Exhibit 10.5

 

SPECIFIC TERMS IN THIS EXHIBIT HAVE BEEN REDACTED BECAUSE CONFIDENTIAL TREATMENT FOR THOSE TERMS HAS BEEN REQUESTED. THE REDACTED MATERIAL HAS BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION, AND THE TERMS HAVE BEEN MARKED AT THE APPROPRIATE PLACE WITH TWO ASTERISKS (**).

 

EXECUTION VERSION

 

AMENDED AND RESTATED SUPPLY AND OFFTAKE AGREEMENT

dated as of October 7, 2014

 

among

 

PHILADELPHIA ENERGY SOLUTIONS REFINING AND MARKETING LLC,

as PESRM

 

and

 

MERRILL LYNCH COMMODITIES, INC.,

as MLC

 

and

 

THE OTHER TRANSACTION PARTIES HERETO

 











 

TABLE OF CONTENTS

 

	
Section
    	
 
    	
 
    	
Page
    
	
 
    	
 
    	
 
    
	
ARTICLE I.
    
	
 
    	
 
    	
 
    
	
DEFINED TERMS; PRINCIPLES OF CONSTRUCTION
    
	
 
    	
 
    
	
Section 1.01
    	
Defined Terms
    	
2
    
	
 
    	
 
    	
 
    
	
Section 1.02
    	
Principles of Construction
    	
38
    
	
 
    	
 
    	
 
    
	
Section 1.03
    	
Accounting Terms; GAAP
    	
39
    
	
 
    	
 
    	
 
    
	
Section 1.04
    	
Single Agreement
    	
39
    
	
 
    	
 
    	
 
    
	
Section 1.05
    	
Inconsistency
    	
39
    
	
 
    	
 
    	
 
    
	
Section 1.06
    	
Additional Defined Terms
    	
39
    
	
 
    	
 
    	
 
    
	
ARTICLE II.
    
	
 
    
	
TERM OF   AGREEMENT; CONDITIONS TO THE EFFECTIVE DATE
    
	
 
    	
 
    	
 
    
	
Section 2.01
    	
Term of Agreement
    	
41
    
	
 
    	
 
    	
 
    
	
Section 2.02
    	
PESRM Conditions to the Effective Date
    	
41
    
	
 
    	
 
    	
 
    
	
Section 2.03
    	
MLC Conditions to the Effective Date
    	
46
    
	
 
    	
 
    	
 
    
	
ARTICLE III.
    
	
 
    	
 
    	
 
    
	
PURCHASE,   SALE AND DELIVERY OF
    
	
CRUDE OIL
    
	
 
    	
 
    	
 
    
	
Section 3.01
    	
Supply by MLC of Crude Oil Requirements
    	
46
    
	
 
    	
 
    	
 
    
	
Section 3.02
    	
Conditions to Crude Oil Supply Obligation
    	
47
    
	
 
    	
 
    	
 
    
	
Section 3.03
    	
[Reserved]
    	
47
    
	
 
    	
 
    	
 
    
	
Section 3.04
    	
Crude Oil Initial Sales
    	
47
    
	
 
    	
 
    	
 
    
	
Section 3.05
    	
Daily Actual Production Books
    	
47
    
	
 
    	
 
    	
 
    
	
Section 3.06
    	
Financial Report
    	
48
    
	
 
    	
 
    	
 
    
	
Section 3.07
    	
[Reserved]
    	
48
    
	
 
    	
 
    	
 
    
	
Section 3.08
    	
Certain Additional MLC Reports
    	
48
    
	
 
    	
 
    	
 
    
	
Section 3.09
    	
Crude Oil Sourcing Protocols
    	
48
    
	
 
    	
 
    	
 
    
	
Section 3.10
    	
CO Transactions
    	
52
    
	
 
    	
 
    	
 
    
	
Section 3.11
    	
Daily Trades Done To Date Report
    	
52
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

i











 

	
Section 3.12
    	
Crude Oil Title and Risk of Loss
    	
52
    
	
 
    	
 
    	
 
    
	
Section 3.13
    	
Crude Oil Good and Marketable Title
    	
52
    
	
 
    	
 
    	
 
    
	
Section 3.14
    	
CRUDE OIL NO WARRANTY OF MERCHANTABILITY
    	
52
    
	
 
    	
 
    	
 
    
	
Section 3.15
    	
Crude Oil Payment Responsibility and Invoicing
    	
53
    
	
 
    	
 
    	
 
    
	
Section 3.16
    	
Daily Actual Production Book; Further Assurances in Respect   of On-Premise Infrastructure
    	
53
    
	
 
    	
 
    	
 
    
	
Section 3.17
    	
PESRM-MLC CO Secured Prepay Transactions; International   Transactions
    	
53
    
	
 
    	
 
    	
 
    
	
Section 3.18
    	
[Reserved]
    	
54
    
	
 
    	
 
    	
 
    
	
Section 3.19
    	
First Purchaser Requirements
    	
54
    
	
 
    	
 
    	
 
    
	
ARTICLE IV.
    
	
 
    	
 
    	
 
    
	
PURCHASE,   SALE AND DELIVERY OF
    
	
REFINED   PRODUCTS
    
	
 
    	
 
    	
 
    
	
Section 4.01
    	
Supply by PESRM of Refined Products Produced by the   Refinery
    	
55
    
	
 
    	
 
    	
 
    
	
Section 4.02
    	
Conditions to Refined Product Purchase Obligation
    	
55
    
	
 
    	
 
    	
 
    
	
Section 4.03
    	
Reserved
    	
55
    
	
 
    	
 
    	
 
    
	
Section 4.04
    	
Third Party Reports
    	
55
    
	
 
    	
 
    	
 
    
	
Section 4.05
    	
RP Transactions and Certain RP Sales Contracts
    	
56
    
	
 
    	
 
    	
 
    
	
Section 4.06
    	
Refined Product Title
    	
56
    
	
 
    	
 
    	
 
    
	
Section 4.07
    	
REFINED PRODUCT - NO WARRANTY OF MERCHANTABILITY
    	
56
    
	
 
    	
 
    	
 
    
	
Section 4.08
    	
[Reserved]
    	
56
    
	
 
    	
 
    	
 
    
	
Section 4.09
    	
Refined Product Sales Protocols
    	
56
    
	
 
    	
 
    	
 
    
	
Section 4.10
    	
Prepayments
    	
59
    
	
 
    	
 
    	
 
    
	
Section 4.11
    	
RP Payment Responsibility and Invoicing
    	
60
    
	
 
    	
 
    	
 
    
	
Section 4.12
    	
PESRM-MLC RP Secured Prepay Transactions; International   Transactions
    	
60
    
	
 
    	
 
    	
 
    
	
Section 4.13
    	
Initial RP Purchases
    	
61
    
	
 
    	
 
    	
 
    
	
Section 4.14
    	
Butane Sale Transactions
    	
61
    
	
 
    	
 
    	
 
    
	
Section 4.15
    	
Off-Spec Product
    	
62
    
	
 
    	
 
    	
 
    
	
Section 4.16
    	
PESRM as Obligated Party
    	
62
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

ii











 

	
ARTICLE V.
    
	
 
    	
 
    	
 
    
	
PAYMENTS   AND INVOICING
    
	
 
    	
 
    	
 
    
	
Section 5.01
    	
Daily Payment
    	
62
    
	
 
    	
 
    	
 
    
	
Section 5.02
    	
Monthly True-Up
    	
65
    
	
 
    	
 
    	
 
    
	
Section 5.03
    	
Auto Bin True-Ups
    	
67
    
	
 
    	
 
    	
 
    
	
Section 5.04
    	
Disputed Invoices
    	
67
    
	
 
    	
 
    	
 
    
	
Section 5.05
    	
Payment Netting
    	
68
    
	
 
    	
 
    	
 
    
	
Section 5.06
    	
Payment Convention
    	
68
    
	
 
    	
 
    	
 
    
	
Section 5.07
    	
Tax Status of the Parties
    	
68
    
	
 
    	
 
    	
 
    
	
ARTICLE VI.
    
	
 
    	
 
    	
 
    
	
DOWNGRADE   TERMINATION EVENT,
    
	
ACKNOWLEDGEMENT   AND OTHER MATTERS
    
	
 
    	
 
    	
 
    
	
Section 6.01
    	
Downgrade and Cost of Assurance Trigger Event
    	
68
    
	
 
    	
 
    	
 
    
	
Section 6.02
    	
Termination at Expiration of the Term
    	
69
    
	
 
    	
 
    	
 
    
	
Section 6.03
    	
Unexcused MLC Failure to Deliver or Accept
    	
70
    
	
 
    	
 
    	
 
    
	
Section 6.04
    	
Semi-Annual Inspections
    	
71
    
	
 
    	
 
    	
 
    
	
Section 6.05
    	
Required Infrastructure
    	
72
    
	
 
    	
 
    	
 
    
	
Section 6.06
    	
PESRM-MLC Secured Prepay Transactions
    	
72
    
	
 
    	
 
    	
 
    
	
Section 6.07
    	
Accounting Treatment
    	
73
    
	
 
    	
 
    	
 
    
	
Section 6.08
    	
[Reserved]
    	
73
    
	
 
    	
 
    	
 
    
	
Section 6.09
    	
Change in Law
    	
73
    
	
 
    	
 
    	
 
    
	
Section 6.10
    	
PESRM Acknowledgement
    	
74
    
	
 
    	
 
    	
 
    
	
Section 6.11
    	
Inventory Volumes
    	
74
    
	
 
    	
 
    	
 
    
	
Section 6.12
    	
[Reserved]
    	
74
    
	
 
    	
 
    	
 
    
	
Section 6.13
    	
Procedures for Resolving Claims Against Third Parties
    	
74
    
	
 
    	
 
    	
 
    
	
Section 6.14
    	
Operational Imbalances
    	
75
    
	
 
    	
 
    	
 
    
	
Section 6.15
    	
PESRM/PESIC Failure to Perform
    	
75
    
	
 
    	
 
    	
 
    
	
Section 6.16
    	
Foreign Trade Zone Operator; Imports and Exports
    	
76
    
	
 
    	
 
    	
 
    
	
Section 6.17
    	
MLC Guaranty
    	
76
    
	
 
    	
 
    	
 
    
	
Section 6.18
    	
Demurrage Cost Invoicing
    	
76
    
	
 
    	
 
    	
 
    
	
Section 6.19
    	
Inventory, Sale and Receipt Data Reconciliation
    	
76
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

iii











 

	
Section 6.20
    	
Anti-Corruption Laws
    	
77
    
	
 
    	
 
    	
 
    
	
Section 6.21
    	
[Reserved]
    	
78
    
	
 
    	
 
    	
 
    
	
Section 6.22
    	
Transmix
    	
78
    
	
 
    	
 
    	
 
    
	
Section 6.23
    	
[Reserved].
    	
