, security and environmental considerations. Prudent Industry Practice is not intended to be limited to the optimum practices, methods or acts to the exclusion of others, but rather is intended to include reasonably acceptable practices, methods and acts generally engaged in or applied by the refining, pipeline or terminaling industries (as applicable) in the United States.
Receiving Party Personnel has the meaning specified in Section 20.4.
Refinery means the petroleum refinery located in Delaware City, Delaware owned and operated by the Companys Affiliates.
Refinery Asset Option Notice has the meaning specified in Section 16.1(b).
Refinery Asset Option Period has the meaning specified in Section 16.1(f).
Refinery Asset Purchase Option has the meaning specified in Section 16.1(b).
Renewal Term has the meaning specified in Section 2.1.
Required Permits has the meaning specified in Section 10.1.
Respondent has the meaning specified in Article 26.
Restoration has the meaning specified in Section 6.2(b).
ROFR Acceptance Deadlines has the meaning specified in Section 15.3(a).
ROFR Asset means the Terminal and each asset that comprises the Terminal and is material to the operation thereof.
ROFR Governmental Approval Deadline has the meaning specified in Section 15.3(c).
ROFR Response has the meaning specified in Section 15.3(a).
Sale Assets has the meaning specified in Section 15.3(a).
Second ROFR Acceptance Deadline has the meaning specified in Section 15.3(a).
Services has the meaning specified in Section 3.1.
Shortfall has the meaning specified in Section 3.7.
Shortfall Payment has the meaning specified in Section 3.7.
Special Damages has the meaning specified in Article 19.
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Supplier Inspector means any Person selected by the Company to perform any and all inspections required by the Company or the Company Designee in a commercially reasonable manner at the Companys own cost and expense that is acting on behalf of the Company or the Company Designee and that (a) is a Person who performs sampling, quality analysis and quantity determination or similar services of the Products purchased and sold under any agreement between the Company (or its Affiliates) and the Company Designee, (b) is not an Affiliate of any Party and (c) in the reasonable judgment of the Company, is qualified and reputed to perform its services in accordance with Applicable Law and Prudent Industry Practice.
Suspension Notice has the meaning specified in Section 14.1.
Term has the meaning specified in Section 2.1.
Terminal has the meaning specified in the recitals.
Terminal Maintenance has the meaning specified in Section 6.2(a).
Terminaling Service Fee has the meaning set forth in Section 3.1.
Termination Notice has the meaning specified in Section 13.2.
Transfer means to, directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of, whether in one or a series of transactions.
Section 1.2 Construction of Agreement.
(a) Unless otherwise specified, all references herein are to the Articles, Sections and Exhibits of this Agreement and all Exhibits are incorporated herein.
(b) All headings herein are intended solely for convenience of reference and shall not affect the meaning or interpretation of the provisions of this Agreement.
(c) Unless expressly provided otherwise, the word including as used herein does not limit the preceding words or terms and shall be read to be followed by the words without limitation or words having similar import.
(d) Unless expressly provided otherwise, all references to days, weeks, months and quarters mean calendar days, weeks, months and quarters, respectively.
(e) Unless expressly provided otherwise, references herein to consent mean the prior written consent of the Party at issue.
(f) A reference to any Party to this Agreement or another agreement or document includes the Partys permitted successors and assigns.
(g) Unless the contrary clearly appears from the context, for purposes of this Agreement, the singular number includes the plural number and vice versa; and each gender includes the other gender.
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(h) Except where specifically stated otherwise, any reference to any Applicable Law or agreement shall be a reference to the same as amended, supplemented or reenacted from time to time.
(i) The words hereof, herein and hereunder and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.
Section 1.3 No Presumption. The Parties acknowledge that they and their counsel have reviewed and revised this Agreement and that no presumption of contract interpretation or construction shall apply to the advantage or disadvantage of the drafter of this Agreement.
Article 2 Term.
Section 2.1 Term. The initial term of this Agreement (the Initial Term) shall commence at 12:00:01 a.m., EPT, on the Commencement Date and shall continue until 11:59:59 p.m., EPT, on the first December 31 following the tenth (10th) anniversary of the Commencement Date. Thereafter, subject to the last sentence of this paragraph, the Company shall have a unilateral option to extend this Agreement for two additional five (5) year periods on the same terms and conditions set forth herein (each, a Renewal Term). The Initial Term and the Renewal Terms are sometimes referred to collectively herein as the Term. In order to exercise its option to extend this Agreement for a Renewal Term, the Company shall notify the Operator in writing not less than twelve (12) months prior to the expiration of the Initial Term or any Renewal Term, as applicable.
Section 2.2 Termination. The Parties may terminate this Agreement prior to the end of the Term (but are under no obligation to do so) (a) as they may mutually agree in writing, (b) pursuant to a Termination Notice in accordance with Section 13.2, (c) pursuant to a Suspension Notice in accordance with Section 14.1, (d) pursuant to a default in accordance with Section 17.2 or (e) pursuant to Section 3.6(c).
Article 3 Terminaling; Ancillary Services.
Section 3.1 Services. Subject to the terms of this Agreement, the Operator shall provide the following services (the Services) to the Company hereunder: receipt, handling, throughput, custody, delivery and truck loading of the Companys (and its subsidiaries and the Company Designees) Product at the Terminal. During each Contract Quarter during the Term, the Company (on its own behalf and on behalf of its subsidiaries and the Company Designee) shall throughput or, if it does not throughput, pay for in accordance with Section 3.7, in the aggregate, at least the Minimum Throughput Commitment at the Terminal and the Operator shall make available to the Company throughput capacity at the Terminal (and provide the Services as reasonably requested by the Company in connection therewith subject to the terms hereof), at all times sufficient to allow the Company to throughput the Minimum Throughput Commitment at the Terminal. The Operator shall cooperate with the Company or the Company Designee, and the Company shall (and shall cause the Company Designee to) cooperate with the Operator, to determine throughput of Product hereunder based on the meters utilized at the Terminal or any other commercially reasonable method mutually agreed to by the Parties.
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Section 3.2 Terminaling Service Fee. The Company shall pay a terminaling services fee (the Terminaling Service Fee) for the volumes of Products it actually throughputs at the Terminal of (a) $0.011 per Gallon for all throughput of gasolines and distillates, and (b) $0.06 per Gallon for all throughput volumes of propane and propylene.
Section 3.3 Excess Throughput. The Company shall have the right to throughput volumes in excess of its Minimum Throughput Commitment (Excess Throughput), up to the then-available capacity of the Terminal, as reasonably determined by the Operator in good faith at any time (after giving effect to the permitted, physical and operational constraints of the Terminal and the capacity contractually committed to third parties). In accordance with Section 3.2(a) and Section 3.2(b), the Company shall pay the Operator the applicable per Gallon Terminaling Service Fee for any Excess Throughput.
Section 3.4 Ancillary Services. Upon request by the Company, the Operator shall provide the Ancillary Services listed on Exhibit A to the Company at the Terminal. From time-to-time, the Company may request that the Operator provide additional Ancillary Services to the Company at the Terminal upon customary terms in accordance with Prudent Industry Practice so long as such additional Ancillary Services are reasonably related to the Services or existing Ancillary Services; provided, however, that in the event any requested additional Ancillary Service requires the Operator to make Capital Expenditures, such Capital Expenditures shall be subject to Section 3.10(b) and the Operator shall not be required to provide such additional Ancillary Service until the Operator is able to do so after using reasonable efforts in compliance with Section 3.10(b); provided, further, the Operator shall not be required to perform any additional Ancillary Service if it reasonably believes the performance thereof will materially adversely interfere with, or be detrimental to, the operation of the Terminal. The Company shall pay the Ancillary Services Fees listed on Exhibit A for such services. The Company may, at any time on reasonable prior notice, revoke or modify any instructions it has previously given, whether such previous instructions relate to a specific Service or Ancillary Service or are instructions relating to an ongoing Service or Ancillary Service. If any additional Ancillary Services are requested by Company that are different in kind, scope or frequency from the Ancillary Services listed on Exhibit A as they have been historically provided at the Terminal, then the Parties shall negotiate in good faith to determine whether such services may be provided and the appropriate Ancillary Services Fee structure to account for such services. The Operator shall not be required to perform any requested Service or Ancillary Service if it reasonably believes such Service or Ancillary Service violates Applicable Law.
Section 3.5 Annual Fee Escalator. All fees set forth in this Agreement, including the Terminaling Service Fee and the Ancillary Services Fees, shall be adjusted on January 1 of each Contract Year, commencing on January 1, 2016, (a) by an amount equal to the increase or decrease, if any, in the Producer Price Index during the previous Contract Year and (b) by an amount equal to the increase, if any, in the individual out-of-pocket costs that increase greater than the Producer Price Index reasonably incurred by the Operator in connection with providing the Services and Ancillary Services; provided, however, that no fee shall be decreased below the initial fee for such service provided in this Agreement; provided, further, that the Operator shall use commercially reasonable efforts to mitigate any such rise in out-of-pocket costs incurred by the Operator in connection with providing the Services and Ancillary Services. In the event of an Index Change, the Company and the Operator shall negotiate in good faith to agree on a new index
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that gives comparable protection against inflation that the Producer Price Index gave as of the date hereof, and, for all periods following the date of such Index Change, such new index shall replace the Producer Price Index for all purposes herein. If the Company and the Operator are unable to agree, a new index will be determined by arbitration in accordance with Article 26 and, for all periods following the date of such Index Change, such new index shall replace the Producer Price Index for all purposes herein.
Section 3.6 Change in Law.
(a) In the event that any applicable existing laws, codes, regulations, permit conditions or other authorizations are amended or new laws, codes, regulations, permit conditions or other authorizations are enacted or promulgated after the Commencement Date that require a material Capital Expenditure at the Terminal, or the acquisition of a permit from a Governmental Authority, in each case, in order to provide the Services and Ancillary Services (a Change in Law), the Operator may, by written notice to the Company, request to negotiate an adjustment (an Adjustment) in the Terminaling Service Fee or other fees and charges paid hereunder to cover the Companys Share of the reasonable, incremental, out-of-pocket operating and maintenance costs the Operator would incur to comply with the Change in Law, including a return of capital expended and a return on such capital at a rate of return of 11% per annum, amortized over the remaining Term.
(b) If the Operator requests to negotiate an Adjustment pursuant to Section 3.6(a): (i) the Operator shall provide the Company with complete access (subject to reasonable confidentiality provisions) to information and documentation regarding such proposed Adjustment, including the nature and cost of the contemplated improvements or permit, as applicable, the options for financing or otherwise amortizing such cost, the Operators assessment that such improvements are the most feasible means of complying with the Change in Law and the manner in which the Companys Share of such costs are determined; and (ii) the Parties shall be obligated to negotiate in good faith to agree to an Adjustment as described in Section 3.6(a).
(c) If, despite good faith negotiations, the Parties are unable to agree to an Adjustment pursuant to Section 3.6(a) in sufficient time for the Operator to take such action as shall be necessary to comply with the Change in Law, then the amount of such fee increases will be determined by arbitration in accordance with Article 26, and any such fee increases will be effective as of the effective time of such Change in Law; provided, however, that in the event the fees paid hereunder increase in the aggregate as a result of Changes in Law by more than 200%, then the Company may terminate this Agreement upon ninety (90) days written notice.
Section 3.7 Shortfall Payments. If, during any Contract Quarter, the Company throughputs aggregate volumes less than the Minimum Throughput Commitment, as adjusted pursuant to Section 6.2, for such Contract Quarter (a Shortfall), then (in addition to Terminaling Service Fee) the Company shall pay the Operator an amount (a Shortfall Payment) equal to the Terminaling Service Fee multiplied by the difference between (a) the Minimum Throughput Commitment and (b) the volume of Products actually delivered to the Terminal by the Company during the applicable Contract Quarter. The Parties acknowledge and agree that there shall be no carry-over of deficiency volumes with respect to the Minimum Throughput Commitment and the payment by the Company of the Shortfall Payment shall relieve the Company of any obligation to meet such Minimum Throughput Commitment for the relevant Contract Quarter.
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Section 3.8 Invoices. The Operator shall invoice the Company monthly (or, in the case of any Shortfall Payments, quarterly) for all fees and payments under this Agreement. The Company will make payments to the Operator on a monthly (or, in the case of any Shortfall Payments, quarterly) basis during the Term with respect to amounts due to the Operator under this Agreement in the prior month (or, in the case of any Shortfall Payments, Contract Quarter) ten (10) days after its receipt of such invoice. Any past due payments owed to the Operator hereunder shall accrue interest, payable on demand, at the Prime Rate plus 400 basis points from the due date of the payment through the actual date of payment. Payment of any fee or Shortfall Payment pursuant to this Section 3.8 shall be made by wire transfer of immediately available funds to an account designated in writing by the Operator. If any such fee shall be due and payable on a day that is not a Business Day, such payment shall be due and payable on the next succeeding Business Day.
Section 3.9 Operating Hours. The Operator agrees to keep the Terminal open for receipt and redelivery of the Companys and the Company Designees Products twenty-three (23) hours a day, seven (7) days a week. The Terminal closes from approximately 11 pm to midnight daily for volume reconciliation.
Section 3.10 Regulatory Costs; Reimbursement.
(a) Taxes. The Company shall reimburse the Operator for all taxes that the Operator incurs in connection with this Agreement unless prohibited by Applicable Law.
(b) Capital Expenditures. The Company may request that the Operator make certain Capital Expenditures at the Terminal and the Operator shall make such Capital Expenditures; provided, however, that the Operator shall not be required to make any such Capital Expenditure if such Capital Expenditure would materially adversely affect the operation of the Terminal, as determined in the reasonable discretion of the Operator. The Company shall reimburse the Operator for the Companys Share of any such Capital Expenditure. For the avoidance of doubt, except as provided in the Omnibus Agreement or the Operation and Management Services and Secondment Agreement, any maintenance required for the Operator to continue to provide the services specified hereunder shall be paid for by the Operator.
(c) Payment Terms. All of the foregoing reimbursements shall be made in accordance with the payment terms set forth in Section 3.8 herein.
Section 3.11 Third-Party Arrangements. The Operator may throughput volumes for third parties; provided, however, that such arrangements do not prevent the Operator from fulfilling its obligations to the Company hereunder, including the obligation to make the Minimum Throughput Capacity available to the Company during the Term. Nothing herein shall be deemed to provide the Company with exclusive rights to services at the Terminal.
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Article 4 Custody, Title and Risk of Loss.
Section 4.1 Title. Subject to Section 22.2, the Company or the Company Designee shall at all times during the Term retain title to the Products handled or throughput by the Company or the Company Designee at the Terminal, and such Products shall remain the Companys or the Company Designees exclusive property. The Company hereby represents that, at all times during the Term, the Company or the Company Designee holds exclusive title to the Products throughput or handled by the Company at the Terminal; provided, however, that each of the Company and the Company Designee may at any time permit liens on the Companys or the Company Designees Products at the Terminal.
Section 4.2 Compliance with Laws. During the time any Products are held or throughput at the Terminal, the Operator, in its capacity as operator of the Terminal shall be solely responsible for compliance with (and the Operator shall comply with) all Applicable Laws pertaining to the possession, handling, use and processing of such Products at the Terminal.
Section 4.3 Volumetric Losses and Gains. Subject to the other provisions in this Agreement, title and risk of loss to all of the Products handled or throughput by the Company or the Company Designee at the Terminal shall remain at all times with the Company or the Company Designee, as applicable. Unless the Operator experiences a spill or other release of Product while Product is in the Operators custody, all volumetric losses and gains in Product shall be for the Companys or the Company Designees account, as applicable. Operator reserves the right to install meters for receipt of Product at the Terminal in order to make a more accurate gain/loss calculation and to amend this Agreement to allocate such gains and losses between Operator and all throughputters at the Terminal (including Company) in accordance with industry standards, subject to Companys consent which shall not be unreasonably withheld, delayed or conditioned.
Section 4.4 Custody. During the Term, the Operator shall hold all Products at the Terminal solely as bailee, and agrees that when any such Products are redelivered to the Company or the Company Designee, the Company or the Company Designee shall have good title thereto (to the extent the Company had good title prior to delivery at the Terminal) free and clear of any liens, security interests, encumbrances and claims of any kind whatsoever created or caused to be created by the Operator, other than Permitted Liens; provided, however, that notwithstanding anything herein to the contrary the Operator hereby waives, relinquishes and releases any and all liens, including, any and all warehousemans liens, custodians liens, rights of retention or similar rights under all applicable laws, which the Operator would or might otherwise have under or with respect to any Products handled hereunder. During the Term, none of the Operator or any of its Affiliates shall (and the Operator shall not permit any of its Affiliates or any other Person to) use any such Products for any purpose. Solely in its capacity as bailee, the Operator shall have custody of Product throughput under this Agreement from the time the Products pass the inlet flange of the Terminal from the Refinery until such time that the Products pass the outlet flange of the Terminal (loading connection to the receiving truck).
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Article 5 Specification and Contamination.