78
    
	
 
    	
 
    	
 
    
	
Section 6.24
    	
Aggregate Liability Limitations
    	
78
    
	
 
    	
 
    	
 
    
	
Section 6.25
    	
[**] No Title to Hydrocarbons
    	
79
    
	
 
    	
 
    	
 
    
	
ARTICLE VII.
    
	
 
    	
 
    	
 
    
	
INDEMNITIES
    
	
 
    	
 
    	
 
    
	
Section 7.01
    	
Indemnities
    	
79
    
	
 
    	
 
    	
 
    
	
ARTICLE VIII.
    
	
 
    	
 
    	
 
    
	
REPRESENTATIONS   AND WARRANTIES OF THE TRANSACTION PARTIES
    
	
 
    	
 
    	
 
    
	
Section 8.01
    	
Organization; Powers
    	
87
    
	
 
    	
 
    	
 
    
	
Section 8.02
    	
Authorization; Enforceability
    	
87
    
	
 
    	
 
    	
 
    
	
Section 8.03
    	
No Conflicts; Material Contracts
    	
87
    
	
 
    	
 
    	
 
    
	
Section 8.04
    	
Financial Statements; Projections
    	
88
    
	
 
    	
 
    	
 
    
	
Section 8.05
    	
Properties
    	
88
    
	
 
    	
 
    	
 
    
	
Section 8.06
    	
Intellectual Property
    	
89
    
	
 
    	
 
    	
 
    
	
Section 8.07
    	
Equity Interests and Subsidiaries
    	
89
    
	
 
    	
 
    	
 
    
	
Section 8.08
    	
Litigation; Compliance with Laws; Permits; and Agreements
    	
89
    
	
 
    	
 
    	
 
    
	
Section 8.09
    	
[Reserved]
    	
90
    
	
 
    	
 
    	
 
    
	
Section 8.10
    	
[Reserved]
    	
90
    
	
 
    	
 
    	
 
    
	
Section 8.11
    	
Investment Company Act
    	
90
    
	
 
    	
 
    	
 
    
	
Section 8.12
    	
[Reserved]
    	
90
    
	
 
    	
 
    	
 
    
	
Section 8.13
    	
Taxes
    	
90
    
	
 
    	
 
    	
 
    
	
Section 8.14
    	
No Material Misstatements
    	
90
    
	
 
    	
 
    	
 
    
	
Section 8.15
    	
Labor Matters
    	
91
    
	
 
    	
 
    	
 
    
	
Section 8.16
    	
Solvency
    	
91
    
	
 
    	
 
    	
 
    
	
Section 8.17
    	
Employee Benefit Plans
    	
91
    
	
 
    	
 
    	
 
    
	
Section 8.18
    	
Environmental Matters
    	
92
    
	
 
    	
 
    	
 
    
	
Section 8.19
    	
Insurance
    	
94
    
	
 
    	
 
    	
 
    
	
Section 8.20
    	
Security Documents
    	
94
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

iv











 

	
Section 8.21
    	
Anti-Terrorism Laws
    	
95
    
	
 
    	
 
    	
 
    
	
Section 8.22
    	
Location of Hydrocarbon Inventory
    	
96
    
	
 
    	
 
    	
 
    
	
Section 8.23
    	
[Reserved]
    	
96
    
	
 
    	
 
    	
 
    
	
Section 8.24
    	
Affiliate Transactions
    	
96
    
	
 
    	
 
    	
 
    
	
Section 8.25
    	
Common Enterprise
    	
96
    
	
 
    	
 
    	
 
    
	
Section 8.26
    	
Certain Additional Representations
    	
97
    
	
 
    	
 
    	
 
    
	
ARTICLE IX.
    
	
 
    	
 
    	
 
    
	
REPRESENTATIONS   AND WARRANTIES OF MLC
    
	
 
    	
 
    	
 
    
	
Section 9.01
    	
Organization; Powers
    	
98
    
	
 
    	
 
    	
 
    
	
Section 9.02
    	
Authorization; Enforceability
    	
98
    
	
 
    	
 
    	
 
    
	
Section 9.03
    	
No Conflicts
    	
98
    
	
 
    	
 
    	
 
    
	
Section 9.04
    	
Litigation; Compliance with Laws
    	
98
    
	
 
    	
 
    	
 
    
	
Section 9.05
    	
Wholly-Owned Subsidiary
    	
99
    
	
 
    	
 
    	
 
    
	
ARTICLE X.
    
	
 
    	
 
    	
 
    
	
PESRM   AFFIRMATIVE COVENANTS
    
	
 
    	
 
    	
 
    
	
Section 10.01
    	
Financial Statements, Reports, etc.
    	
99
    
	
 
    	
 
    	
 
    
	
Section 10.02
    	
Litigation and Other Notices
    	
101
    
	
 
    	
 
    	
 
    
	
Section 10.03
    	
Existence; Businesses and Properties
    	
102
    
	
 
    	
 
    	
 
    
	
Section 10.04
    	
Insurance
    	
102
    
	
 
    	
 
    	
 
    
	
Section 10.05
    	
Taxes; Filings
    	
103
    
	
 
    	
 
    	
 
    
	
Section 10.06
    	
Employee Benefits
    	
103
    
	
 
    	
 
    	
 
    
	
Section 10.07
    	
Maintaining Records; Access to Properties and Inspections
    	
104
    
	
 
    	
 
    	
 
    
	
Section 10.08
    	
[Reserved]
    	
104
    
	
 
    	
 
    	
 
    
	
Section 10.09
    	
Compliance with Environmental Laws and Environmental   Permits; Environmental Reports
    	
104
    
	
 
    	
 
    	
 
    
	
Section 10.10
    	
Additional Collateral; Additional Guarantors
    	
105
    
	
 
    	
 
    	
 
    
	
Section 10.11
    	
Security Interests; Further Assurances
    	
108
    
	
 
    	
 
    	
 
    
	
Section 10.12
    	
Information Regarding Collateral
    	
108
    
	
 
    	
 
    	
 
    
	
Section 10.13
    	
Depository Banks
    	
108
    
	
 
    	
 
    	
 
    
	
Section 10.14
    	
Affirmative Covenants with Respect to Required   Infrastructure
    	
109
    
	
 
    	
 
    	
 
    
	
Section 10.15
    	
[Reserved]
    	
109
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

v











 

	
Section 10.16
    	
Designation of Excluded Subsidiaries
    	
110
    
	
 
    	
 
    	
 
    
	
Section 10.17
    	
Anti-Terrorism Laws
    	
110
    
	
 
    	
 
    	
 
    
	
Section 10.18
    	
Third Party Consent Agreements
    	
110
    
	
 
    	
 
    	
 
    
	
Section 10.19
    	
Refinery Turnaround, Maintenance and Closure
    	
110
    
	
 
    	
 
    	
 
    
	
Section 10.20
    	
Certain PESRM Services
    	
111
    
	
 
    	
 
    	
 
    
	
ARTICLE XI.
    
	
 
    	
 
    	
 
    
	
PESRM   NEGATIVE COVENANTS
    
	
 
    	
 
    	
 
    
	
Section 11.01
    	
Indebtedness
    	
112
    
	
 
    	
 
    	
 
    
	
Section 11.02
    	
Liens
    	
115
    
	
 
    	
 
    	
 
    
	
Section 11.03
    	
Sale and Leaseback Transactions
    	
120
    
	
 
    	
 
    	
 
    
	
Section 11.04
    	
Investment, Loan, Advances and Acquisition
    	
121
    
	
 
    	
 
    	
 
    
	
Section 11.05
    	
Mergers and Consolidations
    	
123
    
	
 
    	
 
    	
 
    
	
Section 11.06
    	
Asset Sales
    	
123
    
	
 
    	
 
    	
 
    
	
Section 11.07
    	
Dividends
    	
125
    
	
 
    	
 
    	
 
    
	
Section 11.08
    	
Transactions with Affiliates
    	
127
    
	
 
    	
 
    	
 
    
	
Section 11.09
    	
[Reserved]
    	
129
    
	
 
    	
 
    	
 
    
	
Section 11.10
    	
Prepayments of Other Indebtedness; Modifications of   Organizational Documents and Other Documents, etc.
    	
129
    
	
 
    	
 
    	
 
    
	
Section 11.11
    	
Limitation on Certain Restrictions on Guarantors
    	
130
    
	
 
    	
 
    	
 
    
	
Section 11.12
    	
Business
    	
130
    
	
 
    	
 
    	
 
    
	
Section 11.13
    	
Fiscal Year
    	
131
    
	
 
    	
 
    	
 
    
	
Section 11.14
    	
Compliance with Anti-Terrorism Laws
    	
131
    
	
 
    	
 
    	
 
    
	
Section 11.15
    	
Speculative Transactions
    	
131
    
	
 
    	
 
    	
 
    
	
Section 11.16
    	
Title to Hydrocarbons
    	
132
    
	
 
    	
 
    	
 
    
	
ARTICLE XII.
    
	
 
    	
 
    	
 
    
	
COVER   TRANSACTIONS
    
	
 
    	
 
    	
 
    
	
Section 12.01
    	
Cover Transactions
    	
132
    
	
 
    	
 
    	
 
    
	
Section 12.02
    	
Cover Protocols
    	
133
    
	
 
    	
 
    	
 
    
	
Section 12.03
    	
Applicable Conditions
    	
136
    
	
 
    	
 
    	
 
    
	
Section 12.04
    	
MLC Cover Transactions
    	
136
    
	
 
    	
 
    	
 
    
	
Section 12.05
    	
Cover Throughput Service Fees
    	
136
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

vi











 

	
Section 12.06
    	
Volume Limitations
    	
137
    
	
 
    	
 
    	
 
    
	
Section 12.07
    	
Cover Transaction Invoicing
    	
137
    
	
 
    	
 
    	
 
    
	
Section 12.08
    	
Termination of CO Supply Contracts and RP Sales Contracts
    	
137
    
	
 
    	
 
    	
 
    
	
Section 12.09
    	
[Reserved]
    	
138
    
	
 
    	
 
    	
 
    
	
Section 12.10
    	
Cover Transaction Event
    	
138
    
	
 
    	
 
    	
 
    
	
Section 12.11
    	
Renewable Fuels and RINS
    	
138
    
	
 
    	
 
    	
 
    
	
ARTICLE XIII.
    
	
 
    	
 
    	
 
    
	
GUARANTEE
    
	
 
    	
 
    	
 
    
	
Section 13.01
    	
The Guarantee
    	
138
    
	
 
    	
 
    	
 
    
	
Section 13.02
    	
Rights of MLC
    	
139
    
	
 
    	
 
    	
 
    
	
Section 13.03
    	
Obligations Unconditional
    	
139
    
	
 
    	
 
    	
 
    
	
Section 13.04
    	
Reinstatement
    	
141
    
	
 
    	
 
    	
 
    
	
Section 13.05
    	
Subrogation; Subordination
    	
141
    
	
 
    	
 
    	
 
    
	
Section 13.06
    	
Remedies
    	
142
    
	
 
    	
 
    	
 
    
	
Section 13.07
    	
Instrument for the Payment of Money
    	
142
    
	
 
    	
 
    	
 
    
	
Section 13.08
    	
Continuing Guarantee
    	
142
    
	
 
    	
 
    	
 
    
	
Section 13.09
    	
General Limitation on Guarantee Obligations
    	
142
    
	
 
    	
 
    	
 
    
	
Section 13.10
    	
Release of Transaction Parties
    	
142
    
	
 
    	
 
    	
 
    
	
Section 13.11
    	
Right of Contribution
    	
143
    
	
 
    	
 
    	
 
    
	
Section 13.12
    	
Default; Remedies; Bankruptcy; Etc.
    	
143
    
	
 
    	
 
    	
 
    
	
ARTICLE XIV.
    
	
 
    	
 
    	
 
    
	
EVENTS OF   DEFAULT; REMEDIES
    
	
 
    	
 
    	
 
    
	
Section 14.01
    	
PESRM Events of Default
    	
144
    
	
 
    	
 
    	
 
    
	
Section 14.02
    	
MLC Events of Default
    	
149
    
	
 
    	
 
    	
 
    
	
Section 14.03
    	
Termination Events
    	
151
    
	
 
    	
 
    	
 
    
	
Section 14.04
    	
Remedies
    	
153
    
	
 
    	
 
    	
 
    
	
ARTICLE XV.
    
	
 
    	
 
    	
 
    
	
FORCE   MAJEURE
    
	
 
    	
 
    	
 
    
	
Section 15.01
    	
Force Majeure
    	
157
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

vii











 

	
Section 15.02
    	
Force Majeure with Respect to Certain Facilities
    	
158
    
	
 
    	
 
    	
 
    
	
Section 15.03
    	
PESRM Force Majeure Indemnity
    	
158
    
	
 
    	
 
    	
 
    
	
Section 15.04
    	
Force Majeure Termination
    	
159
    
	
 
    	
 
    	
 
    
	
Section 15.05
    	
Payments Not Excused
    	
159
    
	
 
    	
 
    	
 
    
	
Section 15.06
    	
No Extension
    	
159
    
	
 
    	
 
    	
 
    
	
ARTICLE XVI.
    
	
 
    	
 
    	
 
    
	
MISCELLANEOUS
    
	
 
    	
 
    	
 
    
	
Section 16.01
    	
Governing Law and Submission to Jurisdiction
    	
159
    
	
 
    	
 
    	
 
    
	
Section 16.02
    	
Waivers
    	
160
    
	
 
    	
 
    	
 
    
	
Section 16.03
    	
Further Assurances
    	
161
    
	
 
    	
 
    	
 
    
	
Section 16.04
    	
Regulatory Filings
    	
161
    
	
 
    	
 
    	
 
    
	
Section 16.05
    	
No Waiver
    	
161
    
	
 
    	
 
    	
 
    
	
Section 16.06
    	
Severability
    	
161
    
	
 
    	
 
    	
 
    
	
Section 16.07
    	
Successors and Assigns
    	
162
    
	
 
    	
 
    	
 
    
	
Section 16.08
    	
Confidentiality
    	
162
    
	
 
    	
 
    	
 
    
	
Section 16.09
    	
Notices
    	
163
    
	
 
    	
 
    	
 
    
	
Section 16.10
    	
Amendments, Etc.
    	
164
    
	
 
    	
 
    	
 
    
	
Section 16.11
    	
Nature of the Transaction and Relationship of Parties
    	
164
    
	
 
    	
 
    	
 
    
	
Section 16.12
    	
Interest
    	
165
    
	
 
    	
 
    	
 
    
	
Section 16.13
    	
Recording of Conversations
    	
165
    
	
 
    	
 
    	
 
    
	
Section 16.14
    	
Counterparts
    	
165
    
	
 
    	
 
    	
 
    
	
Section 16.15
    	
No Third Party Beneficiaries
    	
165
    
	
 
    	
 
    	
 
    
	
Section 16.16
    	
Entire Agreement
    	
165
    
	
 
    	
 
    	
 
    
	
Section 16.17
    	
Survival
    	
165
    
	
 
    	
 
    	
 
    
	
Section 16.18
    	
Release of Collateral
    	
166
    
	
 
    	
 
    	
 
    
	
Section 16.19
    	
Costs and Expenses
    	
166
    
	
 
    	
 
    	
 
    
	
Section 16.20
    	
Amendment and Restatement
    	
166
    


 

	
Schedules
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Schedule   1.01(a)
    	
-
    	
Assigned   Agreements
    
	
Schedule   1.01(b)
    	
-
    	
Guarantors
    
	
Schedule   1.01(c)
    	
-
    	
Hydrocarbon   Specifications
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

viii











 

	
Schedule   1.01(e)
    	
-
    	
Form of   Joinder Agreement
    
	
Schedule   1.01(g)
    	
-
    	
Form of   Supply and Offtake Perfection Certificate
    
	
Schedule   1.01(h)
    	
-
    	
Mortgaged   Properties
    
	
Schedule   1.01(i)
    	
-
    	
North   Yard Parcel
    
	
Schedule   1.01(j)
    	
-
    	
West   Yard Parcel
    
	
Schedule   1.01(k)
    	
-
    	
Racks   and Rack Infrastructure Owners
    
	
Schedule   1.01(l)
    	
-
    	
Refinery
    
	
Schedule   1.01(m)
    	
-
    	
Refinery   Real Property
    
	
Schedule   1.01(n)
    	
-
    	
[Reserved]
    
	
Schedule   1.01(o)
    	
-
    	
[Reserved]
    
	
Schedule   1.01(p)
    	
-
    	
[Reserved]
    
	
Schedule   1.01(q)
    	
-
    	
Approved   Terms and Conditions
    
	
Schedule   1.01(r)
    	
-
    	
Business   Days
    
	
Schedule   1.01(s)
    	
-
    	
Working   Capital Amount Example
    
	
Schedule   1.01(t)
    	
-
    	
PESRM   Infrastructure
    
	
Schedule   1.01(u)
    	
-
    	
Sunoco   PMT Infrastructure
    
	
Schedule   1.01(v)
    	
-
    	
Sunoco   Pipeline Infrastructure
    
	
Schedule   1.01(w)
    	
-
    	
Other   Third Party Infrastructure
    
	
Schedule   1.01(x)
    	
 
    	
Butane   Rail Facility
    
	
Schedule   2.02(a)
    	
-
    	
Post-Closing   Third Party Consent Agreements
    
	
Schedule   2.02(d)
    	
-
    	
Solvency   Certificate
    
	
Schedule   2.02(k)
    	
-
    	
Material   Approvals
    
	
Schedule   3.01(b)
    	
-
    	
CO   Delivery Points
    
	
Schedule   3.05(a)
    	
-
    	
Form of   Daily Actual Production Book
    
	
Schedule   3.06(a)
    	
-
    	
Form of   Financial Report
    
	
Schedule   3.08(b)(i)
    	
-
    	
Form of   Daily Trades Done to Date Report
    
	
Schedule   3.08(b)(ii)
    	
-
    	
Form of   Daily Raw Invoice Report
    
	
Schedule   3.08(b)(iii)
    	
-
    	
Form of   Daily Sales Report
    
	
Schedule   3.08(b)(iv)
    	
-
    	
Form of   Provisional FIFO Queue Report
    
	
Schedule   3.08(c)
    	
-
    	
Form of   Monthly CO FIFO Report
    
	
Schedule   3.09(b)
    	
-
    	
Form of   PESRM Buy Request / PESRM Sales Request
    
	
Schedule   3.09(c)
    	
-
    	
Form of   MLC CO Trade Confirmation
    
	
Schedule   3.19
    	
-
    	
First   Purchaser Jurisdictions
    
	
Schedule   4.01
    	
-
    	
RP   Delivery Points
    
	
Schedule   4.04(a)(i)
    	
-
    	
Form of   PPC Daily Rack Sales Report
    
	
Schedule   4.04(a)(ii)
    	
-
    	
Form of   SXL Daily Rack Sales Report
    
	
Schedule   4.04(a)(iii)
    	
-
    	
Form of   SXL Report
    
	
Schedule   4.09
    	
-
    	
Product   Purchaser Delivery Points
    
	
Schedule   4.09(a)
    	
-
    	
Form of   Oil Flow Report
    
	
Schedule   4.09(c)
    	
-
    	
Form of   MLC RP Trade Confirmation
    
	
Schedule   5(a)
    	
-
    	
Calculation   of Crude Oil Price Amount
    
	
Schedule   5(b)
    	
-
    	
Calculation   of Refined Product Price Amount
    
	
Schedule   5(c)
    	
-
    	
Market   Structure
    
	
Schedule   6.17
    	
-
    	
Form of   MLC Guaranty
    
	
Schedule   8.03(a)
    	
-
    	
No   Conflicts
    
	
Schedule   8.03(b)
    	
-
    	
Material   Contracts
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

ix











 

	
Schedule   8.07
    	
-
    	
Subsidiaries
    
	
Schedule   8.08(a)
    	
-
    	
Litigation
    
	
Schedule   8.08(c)
    	
-
    	
Material   Permits
    
	
Schedule   8.18
    	
-
    	
Environmental   Matters
    
	
Schedule   8.19
    	
-
    	
Effective   Date Insurance
    
	
Schedule   8.22
    	
-
    	
Location   of Material Collateral
    
	
Schedule   9.03
    	
-
    	
No   Conflicts
    
	
Schedule   9.04
    	
-
    	
Litigation
    
	
Schedule   10.04
    	
-
    	
Insurance   Requirements
    
	
Schedule   10.18
    	
-
    	
Form of   Third Party Consent Agreement
    
	
Schedule   11.01(z)
    	
-
    	
Existing   Indebtedness
    
	
Schedule   11.02(c)
    	
-
    	
Existing   Liens
    
	
Schedule   11.04(b)
    	
-
    	
Existing   Investments
    
	
Schedule   11.08
    	
-
    	
Existing   Transactions
    
	
Schedule   12
    	
-
    	
Cover   Transaction Pricing and Fees
    
	
 
    	
 
    	
 
    
	
Annexes
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Annex   I
    	
 
    	
Terms   Defined by Reference to Senior Secured Credit Facility
    
	
Annex   II
    	
 
    	
Refinery   Map and Legend
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

x









 

AMENDED AND RESTATED SUPPLY AND OFFTAKE AGREEMENT

 

THIS AMENDED AND RESTATED SUPPLY AND OFFTAKE AGREEMENT (as the same may be amended, restated, supplemented or otherwise modified from time to time, this “Agreement”) dated as of October 7, 2014 is by and among MERRILL LYNCH COMMODITIES, INC., a corporation organized under the laws of the State of Delaware (“MLC”), PHILADELPHIA ENERGY SOLUTIONS REFINING AND MARKETING LLC, a limited liability company organized under the laws of Delaware (“PESRM”), and the Guarantors party hereto from time to time (each of MLC and PESRM referred to individually as a “Party” or collectively as the “Parties” and each of PESRM and the Guarantors referred to individually as a “Transaction Party” or collectively as the “Transaction Parties”).