Section 5.1 Delivery Specifications.
(a) The Company shall not (and shall cause any Company Designee to not) deliver to the Terminal any Off-Specification Product; provided, however, that in the event Off-Specification Product is delivered by the Company or any Company Designee to the Terminal, and the Company or the Company Designee instructs or fails to instruct the Operator to return such Off-Specification Product to the Company or the Company Designee, as applicable, the Operator shall provide the Off-Specification Product to the Company or the Company Designee, as applicable, and the Operator will return, and the Company will receive on its or the Company Designees behalf, such Off-Specification Product at the Companys own expense. In the event Off-Specification Product is delivered by the Company or the Company Designee, and in the reasonable opinion of the Operator, the Services are unable to be provided as a result of the Off-Specification Product (whether due to a failure to comply with law, safety considerations or otherwise), the Operator shall notify the Company and the Company shall be responsible for taking possession of such Off-Specification Product without the Services being provided and such Off-Specification Product shall not count towards the Minimum Volume Commitment.
Section 5.2 Offloading Specifications. If all Product meets the relevant specifications set forth in Exhibit B, with the exclusion of additives, when it enters the Terminal, it is the responsibility of the Operator to ensure that all Products leaving the Terminal (at the discharge flange of the loading rack) shall meet the same relevant specifications, and shall not leave the Terminal with different specifications. Notwithstanding the above language, it is the responsibility of the Operator to inject the correct amount of additives to meet the the additive specifications, if any, set forth in Exhibit B. In lieu of any indemnification obligations pursuant to Section 18.1, the Operator may, at its sole option, require the Company, at the Operators sole expense, to reprocess or otherwise treat any such mis-additized Products to restore those Products to salable condition.
Section 5.3 Contamination. The Operator shall use at least Prudent Industry Practice to ensure that no Products shall be contaminated with scale or other materials, chemicals, water or any other impurities. In lieu of any indemnification obligations pursuant to Section 18.1, the Operator may, at its sole option, require the Company, at the Operators sole expense, to reprocess or otherwise treat any such contaminated Products to restore those Products to salable condition, or reimburse the Company for the market value of such Products.
Article 6 Condition and Maintenance of the Terminal.
Section 6.1 Interruption of Service. The Operator shall use commercially reasonable efforts to (i) minimize the interruption of service at the Terminal, and (ii) notwithstanding any such interruption of service, make the Terminal available to the Minimum Throughput Capacity. The Operator shall inform the Company at least sixty (60) days in advance (or promptly, in the case of an unplanned interruption) of any anticipated partial or complete interruption of service at the Terminal, including relevant information about the expected duration of the interruption and the actions the Operator is taking to resume full operations; provided, however, that the Operator shall not have any liability for any failure to notify, or delay in notifying, the Company of any such matters except to the extent the Company has been materially damaged by such failure or delay.
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Section 6.2 Maintenance and Repair Standards.
(a) Subject to Article 13, during the Term the Operator shall maintain the Terminal with sufficient aggregate capacity to throughput a volume of Product at least equal to the Minimum Throughput Capacity; provided, however, that the Operators obligations may be temporarily suspended during the occurrence of, and for the entire duration of, routine repair and maintenance consistent with Prudent Industry Practice that prevents the Operator from providing the Minimum Throughput Capacity (Terminal Maintenance) so long as the Operator has complied with its obligations set forth in Section 6.1. In the event the Terminal Maintenance is not as a result of Force Majeure, the Parties shall reasonably cooperate with each other so as to (i) ensure that such Terminal Maintenance does not unnecessarily interfere with any of the Companys or the Company Designees purchase or sale commitments, (ii) ensure that such Terminal Maintenance otherwise accommodates, to the extent reasonably practicable, other commercial or market considerations that the Company deems relevant and (iii) reasonably minimize the effect of such Terminal Maintenance on the Services and the Ancillary Services.
(b) To the extent the Company is prevented for seven (7) or more days in any Contract Quarter from throughputting volumes at the Terminal equal to at least the Minimum Throughput Commitment for reasons caused by the Operator (or any of its employees, agents or contractors) other than Force Majeure and other than causes due to actions of the Company or the Company Designee (and any of their respective contractors, employees or representatives excluding the Operator and its employees, agents and representatives), then the Minimum Throughput Commitment shall be proportionately reduced to the extent of the difference between the Minimum Throughput Capacity and the amount that the Operator can effectively throughput at the Terminal (prorated for the portion of the Contract Quarter during which the Minimum Throughput Capacity was unavailable) regardless of whether actual throughput amounts prior to the reduction were below the Minimum Throughput Commitment. At such time as the Operator is capable of throughputting volumes equal to at least the Minimum Throughput Commitment at the Terminal, the Companys obligation to throughput the full Minimum Throughput Commitment shall be restored as of such time. To the extent the Company is prevented for seven (7) or more days in any Contract Quarter from throughputting volumes at the Terminal equal to at least the Minimum Throughput Commitment, other than due to a Force Majeure event, and the throughput at the Terminal falls below the Minimum Throughput Capacity as described above in this paragraph (b), the Operator shall make all commercially reasonable repairs at the Terminal to restore the capacity of the Terminal to that required for throughput of the Minimum Throughput Capacity (Restoration). All of such Restoration shall be at the Operators cost and expense, unless any damage creating the need for such repairs was caused by the negligence or willful misconduct of the Company, the Company Designee or their respective contractors, employees, agents (excluding for the avoidance of doubt, the Operator and its contractors, employees and agents) or customers, in which case such Restoration shall be at the Companys cost and expense to the extent caused by the negligence or willful misconduct of the Company, the Company Designee or their respective employees, agents or customers.
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Article 7 Inspection, Access and Audit Rights.
Section 7.1 Inspection. At any reasonable times during normal business hours and upon reasonable prior notice, the Company, the Company Designee and their respective representatives (including one or more Supplier Inspectors, collectively, the Company Inspectors) shall have the right to enter and exit the Operators premises in order to have access to the Terminal, to observe the operations of the Terminal and to conduct such inspections as the Company or the Company Designee may wish to have performed in connection with this Agreement, including to enforce its rights and interests under this Agreement; provided, however, that (a) each of the Company Inspectors shall follow routes and paths to be reasonably designated by the Operator or security personnel retained by the Operator, (b) each of the Company Inspectors shall observe all security, fire and safety regulations while in, around or about the Terminal, (c) when accessing the facilities of the Operator, the Company Inspectors shall at all times comply with Applicable Law and such safety directives and guidelines as may be furnished to the Company or the Company Designee by the Operator by any means (including in writing, orally, electronically or through the posting of signs) from time to time, and (d) the Company or the Company Designee shall be liable for any personal injury to its representatives or any damage caused by such Company Inspectors in connection with such access to the Terminal. Without limiting the generality of the foregoing, the Operator shall regularly grant the Company Inspectors reasonable access upon advance notice in writing and such inspectors comply with Operators rules, regulations and procedures which shall include Operators right to accompany the Inspectors.
Section 7.2 Access. The Company, the Company Designee and their respective representatives, upon reasonable notice and during normal working hours, shall have access to the accounting records and other documents maintained by the Operator, or any of its contractors and agents, which relate to this Agreement, and shall have the right to audit such records at any reasonable time or times during the Term and for a period of up to two (2) years after termination of this Agreement. The Company or the Company Designee shall have the right to conduct such audit no more than once per calendar quarter and each audit shall be limited in time to no more than the present and prior two (2) calendar years. Claims as to defects in quality shall be made by written notice within sixty (60) days after the delivery in question or shall be deemed to have been waived. The right to inspect or audit such records shall survive termination of this Agreement for a period of two (2) years following the end of the Term. The Operator shall preserve, and shall cause all contractors or agents to preserve, all of the aforesaid documents for a period of at least two (2) years from the end of the Term. Additionally, the Operator shall make available a copy of any meter calibration report, to be available for inspection upon reasonable request by the Company or the Company Designee at the Terminal following any calibration. Notwithstanding any of the foregoing, if an Event of Default with respect to the Operator has occurred and is continuing, the Company Inspectors shall have unlimited and unrestricted access to the accounting records and other documents maintained by the Operator with respect to the Terminal, for so long as such Event of Default continues.
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Article 8 Scheduling.
The Operator shall provide the Company, the Company Designee and their Customers non-discriminatory, priority access rights at the Terminal to throughput the Companys and the Company Designees Products up to the Minimum Throughput Capacity. All deliveries, receipts, handling and throughput of Product hereunder shall be made in strict accordance with the Operators current reasonable operating, scheduling and nomination procedures for the Terminal, which (a) the Operator shall provide to the Company on the date hereof, (b) the Operator shall not materially modify without the prior written consent of the Company, not to be unreasonably withheld, modified or delayed; provided, however, that the Operator may make any modifications it reasonably deems necessary to comply with or observe any Applicable Law or for health, safety, environmental, security or other similar concerns consistent with Prudent Industry Practice, and (c) shall allow the throughput of the grades and qualities of Product specified in Exhibit B.
Article 9 Intentionally Omitted
Article 10 Additional Covenants.
Section 10.1 Required Permits. During the Term, unless the Company has agreed to maintain such for the benefit of the Operator, the Operator shall, at its sole cost and expense (directly or through one of its or the Companys Affiliates), obtain, apply for, maintain, monitor, renew, and modify, as appropriate, any license, authorization, certification, filing, recording, permit, waiver, exception, variance, franchise, order or other approval with or of any Governmental Authority pertaining or relating to the operation of the Terminal (the Required Permits) as currently operated; provided, however, that if any Required Permits require the signature of, or any action by, the Company or the Company Designee, the Company shall reasonably cooperate with the Operator (at the Operators expense) so that the Operator may obtain and maintain such Required Permits. The Operator shall not do anything in connection with the performance of its obligations under this Agreement that causes a termination or suspension of the Required Permits.
Section 10.2 Additional Operator Covenants. The Operator hereby:
(a) (i) confirms that it will post at the Terminal such reasonable placards as the Company or the Company Designee, as applicable, requests stating that the Company or the Company Designee is the owner of specific Products held at the Terminal; (ii) agrees that it will take all actions necessary to maintain such placards in place for the Term; and (iii) agrees to furnish documents reasonably acceptable to the Company, the Company Designee and their respective lenders and intermediators and to cooperate with the Company in ensuring and demonstrating that Product titled in the Companys or the Company Designees name shall not be subject to any lien on the Terminal;
(b) acknowledges and agrees that the Company or the Company Designee may file a UCC-1 or other financing statement with respect to the Products handled or throughput at the Terminal, and the Operator shall cooperate with the Company in executing such financing statements as the Company or the Company Designee deems necessary or appropriate;
(c) agrees that, subject to Section 4.3, no loss allowances shall be applied to the Products handled or throughput at the Terminal;
(d) agrees to maintain all necessary leases, easements, licenses and rights-of-way necessary for the operation and maintenance of the Terminal; and
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(e) agrees that, in the event of any Product spill, leak or discharge or any other environmental pollution caused by or in connection with the use of the Terminal, the Operator shall promptly commence containment or clean-up operations as required by any Governmental Authorities or Applicable Law or as the Operator deems appropriate or necessary and shall notify or arrange to notify the Company or the Company Designee immediately of any such spill, leak or discharge and of any such operations.
The Company and the Company Designee shall take all reasonable steps to cooperate with the Operator in connection with the Operators performance of each of the covenants in this Section 10.2, in each case, at the Operators sole expense.
Section 10.3 Additional Company Covenants. The Company hereby agrees:
(a) to replace or repair, at its own expense, any part of the Terminal that is destroyed or damaged through any negligence or willful misconduct of the Company, the Company Designee (acting in such capacity), any Customer, or any of their agents or employees (acting in such capacity), or any Company Inspector; and
(b) to not make any alteration, additions or improvements to the Terminal or remove any part thereof, without the prior written consent of the Operator, such consent to be at the Operators sole discretion .
Section 10.4 Existing Obligations. The execution of this Agreement by the Parties does not reduce any existing obligations of such Parties and does not confer any additional obligation or responsibility on the Company in connection with: (a) any existing or future environmental condition at the Terminal, including, the presence of a regulated or hazardous substance on or in environmental media at the Terminal (including the presence in surface water, groundwater, soils or subsurface strata, or air), including the subsequent migration of any such substance; (b) any Environmental Law; (c) the Required Permits; or (d) any requirements arising under or relating to any Applicable Law pertaining or relating to the ownership and operation of the Terminal.
Section 10.5 Records.
(a) Each Party shall (i) maintain the records required to be maintained by Applicable Law and shall make such records available to the other Party upon reasonable request and (ii) immediately notify the other Party of any violation or alleged violation of any Applicable Law relating to any Products throughput and handled under this Agreement and, upon request, shall provide to the other Party all evidence of environmental inspections or audits by any Governmental Authority with respect to such Products.
(b) All records or documents provided by any Party to any other Party shall, to the reasonable knowledge of the providing Party, accurately and completely reflect the facts about the activities and transactions to which they relate. Notwithstanding anything herein to the contrary, no Party shall be required to provide to the other Party any document that is determined by the disclosing Partys legal counsel to be protected by an attorney-client privilege or attorney work product doctrine. Each Party shall promptly notify the other Party if at any time such Party has reason to believe that any records or documents previously provided to the other Party are no longer accurate or complete.
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Article 11 Representations.
Section 11.1 Representations of the Operator. The Operator represents and warrants to the Company that (a) this Agreement, the rights obtained and the duties and obligations assumed by the Operator hereunder, and the execution and performance of this Agreement by the Operator, do not directly or indirectly violate any Applicable Law with respect to the Operator or any of its properties or assets, the terms and provisions of the Operators organizational documents or any agreement or instrument to which the Operator or any of its properties or assets are bound or subject; (b) the execution and delivery of this Agreement by the Operator has been authorized by all necessary action; (c) the Operator has the full and complete authority and power to enter into this Agreement and to provide the services hereunder; (d) no further action on behalf of the Operator, or consents of any other party, are necessary for the provision of services hereunder; and (e) upon execution and delivery by the Operator, this Agreement shall be a valid and binding agreement of the Operator enforceable in accordance with its terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law).
Section 11.2 Representations of the Company. The Company represents and warrants to the Operator that (a) this Agreement, the rights obtained and the duties and obligations assumed by the Company hereunder, and the execution and performance of this Agreement by the Company, do not directly or indirectly violate any Applicable Law with respect to the Company or any of its property or assets, the terms and provisions of the Companys organizational documents or any agreement or instrument to which the Company or any of its property or assets are bound or subject; (b) the execution and delivery of this Agreement by the Company has been authorized by all necessary action; (c) the Company has the full and complete authority and power to enter into this Agreement; and (d) upon execution and delivery by the Company, this Agreement shall be a valid and binding agreement of the Company enforceable in accordance with its terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law).
Article 12 Insurance.
The Operator, directly or through one of its or the Companys Affiliates, shall procure and maintain in full force and effect throughout the Term insurance in sufficient amounts and coverage to be in accordance with Prudent Industry Practice. Such policies shall be endorsed to name the Company and any Company Designee as a loss payee with respect to any of the Companys or the Company Designees Products in the care, custody or control of the Operator.
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Article 13 Force Majeure, Damage or Destruction.
Section 13.1 Force Majeure. In the event that a Party (the Force Majeure Party) is rendered unable, wholly or in part, by a Force Majeure event to perform its obligations under this Agreement, then such Party shall within a reasonable time after the occurrence of such event of Force Majeure deliver to the other Party written notice (a Force Majeure Notice) including full particulars of the Force Majeure event, and the obligations of the Parties, to the extent they are affected by the Force Majeure event, shall be suspended for the duration of any inability so caused; provided, however, that (a) prior to the second (2nd) anniversary of the Commencement Date, the Company shall be required to continue to make payments (i) for the Terminaling Service Fees for volumes actually throughput under this Agreement, (ii) for the Ancillary Services Fees, if any, for Ancillary Services performed, and (iii) for any Shortfall Payments unless, in the case of (iii), the Force Majeure event is an event that adversely affects the Operators ability to perform the Services (including making the Minimum Throughput Capacity available to the Company), in which case Shortfall Payments shall not be paid to the extent of the Force Majeure events effect on the Operators ability to perform the Services and the Terminaling Service Fees shall only be paid as provided under (a)(i) above, and (b) from and after the second (2nd) anniversary of the Commencement Date, the Company shall be required to continue to make payments (x) for the Terminaling Service Fees for volumes actually throughput under this Agreement and (y) for the Ancillary Services Fees, if any, for the Ancillary Services actually performed under this Agreement. The Force Majeure Party shall identify in such Force Majeure Notice the approximate length of time that it believes in good faith such Force Majeure event shall continue (the Force Majeure Period). The Company shall be required to pay any amounts accrued and due under this Agreement at the time of the start of the Force Majeure event. The cause of the Force Majeure event shall so far as possible be remedied with all reasonable efforts, except that no Party shall be compelled to resolve any strikes, lockouts or other industrial or labor disputes other than as it shall determine to be in its best interests. Prior to the second (2nd) anniversary of the Commencement Date, any suspension of the obligations of the Parties under this Section 13.1 as a result of a Force Majeure event that adversely affects the Operators ability to perform the services it is required to perform under this Agreement shall extend the Term for the same period of time as such Force Majeure event continues (up to a maximum of one year) unless this Agreement is terminated under Section 13.2.
Section 13.2 Termination due to Force Majeure. If the Force Majeure Party advises in any Force Majeure Notice that it reasonably believes in good faith that the Force Majeure Period shall continue for more than twelve (12) consecutive months beyond the second (2nd) anniversary of the Commencement Date, then at any time after the delivery of such Force Majeure Notice, either Party may deliver to the other Party a notice of termination (a Termination Notice), which Termination Notice shall become effective not earlier than twelve (12) months after the later to occur of (a) delivery of the Termination Notice and (b) the second (2nd) anniversary of the Commencement Date; provided, however, that such Termination Notice shall be deemed cancelled and of no effect if the Force Majeure Period ends before the Termination Notice becomes effective, and, upon the cancellation of any Termination Notice, the Parties respective obligations hereunder shall resume as soon as reasonably practicable thereafter, and the Term shall be extended by the same period of time as is required for the Parties to resume such obligations. After the second (2nd) anniversary of the Commencement Date and following delivery of a Termination Notice, the Operator may terminate this Agreement, to the extent affected by the Force Majeure event, upon sixty (60) days prior written notice to the Company in order to enter into an agreement to provide any third party the services provided to the Company under this Agreement; provided, however, that the Operator shall not have the right to terminate this Agreement for so long as the Company continues to make Shortfall Payments.
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Article 14 Suspension of Refinery Operations.
Section 14.1 Suspension of Refinery Operations. From and after the second (2nd) anniversary of the Commencement Date, in the event that the Company decides to permanently or indefinitely suspend all or substantially all crude oil refining operations at the Refinery for a period that shall continue for at least twelve (12) consecutive months, the Company may provide written notice to the Operator of the Companys intent to terminate this Agreement (the Suspension Notice). Such Suspension Notice shall be sent at any time (but not prior to the second (2nd) anniversary of the Commencement Date) after the Company has notified the Operator of such suspension and, upon the expiration of the period of twelve (12) months (which may run concurrently with the twelve (12) month period described in the immediately preceding sentence) following the date such notice is sent (the Notice Period), this Agreement shall terminate. If the Company notifies the Operator more than two (2) months prior to the expiration of the Notice Period of its intent to resume operations at the Refinery, then the Suspension Notice shall be deemed revoked and this Agreement shall continue in full force and effect as if such Suspension Notice had never been delivered. During the Notice Period, the Company shall remain liable for Shortfall Payments and all payments per Section 3.6 and Section 3.10 with respect of Capital Expenditures hereunder. Subject to Section 14.1 and after the fifth (5th) anniversary of the Commencement Date, during the Notice Period, the Operator may terminate this Agreement upon sixty (60) days prior written notice to the Company in order to enter into an agreement to provide any third party the services provided to the Company under this Agreement.
Section 14.2 Notice of Suspension. If all or substantially all refining operations at the Refinery are suspended for any reason (including refinery turnaround operations and other scheduled maintenance), then the Company shall remain liable for Shortfall Payments under this Agreement for the duration of the suspension, unless and until this Agreement is terminated as provided in Section 14.1. The Company shall provide at least ninety (90) days prior written notice whenever practical of any suspension of operations at the Refinery due to a planned turnaround or scheduled maintenance that affects or will affect the Services or the Ancillary Services; provided, however, that the Company shall not have any liability for any failure to notify, or delay in notifying, the Operator of any such suspension except to the extent the Operator has been materially damaged by such failure or delay.
Article 15 Right of First Refusal.
Section 15.1 Grant of ROFR. The Operator hereby grants to the Company a right of first refusal on any proposed Transfer (other than a grant of a security interest to a bona fide third-party lender or a Transfer to an Affiliate of the Operator) of any ROFR Asset; provided, however, that the Parties acknowledge and agree that nothing in this Article 15 shall prevent or restrict the Transfer of partnership interests, limited liability interests, equity or ownership interests or other securities of the Operator or create a right of first refusal as a result thereof; provided, further, that the Company may, without consent or approval from the Operator, assign its rights under this Article 15 to any Affiliate of the Company.
Section 15.2 Acknowledgement regarding Consents. The Parties acknowledge that all potential Transfers of ROFR Assets pursuant to this Article 15 are subject to obtaining any and all required written consents of Governmental Authorities and other third parties and to the terms of
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all existing agreements in respect of the ROFR Assets, as applicable; provided, however, that the Operator represents and warrants that, to its knowledge after reasonable investigation, there are no terms in such agreements that would materially impair the rights granted to the Company pursuant to this Article 15 with respect to any ROFR Asset.
Section 15.3 Procedures for Transfer of ROFR Asset.
(a) In the event the Operator proposes to Transfer any of the ROFR Assets (other than a grant of a security interest to a bona fide third-party lender or a Transfer to an Affiliate of the Operator) pursuant to a bona fide third-party offer (an Acquisition Proposal), then the Operator shall, prior to entering into any such Acquisition Proposal, first give notice in writing to the Company (a Disposition Notice) of its intention to enter into such Acquisition Proposal. The Disposition Notice shall include any material terms, conditions and details as would be necessary for the Company to determine whether to exercise its right of first refusal with respect to the Acquisition Proposal, which terms, conditions and details shall at a minimum include: the name and address of the prospective acquirer (the Proposed Transferee), the ROFR Assets subject to the Acquisition Proposal (the Sale Assets), the purchase price offered by such Proposed Transferee (the Offer Price), reasonable detail concerning any non-cash portion of the proposed consideration, if any, to allow the Company to reasonably determine the fair market value of such non-cash consideration, the Operators estimate of the fair market value of any non-cash consideration and all other material terms and conditions of the Acquisition Proposal that are then known to the Operator. To the extent the Proposed Transferees offer consists of consideration other than cash (or in addition to cash), the Offer Price shall be deemed equal to the amount of any such cash plus the fair market value of such non-cash consideration. In the event the Company and the Operator are able to agree on the fair market value of any non-cash consideration or if the consideration consists solely of cash, the Company will provide written notice of its decision regarding the exercise of its right of first refusal to purchase the Sale Assets (the ROFR Response) to the Operator within sixty (60) days of its receipt of the Disposition Notice (the First ROFR Acceptance Deadline). In the event the Company and the Operator are unable to agree on the fair market value of any non-cash consideration prior to the First ROFR Acceptance Deadline, the Company shall indicate its desire to determine the fair market value of such non-cash consideration pursuant to the procedures outlined in the remainder of this Section 15.3 in a ROFR Response delivered prior to the First ROFR Acceptance Deadline. If no ROFR Response is delivered by the Company prior to the First ROFR Acceptance Deadline, then the Company shall be deemed to have waived its right of first refusal with respect to such Sale Asset. In the event (i) the Companys determination of the fair market value of any non-cash consideration described in the Disposition Notice is less than the fair market value of such consideration as determined by the Operator in the Disposition Notice and (ii) the Company and the Operator are unable to mutually agree upon the fair market value of such non-cash consideration within sixty (60) days after the Company notifies the Operator of its determination thereof, the Operator and the Company will engage a mutually agreed upon, nationally recognized investment banking firm that is not currently engaged in business with either of the Parties to determine the fair market value of the non-cash consideration. In the event the Parties are unable to agree upon an investment banking firm, each Party will select a nationally recognized investment banking firm, and the two investment banking firms so chosen will select a third investment banking firm to serve as the investment banking firm for purposes of this Article 15. The investment banking firm will determine the fair market value of the non-cash consideration within thirty (30) days of its
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engagement and furnish the Company and the Operator its determination. The fees of the investment banking firm will be split equally between Parties. Once the investment banking firm has submitted its determination of the fair market value of the non-cash consideration, the Company will provide a ROFR Response to the Operator within thirty (30) days after the investment banking firm has submitted its determination (the Second ROFR Acceptance Deadline and together with the First ROFR Acceptance Deadline, the ROFR Acceptance Deadlines). If no ROFR Response is delivered by the Company prior to the Second ROFR Acceptance Deadline, then the Company shall be deemed to have waived its right of first refusal with respect to such Sale Asset.
(b) If the Company elects in a ROFR Response delivered prior to the First ROFR Acceptance Deadline or Second ROFR Acceptance Deadline, as applicable, to exercise its right of first refusal with respect to a Sale Asset, within sixty (60) days of the delivery of the ROFR Response, such ROFR Response shall be deemed to have been accepted by the Operator and the Operator shall thereafter enter into a purchase and sale agreement with the Company providing for the consummation of the Acquisition Proposal upon the terms set forth in the ROFR Response. Unless otherwise agreed between the Company and the Operator, the terms of the purchase and sale agreement will include the following:
(i) the Company will agree to deliver the Offer Price in cash (unless the Company and the Operator agree that such consideration will be paid, in whole or in part, in equity securities of the Company or of an Affiliate of the Company, an interest-bearing promissory note or similar instrument, or any combination thereof);
(ii) the Operator will represent that it has valid fee or leasehold title, as applicable, to the Sale Asset that is sufficient to operate the Sale Assets in accordance with their historical use, subject to all recorded matters and all physical conditions in existence on the closing date for the purchase of the applicable Sale Asset, plus any other such matters as the Company may approve (and if the Company desires to obtain any title insurance with respect to the Sale Asset, the full cost and expense of obtaining the same (including the cost of title examination, document duplication and policy premium) shall be borne by the Company);
(iii) the Operator will grant to the Company the right, exercisable at the Companys risk and expense prior to the delivery of the ROFR Response, to make such surveys, tests and inspections of the Sale Asset as the Company may deem desirable, so long as such surveys, tests or inspections are neither destructive nor invasive and do not damage the Sale Asset or interfere with the activities of the Operator;
(iv) the Company will have the right to terminate its obligation to purchase the Sale Asset under this Article 15 if the results of any searches under Section 15.3(b)(ii) or (iii) above are, in the reasonable opinion of the Company, unsatisfactory;
(v) the closing date for the purchase of the Sale Asset shall occur no later than one hundred eighty (180) days following receipt by the Operator of the ROFR Response pursuant to Section 15.3(a);
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(vi) the Operator and the Company shall use commercially reasonable efforts to do or cause to be done all things that may be reasonably necessary or advisable to effectuate the consummation of any transactions contemplated by this Section 15.3(b), including causing its respective Affiliates to execute, deliver and perform all documents, notices, amendments, certificates, instruments and consents required in connection therewith;
(vii) except to the extent modified in the Acquisition Proposal, the sale of any Sale Assets shall be made on an as is, where is and with all faults basis, and the instruments conveying such Sale Assets shall contain appropriate disclaimers; and
(viii) neither the Operator nor the Company shall have any obligation to sell or buy the Sale Assets if any of the consents referred to in Section 15.2 has not been obtained.
(c) The Company and the Operator shall cooperate in good faith in obtaining all necessary governmental and other third-party approvals, waivers and consents required for the closing of the purchase and sale agreement described in Section 16.1(b). Any such closing shall be delayed, to the extent required, until the third (3rd) Business Day following the expiration of any required waiting periods under the Hart-Scott-Rodino Act; provided, however, that such delay shall not exceed sixty (60) days following the one hundred eighty (180) days referred to in Section 15.3(b)(v) (the ROFR Governmental Approval Deadline) and, if governmental approvals and waiting periods shall not have been obtained or expired, as the case may be, by such ROFR Governmental Approval Deadline, then the Company shall be deemed to have waived its right of first refusal with respect to the Sale Assets described in the Disposition Notice and thereafter the Operator shall be free to consummate the Transfer to the Proposed Transferee, subject to Section 15.3(d)(ii).
(d) If the Transfer to the Proposed Transferee (i) in the case of a Transfer other than a Transfer permitted under Section 15.3(c), is not consummated in accordance with the terms of the Acquisition Proposal within the later of (A) one hundred eighty (180) days after the applicable ROFR Acceptance Deadline and (B) three (3) Business Days after the satisfaction of all governmental approval or filing requirements, if any, or (ii) in the case of a Transfer permitted under Section 15.3(c), is not consummated within the later of (A) sixty (60) days after the ROFR Governmental Approval Deadline and (B) three (3) Business Days after the satisfaction of all governmental approval or filing requirements, if any, then in each case the Acquisition Proposal shall be deemed to lapse, and the Operator may not Transfer any of the Sale Assets described in the Disposition Notice without complying again with the provisions of this Article 15 if and to the extent then applicable.
Article 16 Shutdown or Idling of Refinery.
Section 16.1 Shutdown or Idling of Refinery. In the event of a Permanent Refinery Shutdown, the Operator shall have the right to purchase the assets identified in Exhibit D and such other assets as the Operator reasonably determines in good faith to be necessary to operate the Terminal (the Designated Refinery Assets) at their fair market value at the time of sale in accordance with this Section 16.1.
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(a) A Permanent Refinery Shutdown shall be deemed to have occurred upon the earlier of (i) the cessation of all or substantially all commercial operation of the Refinery with no current intent on the part of the Company to resume all or substantially all commercial operation thereof or (ii) a change to the Refinerys current SIC code (i.e., 4610) applicable to crude oil refining. The Company shall exercise commercially reasonable efforts to provide the Operator with at least sixty (60) days advance notice of a Permanent Refinery Shutdown.
(b) The Operator may at any time during the two-year period following notice of a Permanent Refinery Shutdown exercise its purchase option pursuant to this Article 16 (the Refinery Asset Purchase Option) by providing written notice (a Refinery Asset Option Notice) to the Company. Promptly upon receipt of such Refinery Asset Option Notice, the Company shall provide the Operator and its designees with access to such information regarding the Designated Refinery Assets as shall be reasonable and customary for the Operator to conduct diligence in accordance with Prudent Industry Practice on assets such as the Designated Refinery Assets. The Operator shall have a period of not less than ninety (90) days to evaluate such information.
(c) The Operator and the Company shall, for a period of thirty (30) days following completion of Operators diligence in accordance with Prudent Industry Practice, negotiate in good faith to reach agreement on the terms for a purchase of the Designated Refinery Assets by the Operator; provided, however, that the Parties agree that: (i) the terms (including price) of any such purchase and sale will be on terms customary for the sale of assets of this nature and otherwise agreeable to both the Operator and the Company; (ii) the purchase price shall be paid at closing in cash; (iii) the Company shall not be obligated to make any representations as to the condition of the Designated Refinery Assets or any portion thereof; (iv) the Operator shall not be required to purchase the real property on which the Designated Refinery Assets are located (in which case the Operator shall be entitled to lease or be granted easements to all or a portion of such real property); (v) the Company shall convey all operating and maintenance records reasonably necessary for the operation of the Designated Refinery Assets; and (vi) the Company shall convey the Designated Refinery Assets free and clear of any charge, claim, covenant, equitable interest, equitable servitude, lien, option, pledge security interest, right of first refusal, or other restriction of any kind, including any restriction on use, transfer, receipt of income, or exercise of any other attribute of ownership; provided, however, that the Company shall receive a reasonable easement with respect to the Designated Refinery Assets in order to access such Designated Refinery Assets in connection with the Company or its Affiliates potential refining operations.
(d) If the Operator and the Company are unable to agree on the terms (including price) for a sale of the Designated Refinery Assets, the Operator and the Company shall engage a mutually agreed upon, nationally recognized investment banking firm to determine any terms (including price) as to which the Parties are unable to agree with respect to the sale of the Designated Refinery Assets. In the event the Parties are unable to agree upon an investment banking firm, each Party will select a nationally recognized investment banking firm, and the two investment banking firms so chosen will select a third investment banking firm to serve as the investment banking firm for purposes of this Section 16.1. The investment banking firm shall: (i) base the terms of purchase and sale on those that are reasonable and customary for the sale of industrial assets such as the Designated Refinery Assets, subject to the provisions of this Section 16.1; (ii) determine the fair market value of the Designated Refinery Assets based on their then-current operations; and (iii) consider the age, condition, maintenance history, replacement cost, ongoing operating costs, regulatory enforcement actions or fines in effect and other factors the investment banking firm considers relevant to fair market value.
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(e) All fees of the investment banking firm incurred in connection with the Refinery Asset Purchase Option will be split equally between the Operator and the Company.
(f) Once the investment banking firm resolves all terms of the sale regarding the Refinery Asset Purchase Option that the Parties are unable to agree upon, the Operator will have the right, but not the obligation, for a period of ninety (90) days from the investment banking firms resolution (such period, the Refinery Asset Option Period) to purchase the Designated Refinery Assets on terms (including price) agreed to by the Parties (as supplemented by any terms determined by the investment banking firm). The Operator shall notify the Company, in writing delivered during the Refinery Asset Option Period, of its intention to purchase the Designated Refinery Assets. Failure to provide such notice within the Refinery Asset Option Period shall be deemed to constitute a decision by the Operator not to exercise its Refinery Asset Purchase Option.