 

WHEREAS, J.P. Morgan Ventures Energy Corporation (“JPMVEC”) and PESRM are party to that certain Supply and Offtake Agreement, dated as of September 8, 2012 (as amended, restated, replaced, supplemented or otherwise modified from time to time prior to the date hereof, the “Original Agreement”), pursuant to which JPMVEC provided to PESRM an intermediation arrangement with respect to the crude oil and non-crude feed stock and refined products and blendstocks of that certain crude oil refinery currently owned and operated by PESRM in Philadelphia, Pennsylvania, which Original Agreement became effective on September 8, 2012 (the “Original Agreement Effective Date”);

 

WHEREAS, pursuant to and in accordance with the terms (including the satisfaction or waiver of certain terms and conditions) of that certain Assignment and Assumption Agreement dated as of the date hereof (as amended, restated, replaced, supplemented or otherwise modified from time to time, the “Assignment and Assumption Agreement”), among JPMVEC, MLC and PESRM, JPMVEC has agreed to assign to MLC all of JPMVEC’s rights, title and interest, and MLC has agreed to assume JPMVEC’s liabilities and obligations, under the Original Agreement and rights, titles, obligations, interests and liabilities under related infrastructure agreements with PESRM and other parties, in each case relating to the Original Agreement (collectively, the “Assignment”);

 

WHEREAS, pursuant to and in accordance with the terms (including the satisfaction or waiver of certain terms and conditions) of the Assignment and Assumption Agreement, (a) JPMVEC, MLC, PESRM and PES Administrative Services, LLC have entered into that certain Wind-Down Agreement, dated as of the date hereof (as amended, restated, replaced, supplemented or otherwise modified from time to time, the “Wind-Down Agreement”), whereby (i) JPMVEC and MLC have agreed to enter into the New MLC Transactions and (ii) JPMVEC has agreed to assign or novate to MLC certain existing CO Supply Contracts and certain existing RP Sales Contracts, and (b) pursuant to the Inventory Sales Agreement, JPMVEC has agreed to sell the In-Storage Inventory owned by JPMVEC to MLC (and MLC has agreed to purchase same) (collectively, together with the Assignment, the “Assignments and Transfers”);

 

WHEREAS, upon the consummation and effectiveness of the Assignments and Transfers, MLC and PESRM wish to amend and restate the Original Agreement, in its entirety upon the terms and conditions set forth in this Agreement, which amendment and restatement shall become effective on the Effective Date;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a novation of the obligations and liabilities of PESRM under the Original Agreement and that this Agreement amend and restate in its entirety the Original Agreement; and

 

WHEREAS, it is the intent of PESRM to confirm that all Obligations of PESRM under the Effective Date PESRM Transaction Documents, as amended, amended and restated, supplemented, refinanced or otherwise modified hereby or on or as of the date hereof, shall continue in full force and effect and that from and after the Effective Date, all references to the “Supply and Offtake Agreement” contained in the Effective Date PESRM Transaction Documents shall be deemed to refer to this Agreement;

 

WHEREAS, Holdings directly owns 100% of the Equity Interests in PESRM Holdings, LLC (“Intermediate Holdco”), Intermediate Holdco directly owns 100% of the Equity Interests in PESRM, and Intermediate Holdco directly or indirectly owns 100% of the Equity Interests of each of its Subsidiaries;

 

NOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth in this Agreement, MLC, PESRM and the other Transaction Parties hereby agree to amend and restate the Original Agreement as follows:

 

ARTICLE I.

 

DEFINED TERMS; PRINCIPLES OF CONSTRUCTION

 

Section 1.01                             Defined Terms.  Capitalized terms used in this Agreement have the meanings ascribed to them below:

 

“ABL/SOA Investment Accounts” has the meaning assigned to such term in Section 10.10(e).

 

“ABL/SOA Priority Collateral” has the meaning assigned to such term (or any equivalent term) in (a) to the extent the Existing Term Loan Facility is outstanding (whether secured or unsecured), the Existing Term-ABL Intercreditor Agreement, (b) to the extent the Existing Term Loan Facility has been refinanced with a Permitted Secured Term Loan Facility pursuant to which a Term-ABL Intercreditor Agreement has been entered into, such Term-ABL Intercreditor Agreement and (c) otherwise, the Existing Term-ABL Intercreditor Agreement.

 

“Action” has the meaning set forth in Section 16.01(b).

 

“Adversely Affected Party” has the meaning set forth in Section 6.09.

 

“Affected Party” means:

 

(i)                                     with respect to Illegality, the meaning set forth in Section 14.03(a)(i);

 

(ii)                                  with respect to Credit Event Upon Merger, the meaning set forth in Section 14.03(a)(ii); and

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

2











 

(iii)                               with respect to an ISDA Termination Event, the meaning set forth in Section 14.03(a)(iii).

 

“Affected Transactions” means:

 

(i)                                     with respect to any Termination Event consisting of an Illegality under Section 14.03(a)(i) as a result of which (x) a Party cannot perform under a material portion of (1) the CO Transactions, (2) the RP Transactions or (3) the PESRM-MLC Secured Prepay Transactions or (y) MLC cannot perform under a material portion of (1) the CO Supply Contracts, (2) the RP Sales Contracts or (3) the PESRM-MLC Secured Prepay Transactions, this Agreement and all PESRM Transactions,

 

(ii)                                  with respect to any Termination Event consisting of an Illegality not covered by subclause (i) of this definition, all PESRM Transactions affected by the occurrence of such Termination Event, and

 

(iii)                               with respect to any other Termination Event, this Agreement and all PESRM Transactions.

 

“Affiliate” means, when used with respect to a specified person, another person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the person specified; provided, that no direct or indirect parent of Philadelphia Energy Solutions, LLC shall be an Affiliate of PESRM or its Subsidiaries for purposes of this Agreement and provided further that PESIC shall not be an Affiliate of PESRM or its Subsidiaries for the purposes of this Agreement.

 

“Affiliate Transferee” means an Affiliate of PESRM that is in the business of owning, developing, operating and maintaining any of the Affiliate Transferee Assets and any other businesses ancillary or reasonably related thereto; provided that, for the avoidance of doubt, for purposes of this Agreement and the other PESRM Transaction Documents, PESIC shall not be an Affiliate Transferee.

 

“Affiliate Transferee Assets” means, collectively, the North Yard Assets and any Other Logistics Assets, to the extent transferred to an Affiliate Transferee.

 

“Aggregate Liability Amount” has the meaning set forth in Section 6.24.

 

“Agreement” has the meaning set forth in the introductory paragraph of this Agreement.

 

“Amended and Restated Mortgage” has the meaning set forth in Section 2.02(g).

 

“Annual Cover Throughput Service Fee” means a fee payable by PESRM in respect of all Cover Transactions to be entered into pursuant to this Agreement, [**], in an amount equal to [**].

 

“Anti-Corruption Laws” has the meaning set forth in Section 6.20(a).

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

3











 

“Anti-Terrorism Laws” means any Applicable Law related to terrorism financing or money laundering including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. 107-56), The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act”, 31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959), the Trading With the Enemy Act (50 U.S.C. § 1 et seq., as amended) and Executive Order 13224 (effective September 24, 2001).

 

“Applicable Condition” means the occurrence and continuance of any of the following events or circumstances: (i) any PESRM Event of Default, (ii) any PESRM/PESIC Failure to Perform, (iii) any event of Force Majeure, (iv) any MLC non-performance resulting from a lack of availability of working capacity of Required Infrastructure (including with respect to any PESRM-MLC Secured Prepay Transactions or any MLC-PESIC Secured Prepay Transactions), (v) any CO Supply Contract Event, (vi) any Cover Transaction Event, (vii) any Operational Imbalance, (viii) any excused or unexcused failure by PESRM under any PESRM-MLC Secured Prepay Transaction or PESIC-PESRM Secured Prepay Transaction, (ix) any excused or unexcused failure by PESIC under any MLC-PESIC Secured Prepay Transaction (other than the [**] (or equivalent condition) occurring thereunder) or (x) any excused or unexcused failure by PESRM under any PESIC-PESRM Secured Prepay Transactions.  For the avoidance of doubt, any Applicable Condition described in subclauses (ii) through (vii) above shall only excuse or suspend MLC’s duty to enter into and/or perform under the affected or corresponding PESRM Transaction(s), other PESRM Transaction Documents, CO Supply Contracts, PESRM-MLC Secured Prepay Transactions, MLC-PESIC Secured Prepay Transactions, RP Sales Contracts and/or Cover Transactions.

 

“Applicable Initial Refined Product Price” has the meaning set forth in Schedule 5(b).

 

“Applicable Laws” means all valid constitutions, statutes, laws (including common law), treaties, codes, regulations, ordinances, licenses, orders, directives, decrees, rules, rulings, decisions, judgments, policies, legally binding requirements, restrictions, writs, injunctions, permits or compliance requirements and any judicial or administrative decisions or interpretations of any Governmental Authority having jurisdiction over any transaction or matter contemplated in this Agreement, including any rights or obligations established hereunder.

 

“Applicable Margin” has the meaning set forth in the definition of Working Capital Rate.

 

“Applicable PESRM Transaction Documents” means: (i) with respect to the Effective Date, the Effective Date PESRM Transaction Documents, and (ii) with respect to each Day of the Term other than the Effective Date, the PESRM Transaction Documents.

 

“Applicable Refined Product Index” has the meaning set forth in Schedule 5(b).

 

“Approved Terms and Conditions” means those General Terms and Conditions which are set forth in Schedule 1.01(q) hereto, as amended from time to time [**].

 

“ARPLA Revision” has the meaning set forth in the definition of Applicable Refined Product Locational Adjustment in Schedule 5(b).

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

4











 

“ARPLA Revision Amount” has the meaning set forth in Schedule 5(b).

 

“Asset Sale” means, in each case to the extent in excess of (i) $[**] in respect of transactions or series of related transactions in respect of ABL/SOA Priority Collateral and (ii) $[**] per transaction or series of related transactions in respect of transactions or series of related transactions not in respect of ABL/SOA Priority Collateral, (a) any conveyance, sale, assignment, transfer or other disposition (including by way of merger or consolidation and including any Sale and Leaseback Transaction) of any property (but excluding in any event sales of inventory, transactions pursuant to the PESRM Tranasaction Documents, dispositions of cash and cash equivalents (including Cash Equivalents) and licenses of any Intellectual Property by PESRM or any of its Subsidiaries in the ordinary course of business) and (b) any issuance or sale of any Equity Interests of any Subsidiary of Holdings, in each case, to any person other than (i) PESRM or (ii) any Guarantor.  For the avoidance of doubt, the granting of a Permitted Lien shall not constitute an “Asset Sale.”

 

“Assigned Agreements” means each of the agreements set forth in Schedule 1.01(a).

 

“Assigned CO Contracts” means each of the agreements set forth in Part I of Schedule 1.01(a).