(g) If the Operator notifies the Company in writing during the Refinery Asset Option Period of its intention to exercise its Refinery Asset Purchase Option, both Parties shall be obligated to enter into an agreement incorporating the terms (including price) either agreed to by the Parties or determined by the investment banking firm. If the Operator fails to execute and deliver such an agreement within sixty (60) days of expiration of the Refinery Asset Option Period, the Operators Refinery Asset Purchase Option shall be deemed to have lapsed.
Article 17 Event of Default: Remedies Upon Event of Default.
Section 17.1 Event of Default. Notwithstanding any other provision of this Agreement, but subject to Article 26, the occurrence of any of the following shall constitute an Event of Default:
(a) any Party fails to make payment when due (i) under Article 3 within five (5) Business Days after a written demand therefor or (ii) under any other provision hereof within seven (7) Business Days;
(b) other than a default described in Sections 17.1(a) or 17.1(c), if the Company or the Operator fails to perform any material obligation or covenant to the other under this Agreement, which is not cured to the reasonable satisfaction of any other Party within fifteen (15) Business Days after the date that such Party receives written notice that such obligation or covenant has not been performed;
(c) any Party breaches any representation or warranty made by such Party hereunder, or such warranty or representation proves to have been incorrect or misleading in any material respect when made; provided, however, that if such breach is curable, such breach is not cured to the reasonable satisfaction of the other Party within fifteen (15) Business Days after the date that such Party receives notice that corrective action is needed;
(d) any Party files a petition or otherwise commences or authorizes the commencement of a proceeding or case under any bankruptcy, reorganization or similar law for the protection of creditors, or have any such petition filed or proceeding commenced against it and such proceeding is not dismissed for sixty (60) days; and
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(e) the Operator sells or permits the creation of, or suffers to exist any security interest, lien, encumbrance, charge or other claim of any nature (other than Permitted Liens or liens or liens that existed with respect to such Product prior to the throughput by the Company or the Company Designee hereunder) with respect to any of the Products.
Section 17.2 Termination in the Event of Default. Except as set forth in Section 17.1(d), without limiting any other provision of this Agreement, if an Event of Default with respect to the Company or the Operator (such defaulting Party, the Defaulting Party) has occurred and is continuing, the Non-Defaulting Party shall have the right, immediately and at any time(s) thereafter, to terminate this Agreement upon written notice to the Defaulting Party.
Section 17.3 Other Remedies. Without limiting any other rights or remedies hereunder, if an Event of Default occurs and the Company is the Non-Defaulting Party, the Company may, in its discretion, (a) withhold or suspend its obligations, including any of its delivery or payment obligations, under this Agreement, (b) reclaim and repossess any and all of its Products held at the Terminal or elsewhere on the Operators premises, and (c) otherwise arrange for the disposition of any of its Products in such manner as it elects.
Section 17.4 Set Off. If an Event of Default occurs, the Non-Defaulting Party may, without limitation on its rights under this Article 17, set off amounts which the Defaulting Party owes to it against any amounts which it owes to the Defaulting Party (whether hereunder, under any other agreement or contract or otherwise and whether or not then due). Any net amount due hereunder shall be payable by the Party owing such amount within one (1) Business Day of termination.
Section 17.5 No Preclusion of Rights. The Non-Defaulting Partys rights under this Section 17.5 shall be in addition to, and not in limitation of, any other rights which the Non-Defaulting Party may have (whether by agreement, operation of law or otherwise), including any rights of recoupment, setoff, combination of accounts, as a secured party or under any other credit support. The Defaulting Party shall indemnify and hold the Non-Defaulting Party harmless from all costs and expenses, including reasonable attorney fees, incurred in the exercise of any remedies hereunder.
Article 18 Indemnification.
Section 18.1 Indemnification by Operator. The Operator shall defend, indemnify and hold harmless the Company, the Company Designee, their respective Affiliates, and their respective directors, officers, employees, representatives, agents, contractors, successors and permitted assigns (collectively, the Company Indemnitees) from and against any Liabilities directly or indirectly arising out of (a) any breach by the Operator of any covenant or agreement contained herein or made in connection herewith or any representation or warranty of the Operator made herein or in connection herewith proving to be false or misleading, (b) any failure by the Operator, its Affiliates or any of their respective employees, representatives, agents or contractors to comply with or observe any Applicable Law, or (c) injury, disease, or death of any Person or
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damage to or loss of any property, fine or penalty, any of which is caused by the Operator, its Affiliates or any of their respective employees, representatives, agents or contractors in the exercise of any of the rights granted hereunder or the handling or transportation of any Products hereunder, except to the extent of the Companys obligations under Section 18.2 below, and except to the extent that such injury, disease, death, or damage to or loss of property, fine or penalty was caused by the gross or sole negligence or willful misconduct on the part of the Company Indemnitees, their Affiliates or any of their respective employees, representatives, agents or contractors. Notwithstanding the foregoing, the Operators liability to the Company Indemnitees pursuant to this Section 18.1 shall be net of any insurance proceeds actually received by the Company Indemnitees or any of their respective Affiliates from any third party with respect to or on account of the damage or injury which is the subject of the indemnification claim. The Company agrees that it shall, and shall cause the other Company Indemnitees to, (i) use all commercially reasonable efforts to pursue the collection of all insurance proceeds to which any of the Company Indemnitees are entitled with respect to or on account of any such damage or injury, (ii) notify the Operator of all potential claims against any third party for any such insurance proceeds, and (iii) keep the Operator fully informed of the efforts of the Company Indemnitees in pursuing collection of such insurance proceeds.
Section 18.2 Indemnification by Company. The Company shall defend, indemnify and hold harmless the Operator, its Affiliates, and their respective directors, officers, employees, representatives, agents, contractors, successors and permitted assigns (collectively, the Operator Indemnitees) from and against any Liabilities directly or indirectly arising out of (a) any breach by the Company of any covenant or agreement contained herein or made in connection herewith or any representation or warranty of the Company made herein or in connection herewith proving to be false or misleading, (b) any personal injury incurred by any representative of the Company or the Company Designee (including any Supplier Inspector or Company Inspector) while on the Operators property, (c) any failure by the Company, the Company Designee, their respective Affiliates or any of their respective employees, representatives (including any Supplier Inspector or Company Inspector), agents or contractors to comply with or observe any Applicable Law, or (d) injury, disease, or death of any Person or damage to or loss of any property, fine or penalty, any of which is caused by the Company, the Company Designee, their respective Affiliates or any of their respective employees, representatives (including any Supplier Inspector or Company Inspector), agents or contractors in the exercise of any of the rights granted hereunder or the refining or storage of any Products hereunder, except to the extent of the Operators obligations under Section 18.1 above, and except to the extent that such injury, disease, death, or damage to or loss of property, fine or penalty was caused by the gross or sole negligence or willful misconduct on the part of the Operator Indemnitees, their Affiliates or any of their respective employees, representatives, agents or contractors. Notwithstanding the foregoing, the Companys liability to the Operator Indemnitees pursuant to this Section 18.2 shall be net of any insurance proceeds actually received by the Operator Indemnitees or any of their respective Affiliates from any third party with respect to or on account of the damage or injury which is the subject of the indemnification claim. The Operator agrees that it shall, and shall cause the other Operator Indemnitees to, (i) use all commercially reasonable efforts to pursue the collection of all insurance proceeds to which any of the Operator Indemnitees are entitled with respect to or on account of any such damage or injury, (ii) notify the Company of all potential claims against any third party for any such insurance proceeds, and (iii) keep the Company fully informed of the efforts of the Operator Indemnitees in pursuing collection of such insurance proceeds.
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Section 18.3 EXPRESS REMEDY. THE FOREGOING INDEMNITIES ARE INTENDED TO BE ENFORCEABLE AGAINST THE PARTIES IN ACCORDANCE WITH THE EXPRESS TERMS AND SCOPE THEREOF NOTWITHSTANDING ANY EXPRESS NEGLIGENCE RULE OR ANY SIMILAR DIRECTIVE THAT WOULD PROHIBIT OR OTHERWISE LIMIT INDEMNITIES BECAUSE OF THE SOLE, CONCURRENT, ACTIVE OR PASSIVE NEGLIGENCE, STRICT LIABILITY OR FAULT OF ANY OF THE INDEMNIFIED PARTIES.
Article 19 Limitation on Damages.
Notwithstanding anything to the contrary contained herein, neither Party shall be liable or responsible to the other Party or such other Partys affiliated Persons for any consequential, punitive, special, incidental or exemplary damages, or for loss of profits or revenues (collectively referred to as Special Damages) incurred by such Party or its affiliated Persons that arise out of or relate to this Agreement, regardless of whether any such claim arises under or results from contract, tort, or strict liability; provided, however, that the foregoing limitation is not intended and shall not affect Special Damages in connection with any third-party claim or imposed in favor of unaffiliated Persons that are not Parties to this Agreement; provided, further, that to the extent an indemnitor hereunder receives insurance proceeds with respect to Special Damages that would be indemnified hereunder if not for this Article 19, such indemnitor shall be liable up to the amount of such insurance proceeds (net any deductible and premiums paid with respect thereto).
Article 20 Confidentiality.
Section 20.1 Obligations. Each Party shall use commercially reasonable efforts to retain the other Partys Confidential Information in confidence and not disclose the same to any third party (other than a Company Designee, provided the Company Designee has agreed to adhere to this Article 20, or any Receiving Party Personnel) nor use the same, except as authorized by the disclosing Party in writing or as expressly permitted in this Section 20.1. Each Party further agrees to take the same care with the other Partys Confidential Information as it does with its own, but in no event less than a reasonable degree of care.
Section 20.2 Required Disclosure. Notwithstanding Section 20.1 above, if the receiving Party becomes legally compelled to disclose the Confidential Information by a court, Governmental Authority or Applicable Law, including the rules and regulations of the Securities and Exchange Commission, or is required to disclose pursuant to the rules and regulations of any national securities exchange upon which the receiving Party or its parent entity is listed, any of the disclosing Partys Confidential Information, the receiving Party shall promptly advise the disclosing Party of such requirement to disclose Confidential Information as soon as the receiving Party becomes aware that such a requirement to disclose might become effective, in order that, where possible, the disclosing Party may seek a protective order or such other remedy as the disclosing Party may consider appropriate in the circumstances. The receiving Party shall disclose only that portion of the disclosing Partys Confidential Information that it is required to disclose and shall reasonably cooperate with the disclosing Party (at the disclosing Partys cost) in allowing the disclosing Party to obtain such protective order or other relief.
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Section 20.3 Return and Destruction of Information. Upon written request by the disclosing Party, all of the disclosing Partys Confidential Information in whatever form shall be returned to the disclosing Party upon termination of this Agreement or destroyed with destruction certified by the receiving Party, without the receiving Party retaining copies thereof except that one copy of all such Confidential Information may be retained by a Partys legal department solely to the extent that such Party is required to keep a copy of such Confidential Information pursuant to Applicable Law, and the receiving Party shall be entitled to retain any Confidential Information in the electronic form or stored on automatic computer back-up archiving systems during the period such backup or archived materials are retained under such Partys customary procedures and policies; provided, however, that notwithstanding any termination or expiration of this Agreement, any Confidential Information retained by the receiving Party shall be maintained subject to confidentiality pursuant to the terms of this Section 20.3, and such archived or back-up Confidential Information shall not be accessed except as required by Applicable Law for so long as such Confidential Information is retained.
Section 20.4 Receiving Party Personnel. The receiving Party will limit access to the Confidential Information of the disclosing Party to those of its employees, attorneys and contractors that have a need to know such information in order for the receiving Party to exercise or perform its rights and obligations under this Agreement (the Receiving Party Personnel). The Receiving Party Personnel who have access to any Confidential Information of the disclosing Party will be made aware of the confidentiality provisions of this Agreement, and will be required to abide by the terms thereof. Any third-party contractors that are given access to Confidential Information of a disclosing Party pursuant to the terms hereof shall be required to sign a written agreement pursuant to which such Receiving Party Personnel agree to be bound by the provisions of this Agreement, which written agreement will expressly state that it is enforceable against such Receiving Party Personnel by the disclosing Party.
Section 20.5 Survival. The obligation of confidentiality under this Article 20 shall survive the termination of this Agreement for a period of two (2) years.
Article 21 Choice of Law.
This Agreement shall be subject to and governed by the laws of the State of Delaware, excluding any conflicts-of-law rule or principle that might refer the construction or interpretation of this Agreement to the laws of another state. Subject to Article 26, the Parties agree to the venue and jurisdiction of the federal or state courts located in the State of Delaware for the adjudication of all disputes arising out of this Agreement.
Article 22 Assignment.
Section 22.1 Assignment by the Company. Except as set forth in this Article 22, the Company shall not assign its rights or obligations hereunder without the Operators prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that (a) the Company may assign this Agreement without the Operators consent in connection with a sale by the Company of its inventory of Products, or all or substantially all of the Refinery, including by merger, equity sale, asset sale or otherwise, so long as the transferee: (1) agrees to assume all of the Companys obligations under this Agreement; and (ii) is financially and
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operationally capable of fulfilling the terms of this Agreement, which determination shall be made by the Company in its reasonable judgment; and (b) the Company shall be permitted to make a collateral assignment of this Agreement solely to secure financing for itself or any of its Affiliates.
Section 22.2 Company Designee.
(a) Without the Operators consent, the Company shall be permitted to assign the Companys rights to use, hold the Products in, and transport the Products through, the Terminal pursuant to this Agreement, to the Company Designee.
(b) The Company shall act as the Company Designees counterparty for all purposes of this Agreement, and the Operator shall be entitled to follow the Companys instructions with respect to all of the Company Designees Products that are transported or handled by the Operator pursuant to this Agreement unless and until the Operator is notified by the Company Designee in writing that the Company is no longer authorized to act as the Company Designees counterparty, in which case the Operator shall thereafter follow the instructions of the Company Designee (or such other agent as the Company Designee may appoint) with respect to all the Company Designees Products that are transported or handled by the Operator pursuant to this Agreement. The Company shall be responsible for all the Company Designees payments to the Operator hereunder; provided, however, that the Operator shall accept payment in connection with this Agreement directly from any Company Designee and apply such payments against amounts owed by the Company hereunder. All volumes throughput by the Company Designee will be taken into account in the determination of whether the Company has satisfied its Minimum Throughput Commitment. During any time that this Agreement is assigned to the Company Designee, all provisions of this Agreement, as amended or adjusted by this Article 22, shall be in full force and effect with respect to the Company Designee and the Company Designees Products as if the Company Designee were Party hereto in place of the Company.
Section 22.3 Assignment by the Operator. The Operator shall not assign its rights or obligations under this Agreement without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that (a) subject to Article 15 hereof and Article VI of the Omnibus Agreement, the Operator may assign this Agreement without such consent in connection with a sale by the Operator of all or substantially all of the Terminal, including by merger, equity sale, asset sale or otherwise, so long as the transferee: (i) agrees to assume all of the Operators obligations under this Agreement; (ii) is financially and operationally capable of fulfilling the terms of this Agreement, which determination shall be made by the Operator in its reasonable judgment; and (iii) is not a competitor of the Company, as determined by the Company in good faith; and (b) the Operator shall be permitted to make a collateral assignment of this Agreement solely to secure financing for the Operator and its Affiliates.
Section 22.4 Terms of Assignment. Any assignment that is not undertaken in accordance with the provisions set forth above shall be null and void ab initio. A Party making any assignment shall promptly notify the other Party of such assignment, regardless of whether consent is required. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
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Section 22.5 Change of Control. The Parties obligations hereunder shall not terminate in connection with a Change of Control; provided, however, that in the case of a Change of Control, the Company shall have the option to extend the Term as provided in Section 2.1.
Article 23 Notices.
All notices, requests, demands, and other communications hereunder will be in writing and will be deemed to have been duly given: (a) if by transmission by facsimile or hand delivery, when delivered; (b) if mailed via the official governmental mail system, five (5) Business Days after mailing, provided said notice is sent first class, postage pre-paid, via certified or registered mail, with a return receipt requested; (c) if mailed by an internationally recognized overnight express mail service such as Federal Express or UPS, one (1) Business Day after deposit therewith prepaid; or (d) if by email, one (1) Business Day after delivery with receipt confirmed. All notices will be addressed to the Parties at the respective addresses as follows:
If to the Company:
PBF Holding Company LLC
One Sylvan Way, Second Floor
Parsippany, NJ 07054
Attn: Matthew Lucey, President
Telecopy No: (973) 455-7500
Email: matthew.lucey@pbfenergy.com
with a copy, which shall not constitute notice, to:
PBF Energy Company LLC
One Sylvan Way, Second Floor
Parsippany, NJ 07054
Attn: Jeffrey Dill, General Counsel
Telecopy No: (973) 455-7500
Email: jeffrey.dill@pbfenergy.com
If to the Operator:
Delaware City Logistics Company LLC
c/o PBF Logistics GP LLC
222 Lakeview Avenue, Suite 1510
West Palm Beach, FLA 33401
Attn: Todd OMalley, President
Telecopy No: (561) 659-5462
Email: Todd.OMalley@pbflogistics.com
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with a copy, which shall not constitute notice, to:
PBF Logistics GP LLC
One Sylvan Way, Second Floor
Parsippany, NJ 07054
Attn: Jim Fedena, Senior VP, Logistics
Telecopy No: (973) 455-7500
Email: jim.fedena@pbfenergy.com
or to such other address or to such other person as either Party will have last designated by notice to the other Party.
Article 24 No Waiver; Cumulative Remedies.
Section 24.1 No Waivers. The failure of a Party hereunder to assert a right or enforce an obligation of the other Party shall not be deemed a waiver of such right or obligation. The waiver by any Party of a breach of any provision of, or Event of Default under, this Agreement shall not operate or be construed as a waiver of any other breach of that provision or as a waiver of any breach of another provision of, Event of Default or potential Event of Default under, this Agreement, whether of a like kind or different nature.
Section 24.2 Cumulative Remedies. Each and every right granted to the Parties under this Agreement or allowed it by law or equity, shall be cumulative and may be exercised from time to time in accordance with the terms thereof and Applicable Law.
Article 25 Nature of Transaction and, Relationship of Parties.
Section 25.1 Independent Contractor. This Agreement shall not be construed as creating a partnership, association or joint venture among the Parties. It is understood that the Operator is an independent contractor with complete charge of its employees and agents in the performance of its duties hereunder, and nothing herein shall be construed to make the Operator, or any employee or agent of the Operator, an agent or employee of the Company.
Section 25.2 No Agency. No Party shall have the right or authority to negotiate, conclude or execute any contract or legal document with any third person in the name of the other Party; to assume, create, or incur any liability of any kind, express or implied, against or in the name of any of the other Party; or to otherwise act as the representative of the other Party, unless expressly authorized in writing by the other Party.
Article 26 Arbitration Provision.
Any and all Arbitrable Disputes (except to the extent injunctive relief is sought) shall be resolved through the use of binding arbitration using, in the case of an Arbitrable Dispute involving a dispute of an amount equal to or greater than $1,000,000 or non-monetary relief, three arbitrators, and in the case of an Arbitrable Dispute involving a dispute of an amount less than $1,000,000, one arbitrator, in each case in accordance with the Commercial Arbitration Rules of the American Arbitration Association, as supplemented to the extent necessary to determine any
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procedural appeal questions by the Federal Arbitration Act (Title 9 of the United States Code). If there is any inconsistency between this Article 26 and the Commercial Arbitration Rules or the Federal Arbitration Act, the terms of this Article 26 will control the rights and obligations of the Parties. Arbitration must be initiated within the time limits set forth in this Agreement, or if no such limits apply, then within a reasonable time or the time period allowed by the applicable statute of limitations. Arbitration may be initiated by a Party (Claimant) serving written notice on the other Party (Respondent) that Claimant elects to refer the Arbitrable Dispute to binding arbitration. Claimants notice initiating binding arbitration must identify the arbitrator Claimant has appointed. Respondent shall respond to Claimant within thirty (30) days after receipt of Claimants notice, identifying the arbitrator Respondent has appointed. If Respondent fails for any reason to name an arbitrator within the 30-day period, Claimant shall petition the American Arbitration Association for appointment of an arbitrator for Respondents account. The two arbitrators so chosen shall select a third arbitrator within thirty (30) days after the second arbitrator has been appointed, and, in the of an Arbitrable Dispute involving a dispute of an amount less than $1,000,000, such third arbitrator shall act as the sole arbitrator, and the sole role of the first two arbitrators shall be to appoint such third arbitrator. Claimant will pay the compensation and expenses of the arbitrator named by or for it, and Respondent will pay the compensation and expenses of the arbitrator named by or for it. The costs of petitioning for the appointment of an arbitrator, if any, shall be paid by Respondent. Claimant and Respondent will each pay one-half of the compensation and expenses of the third arbitrator. All arbitrators must (a) be neutral parties who have never been officers, directors or employees of the Operator, the Company or any of their Affiliates and (b) have not less than seven (7) years experience in the energy industry. The hearing will be conducted in the State of Delaware or the Philadelphia Metropolitan area and commence within thirty (30) days after the selection of the third arbitrator. The Company, the Operator and the arbitrators shall proceed diligently and in good faith in order that the award may be made as promptly as possible. Except as provided in the Federal Arbitration Act, the decision of the arbitrators will be binding on and non-appealable by the Parties hereto. The arbitrators shall have no right to grant or award Special Damages. Notwithstanding anything herein the contrary, the Company may not dispute any amounts with respect to an invoice delivered in accordance with Section 3.8 that the Company has not objected to within one hundred twenty (120) days of receipt thereof. No Event of Default shall occur if the subject matter underlying such potential Event of Default is the subject matter of any dispute that is pending resolution or arbitration under this Article 26 until such time that such dispute is resolved in accordance with this Article 26.
Article 27 General.
Section 27.1 Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be valid and effective under Applicable Law, but if any provision of this Agreement or the application of any such provision to any person or circumstance will be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision hereof, and the Parties will negotiate in good faith with a view to substitute for such provision a suitable and equitable solution in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
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Section 27.2 Entire Agreement. This Agreement, the Operation and Management Services and Secondment Agreement and the Omnibus Agreement together constitute the entire agreement among the Parties pertaining to the subject matter hereof and supersede all prior agreements and understandings of the Parties in connection therewith. No promise, representation or inducement has been made by any of the Parties concerning the subject matter of this Agreement and none of the Parties shall be bound by or liable for any alleged representation, promise or inducement not so set forth.
Section 27.3 Time is of the Essence. Time is of the essence with respect to all aspects of each Partys performance of any obligations under this Agreement.
Section 27.4 No Third-Party Beneficiaries. It is expressly understood that the provisions of this Agreement do not impart enforceable rights in anyone who is not a Party or successor or permitted assignee of a Party; provided, however, that upon written request from the Company, this Agreement will be amended by the Parties to make any Company Designee or lender or intermediator of the Company or any Company Designee a third-party beneficiary hereof.
Section 27.5 Further Assurances. In connection with this Agreement and all transactions contemplated by this Agreement, each signatory Party hereto agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions and conditions of this Agreement and all such transactions.
Section 27.6 Survival. All audit rights, payment, confidentiality and indemnification obligations under this Agreement shall survive the expiration or termination of this Agreement in accordance with their terms.
Section 27.7 Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or portable document format (pdf)) for the convenience of the Parties hereto, each of which counterparts will be deemed an original, but all of which counterparts together will constitute one and the same agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Parties have duly executed this Agreement on the date first set forth above.
COMPANY:
PBF HOLDING COMPANY LLC | ||
By: | /s/ Jeffrey Dill |
Name: | Jeffrey Dill |
Title: | Secretary |
OPERATOR:
DELAWARE CITY LOGISTICS COMPANY LLC | ||
By: | /s/ James Fedena |
Name: | James Fedena |
Title: | Senior Vice President |
SIGNATURE PAGE TO THE DELAWARE CITY TRUCK LOADING SERVICES AGREEMENT
Exhibit A
Ancillary Services Fees
NONE
Service |
Fee or Specification | |||
1. | NONE | NONE |
If any Ancillary Services are requested by the Company and are agreed to be provided by the Operator in accordance with the Agreement, the Parties shall mutually agree upon the appropriate rates to be charged for such services and to amend this Exhibit A.
EXHIBIT A
A-1
Exhibit B
Product Specifications
Product:
| Gasoline, diesel and heating oil: Terminal Product Specifications shall meet the then current ASTM specifications (Maryland) |
| Propane: Terminal specification shall meet the then current Company specification for Commercial Propane |
| Propylene: Terminal specification shall meet the then current customer specification (initially Braschem) |
| Ethanol: Specifications Contained in ASTM D 4806 Standard Specification for Denatured Fuel Ethanol for Blending with Gasoline |
| Mercaptan; specification shall be ethyl mercaptan purity of 99% or higher |
EXHIBIT C
B-1
Exhibit C
Terminal Access Obligations and Procedures
Company and Company Designee, and their customers, hereinafter referred to as Customers desire access to the Terminal to permit Operator to load Product at the Terminal.
Each of the Customers designated by Company that require access to the Terminal shall sign a Customer Facility Access Agreement, in the form designated by Operator and attached hereto as may be amended, supplemented or replaced from time to time by the Operator (the Customer Facility Access Agreement), prior to being granted access to the Terminal. Further, each Customer shall attach to its Customer Facility Access Agreement, a list of its designated agents, hereinafter referred to as Customer Agents which Customer authorizes to load Products at the Terminal on Customers behalf. A form Customer Facility Access Agreement is attached as Exhibit C-1 on pages C-3 through C-7.
Each Customer Agent shall sign a Carrier Access Agreement, in the form designated by Operator and attached hereto (the Carrier Access Agreement). The fully executed Carrier Access Agreement and a copy of the required Insurance Certificate of Liability Insurance, described therein, shall be provided to the Operator before the Customer Agent will be allowed access to the Terminal. A form Carrier Access Agreement is attached as Exhibit C-2 on pages C-8 through C-17.
Company acknowledges that Operator would not be willing to provide its Customers with access to the Facility absent Company assuming responsibility for each Customer. Company agrees to be responsible for all of the terms and conditions set forth in the Customer Facility Access Agreement of each Customer, and to cause to be performed each and all obligations of the Customers under and pursuant to the terms and conditions of Customer Facility Access Agreement.
Company expressly waives any legal obligation, duty, or necessity for Operator to proceed first against Customer or to exhaust any remedy Operator may have against Customers, it being agreed that in the event of default or failure of performance in any respect by Customers, Operator may proceed and have right of action solely against Company or Customers or jointly against Company and Customers.
EXHIBIT C
C-2
EXHIBIT C-1
DELAWARE CITY LOGISTICS COMPANY LLC
CUSTOMER FACILITY ACCESS AGREEMENT
This Agreement, entered into as of this day of , , by and between Delaware City Logistics Company LLC with a business address at 4550 Wrangle Hill Road, Delaware City, DE, 19706 hereinafter referred to as Company, and with its principal business address at , hereinafter referred to as Customer.
Customers Federal Employer Identification Number (FEIN) is .
Customers phone # is and fax # is , contact person is, and SCAC code number is .
Company owns and operates a petroleum truck loading facility adjacent to the Delaware City refinery with equipment for loading and unloading products into or from transport trucks, hereinafter identified as Facility and is in the business of the storage and distribution of petroleum products, hereinafter referred to as Products. Customer and its agents it has designated on the attached Exhibit A, hereinafter referred to as Agents, desire access to the Terminal for purposes of transporting Products to and from the Terminal.
Now, therefore, in consideration of the mutual covenants and agreements hereinafter set forth to be faithfully kept and performed, the receipt and adequacy of which is expressly agreed to, the parties hereto agree as follows:
1. Each of the Agents designated by Customer on Exhibit A shall sign a Carrier Terminal Access and Loading Agreement, in the form of Exhibit B, prior to being granted access to the Terminal.
EXHIBIT C
C-3
2. Customer, jointly and severally, agrees to be responsible for all of the terms and conditions shown on Exhibit B for each Agent listed on Exhibit A, and to cause to be performed each and all obligations of the Agents under and pursuant to the terms and conditions of Exhibit B.
3. Customer expressly waives any legal obligation, duty, or necessity for Company to proceed first against Agents or to exhaust any remedy Company may have against Agents, it being agreed that in the event of default or failure of performance in any respect by Agents, Company may proceed and have right of action solely against Customer or Agents or jointly against Customer and Agents.
4. This Agreement shall continue during the entire term of any Exhibit B entered into by an Agent and any renewals or extensions thereof or until Company receives written notice of termination of an Agent by the Customer.
5. Company reserves the right to revoke access at any time. Access to the Terminal is not transferrable. Agents may not be added to this Agreement except upon written amendment.
6. In the event suit or action is brought upon and in connection with the enforcement of this Agreement, Customer shall pay reasonable attorneys fees and all court costs incurred by Company. User does hereby further agree that in the event suit or action be brought upon this Agreement, each suit or action shall be brought in any court of competent jurisdiction within the state that the premises described in the Terminal is located and do herewith submit themselves to the jurisdiction of such court upon the happening of such event.
EXHIBIT C
C-4
In Witness whereof, this Agreement is executed as of the day and year first above written.
DELAWARE CITY LOGISTICS COMPANY, LLC. | ||
By: |
Printed Name: |
Title: |
Customer: |
By: |
Printed Name: |
Title: |
Carrier Responsibility Agreement
Exhibit A
EXHIBIT C
C-5
The following are designated haulers of the Customer | ||||
CARRIER ACCESS AGREEMENT
EXHIBIT B
[INSERT]
EXHIBIT C
C-6
DELAWARE CITY LOGISTICS COMPANY LLC
DELAWARE CITY TRUCK RACK
CARRIER TERMINAL ACCESS AND LOADING AGREEMENT
This Carrier Terminal Access and Loading Agreement (Agreement) is entered into by and between the Delaware City Logistics Company LLC a Delaware limited liability company, hereinafter referred to as Company with offices at 4550 Wrangle Hill Road, Delaware City, DE, 19706 and the party listed below, hereinafter referred to as Carrier.
Carrier Company: |
State of Incorporation: |
Address: |
Standard Carrier Alpha Code (SCAC): |
Federal Employee Identification Number (FEIN): |
Agreement Effective Date: |
WITNESSETH:
Company conducts business at a bulk petroleum distribution loading and unloading facility hereinafter referred to as Terminal from which it makes available products to customers and customers carriers. Carrier, among other activities, is engaged in loading, unloading, handling and transporting such products from the Terminal for distribution and is desirous of having access to the Terminal for the purpose of loading or unloading cargoes into or from transport vehicles and driving such vehicles away from the Terminal. Product is defined as any hydrocarbon, petrochemical or product or material which arises from the processing of fossil fuels such as crude oil, coal, natural gas, etc., regardless of ownership of Product. Company is agreeable to granting such rights and privileges subject to the terms and conditions hereinafter set forth.
Now, therefore, in consideration of the mutual covenants and agreements hereinafter set forth to be faithfully kept and performed, and further, in consideration of the benefits and advantages flowing to Company and to Carrier, which consideration the sufficiency and adequacy of is hereby agreed to, the parties agree as follows:
1. TERM OF AGREEMENT:
The term of this Agreement is from the effective date first above written for one (1) year, and year to year thereafter, subject to Companys rights to terminate and revoke the permission granted herein. The privileges granted herein are temporary in nature and may be terminated by either Company or Carrier in their sole and absolute discretion at any time and for any reason by service of notice (verbal or written) on the effective date of such termination. If such notice is given verbally, a written confirmation shall be delivered in accordance with the terms of this Agreement and Carrier shall notwithstanding such termination be liable to Company for all liability hereunder accrued.
EXHIBIT C
C-7
2. ACCESS TO TERMINAL:
Carrier shall be granted access to the Terminal after tendering a written request submitted by Carrier to Companys Terminal, as provided in Paragraph 3, for the sole purpose of loading or unloading authorized grades and quantities of Products into or from transport vehicles furnished by Carrier compatible with the product dispensing or unloading system at the Terminal, pursuant to and in accordance with written procedures in effect at the time issued by Company to Carrier (which may be amended by Company from time to time), and driving such loaded vehicles away from the Terminal.
3. CARRIER DRIVER APPROVAL AND ACCESS CODES:
Company shall furnish to designated Carriers drivers access to the Terminal through terminal access codes upon receipt of a copy of a valid commercial drivers license with appropriate endorsements and a copy of the drivers DOT testing card. Carriers driver must also submit to Terminals driver training and safety requirements. Upon satisfactory submission of required documents and successful completion of training, Carriers driver shall gain access to the Terminal and to the Terminals Products dispensing or unloading system so that Carrier can load or unload authorized grades and quantities of Products into or from Carriers transport vehicles using only its authorized drivers under this Agreement. Terminal access so issued to Carrier and driver shall remain in effect until terminated by either the Carrier or Company. Carrier agrees to not allow Carriers drivers to share any authorized access codes. Terminal access will only be issued to specific representatives of Carrier. Any unauthorized use of terminal access codes shall constitute a material breach of this Agreement and make it subject to immediate termination by Company without prior written notice to Carrier. Carrier shall pay to Company the posted price for all products loaded from the Terminal arising from any loss, theft, fraudulent or unauthorized use or duplication of terminal access codes issued it until this Agreement is terminated or until such time as Carrier notifies Terminal Manager by telephone of the loss, theft, fraudulent or unauthorized use or duplication of terminal access materials furnished Carrier hereunder. Carrier shall promptly confirm such verbal notice by facsimile or electronic mail and by registered or certified mail (return receipt requested), addressed to the Terminal Manager within 24 hours or telephone notification will not be valid and will not relieve Carrier of its obligations.