 

“Assigned RP Contracts” means each of the agreements set forth in Part II of Schedule 1.01(a).

 

“Assignment” has the meaning set forth in the recitals of this Agreement.

 

“Assignment and Assumption Agreement” has the meaning set forth in the recitals of this Agreement.

 

“Assignment Documents” has the meaning assigned to the term “Transaction Documents” in the Assignment and Assumption Agreement.

 

“Assignments and Transfers” has the meaning set forth in the recitals of this Agreement.

 

“Auto Bin” means all transactions that are subject to Auto Bin Deemed Hedge Rolls.

 

“Auto Bin Deemed Hedge Roll” has the meaning set forth in Schedule 5(c).

 

“Auto Bin Deemed Roll Settlement Amount” means an amount equal to the [**].

 

“Average Rack Sale Daily Amount” means, with respect to any quarter during the Term, an amount equal to the quotient of (i) the aggregate sum of all amounts of Refined Products (measured in U.S. Dollars) actually sold under all outstanding Rack Sales Contracts from MLC to PESRM on every Day in such calendar quarter, divided by (ii) the number of Days in such calendar quarter.

 

“Bank of America” means Bank of America, N.A.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

5











 

“Bankruptcy Code” has the meaning set forth in Section 13.01.

 

“Barrel” means one United States barrel (42 United States gallons).

 

“Base Interest Rate” has the meaning set forth in the definition of Working Capital Rate.

 

“Basic Infrastructure” means all of (a) the PESRM Infrastructure, (b) the Sunoco PMT Infrastructure, (c) the Sunoco Pipeline Infrastructure, (d) any Other Third Party Infrastructure owned by an Affiliate Transferee, and (e) to the extent PESRM is able to do so, all the Other Third Party Infrastructure not referred to in clause (d) above.

 

“Belmont Truck Rack” means the truck rack that is located in Philadelphia, Pennsylvania adjacent to the Refinery and that is owned by Sunoco PMT.

 

“BS&W” means bottoms sediment/sludge, suspended sediment and water and free water.

 

“Business Day” means each Day set forth on Schedule 1.01(r), as may be amended from time to time.

 

“Business Day Convention” means that, as a general matter, any reference to a Day that is not a Business Day shall instead refer to the first (1st) Business Day following such Day (other than in the case of certain reports required to be delivered hereunder, and certain pricing determinations to be made hereunder, in which case references to a Day shall refer to that calendar Day), except that:

 

(i)                                     in the case of an ordinary (two-day) weekend or a three-day weekend in which Friday is not a Business Day, any reports required pursuant to Sections 3.05(a), 3.06, 3.07, 3.08 and 4.04(a), and the specified pricing determinations required to be made under Schedules 5(a), 5(b) and 5(c), with respect to a Day that is a Sunday shall be due or made, as applicable, on the following Tuesday (unless that Tuesday is not a Business Day, in which case such report shall be due, or such pricing determination shall be made, on the next Business Day following that Tuesday);

 

(ii)                                  in the case of a Day falling on a three-day weekend in which Monday is not a Business Day, any reports required pursuant to Sections 3.05(a), 3.06, 3.07, 3.08 and 4.04(a), and the specified pricing determinations required to be made under Schedules 5(a), 5(b) and 5(c), with respect to a Day that is a Sunday or Monday shall be due or made, as applicable, on the following Wednesday (unless that Wednesday is not a Business Day, in which case such report shall be due, or such pricing determination shall be made, on the next Business Day following that Wednesday); and

 

(iii)                               in the event that four or more consecutive Days are not Business Days, references to any of those consecutive Days which are not Business Days shall be resolved by any arrangement reasonably agreed to by the Parties.

 

This Business Day Convention shall apply only where the context so indicates.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

6











 

“Butane Cover Transaction” has the meaning set forth in Section 12.01(a)(i).

 

“Butane Inventory” means, for any Day, the butane inventory (measured in Barrels) held by PESRM as at the end of such Day (including any butane that is subject to PESRM-MLC Secured Prepay Transactions or PESIC-PESRM Secured Prepay Transactions), as reflected in the Daily Actual Production Book (with respect to butane inventory located at the Refinery) and the SXL Report (with respect to butane inventory located off premises of the Refinery), as the same shall be revised from time to time pursuant to Section 4.14(b).

 

“Butane Inventory Build” means, for any Day, any positive difference between the Butane Inventory on such Day and the Butane Inventory on the previous Day.

 

“Butane Inventory Build Day” means any Day on which there is Butane Inventory Build.

 

“Butane Inventory Draw” means, for any Day, any negative difference between the Butane Inventory on such Day and the Butane Inventory on the previous Day.

 

“Butane Inventory Draw Day” means any Day on which there is Butane Inventory Draw.

 

“Butane Rail Facility” means the butane rack loading and unloading rail facility located in the Girard Point South Yard portion of the Refinery to be constructed by PESRM, as further described on Schedule 1.01(x).

 

“Butane Sale Price Amount” means, in respect of any delivery of butane made at the RP/B Delivery Point on any Day and sold by MLC to PESRM pursuant to a Butane Sale Transaction, an amount (expressed in US Dollars) equal to the product of (a) the aggregate volume (expressed in Barrels or other applicable unit of measure) of such delivery multiplied by (b) the Applicable Initial Refined Product Price.

 

“Butane Sale Transaction” has the meaning set forth in Section 4.14(a).

 

“Calendar Week” means a period of seven consecutive Days commencing at (and including) 00:00 Eastern Time on each Sunday and ending at (but excluding) 24:00 Eastern Time on the following Saturday.

 

“Carlyle PES” means Carlyle PES, L.L.C.

 

“CEA” has the meaning set forth in Section 8.26(a).

 

“CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. § 9601 et seq. and all implementing regulations.

 

“Certain PESRM Transaction Documents” means this Agreement (including all PESRM Transactions hereunder), the PESRM-MLC ISDA Master Agreement and the other PESRM-MLC ISDA Documents, the PESRM-MLC Secured Prepay Transactions, each Third Party Consent Agreement, the PESRM-MLC Consulting Agreement, the Master Netting Agreement, the Supply and Offtake Security Documents and the Intercreditor Agreement.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

7











 

“Change in Law” means the occurrence, after the date of this Agreement, of any of the following (a) the adoption or taking into effect of any Applicable Law, (b) any change in Applicable Law or in the administration, interpretation or application thereof by any Governmental Authority, (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided, that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder, issued in connection therewith or in implementation thereof (the “Dodd-Frank Act”), and (ii) all requests, rules, guidelines and directives promulgated pursuant to Basel III by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented.

 

“Change in Law Notice” has the meaning set forth in Section 6.09.

 

“CO Cover Transaction Price Amount” has the meaning set forth in Schedule 12.

 

“CO Cover Transaction Volume Limitation” has the meaning set forth in Section 12.06(a).

 

“CO Cover Transactions” has the meaning set forth in Section 12.01(a)(ii).

 

“CO Cover Throughput Service Fee” has the meaning set forth in Schedule 12.

 

“CO Delivery Point” means the gauges or metering points listed on Schedule 3.01(b).

 

“CO Operational Issue” means, as determined by MLC in good faith and a commercially reasonable manner based on information provided by PESRM, a circumstance or event that occurs with respect to the Refinery and/or any Required Infrastructure (including planned maintenance and mechanical failures) or with respect to any mode of transportation utilized to deliver Crude Oil to the Refinery under any CO Supply Contract, any PESRM-MLC CO Secured Prepay Transaction or any PESIC-PESRM Secured Prepay Transaction and that results (or could reasonably be expect to result) in an inability of PESRM, PESIC or MLC (as applicable) to accept delivery of, or process, the quantity, type or grade of Crude Oil scheduled to be delivered pursuant to any outstanding CO Supply Contract, any PESRM-MLC CO Secured Prepay Transaction or any PESIC-PESRM Secured Prepay Transaction.

 

“CO [**] Transaction” has the meaning set forth in Section 3.09(a).

 

“CO Supply Contract” has the meaning set forth in Section 3.09(c).

 

“CO Supply Contract Event” has the meaning set forth in Section 3.09(g).

 

“CO Transaction” has the meaning set forth in Section 3.10.

 

“CO Transportation and Other Costs” means, on any Day, all direct out of pocket losses, costs and expenses incurred by, or amounts owed by, MLC on or before such Day (and not previously paid by PESRM) (including any expenses payable to PESRM or any PESRM Affiliate) that arise from the acquisition or sale of Crude Oil in connection with this Agreement or any CO Supply

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

8











 

Contract, PESRM-MLC CO Secured Prepay Transaction or MLC-PESIC Secured Prepay Transaction (but excluding any Demurrage Costs), including pipeline tariffs, vessel, rail or truck freight fees and charges, lightering costs, inspection fees, any charges imposed by a Governmental Authority, tankage and throughput charges, supplier administration charges, supplier funding charges, loss control charges, broker’s fees, penalties, terminal fees, costs of bank countersigned letters of indemnity, L/C Fees and Costs, any obligation to pay any Prepayment Amount (except in connection with the PESRM-MLC CO Secured Prepay Transactions) and any contractual obligation to indemnify or reimburse any Counterparty under any CO Supply Contract for any Indemnifiable Taxes (including any taxes thereon), damages, duties, imposts, tariffs, fees, charges, losses or liabilities of whatever nature together with any penalties and costs associated therewith.  Without limiting the foregoing, CO Transportation and Other Costs includes all direct out of pocket losses, costs and expenses associated with the settlement or discharge of CO Supply Contracts for physical delivery where such contracts arise as a consequence of any transaction relating to the ultimate delivery of Crude Oil to an applicable delivery point determined in accordance with the terms of this Agreement (but excluding any Demurrage Costs).  CO Transportation and Other Costs shall not include any costs or increases of costs that arise from any MLC Event.

 

“Code” means the Internal Revenue Code of 1986.

 

“Collateral” means, collectively, all (i) Supply and Offtake Security Agreement Collateral and (ii) other property of whatever kind and nature subject or purported to be subject from time to time to a Lien under any Supply and Offtake Security Document.

 

“Commodities Account” has the meaning assigned to such term in the UCC.

 

“Common Shares” means, with respect to any Person, the ordinary equity interests or membership interests issued by such person (not including any preferred or other special class of equity interests in such Person)

 

“Consequential Steps” has the meaning set forth in Section 6.09.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise.  “Controlling” and “Controlled” have meanings correlative thereto.

 

“Control Agreement” has the meaning given to such term in the Supply and Offtake Security Agreement.

 

“Core PESRM Transaction Document” means this Agreement, any PESRM Transaction, the Rack Sales Contract, the PESRM-MLC ISDA Master Agreement and the other PESRM-MLC ISDA Documents, the PESRM-MLC Secured Prepay Transactions, each Third Party Consent Agreement, the PESRM-MLC Consulting Agreement, the Supply and Offtake Security Documents and the Intercreditor Agreement.

 

“Cost of Assurance Trigger Event” means: (i) [**] (x) [**] or (y) [**] or (ii) [**].