4. INSURANCE:
(A) Carrier shall maintain, at its sole cost, for itself and any subcontractor it may engage at all times while performing this Agreement, the following insurance coverages with companies reasonably satisfactory to Company, with full policy limits applying, but not less than as required below (the Insurance):
(1) Commercial General Liability unamended or Comprehensive General Liability insurance with Broad Form CGL endorsement with limits of not less than $1,000,000 each occurrence and $2,000,000 general aggregate, and provided that an endorsement is to be provided stating that this CGL insurance is primary to any insurance provided by the Indemnified Party or Parties.
EXHIBIT C
C-8
(2) Automobile Liability insurance covering all vehicles used in the operations of Contractor with limits of liability of not less than: Bodily injury $1,000,000 each person, $2,000,000 each accident; Property damage $1,000,000; or a Combined Single Limit of $2,000,000 for bodily injury and property damage, such policy to be endorsed to cover hazardous material transportation when it is involved in the performance of this Agreement.
(3) Workers Compensation insurance as required by laws and regulations applicable to and covering employees of Contractor engaged in the performance of the Work under this Agreement.
(4) Employers Liability insurance protecting Carrier against common law liability, in the absence of statutory liability, for employee bodily injury arising out of the master-servant relationship with a limit of not less than $1,000,000 each accident, illness or death, including but not limited to coverage under the Jones Act, the Death on the High Seas Act and the general maritime law of the United States.
(5) Longshore and Harborworkers Compensation Act insurance to the extent required under such Act with regard to the Work to be performed hereunder, including such requirements under such Act as extended by the Outer Continental Shelf Lands Act.
(6) For trucks loading gasoline and propane, Excess Liability insurance over coverages afforded by the primary policies described above, with a minimum limit of $9,000,000 when loading at the Truck Rack.
For trucks loading distillates, Excess Liability insurance over coverages afforded by the primary policies described above, with a minimum limit of $4,000,000 when loading at the Truck Rack.
(B) Carrier shall obtain Insurance that provides coverage to Company for liabilities arising out of or relating to the concurrent, contributory or sole negligence of any Indemnified Party (as defined below), Carrier, its subcontractors, invitees, suppliers or third parties. The Insurance shall provide a waiver of subrogation in favor of Company, state that the Insurance is primary to any other valid insurance available to Company or its affiliates allow for the separation of insureds and give written notice of cancellation or material change. Any deductible or retention of insurable risks shall be for Carriers account and be approved in advance in writing by Company. Notice of cancellation or change shall not affect the Insurance until 30 days after written notice is received by Company.
(C) The Insurance and each certificate evidencing the Insurance issued to Company shall name Company and all other Indemnified Parties as additional insureds (except for Workers Compensation insurance and Longshoremens and Harborworkers Compensation insurance), without regard to the allocation of liability provisions contained in this Agreement, to the full extent of any claim, loss or liability within the scope of the Insurance. It is the intention of the Parties that the status of Company and all other Indemnified Parties as additional insureds shall not be limited. Carrier shall provide to Company all certificates evidencing the Insurance prior to commencement of performance of this Agreement and shall provide copies of the policies upon request by Company. Companys failure to enforce Carriers obligation to provide proof of insurance shall not alter the coverage required herein nor Carriers obligation to maintain the Insurance.
EXHIBIT C
C-9
(D) Failure of Carrier to maintain the required Insurance in full force and effect during the duration of this Agreement and during any extensions, extra or additional performance agreed to by Carrier and Company hereunder shall constitute a breach of this Agreement. Company shall have the right to enforce this Agreement against Carrier as if the Insurance had been properly obtained. Company shall have the right, in addition to any other rights, to immediately suspend, cancel and/or terminate this Agreement without further cost to Company.
(E) The indemnity provisions set forth herein and this section setting forth Carriers insurance obligations are separate obligations of Carrier, and the enforceability or non-enforceability of the indemnity shall not prejudice Companys rights as an additional insured under the Insurance.
5. COMMODITY CUSTODY TRANSFER:
Carrier agrees that custody of the Commodity loaded passes to Carrier at the point where it leaves the loading arm at the Terminal truck loading rack. Carrier assumes responsibility for commodity quality beyond that point, should it differ from the Commodity quality of the sample taken from the tank delivering Commodity to that loading arm.
6. INDEMNITY:
6.1 THE PARTIES EXPRESSLY INTEND THAT CARRIER SHALL INDEMNIFY COMPANY AS SET FORTH IN THIS SECTION. THIS INDEMNITY SHALL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN LIGHT OF THE TYPE OF SERVICES PERFORMED. IF ANY PORTION OF THE INDEMNITY IS FOUND NOT TO BE ENFORCEABLE PURSUANT TO APPLICABLE LAW IN LIGHT OF THE TYPE OF SERVICES PERFORMED, THE INDEMNITY SHALL NOT BE VOID BUT RATHER IT SHALL BE INTERPRETED AND APPLIED TO PROVIDE THE MAXIMUM INDEMNITY OF COMPANY BY CARRIER ALLOWED BY THE APPLICABLE LAW. IN ADDITION, NO TERM OF THIS AGREEMENT SHALL BE CONSTRUED TO WAIVE COMPANYS STATUTORY WORKERS COMPENSATION IMMUNITY WHEREAS CARRIER DOES WAIVE SUCH IMMUNITY AS APPLICABLE TO EFFECTUATE THE INTENT OF THIS INDEMNITY.
(a) DEFINITIONS:
(1) INDEMNIFIED PARTY OR INDEMNIFIED PARTIES MEANS COMPANY, ITS PARTNERS, AFFILIATES, PARENTS AND SUBSIDIARY AND RELATED ENTITIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS AND AGENTS.
(2) DAMAGES MEANS ALL CLAIMS, DEMANDS, CAUSES OF ACTION, SUITS, DAMAGES, LIABILITIES, FINES, PENALTIES, ASSESSMENTS, ENVIRONMENTAL RESPONSIBILITY COSTS AND INJUNCTIVE OBLIGATIONS, JUDGMENTS, LOSSES AND EXPENSES (INCLUDING WITHOUT LIMITATION EXPENSES, COSTS AND ATTORNEYS FEES INCURRED FOR ANY INDEMIFIED PARTIES DEFENSE OR ENFORCEMENT OF ITS INDEMNIFICATION RIGHTS).
EXHIBIT C
C-10
(b) CARRIER, TO THE MAXIMUM EXTENT PERMITTED BY LAW, AGREES TO AND SHALL DEFEND, PROTECT, INDEMNIFY AND HOLD HARMLESS INDEMNIFIED PARTIES FROM AND AGAINST ANY DAMAGES WHICH MAY BE INCURRED BY OR ASSESSED AGAINST ANY INDEMNIFIED PARTY ON ACCOUNT OF:
(1) ANY DAMAGES FOR PERSONAL INJURY, DISEASE OR DEATH OF ANY PERSON(S), DAMAGES TO OR LOSS OF ANY PROPERTY CAUSED BY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE CARRIERS PERFORMANCE OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION DAMAGES CAUSED BY OR ATTRIBUTABLE TO THE NEGLIGENCE OF CARRIER, ITS SUBCONTRACTORS, INVITEES OR SUPPLIERS (INCLUDING WITHOUT LIMITATION THE RESPECTIVE EMPLOYEES OR AGENTS OF THE FOREGOING) AND INCLUDING WITHOUT LIMITATION ALL DAMAGES CAUSED BY THE CONCURRENT, CONTRIBUTORY OR SOLE NEGLIGENCE OF COMPANY AND ANY INDEMNIFIED PARTY; OR
(2) ANY BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT OF CARRIER CONTAINED HEREIN, INCLUDING WITHOUT LIMITATION, DAMAGES INCURRED BY ANY INDEMNIFIED PARTY DUE TO CARRIERS FAILURE TO FULLY COMPLY WITH THE INSURANCE REQUIREMENTS SET FORTH HEREIN.
(c) CARRIER SHALL DEFEND, PROTECT, INDEMNIFY AND HOLD HARMLESS THE INDEMNIFIED PARTIES FROM AND AGAINST ALL ECONOMIC LOSSES INCLUDING CONSEQUENTIAL DAMAGES, LOST PROFITS AND BUSINESS DELAYS ARISING FROM OR RESULTING FROM CARRIERS PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT.
(d) CARRIER SHALL DEFEND, PROTECT, INDEMNIFY AND HOLD HARMLESS THE INDEMNIFIED PARTIES FROM AND AGAINST DAMAGES ARISING OUT OF, RESULTING FROM OR OTHERWISE CONNECTED WITH ANY FAILURE BY CARRIER TO COMPLY WITH OR VIOLATION BY CARRIER OF ANY FEDERAL, STATE, COUNTY OR MUNICIPAL LAWS, RULES, REGULATIONS, ORDERS OR ORDINANCES, INCLUDING WITHOUT LIMITATION, ALL FEDERAL, STATE AND LOCAL ENVIRONMENTAL, HEALTH AND SAFETY LAWS, RULES AND REGULATIONS, WHICH MAY OTHERWISE BE APPLICABLE TO OR IMPOSED IN CONNECTION WITH THE PERFORMANCE OF THIS AGREEMENT.
(e) CARRIER SHALL DEFEND, PROTECT, INDEMNIFY AND HOLD HARMLESS THE INDEMNIFIED PARTIES AGAINST ALL LIENS, CLAIMS AND DEMANDS (INCLUDING WITHOUT LIMITATION EXPENSES, COSTS OR ATTORNEYS FEES INCURRED FOR ANY INDEMNIFIED PARTYS DEFENSE OR FOR ENFORCEMENT OF ITS INDEMNIFICATION RIGHTS) WHICH ARISE IN CONNECTION WITH THIS AGREEMENT.
EXHIBIT C
C-11
(f) CARRIER SHALL DEFEND, PROTECT, INDEMNIFY AND HOLD HARMLESS THE INDEMNIFIED PARTIES AGAINST CLAIMED OR ACTUAL INFRINGEMENT OR CONTRIBUTORY INFRINGEMENT OF ANY PATENT, OR INFRINGEMENT OF ANY COPYRIGHT OR TRADEMARK, OR PUBLIC DISCLOSURE OF ANY TRADE SECRET OR PROPRIETARY INFORMATION OWNED BY OR OTHERWISE LICENSED TO COMPANY (INCLUDING WITHOUT LIMITATION EXPENSES, COSTS OR ATTORNEYS FEES INCURRED FOR ANY INDEMNIFIED PARTYS DEFENSE OR FOR ENFORCEMENT OF ITS INDEMNIFICATION RIGHTS), ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THIS AGREEMENT OR THE USE OF THE MATERIALS OR EQUIPMENT FURNISHED BY CARRIER FOR OR IN CONNECTION WITH THE SERVICES.
(g) CARRIERS INDEMNITY OBLIGATIONS SHALL NOT LIMIT AND SHALL NOT BE LIMITED BY THE INSURANCE COVERAGES (INCLUDING WITHOUT LIMITATION ANY INDEMNIFIED PARTYS ADDITIONAL INSURED STATUS) SET FORTH HEREIN.
(h) COMPANY EXPRESSLY RESERVES THE RIGHT TO PARTICIPATE IN ITS DEFENSE WITH COUNSEL OF ITS OWN CHOOSING. CARRIERS INDEMNITY OBLIGATIONS SHALL SURVIVE THE EXPIRATION, TERMINATION OR NONRENEWAL OF THIS AGREEMENT.
7. LAWS, RULES, REGULATIONS AND INSTRUCTIONS:
a. Carrier agrees at all times to comply with all federal, state, and local laws, ordinances, rules and regulations, applicable to its operations hereunder and agrees to obtain all permits, licenses and other authorizations required by any governmental authority under such laws, ordinances, rules and regulations. By way of example, but not of limitation, the transport vehicles (including the cargo tanks into which petroleum products are loaded) used by Carrier in exercising the privileges shall meet all applicable Department of Transportation labeling, placarding, marking and tank specifications and regulations and shall be authorized by the Department of Transportation to transport the petroleum products loaded into such vehicles. Further, all tank vehicles and cargo trucks shall carry a current DOT Emergency Response Guidebook or a Hazardous Material Shipping paper for each Product to be loaded. Also, Carrier and its drivers and agents shall institute and comply with all operating, reporting and recordkeeping procedures reasonably designed to ensure: (i) that no unauthorized release of any Products occurs; (ii) that in the event any Product(s) is/are released, all applicable reporting and recordkeeping requirements are fully complied with; and (iii) that in the event any Product(s) is/are released, all Product(s) and any contaminated environmental medium or media is/are expeditiously and properly cleaned up and remediated.
b. Carrier further agrees to abide fully and strictly with the driver loading instructions and safety rules promulgated by Company with respect to the use of the Terminal. Such instructions and regulations may be amended or modified by Company at any time, and such instructions and regulations as amended or modified shall be binding on Carrier upon receipt of a copy thereof. Furthermore, Carrier acknowledges to have received and read any driver loading instructions and safety rules and any supplements or amendments thereto which may be issued from time to time.
EXHIBIT C
C-12
c. Carrier shall only permit personnel properly instructed in the characteristics and safe-handling methods associated with the Terminal and the petroleum products to be transported to exercise the privileges granted Carrier hereunder. Carrier warrants its drivers have been properly trained in all operating safety requirements and procedures. All such personnel shall be fully knowledgeable about and abide by the driver loading or unloading instructions and safety regulations of Company. Company may amend or modify loading or unloading instructions at any time and such instructions and regulations as amended or modified shall be binding on Carrier upon receipt of a copy thereof. These instructions include, but are not limited to:
| In Terminal area or trucks on Terminal grounds, there shall be no smoking, no use of a lighter, no use of matches, no flares, no open lights or striking together of metal objects. |
| No truck will be permitted to load which was previously loaded with chemicals that will oxidize with carbon. Such chemicals are Ketones, Aldehydes, Alkenes and Organic Acids. |
| All trucks shall be empty before moving into loading area. |
| Driver is responsible for following procedure sequence which is posted in loading bay to receive product safely. |
| All trucks must have the proper connections for safe loading or unloading. No adapters will be permitted. |
| All trucks must have air brakes locked while loading or unloading, and shall have an operational brake interlock system on the trailer so that the brakes remain locked whenever the truck is hooked up to the apparatus. |
| Trucks must be turned off and all electronic equipment on trucks shut off while loading (such as lights, radio, C.B., etc.) |
| All portable electronic devices such as cell phones, blue tooth, lap tops etc must be turned off before pulling under the loading rack. |
| If for any reason it becomes necessary for a driver to access the top of a trailer he or she must move to a top loading lane and use the steps at the lane rather than climb the ladder attached to the trailer itself. All top loading lanes utilize a guard rail system for the essential level of fall protection. |
| Specific personal protective equipment is required while loading or unloading at the Delaware City Sales Terminal. FRC Clothing, Hard Hats and Safety Eyewear are required; in addition, shoes must be in good condition and have leather uppers with an identified heel. |
d. Company requires that all Carrier personnel working in its operations and at its facilities be mentally and physically capable of performing their assigned duties in a competent and safe manner. This safety rule prohibits the possession and or use of illegal or unauthorized drugs, intoxicating beverages, fire arms or other weapons at Companys Terminal. To insure the safety and prevent the loss of Company property, Company will conduct security inspections or searches at random to search the person, personal effects or vehicle of any person on Company property to enforce compliance with this policy. Persons found to be in violation of this policy will be immediately removed and barred from entering Terminal. Illegal or unauthorized drugs, intoxicating beverages, fire arms, other weapons or unauthorized property discovered as a result of these inspections may be confiscated and turned over to law enforcement officers, if appropriate. The instructions and regulations pertaining to Companys inspection policy may be amended or modified by Company at any time, and such instructions and regulations as amended or modified shall be binding on Carrier upon receipt of copy thereof. In the event Carrier or Carriers employees fail to comply with the Companys inspection policy, Company will take whatever steps are necessary to correct the situation. This may include immediately terminating this Agreement.