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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“Counterparty” has the meaning set forth in Section 3.09(a).

 

“Counterparty Payment Date” has the meaning set forth in Section 3.09(d).

 

“Cover Counterparties” has the meaning set forth in Section 12.02(a).

 

“Cover [**] Transaction” has the meaning set forth in Section 12.01(a).

 

“Cover Protocols” has the meaning set forth in Section 12.02.

 

“Cover Request” has the meaning set forth in Section 12.02(d).

 

“Cover Throughput Service Fee” means the Annual Cover Throughput Service Fee, any CO Cover Throughput Service Fee and/or any RP Cover Throughput Service Fee, as applicable.

 

“Cover Transaction Event”  has the meaning set forth in Section 12.10.

 

“Cover Transaction Price Amounts” means the RP Cover Transaction Price Amounts and the CO Cover Transaction Price Amounts.

 

“Cover Transaction Notice” has the meaning set forth in Section 12.02(a).

 

“Cover Transaction Price Amount” means an RP Cover Transaction Price Amount and/or a CO Cover Transaction Price Amount, as applicable.

 

“Cover Transactions” means RP Cover Transactions and CO Cover Transactions.

 

“Cover Transportation and Other Costs” means, on any Day, all direct out of pocket losses, costs and expenses incurred by, or amounts owed by, MLC on or before such Day (and not previously paid by PESRM) (including any expenses payable to PESRM or any PESRM Affiliate) that arise from the acquisition or sale of Crude Oil and/or Refined Products pursuant to any Cover Transaction from the acquisition point to the delivery point specified in the applicable Cover Transaction, any PESRM-MLC Secured Prepay Transaction or MLC-PESIC Secured Prepay Transaction related to such Cover Transaction (but excluding any Demurrage Costs), including pipeline tariffs, vessel, rail or truck freight fees and charges, lightering costs, inspection fees, any charges imposed by a Governmental Authority, tankage and throughput charges, supplier administration charges, supplier funding charges, loss control charges, broker’s fees, penalties, terminal fees, costs of bank countersigned letters of indemnity, L/C Fees and Costs, any contractual obligation to pay any Prepayment Amounts and any obligation to indemnify or reimburse any Cover Counterparty under any Cover Transaction for any Indemnifiable Taxes (including any taxes thereon), damages, duties, imposts, tariffs, fees, charges, losses or liabilities of whatever nature together with any penalties and costs associated therewith. Cover

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Transportation and Other Costs shall be reflected in an Invoice or the Monthly True-Up Invoice, as applicable.  Without limiting the foregoing, Cover Transportation and Other Costs includes  all direct out of pocket losses, costs and expenses associated with the settlement or discharge of Cover Transactions. Cover Transportation and Other Costs shall not include any costs or increases of costs that arise from any MLC Event.

 

“Credit Event Upon Merger” has the meaning set forth in Section 14.03(a)(ii).

 

“Credit Requirements” means the credit requirements determined by MLC in its commercially reasonable discretion which include that (i) [**], (ii) [**], (iii) [**], (iv) [**], (v) [**] and (vi) [**].

 

“Crude Oil” means crude oil of any type or grade.

 

“Crude Oil Grade Differential” has the meaning set forth in Schedule 5(a).

 

“Crude Oil Index” has the meaning set forth in Schedule 5(b).

 

“Crude Oil Price Amount” has the meaning set forth in Schedule 5(a).

 

“Customs” has the meaning set forth in Section 6.16(a).

 

“Daily Actual Production Book” means, for any Day, a written production book prepared by PESRM substantially in the form attached hereto as Schedule 3.05(a) (and as may be amended from time to time pursuant to Section 3.16), detailing [**], subject to Section 3.05(b).

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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“Daily Cover Throughput Service Fee” means, for any Day, a fee equal to [**].

 

“Daily Raw Invoice Report” means, for any Day, a written report prepared by MLC substantially in the form attached hereto as Schedule 3.08(b)(ii), detailing [**].

 

“Daily Sales Report” means, for any Day, a written report prepared by MLC substantially in the form attached hereto as Schedule 3.08(b)(iii), detailing [**].

 

“Daily Trades Done To Date Report” means, for any Day, a written report prepared by MLC substantially in the form attached hereto as Schedule 3.08(b)(i), detailing [**].

 

“DAP” means Delivered At Place (as such term is defined in Incoterms 2010).

 

“Day” means a period of twenty-four (24) consecutive hours beginning and ending at midnight Eastern Time.

 

“Deed of Pledge” means that certain Deed of Pledge dated as of the date hereof by and between PESRM and MLC.

 

“Default” means any event, occurrence or condition which is, or upon notice, lapse of time or both would constitute, a PESRM Event of Default or MLC Event of Default, as applicable.

 

“Default Interest Rate” has the meaning set forth in Section 16.12(a).

 

“Defaulting Party” has the meaning set forth in Section 14.04(a)(i).

 

“Demurrage Costs” means, on any Day, all direct out of pocket losses, costs and expenses incurred by MLC on or before such Day (and not previously paid by PESRM) relating to demurrage incurred in connection with (i) the transportation, delivery or receipt of Hydrocarbons pursuant to this Agreement and, without duplication, the PESRM Transactions, the CO Supply Contracts, the RP Sales Contracts and the Cover Transactions by any rail or waterborne means of transportation from the locations where such Hydrocarbons are acquired to the Refinery or the other Basic Infrastructure (or, with respect to any Cover Transactions, to the delivery point specified in such transaction) and (ii) the receipt and delivery of Hydrocarbons from the Refinery or the other Basic Infrastructure (or, with respect to any Cover Transactions, to the delivery point

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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specified in such transaction) into or out of any rail or waterborne means of transportation.  Demurrage Costs shall not include any costs or increases of costs that arise from MLC’s gross negligence or willful misconduct.

 

“DES” means Delivered Ex Ship (as such term is defined in Incoterms 2000).

 

“Designated Sales Representative” means the person responsible for receiving PESRM Buy Requests, PERSM Sales Requests and all other communication related thereto, as specified by MLC in writing to PESRM from time to time.

 

“Development Financing” means (a) a loan or loans made through the U.S. EB-5 Program (“EB-5 Program”) to finance or refinance capital expenditures or other expenses eligible under the EB-5 Program, in respect of which no Liens are granted on any ABL/SOA Priority Collateral, (b) a financing of the North Yard Assets or (c) any other financing with respect to development of the Refinery, in each case which (i) is subject to an intercreditor agreement containing usual and customary terms for such type of financing facility (a “Development Intercreditor Agreement”), (ii) the material terms of such financing (including interest rates) are generally consistent with prevailing market terms for such type of financing facility at the time such financing facility is entered into and (iii) is not used to construct facilities without which the Refinery could not continue to process Crude Oil.

 

“Development Intercreditor Agreement” has the meaning set forth in the definition of Development Financing.

 

“Dodd-Frank Act” has the meaning set forth in the definition of Change in Law.

 

“Eagle Point Terminal” means that certain Hydrocarbon terminal and dock facility, operated as of the date hereof by Sunoco PMT, which is located in Westville, New Jersey.

 

“Early Termination Date” has the meaning set forth in Section 14.04(a)(i).

 

“Eastern Time” or “ET” means Eastern Standard Time or Eastern Daylight Saving Time in effect in Philadelphia, Pennsylvania on the date in question.

 

“EB-5 Program” has the meaning set forth in the definition of Development Financing.

 

“Effective Date” means the date on which all of the conditions precedent set forth in Sections 2.02 and 2.03 shall have been satisfied or waived in writing in accordance with the terms hereof.

 

“Effective Date Infrastructure” has the meaning set forth in Section 2.02(n).

 

“Effective Date PESRM Transaction Document” means this Agreement, the Products Sales Agreement, each Third Party Consent Agreement, the PESRM-MLC Consulting Agreement, the Supply and Offtake Security Documents and the Intercreditor Agreement, the PESRM-MLC ISDA Master Agreement and the other PESRM-MLC ISDA Documents, the Master Netting Agreement and any other agreement to be entered into on the Effective Date in connection with this Agreement or any other of the foregoing agreements.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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“Eligible for Invoicing” means, as used in Article V, any amount that MLC is authorized to invoice under the terms of Sections 3.15, 4.11, 6.16, 6.18 or 12.07.

 

“Employee Payment Distributions” means payments, dividends or distributions by any of PESRM, the Guarantors and their respective Subsidiaries (without duplication) directly or indirectly to Holdings for the payment of:

 

(x)               Management Personnel Costs (a) to the extent such Management Personnel Costs comply with Section 11.08(c) (provided, however, for purposes of this definition, references in Section 11.08(c) to the Board of Directors of PESRM shall be deemed to be a reference to the Board of Directors of Holdings), (b) only to the extent such amounts are attributable solely to services provided by such Management Personnel to Holdings related to the operations of PESRM or its Subsidiaries and (c) which are then due and owing or, in the reasonable judgment of PESRM, are expected to become due within thirty-one (31) days of the applicable payment, dividend or distribution; and

 

(y)               other Management Personnel Costs in an aggregate amount not to exceed $[**] in any fiscal year.

 

“Environment” means ambient air, indoor air, surface water and groundwater (including potable water, navigable water and wetlands), the land surface or subsurface strata, natural resources or as otherwise defined in any Environmental Law.

 

“Environmental Claim” means any claim, notice, demand, order, action, suit or proceeding alleging liability for or obligation with respect to any investigation, remediation, removal, cleanup, response, corrective action, damages to natural resources, personal injury, property damage, fines, penalties or other costs resulting from, related to or arising out of (i) the presence, Release or threatened Release in or into the Environment of Hazardous Material at any location or (ii) any violation or alleged violation of any Environmental Law, and shall include any claim seeking damages, fine, penalty, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from, related to or arising out of the presence, Release or threatened Release of Hazardous Material or alleged injury or threat of injury to the Environment or, as it relates to exposure to Hazardous Materials, to human health.

 

“Environmental Laws” means any and all past, present and future Applicable Laws relating to the protection of public health or the Environment, the Release or threatened Release of Hazardous Material, natural resources or natural resource damages, or occupational safety or health relating to exposure of or to Hazardous Materials, and any and all Environmental Permits.

 

“Environmental Permit” means any permit, license, approval, registration, notification, exemption, consent or other authorization required by or from a Governmental Authority under Environmental Law.

 

“EPA” means the United States Environmental Protection Agency.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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“Equity Interest” means, with respect to any person, any and all shares, interests, participations or other equivalents, including membership interests (however designated, whether voting or nonvoting), of equity of such person, including, if such person is a partnership, partnership interests (whether general or limited) and 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 property of, such partnership, whether outstanding on the date hereof or issued after the Effective Date, but excluding debt securities convertible or exchangeable into such equity.

 

“Estimated Daily Rack Sale Amount” means, (i) for the period beginning on the Effective Date and ending on (and including) December 31, 2014, an amount equal to the Initial Rack Sale Amount and (ii) for any subsequent quarter, such amount as may be adjusted in accordance with Section 4.10.

 

“Event of Default” means either a PESRM Event of Default or a MLC Event of Default, as applicable.

 

“Excluded Subsidiaries” means (a) each Subsidiary formed or acquired after the Effective Date that is designated as an Excluded Subsidiary pursuant to Section 10.16 and (b) each Affiliate Transferee.  For the avoidance of doubt, each Excluded Subsidiary shall not be a Guarantor, and to the extent that an Excluded Subsidiary’s net income would otherwise be included in the definition of Consolidated Net Income or Consolidated EBITDA or any component thereof such Excluded Subsidiary’s net income shall not be included for purposes of calculating Consolidated Net Income or Consolidated EBITDA except to the extent provided in either such definition.

 

“Existing Mortgage” means that certain Open-End Mortgage, Security Agreement, Assignment of Leases and Rents, Financing Statement and Fixture Filing (Secures Future Advances), dated as of July 31, 2013, by PESRM, as mortgagor, to MLC (as assignee of JPMVEC), as mortgagee, as amended and restated by the Amended and Restated Mortgage as of the Effective Date.

 

“Existing Term-ABL Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of April 4, 2013, among Bank of America, N.A. (as assignee of JPMorgan), as revolving collateral agent, JPMorgan, as term loan administrative agent, the SOA Collateral Agent (as assignee of JPMVEC), PESRM and the other parties thereto.

 

“Existing Term Loan Credit Agreement” means that certain Term Loan Agreement among PESRM, the lenders party thereto from time to time and JPMorgan, as administrative agent, dated April 4, 2013, with J.P. Morgan Securities LLC, as Sole Lead Arranger and Sole Bookrunner.

 

“Existing Term Loan Facility” means the facility established pursuant to the Existing Term Loan Credit Agreement.

 

“Final Termination Date” has the meaning set forth in Section 6.02(a).

 

“Financial Products ISDA Master Agreement” means that certain 2002 ISDA Master Agreement, dated as of the date hereof, including the Schedule, exhibits and annexes thereto and the transactions thereunder, between PESRM and MLC, as amended, restated, supplemented, replaced or otherwise modified from time to time.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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“Financial Report” means, for any Day, a written report prepared by MLC substantially in the form attached hereto as Schedule 3.06(a), detailing (i) [**], and (ii) [**].

 

“First Purchaser Compliance Costs” means, on any Day, without duplication, all direct out of pocket losses, costs and expenses (including reasonable attorneys’ fees and disbursements) incurred by, or amounts owed by, MLC on or before such Day that arise from taking, or causing to be taken, such steps as are necessary or appropriate to comply with any First Purchaser Requirements that are applicable to MLC or any Affiliate of MLC as a first purchaser of Products pursuant to one or more transactions entered into at the request of or for the benefit of MLC or any Affiliate of MLC pursuant to this Agreement, as approved by PESRM pursuant to Section 3.19.

 

“First Purchaser Requirements” has the meaning set forth in Section 3.19(b)(i).

 

“FOB” means Free on Board as such term is defined in Incoterms 2010.

 

“Force Majeure” has the meaning set forth in Section 15.01.

 

“Framework Agreement” means that certain Framework and Collateral Agency Agreement, dated as of the date hereof, among PESIC, MLC and MLC, as the SOA Collateral Agent, as in effect on the date of this Agreement.

 

“GAAP” means generally accepted accounting principles in the United States applied on a consistent basis.

 

“General Terms and Conditions” means standardized general terms and conditions for [**].

 

“Governmental Approval” means (i) any authorization, consent, approval, license, lease, ruling, permit, tariff, certification, exemption, filing, variance, claim, order, judgment, award, decree, by or with any Governmental Authority, (ii) any declaration of or with any Governmental Authority or (iii) any registration by or with, any Governmental Authority, in each case relating to the due execution and delivery of, or the performance by each intended party of, or the performance of its obligations or the exercise of its rights under, this Agreement and the other PESRM Transaction Documents to which it is (or is intended to be) a party.

 

“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state, provincial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union, the European

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Central Bank or the Organisation for Economic Co-operation and Development), and self-regulatory bodies including NYMEX, ICE or any other exchange or clearing organization on which hedging relating to this Agreement may occur or be cleared.

 

“Government Official” has the meaning set forth in Section 6.20(a)(ii).

 

“Governmental Real Property Disclosure Requirements” means any Environmental Law requiring notification of the buyer, lessee, mortgagee, assignee, or other transferee of any Real Property, facility, establishment or business, or notification, registration or filing to or with any Governmental Authority, in connection with the sale, lease, mortgage, assignment or other transfer (including any transfer of control) of any Real Property, facility, establishment or business, of the actual or threatened presence or Release in or into the Environment, or the use, disposal or handling of Hazardous Material on, at, under or near the Real Property, facility, establishment or business to be sold, leased, mortgaged, assigned or transferred.

 

“Guarantee” has the meaning set forth in Section 13.01.

 

“Guaranteed Obligations” has the meaning set forth in Section 13.01.

 

“Guarantor” means (i) each Subsidiary listed on Schedule 1.01(b) hereto and (ii) each other Subsidiary that is or becomes a party to this Agreement pursuant to Section 10.10(b) and that has not been designated by PESRM, in accordance with Section 10.16, as an Excluded Subsidiary, and in any event, excluding any Subsidiary that is organized under the laws of a jurisdiction other than the United States or any state thereof or the District of Columbia.

 

“Hazardous Materials” means the following: hazardous substances; hazardous wastes; any petroleum-based contaminant; polychlorinated biphenyls (“PCBs”) or any substance or compound containing PCBs; asbestos or any asbestos-containing materials in any form or condition; radon or any other radioactive materials including any source, special nuclear or by-product material; and any other chemicals, wastes, materials, compounds, constituents or substances, subject to regulation as hazardous, toxic, a pollutant or a contaminant, or which can give rise to liability under any Environmental Laws.

 

“Hedging Activities” has the meaning set forth in Section 6.09.

 

“Holdings” means Philadelphia Energy Solutions, LLC.

 

“Hydrocarbon” means Crude Oil and Refined Products.

 

“Hydrocarbon Deemed Hedge Contract” means, for any Hydrocarbon, the index specified under the heading “Hydrocarbon Deemed Hedge Contract” on Table 1 of Part 2 of Schedule 5(c).

 

“Hydrocarbon Physical Inventory” has the meaning set forth in Schedule 5(c).

 

“ICE” means InterContinental Exchange, Inc.

 

“ICE LIBOR” has the meaning set forth in the definition of LIBOR.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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“Illegality” has the meaning set forth in Section 14.03(a)(i).

 

“Imbalance Quantity” has the meaning set forth in Section 6.14.

 

“In-Storage Inventory” has the meaning set forth in the Inventory Sales Agreement.

 

“Indemnifiable Taxes” means all taxes imposed by reason of the procurement, purchase, ownership, storage, transfer, transport, sale or use of the Hydrocarbons or lease, use or ownership of any Required Infrastructure pursuant to this Agreement, any other PESRM Transaction Document, any CO Supply Contract, any PESRM-MLC Secured Prepay Transaction, any MLC-PESIC Secured Prepay Transaction, any PESIC-PESRM Secured Prepay Transaction, any RP Sales Contract, or any Cover Transaction, or by reason of any other transaction or service contemplated hereunder or thereunder, including all foreign, federal, territorial, provincial, state and local taxes on gross income, sales, use, gross receipts, municipal license, value added, severance, ad valorem, excise, inventory, property (whether real or personal), spill, environmental, carbon, production, transaction-based, occupation, gathering, pipeline regulating, windfall profits, gross production, energy, withholding and other taxes and governmental charges and assessments; provided, that Indemnifiable Taxes shall not include (i) any taxes imposed on or measured by net income or profits, capital value, net worth or overall net assets of any entity, whether denominated as franchise taxes, doing business taxes, mercantile taxes, business privilege taxes, capital stock taxes or the like (other than any franchise taxes, mercantile taxes or business privilege taxes (x) imposed on or measured by gross income or gross receipts (including the gross receipts portion of the City of Philadelphia Business Income and Receipts Tax) or (y) that MLC would not have been subject to but for its having entered into any PESRM Transaction Document, CO Supply Contract, PESRM-MLC Secured Prepay Transaction, MLC-PESIC Secured Prepay Transaction, PESIC-PESRM Secured Prepay Transaction, RP Sales Contract, or Cover Transaction, including any transaction or service contemplated thereunder), or (ii) business license or registration fees (other than any non-U.S. business license or registration fees that MLC would not have been subject to but for its having entered into any PESRM Transaction Document, CO Supply Contract, PESRM-MLC Secured Prepay Transaction, MLC-PESIC Secured Prepay Transaction, PESIC-PESRM Secured Prepay Transaction, RP Sales Contract, or Cover Transaction, including any transaction or service contemplated thereunder).

 

“Indemnified Party” has the meaning set forth in Section 7.01(f).

 

“Indemnifying Party” has the meaning set forth in Section 7.01(f).

 

“Index” means, for any Hydrocarbon, the index specified under the heading “Index” in Table 1 of Part 2 of Schedule 5(c).

 

“Initial Rack Sale Amount” means $[**].

 

“Initial Refined Product Price Amount” has the meaning set forth in Schedule 5(b).

 

“Initial RP Purchases” has the meaning set forth in Section 4.13(a).

 

“Insurance Requirements” has the meaning set forth in Section 10.04(a).

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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“Intermediate Holdco” has the meaning set forth in the recitals to this Agreement.

 

“Inventory Sales Agreement” means that certain Inventory Sales Agreement dated as of the date hereof, between JPMVEC and MLC.

 

“Investment Assets” has the meaning assigned to such term in Section 10.10(e).

 

“Invoice” has the meaning set forth in Section 5.01.

 

“ISDA Termination Event” has the meaning set forth in Section 14.03(a)(iii).

 

“Joinder Agreement” means a joinder agreement substantially in the form of Schedule 1.01(e).

 

“Jones Act” means the Merchant Marine Act of 1920, as amended.

 

“JPMVEC” has the meaning set forth in the recitals of this Agreement.

 

“L/C Fees and Costs” means, in respect of any letter of credit posted by [**] or any of its Affiliates to any third party in connection with the performance of [**].

 

“Leased Affiliate Transferee Assets” means any Affiliate Transferee Assets leased by a Transaction Party to an Affiliate Transferee.

 

“Liabilities” means any losses, claims, charges, damages, deficiencies, assessments, interest, fines, penalties, costs and expenses of any kind (including reasonable attorneys’ fees and disbursements and other fees, court costs and other disbursements), directly or indirectly arising out of or related to any Proceeding (or threatened Proceeding), judgment, investigation (or threatened investigation), settlement (whether or not Proceedings have been initiated) or judicial or administrative order, including any Environmental Claim, and, in each case, including any indemnification by MLC of PESIC or any other Indemnified Party (as defined in the Framework Agreement), other than any MLC Caused Indemnity.  Liabilities shall include costs of purchasing replacement commodities, receipt, storage, transportation and delivery costs relating thereto, liquidated damages, credit charges and hedging costs and [**].