EXHIBIT C
C-13
e. Carriers driver shall observe safe driving rules and enter and leave the Terminal slowly, he/she shall use the proper traffic flow inside the Terminal and observe restrictive areas.
f. All tank trucks shall be free of leaks and in all respects suitable for loading petroleum products. In addition all bottom loading tank trucks shall be: (i) equipped with a secondary high level overfill protection device compatible with the Terminals rack permissive system(s); (ii) equipped with vapor recovery equipment compatible with the Terminals rack equipment; and (iii) be fitted with a Scully VIP identification chip. Drivers shall remain in attentive attendance at the loading or unloading rack at all times during the loading or unloading procedure. NEVER BLOCK A LOADING OR UNLOADING VALVE OPEN! If the driver is in the loading or unloading area awaiting an open position, he/she shall remain with the equipment and engine and all electrical equipment shall be shut down. Tank trucks shall be grounded promptly upon stopping at a loading or unloading position and grounds shall not be removed until all loading or unloading equipment has been secured. No work or repair of any type shall be performed on the tractor or trailer while positioned in the loading or unloading rack or in the immediate vicinity of the loading or unloading rack. If a truck cannot be started while in the loading rack, it shall be safely towed from the rack. No units shall be pushed from the rack areas, nor shall jumper cables be utilized except in designated areas. In the event of a spill at the loading or unloading rack, the loading or unloading operation shall be stopped immediately. The truck shall not be started or moved until the hazard has been removed.
g. Carrier shall comply with all federal, state and local fuel-related environmental laws and regulations including, but not limited to:
| All applicable subparts of 40 CFR Part 80, Regulation of Fuels and Fuel Additives. |
| Federal Trade Commission (FTC) gasoline octane labeling requirements, including but not limited to regulations found in Section 203(c)(1) of Title II of PMPA. |
h. Carrier, immediately after loading and prior to transporting any Product, shall obtain a bill of lading, manifest or other product transfer document (PTD) from Company which complies with all applicable requirements and regulations concerning said documents. Carrier will maintain a copy of each PTD for a minimum of five (5) years. Carrier will not transport Product (and shall contact Company) if the PTD does not contain the required information;
i. Carrier shall deliver PTD to the operator of the destination facility prior to off-loading Product;
j. If loading or transporting reformulated blendstock for oxygenate blending (RBOB), Carrier agrees that it shall only transfer RBOB to an EPA registered refiner or oxygenate blender. Carrier will maintain and supply to Company the EPA registration number of the party to whom the RBOB is transferred;
EXHIBIT C
C-14
k. Carrier will obtain when loading, and later provide when unloading, appropriate PTDs. Carrier will ensure different RBOBs are kept physically separate and are not mixed except as otherwise allowed by federal or state fuel regulations;
l. Carrier shall immediately cease the loading, transportation, distribution, or off-loading of any Product if said Product is known or suspected of being in violation of any federal, state, or local regulation, law or ordinance. Carrier agrees to immediately notify Company if a violation is known or suspected;
m. Carrier shall not commingle Products (including but not limited to reformulated gasoline RFG or conventional gasoline CG), except as authorized by applicable regulation. Carrier shall not perform any in-transport blending or adulterate the loaded Product in any fashion without prior written approval of Company. Carrier will ensure that all loading compartments are drained dry prior to loading dissimilar Products;
n. Carrier shall not deliver, distribute, or off-load CG into a controlled RFG market area under any circumstance.
o. Carrier shall train all personnel concerning applicable regulatory requirements pertaining to the handling, transport, loading, purchase and sale of RFG, CG and all other Products contemplated herein;
p. Company agrees to comply with all regulations promulgated under the Clean Air Act Amendments of 1990 concerning carriers;
q. Carrier shall allow Company reasonable access to its facilities, records and personnel in order to obtain samples, review compliance, and conduct contract compliance audits as needed
8. ASSIGNMENT:
Carrier shall not transfer or assign this Agreement in whole or in part without Companys prior written consent, which consent Company may withhold in its sole and absolute discretion.
9. INDEPENDENT CONTRACTOR:
It is expressly agreed that Carrier is acting hereunder solely as an independent contractor and that all persons exercising the privileges shall be deemed agents, servants, or employees of Carrier and that none of such persons shall be deemed agents, servants, or employees of Company.
10. | ENTIRE AGREEMENT: |
This Agreement sets forth the entire agreement and understanding of the parties with respect to the privileges contained herein, and supersedes and merges all prior discussions and writings between them and is not subject to modification or interpretation by either party other than by an amendment hereto duly executed by both parties.
11. SEVERABILITY:
Carrier and Company agree that in the event any term, covenant, condition, provision or agreement herein is held to be invalid or void by any court of competent jurisdiction, the invalidity of any such term, condition, covenant, provision or agreement shall in no way affect any other term, covenant, provision or agreement herein.
EXHIBIT C
C-15
12. WAIVER:
In the event that Company fails to insist upon performance by Carrier of any of the terms hereof, such failure shall not be construed as a waiver of Companys right at any time thereafter to enforce such terms.
13. GOVERNING LAW:
This agreement shall be governed by and construed in accordance with the laws of the State of Delaware without reference to its law on conflicts and the parties hereby submit to the exclusive jurisdiction of the courts situated in Delaware. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not in any way apply to, or govern this agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written.
DELAWARE CITY LOGISTICS COMPANY, LLC | CARRIER | |||||||
By: | By: |
Title: | Title: |
Print Name: | Print Name: |
EXHIBIT C
C-16
Exhibit D
Designated Refinery Assets
| Any or all of the tanks located in the product tank farms, located east of Route 9 and associated equipment, including pumps, interconnecting piping, utility systems, control system and operator shelter. |
| Refinery piers 1, 2,3, hoses, pumps, vapor combustion unit, associated equipment and interconnecting piping with the refinery tank farms. |
| Waste Water Treatment Plant (WWTP) and oily water/storm sewer system connections to Terminal assets. |
| Rail unloading facilities, associated pumps and other equipment, including interconnecting piping |
| Steam generation and distribution system to the tanks and WWTP |
| Electrical distribution system to the tanks and WWTP |
| Instrument Air compressor, dryer and distribution system to the tanks |
| Firewater supply pump, piping system, including associated tank 403, pumps and associated equipment |
| Fresh water system, including interconnection to United Water supply, pumps and distribution piping |
| Vent piping from LPG arms to and including Refinery flare system |
| Control and Knock Laboratories, including testing apparatus and equipment |
| Emergency response equipment, including boats, boom, hazmat trailers, fire fighting equipment and associated protective housing |
| Domestic water supply piping system, including United Water connection, piping and pumps. |
| 400 Kv portable backup generator |
| Warehouse equipment compatible with Terminal systems |
| IT Servers and associated equipment, including UPS backup systems |
| Relevant operating and other environmental permits |
Exhibit 10.5
GUARANTY OF COLLECTION
THIS GUARANTY OF COLLECTION (this Agreement) is made as of May 12, 2015 by PBF Energy Company LLC, a Delaware limited liability company (the Parent Guarantor), to and in favor of PBF Logistics LP, a Delaware limited partnership (PBF Logistics LP), and PBF Logistics Finance Corporation, a Delaware corporation (Finance Corp and, together with PBF Logistics LP, the Issuers) to provide a guarantee of collection, on the terms set forth herein, for the benefit of the holders (the Holders) of the Supported Debt (as hereinafter defined) and the Trustee under the Indenture dated May 12, 2015 (collectively, the Senior Notes Indenture) with respect to the $350 million aggregate principal amount of the Issuers 6.875% senior notes due 2023 (together with any senior notes of the Issuers with substantially identical terms that are issued to the Holders in exchange for the notes issued as of this date pursuant to a registration statement under the Securities Act of 1933, as amended, the Supported Debt).
RECITALS:
WHEREAS, the Parent Guarantor directly or indirectly owns certain limited and general partnership interests in PBF Logistics LP and the stock of Finance Corp;
WHEREAS, a portion of the proceeds of the Supported Debt will be used by PBF Logistics LP to reduce a portion of the amounts currently outstanding under the Revolving Credit Agreement (as hereinafter defined) and to make valuable distributions to the Parent Guarantor in connection with transactions expected to occur from time to time after the date hereof;
WHEREAS, the Issuers are members of an affiliated group of companies that includes the Parent Guarantor;
WHEREAS, the Parent Guarantor has directly benefited and will continue to directly benefit from the incurrence by the Issuers of the Supported Debt;
WHEREAS, the Parent Guarantor desires to enter into this Guaranty of Collection and be bound by the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parent Guarantor hereby agrees as follows:
1. Defined Terms. Capitalized terms used but not defined herein have the meanings assigned to them in the Senior Notes Indenture, except that the following terms shall have the following meanings:
(a) Finance Corp Acknowledgement Agreement means the Acknowledgement and Indemnification Agreement, dated as of May 12, 2015 (as amended, supplemented, restated or otherwise modified from time to time), by and between PBF Logistics LP and Finance Corp.
(b) Holder Remedies means all rights and remedies at law and in equity (including, without limitation, any arising under the Senior Notes Indenture or the Notes) that the Trustee or the Holders, as applicable, may have against any Issuer Party or any other Person that has
provided liens, guarantees or other credit support in respect of the Supported Debt (and, in each case, their respective property), other than Parent Guarantor, to collect, or obtain payment of, the Supported Debt, including, without limitation, foreclosure or similar proceedings (including, without limitation, against each Issuer Party and its property), litigation and collection on all applicable insurance policies and against all applicable property.
(c) Issuer Party means each of PBF Logistics LP, Finance Corp, any of the Guarantors and any other Person that has guaranteed any payment, granted any lien or otherwise provided credit support with respect to the Supported Debt (other than the Parent Guarantor).
(d) NAV Certificate has the meaning set forth in Section 12(a) hereof.
(e) Revolving Credit Agreement means that certain Revolving Credit Agreement, dated as of May 14, 2014, among PBF Logistics LP, Wells Fargo Bank, National Association, as Administrative Agent, Swingline Lender and an L/C Issuer, Citigroup Global Markets Inc., as Syndication Agent, Deutsche Bank Securities Inc., as Documentation Agent, and the other lenders party thereto (as amended by that certain Increase Agreement, dated as of December 5, 2014, among PBF Logistics LP, Wells Fargo Bank, National Association and the lenders party thereto), including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, and in each case as amended, restated, modified, renewed, refunded, replaced or refinanced from time to time.
2. Guaranty. Subject to the terms and conditions set forth in this Agreement, the Parent Guarantor hereby irrevocably, unconditionally, absolutely and directly guarantees to the Holders and the Trustee, the full and prompt collection of the principal amount due under the Supported Debt, but not any accrued but unpaid interest thereon or any fees or other amounts of any kind that shall be due to the Holders by the Issuers (the Guaranteed Obligations).
3. Guaranty of Collection and Not of Payment. Notwithstanding any other provision of this Agreement, this Agreement is a guaranty of collection and not of payment, and the Parent Guarantor shall not be obligated to make any payment with respect to the Guaranteed Obligations until each of the following is true:
(a) the Issuers shall have failed to make a payment when the same shall be due and owing to the Trustee and the Holders in respect of the Guaranteed Obligations;
(b) the obligations under the Senior Notes Indenture, the Notes and any other documents relating to the Supported Debt shall have been accelerated;
(c) the Trustee and the Holders shall have exhausted all Holder Remedies available to them; and
(d) the Trustee and the Holders shall have been unable to collect the full amount of the Guaranteed Obligations.
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4. Other Guarantees.
(a) The Holders acknowledge that the Parent Guarantor has guaranteed and provided credit support for other indebtedness owed by one or more of the Issuer Parties that constitute recourse liabilities for which Parent Guarantor bears the economic risk of loss within the meaning of Treasury Regulation 1.752-2, and may provide guarantees in the future for additional indebtedness owed by such parties or other Persons (Other Guarantees); provided that at the time of entry by the Parent Guarantor of any such Other Guarantee and immediately thereafter on a pro forma basis, the Parent Guarantor would be able to deliver the NAV Certificate.
(b) Notwithstanding anything to the contrary herein, upon written notice to the Trustee (such notice an Assignment and Assumption Notice), the Parent Guarantor shall be permitted to assign all, but not less than all, of its obligations under this Agreement to any affiliate other than PBF Logistics LP or any entity owned by PBF Logistics LP (any such permitted assignee, the Assuming Parent Guaranty Affiliate), and the Assuming Parent Guaranty Affiliate shall be permitted to assume all of Parent Guarantors obligations under this Agreement, provided that (i) at the time of any such assignment and assumption the Assuming Parent Guaranty Affiliate delivers an NAV Certificate, (ii) the Assuming Parent Guaranty Affiliate delivers an assignment and assumption agreement and (iii) unless otherwise agreed to by the Parent Guarantor in writing, following such assignment and assumption the Parent Guarantor remains the sole partner of PBF Logistics LP bearing the economic risk of loss with respect to the Supported Debt pursuant to Treasury Regulations Section 1.752-2 for federal income tax purposes. The Assignment and Assumption Notice shall set forth the name of the Assuming Parent Guaranty Affiliate and include the NAV Certificate and such other financial information as is reasonably necessary to support the NAV Certificate.
5. Notice. As a condition to the enforcement of this Agreement, the Parent Guarantor shall have received written notice from the Holders of the satisfaction of the conditions set forth in Section 3 above. Except for the notice required under the preceding sentence, the Parent Guarantor hereby waives notice of acceptance of this Agreement, demand of payment, presentment of this or any instrument, notice of dishonor, protest and notice of protest, or other action taken in reliance hereon and all other demands and notices of any description in connection with this Agreement.
6. Absolute Obligation. Subject to the provisions of Sections 2, 3, 4 and 5, the obligations of the Parent Guarantor hereunder shall be absolute and unconditional and shall not be subject to any reduction, limitation, impairment or termination for any reason, including, without limitation, any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any setoff, counterclaim, deduction, diminution, abatement, suspension, reduction, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Supported Debt. Without limiting the generality of the foregoing, subject to the provisions of Sections 2, 3, 4 and 5, the obligations of the Parent Guarantor hereunder shall not be released, discharged, impaired or otherwise affected by any circumstance or condition whatsoever (whether or not the Issuers, any other Issuer Party, the Parent Guarantor, the Trustee, or any Holder has knowledge thereof) which may or might in any manner or to any extent vary the risk of the Parent Guarantor or otherwise operate as a release or discharge of the Parent Guarantor as a matter of law or equity (other than the payment in full of all of the Supported Debt), including, without limitation:
(a) any amendment, modification, addition, deletion or supplement to or other change to any of the terms of the Guaranteed Obligations or any provisions of the Supported Debt, or any assignment or transfer of any thereof, or any furnishing, acceptance, surrender, substitution, modification or release of any security for, or guaranty of, any of the Guaranteed Obligations or the Supported Debt;
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(b) any failure, omission or delay on the part of the Issuers or any other Issuer Party to comply with any of the terms of the Supported Debt;
(c) any waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in the Supported Debt or any delay on the part of the Trustee or the Holders to enforce, assert or exercise any right, power or remedy conferred on the Trustee or the Holders in the Supported Debt;
(d) any extension of the time for payment of the principal of or premium (if any) or interest on any of the Supported Debt, or of the time for performance of any other obligations, covenants or agreements under or arising out of the Supported Debt or the extension or the renewal thereof;
(e) to the extent permitted by applicable law, any voluntary or involuntary bankruptcy, insolvency, reorganization, moratorium, arrangement, adjustment, readjustment, composition, assignment for the benefit of creditors, receivership, conservatorship, custodianship, liquidation, marshaling of assets and liabilities or similar proceedings with respect to the Issuers, any other Issuer Party or the Parent Guarantor or any other Person or any of their respective properties or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding (including, without limitation, any automatic stay incident to any such proceeding);
(f) any limitation, invalidity, irregularity or unenforceability, in whole or in part, limiting the liability or obligation of the Issuers or any other Issuer Party in respect of the Supported Debt or any security therefor or guarantee thereof or the Trustees or the Holders recourse to any such security or limiting the Trustees or the Holders right to a deficiency judgment against the Issuers, any other Issuer Party, the Parent Guarantor or any other Person; and
(g) any other act, omission, occurrence, circumstance, happening or event whatsoever, whether similar or dissimilar to the foregoing, whether foreseen or unforeseen, and any other circumstance which might otherwise constitute a legal or equitable defense, release or discharge (including the release or discharge of the liabilities of a guarantor or surety or which might otherwise limit recourse against the Issuers, any other Issuer Party, the Parent Guarantor or any other Person, whether or not the Issuers, any other Issuer Party, the Parent Guarantor, the Trustee or the Holders have notice or knowledge of the foregoing).
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7. Waiver of Subrogation. To the extent that the Parent Guarantor shall have made any payments under this Agreement, until the Supported Debt has been paid in full, the Parent Guarantor hereby waives (a) any and all rights of subrogation, reimbursement, exoneration, contribution, or indemnification that the Parent Guarantor may now or hereafter have against the Issuer Parties or any other Person (including, without limitation, any co-borrower, co-obligor, guarantor, grantor or pledgor of collateral, general partner or other partner) with respect to any of the Supported Debt, and (b) any and all rights to participate in any claim or remedy of the Trustee or the Holders or any trustee on behalf of any such Person against the Issuer Parties or any other Person (including, without limitation, any co-borrower, co-obligor, guarantor, grantor or pledgor of collateral, general partner or other partner) whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from any of the Issuer Parties or any such other Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right. Notwithstanding anything to the contrary contained herein, nothing herein shall prevent the Issuer Parties from making payments (including, without limitation, Restricted Payments) or other transfers to the Parent Guarantor to the extent permitted under the Senior Notes Indenture.
If any amount is paid to the Parent Guarantor in violation of the foregoing limitation, then such amount shall be held in trust for the benefit of the Trustee and the Holders and paid to the Holders pursuant to the terms of the Indenture to reduce the amount of the applicable Supported Debt, whether matured or unmatured. This provision will inure to the benefit of and will be enforceable by the Trustee, the Holders, each of the Issuer Parties and any other Persons liable on the Supported Debt, and their successors and assigns, including any trustee in bankruptcy or debtor-in-possession.
8. Continuity of Supported Debt; Bankruptcy or Insolvency.
(a) This Agreement and the guaranty of collection contained herein is a continuing and irrevocable guaranty of collection of all Guaranteed Obligations now or hereafter existing and shall remain in full force and effect until the Guaranteed Obligations have been paid in full. Upon payment in full of all of the Guaranteed Obligations, this Agreement shall terminate and be of no further force and effect.
(b) The Parent Guarantor acknowledges and agrees that the Parent Guarantors obligations hereunder shall apply to and continue with respect to any amount paid to the Trustee and the Holders on the Guaranteed Obligations which is subsequently recovered from the Trustee or the Holders for any reason whatsoever (including, without limitation, as a result of any bankruptcy, insolvency or fraudulent conveyance proceeding), notwithstanding the fact that the Guaranteed Obligations may have been previously paid in full or this Agreement terminated, or both.
9. No Waiver. No delay or omission on the part of the Trustee or any of the Holders in exercising any rights hereunder shall operate as a waiver of such rights or any other rights, and no waiver of any right on any one occasion shall result in a waiver of such right on any future occasion or of any other rights; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right.
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10. Subsequent Guaranties. No subsequent guaranty by the Parent Guarantor or any other Person of the Guaranteed Obligations shall be deemed to be in lieu of or to supersede this Agreement and the guaranty of collection contained herein, unless otherwise expressly provided therein.
11. Covenants of PBF Logistics LP.
(a) Repayment or Refinancing of Supported Debt. Without the prior written consent of the Parent Guarantor, PBF Logistics LP shall not be entitled to (i) repay or prepay any principal amount of the Supported Debt or (ii) refinance through an exchange offer or otherwise all or any portion of the Supported Debt, unless, in the case of clause (ii) above, PBF Logistics LP (x) simultaneously replaces the Supported Debt with at least an equivalent amount of new indebtedness (such new indebtedness, the Refinancing Supported Debt) with substantially similar covenants providing for no earlier amortization of principal than the amortization contemplated by the applicable maturity date of the Supported Debt (any such date, a Maturity Date) and (y) permits the Parent Guarantor, at its sole discretion, to provide a guarantee of collection of the Refinancing Supported Debt, on the same terms and subject to the conditions set forth herein.
(b) Extinguishment of Supported Debt. PBF Logistics LP shall use commercially reasonable efforts to extinguish any applicable outstanding Supported Debt on the Maturity Date. PBF Logistics LP shall release the Parent Guarantor from any liability or obligation under this Agreement related to the Supported Debt on the applicable Maturity Date for such Supported Debt and shall enter into and execute such documents and instruments as the Parent Guarantor may reasonably request in order to evidence such release.
(c) Finance Corp. Prior to the Maturity Date of the Supported Debt, Finance Corp shall continue to have no material assets or any liabilities, other than as a named co-issuer of debt securities of PBF Logistics LP and, in accordance with the provisions of the Finance Corp Acknowledgement Agreement, shall not have any liability with respect to the Supported Debt.
12. Covenants of Parent Guarantor.
(a) Net Worth. The Parent Guarantor hereby represents to PBF Logistics LP that it will maintain net assets (excluding any interest in PBF Logistics LP held directly or indirectly by the Parent Guarantor) with a fair market value equal to or greater than the sum of (i) the aggregate principal amount of the Supported Debt and (ii) the aggregate principal amounts guaranteed under the Other Guarantees (without duplication of any reduction in the determination of net assets on account of such guarantees). In the event the Parent Guarantor disposes of, transfers or conveys any of its material assets (except with respect to distributions permitted in Section 12(b) below) (the Disposed Assets) and such disposal, transfer, or conveyance causes the Parent Guarantor to be unable to make the representation in the previous sentence on a pro forma basis, the Parent Guarantor shall promptly replace the Disposed Assets
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with assets having a net fair market value (after taking into account any indebtedness to be assumed by the Parent Guarantor in connection with any such transaction) sufficient to enable the Parent Guarantor to be able to make the representation in the previous sentence on a pro forma basis. Parent Guarantor shall provide a certificate (the NAV Certificate) to PBF Logistics LP and the Trustee on an annual basis (beginning on the first anniversary of this Agreement and until the Guaranteed Obligations or the Supported Debt, as the case may be, have been paid in full) providing that it is in full compliance with this Section 12(a).
(b) Distributions. The Parent Guarantor shall be entitled to make distributions of available cash with respect to its equity interests provided the Parent Guarantor shall not make a distribution of cash or property to the extent such distribution would constitute a Fraudulent Conveyance (as defined in Section 14) in light of the Parent Guarantors obligations under this Guarantee or Other Guarantees or otherwise impair the Parent Guarantors ability to satisfy its obligations under this Guarantee or Other Guarantees.
13. Covenants of PBF Logistics LP and the Parent Guarantor to Maintain Tax Treatment. For so long as this Agreement is in effect, PBF Logistics LP and the Parent Guarantor hereby agree that:
(a) It is the intent of the parties to treat the Parent Guarantor as the sole partner bearing the economic risk of loss with respect to the Supported Debt pursuant to Treasury Regulation § 1.752-2 and, for federal income tax purposes, PBF Logistics LP as the sole borrower. Neither PBF Logistics LP nor any partner of PBF Logistics LP shall take a position inconsistent with such treatment unless otherwise required by a change in applicable law after the date hereof.
(b) It is the intent of the parties, that any distribution to the Parent Guarantor by PBF Logistics LP of any portion of the proceeds of the Supported Debt be treated as a distribution under Section 731 of the Internal Revenue Code of 1986, as amended (the Code), and neither PBF Logistics LP nor any partner of PBF Logistics LP shall take a position inconsistent with such treatment unless otherwise required by a change in applicable law after the date hereof.
(c) Neither PBF Logistics LP nor the Parent Guarantor shall (i) modify this Agreement so as to eliminate or limit the ultimate recourse liability (for purposes of Section 752 of the Code) of the Parent Guarantor with respect to the Supported Debt, or (ii) except as required by the Senior Notes Indenture, cause or permit any other corporation, partnership, person or entity to assume, guarantee, indemnify against or otherwise incur any liability with respect to any Supported Debt.
(d) In the event a subsidiary of PBF Logistics LP that is regarded as separate and apart from PBF Logistics LP for U.S. federal income tax purposes becomes a Subsidiary Parent Guarantor (as such term is defined in the Senior Notes Indenture) of the Supported Debt or otherwise guarantees the Supported Debt, the Parent Guarantor agrees to indemnify such subsidiary for any amounts that the subsidiary is required to pay pursuant to its guarantee of the Supported Debt.
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(e) In the event a partner of PBF Logistics LP guarantees or otherwise incurs any liability with respect to the Supported Debt, the Parent Guarantor agrees to indemnify such partner for any amounts that the partner is required to pay pursuant to its guarantee or liability with respect to the Supported Debt.
14. Fraudulent Conveyance. Notwithstanding any provision of this Agreement to the contrary, it is intended that neither this Agreement nor the guaranty of collection provided for herein constitute a Fraudulent Conveyance (as defined below). Consequently, the Parent Guarantor agrees that if this Guarantee would, but for the application of this sentence, constitute a Fraudulent Conveyance, this Agreement (and the guaranty of collection provided for herein) shall be valid and enforceable only to the maximum extent that would not cause this Agreement (and the guaranty of collection provided for herein) to constitute a Fraudulent Conveyance, and this Agreement shall automatically be deemed to have been amended accordingly at all relevant times. For purposes of this Section 14, the term Fraudulent Conveyance means a fraudulent conveyance under Section 548 of the United States Bankruptcy Code or a fraudulent conveyance or fraudulent transfer under the provisions of any applicable fraudulent conveyance or fraudulent transfer law or similar law of any state, nation or other governmental unit, as in effect from time to time.
15. Representations and Warranties. The Parent Guarantor represents and warrants that
(a) it (i) is duly formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its formation and (ii) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to execute, deliver and perform its obligations under this Agreement;
(b) the execution, delivery and performance by the Parent Guarantor of this Agreement (i) have been duly authorized by all necessary organizational action, and (ii) do not and will not (A) contravene the terms of its organizational documents; (B) conflict in any material respect with or result in any material breach or contravention of (1) any material contractual Obligation to which it is a party or affecting it or its properties or (2) any order, injunction, writ or decree of any governmental authority or any arbitral award to which it or its property is subject; or (D) violate any material law applicable to it or its property in any material respect;
(c) no material approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any governmental authority or any other Person is necessary or required in connection with (i) the execution, delivery or performance by, or enforcement against, the Parent Guarantor of this Agreement or (ii) the exercise by the Trustee (on behalf of the Holders) of their rights hereunder except for authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(d) this Agreement when delivered hereunder, will have been, duly executed and delivered by the Parent Guarantor and constitutes a legal, valid and binding obligation of the Parent Guarantor, enforceable against the Parent Guarantor in accordance with its terms, subject to the effect of any applicable bankruptcy or insolvency laws and other laws affecting creditors rights generally, concepts of reasonableness and general equitable principles; and
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(e) by virtue of the Parent Guarantors relationship with the Issuers, the execution, delivery and performance of this Agreement is for the direct benefit of the Parent Guarantor and the Parent Guarantor has received adequate consideration for this Agreement.
16. Expenses; Indemnity.
(a) The Parent Guarantor hereby agrees to pay all reasonable and documented fees and out-of-pocket costs and expenses of the Trustee and the Holders in connection with the enforcement of this Agreement.
(b) THE PARENT GUARANTOR SHALL INDEMNIFY THE TRUSTEE, EACH HOLDER AND EACH RELATED PARTY OF ANY OF THE FOREGOING PERSONS (EACH SUCH PERSON BEING CALLED AN INDEMNITEE) AGAINST, AND HOLD EACH INDEMNITEE HARMLESS FROM, ANY AND ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES AND RELATED EXPENSES (INCLUDING THE FEES, CHARGES AND DISBURSEMENTS OF ANY COUNSEL FOR ANY INDEMNITEE (WHICH MAY INCLUDE THE REASONABLE AND DOCUMENTED COST OF EXTERNAL COUNSEL (SUBJECT TO THE LIMITATIONS SET FORTH BELOW)) INCURRED BY ANY INDEMNITEE OR ASSERTED AGAINST ANY INDEMNITEE BY ANY PERSON (INCLUDING THE PARENT GUARANTOR) OTHER THAN SUCH INDEMNITEE AND ITS RELATED PARTIES ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF (I) THE EXECUTION OR DELIVERY OF THIS AGREEMENT, THE PERFORMANCE BY THE PARENT GUARANTOR OF ITS OBLIGATIONS HEREUNDER OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY, OR, IN THE CASE OF THE TRUSTEE AND ITS RELATED PARTIES ONLY, THE ADMINISTRATION OF THIS AGREEMENT, OR (II) ANY ACTUAL OR PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY, WHETHER BROUGHT BY A THIRD PARTY OR BY THE PARENT GUARANTOR, AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE GROSS NEGLIGENCE OF THE INDEMNITEE; PROVIDED THAT SUCH INDEMNITY, AS TO ANY INDEMNITEE, SHALL NOT BE AVAILABLE UNDER THIS SECTION 16(B) TO THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES CONSTITUTE GUARANTEED OBLIGATIONS (WHICH GUARANTEED OBLIGATIONS SHALL BE GOVERNED BY THE OTHER PROVISIONS OF THIS AGREEMENT); PROVIDED FURTHER THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES (X) ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE OR ITS RELATED PARTIES OR (Y) ARE
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DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM A DISPUTE AMONG OR BETWEEN INDEMNITEES AND NOT INVOLVING (I) ANY ACT OR OMISSION OF THE PARENT GUARANTOR OR (II) SUCH INDEMNITEES CAPACITY OR ROLE AS THE TRUSTEE, AS APPLICABLE.
(c) All amounts due under this Section 16 shall be payable not later than ten Business Days after written demand therefor accompanied by reasonably detailed supporting documentation. The agreements in this Section 16 shall survive the repayment, satisfaction or discharge of the Supported Debt and all other amounts payable under the Senior Notes Indenture and the Notes and the resignation or removal of the Trustee under the Indenture. No Indemnitee shall be liable to any Issuer Party, their Affiliates or any other Person, and the Issuer Parties and their Affiliates will not be liable to any Indemnitee, its Affiliates or any other Person, for any claim on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, or any agreement or instrument contemplated hereby or the transactions contemplated hereby or thereby; provided that, nothing contained in this Section 16(c) shall limit the Issuers indemnification obligations with respect to indirect, consequential or punitive damage claims, to the extent of the indemnification provided in Section 16(c) (but only to the extent asserted against any Indemnitee by a third party (other than another Indemnitee)). No Indemnitee referred to in Section 16(b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the transactions contemplated hereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.
17. Miscellaneous.
(a) This Agreement and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement and the transactions contemplated hereby shall be governed by, and construed in accordance with, the laws of the State of New York.
(b) The Parent Guarantor irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against the Trustee, the Holders or any Related Party of the foregoing in any way relating to this Agreement in any forum other than the courts of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that all claims in respect of any such action, litigation or proceeding may be heard and determined in such New York state court or, to the fullest extent permitted by applicable law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on
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the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the Trustee or the Holders otherwise have to bring any action or proceeding relating to this Agreement against the Parent Guarantor or any of its properties in the courts of any jurisdiction.
(c) This Agreement shall inure to the benefit of and be binding upon the Parent Guarantor and its successors and assigns and the Trustee and the Holders and their respective successors and assigns.
(d) This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, between the parties related thereto.
(e) Each reference herein to the Parent Guarantor shall be deemed to include the successors and assigns of the Parent Guarantor, all of whom shall be bound by the provisions of this Agreement.
(f) This Agreement is for the benefit only of the Trustee and the Holders, shall be enforceable by them alone, is not intended to confer upon any third party any rights or remedies hereunder, and shall not be construed as for the benefit of any third party.
(g) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
18. Miscellaneous.
(a) This Agreement may not be modified or amended except by an instrument or instruments in writing signed by the Parent Guarantor and the Issuers and notice thereof shall be promptly delivered to the Trustee.
(b) Except as otherwise expressly provided herein, notices and other communications to each party provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed or sent by facsimile to the address set forth below or such other address provided from time to time by such party.
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If to the Parent Guarantor:
PBF Energy Company LLC
One Sylvan Way, Second Floor
Parsippany, NJ 07054
Attn: John Luke
Telecopy No: (973) 455-7500
Email: john.luke@pbfenergy.com
with a copy, which shall not constitute notice, to:
PBF Energy Company LLC
One Sylvan Way, Second Floor
Parsippany, NJ 07054
Attn: General Counsel
Telecopy No: (973) 455-7500
If to the Trustee:
Deutsche Bank Trust Company Americas
Trust & Agency Services
60 Wall Street, 16th Floor
Mail Stop: NYC60-1630
New York, New York 10005
Attn: Corporates Team Deal Manager PBF
Indenture dated May 12, 2015
Fax: 732-578-4635
with a copy to:
Deutsche Bank Trust Company Americas
c/o Deutsche Bank National Trust Company
Trust & Agency Services
100 Plaza One, Mailstop JCY03-0699
Jersey City, New Jersey 07311
Attn: Corporates Team Deal Manager PBF
Indenture dated May 12, 2015
Fax: 732-578-4635
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient).
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(c) If any provision of this Agreement is held to be illegal, invalid or unenforceable, (i) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby and (ii) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
(d) This Agreement may be executed in one or more counterparts, and each counterpart, when so executed, shall be deemed an original but all such counterparts shall constitute but one and the same instrument.
(e) In the performance of its obligations hereunder, the Trustee shall have all of the rights, benefits, protections, indemnities and immunities afforded to it pursuant to the Indenture.
[Signatures begin on next page.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
PBF ENERGY COMPANY LLC as Parent Guarantor | ||||
By: | /s/ Matthew Lucey | |||
Name: | Matthew Lucey | |||
Title: | President | |||
PBF LOGISTICS LP | ||||
By: | PBF Logistics GP LLC, its general partner | |||
By: | /s/ Jeffrey Dill | |||
Name: | Jeffrey Dill | |||
Title: | Senior Vice President, Secretary | |||
PBF LOGISTICS FINANCE CORPORATION | ||||
By: | /s/ Jeffrey Dill | |||
Name: | Jeffrey Dill | |||
Title: | Senior Vice President, Secretary |
[Signature Page to Guaranty of Collection]
ACKNOWLEDGED:
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee | ||
By: Deutsche Bank National Trust Company | ||
By: | /s/ Rodney Gaughan | |
Name: Rodney Gaughan | ||
Title: Vice President |
By: | /s/ Linda Reale | |
Name: Linda Reale | ||
Title: Vice President |
[Signature Page to Guaranty of Collection]