 

“LIBOR” means, for any Day, the rate per annum determined by MLC at approximately 11:00 a.m. (London time) on the date that is two London Banking Days prior to such Day by reference to the ICE Benchmark Administration LIBOR Rate, as published by Reuters (or other commercially available source providing quotations of ICE LIBOR as may be designated by MLC from time to time) (“ICE LIBOR”), for a period equal to the designated period; provided, that if the ICE LIBOR is not available to MLC for any reason, then the applicable LIBOR for

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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such Day shall instead be the average of the rates per annum at which deposits in US Dollars are offered for such designated period to major banks in the London interbank market in London, England by Bank of America, N.A., at approximately 11:00 a.m. (London time) on the date which is two London Banking Days prior to such Day.  Each determination by MLC pursuant to this definition shall be conclusive absent manifest error.

 

“Lien” means, with respect to any asset, (i) any mortgage, deed of trust, lien, pledge, encumbrance, charge, collateral assignment, hypothecation, security interest or encumbrance of any kind or any arrangement effective to provide priority or preference or any filing of any financing statement under the UCC, as in effect from time to time in any applicable state or jurisdiction, or any other similar notice of lien under any similar notice or recording statute of any Governmental Authority, including any easement, right-of-way or other encumbrance on title to Real Property, in each of the foregoing cases whether voluntary or imposed by law, (ii) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such property, and (iii) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.

 

“London Banking Day” means a Day on which dealings in US Dollar deposits are conducted by and between banks in the London interbank market.

 

“Loss” means, with respect to this Agreement or one or more terminated PESRM Transactions (such transactions, the “Terminated Transactions”), as the case may be, and a Party, an amount that Party reasonably determines in good faith and a commercially reasonable manner to be its total losses and costs (or gain, in which case expressed as a negative number) in connection with this Agreement or that Terminated Transaction or group of Terminated Transactions, as the case may be, including, without limitation, any loss of bargain, cost of funding and (i) in any case where MLC is the Performing Party, without duplication, losses and costs (or gains) incurred by MLC as a result of its terminating, liquidating, obtaining, amending or reestablishing any CO Supply Contracts, PESRM-MLC Secured Prepay Transactions, RP Sales Contracts or Cover Transactions (but solely with respect to unreimbursed market structure risks (i.e., deemed basis risks and deemed roll risks), grade differentials and/or locational differentials related to such contracts or transactions, as applicable), any losses and costs (or gains) incurred in liquidating any Crude Oil or Refined Product inventory or removing any such inventory from storage and/or piping, and any unreimbursed CO Transportation and Other Costs, RP Transportation and Other Costs, Cover Transportation and Other Costs and any unpaid Throughput Service Fees and Cover Throughput Service Fees, and (ii) in any case where PESRM is the Performing Party, without duplication, losses and costs (or gains) that would have been incurred by MLC as a result of the termination or liquidation of all then outstanding CO Supply Contracts, PESRM-MLC Secured Prepay Transactions, RP Sales Contracts and Cover Transactions (but solely with respect to (and in each case only to the extent applicable) unreimbursed market structure risks (i.e., deemed basis risks and deemed roll risks), grade differentials and/or locational differentials related to such contracts or transactions, as applicable) and any unreimbursed CO Transportation and Other Costs, RP Transportation and Other Costs, Cover Transportation and Other Costs and any unpaid Throughput Service Fees and Cover Throughput Service Fees.  Loss includes losses and costs (or gains) in respect of any payment or delivery required to have been made (assuming satisfaction of each applicable condition precedent) on or before the relevant Early Termination

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Date and not made.  A Party will determine its Loss as of the relevant Early Termination Date, or, if that is not reasonably practicable, as of the earliest date thereafter as is reasonably practicable, subject to Section 14.04(a).  A Party may (but need not) determine its Loss by reference to quotations of relevant rates or prices from one or more leading dealers in the relevant markets.  For the avoidance of doubt, Loss will be calculated separately from any indemnity determinations made under this Agreement.

 

“Management Personnel” means Persons, including employees of Holdings, who are engaged in the management or operations of PESRM or any of its Subsidiaries (among other things).

 

“Management Personnel Costs” means (i) accrued salaries, bonuses and other compensation of, and expense and tax reimbursements to, Management Personnel and (ii) other costs of Holdings directly arising from the employment of such Management Personnel.

 

“Master Netting Agreement” means that certain IECA Master Netting Agreement, dated as of the date hereof, between PESRM and MLC.

 

“Material Adverse Condition” has the meaning set forth in Section 6.04(a).

 

“Material Adverse Effect” means (i) a material adverse effect on the business, property, results of operations or financial condition of the Transaction Parties or MLC, as applicable, taken as a whole; (ii) a material adverse effect on the ability of the Transaction Parties or MLC, as applicable, to fully perform their respective payment or performance obligations under any Certain PESRM Transaction Document, the MLC-PESIC ISDA Master Agreement or the PESIC-PESRM ISDA Master Agreement; or (iii) a material adverse effect on the rights of or benefits or remedies available to MLC or PESRM, as applicable, under any Certain PESRM Transaction Document, the MLC-PESIC ISDA Master Agreement or the PESIC-PESRM ISDA Master Agreement, in each case other than due to a PESIC Failure.

 

“Material Contracts” means (i) to the extent any Permitted Term Loan Facility is then outstanding, the Term Loan Credit Agreement and the other Term Loan Documents, (ii) the Senior Secured Credit Facility Documents and (iii) any other agreement or contract to which any Transaction Party is a party and the failure of which to keep in full force and effect could reasonably be expected to have a Material Adverse Effect.

 

“Material Permit” means permits required for PESRM to conduct its businesses, operations and Real Property in accordance with Applicable Law, excluding such permits the absence of which, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

 

“MLC” has the meaning given to such term in the preamble to this agreement.

 

“MLC Caused Indemnity” means any indemnification by [**] as a result of (a) [**], (b) [**] or (c) [**].

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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“MLC Crude Oil Purchase” means the physical volume of all Crude Oil purchased by MLC pursuant to a CO Supply Contract .

 

“MLC Deemed Daily Production” has the meaning set forth in Section 3.05(b).

 

“MLC Event” means, in respect of any Core PESRM Transaction Document, CO Supply Contract, PESRM-MLC Secured Prepay Transaction, RP Sales Contract or Cover Transaction, (i) [**], or (ii) [**]; provided, that, [**]; and provided [**].

 

“MLC Event of Default” has the meaning set forth in Section 14.02.

 

“MLC Guarantor” has the meaning set forth in Section 6.17.

 

“MLC Guaranty” has the meaning set forth in Section 6.17.

 

“MLC Ratings Trigger Event” means [**]’s [**] debt rating is [**] by Moody’s or [**] by S&P.

 

“MLC Transaction” has the meaning set forth in Section 14.01(h).

 

“MLC-PESIC ISDA Master Agreement” means that certain 2002 MLC-PESIC ISDA Master Agreement, dated as of the date hereof, including the Schedule, exhibits and annexes thereto and the transactions thereunder, between MLC and PESIC, as amended, restated, supplemented, replaced or otherwise modified from time to time.

 

“MLC-PESIC Secured Prepay Transaction Documents” has the meaning assigned to the term “PESIC Secured Prepay Transaction Documents” in the Framework Agreement as of the date of this Agreement.

 

“MLC-PESIC Secured Prepay Transactions” means those certain [**] and [**] conducted under the [**].

 

“Monthly CO FIFO Report” means, with respect to any calendar month, a report substantially in the form of Schedule 3.08(c), setting forth [**].

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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“Monthly Cover Throughput Service Fee” means, for any calendar month, [**] of the Annual Cover Throughput Service Fee for such month ([**]).

 

“Monthly True-Up” has the meaning set forth in Section 5.02.

 

“Monthly True-Up Date” means the second (2nd) Business Day following the twentieth (20th) Day of each calendar month (or any other Day that may be agreed by MLC and PESRM).

 

“Monthly True-Up Invoice” has the meaning set forth in Section 5.02.

 

“Moody’s” means Moody’s Investors Service, Inc. or any successor that is a nationally recognized statistical rating organization.

 

“Mortgage Policy” has the meaning set forth in Section 2.02(g).

 

“Mortgaged Properties” means the parcels of Real Property described by metes and bounds on Schedule 1.01(h) and identified as Parcels A, B-1, C and D in the Owner’s Title Policy, as to which MLC shall be granted a Lien pursuant to the Mortgages.

 

“Mortgages” means each of the mortgages and deeds of trust made by any Transaction Party in favor of, or for the benefit of, MLC.

 

“New MLC Transactions” has the meaning set forth in the Wind-Down Agreement.

 

“Non-Affected Party” has the meaning set forth in Section 6.09.

 

“North Yard” means the parcels of real property commonly referred to as the “north yard” located north of Passyunk Avenue and adjacent to Philadelphia Gas Works property and described by metes and bounds on Schedule 1.01(i) and identified as Parcels B-2, B-3, B-4, H-1 and H-2 in the Owner’s Title Policy.

 

“North Yard Assets” means, collectively, the North Yard, including all improvements thereon or incidental thereto, any railroads and any other assets or personal property necessary for or incidental to the operation and maintenance of the assets located on the North Yard.

 

“NYMEX” means the New York Mercantile Exchange, Inc.

 

“Obligations” means (a) obligations of PESRM and the other Transaction Parties from time to time arising under or in respect of the due and punctual payment of all monetary obligations, including fees, reimbursements, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar Proceeding, regardless of whether allowed or allowable in such Proceeding) of PESRM and the other Transaction Parties under this Agreement, the PESRM-MLC Secured Prepay Transactions, the other PESRM Transaction Documents and the RINs Secured Obligations Agreement and (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of PESRM and the other Transaction Parties under or pursuant to this Agreement and the other PESRM Transaction

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Documents and the RINs Secured Obligations Agreement. Solely for the purposes of the Term-ABL Intercreditor Agreement, the Term Loan Documents and the Intercreditor Agreement, the PESIC-PESRM ISDA Master Agreement, the PESIC-PESRM Consulting Agreement, the other PESIC-PESRM Secured Prepay Transaction Documents (as defined in the Supply and Offtake Security Agreement), the MLC-PESIC ISDA Master Agreement and the other MLC-PESIC Secured Prepay Transaction Documents (as defined in the Supply and Offtake Security Agreement) shall be deemed to be “Supply and Offtake Documents,” and “Obligations” shall be deemed to include PESRM’s obligations to PESIC under the PESIC-PESRM ISDA Master Agreement.

 

“Oil Flow Report” means, for any Day, a written report substantially in the form attached hereto as Schedule 4.09(a) that sets forth [**].

 

“On-Premise Infrastructure” means the PESRM Infrastructure, the Sunoco PMT Infrastructure (other than the Eagle Point Terminal and the Paulsboro Terminal) and any Other Third Party Infrastructure owned by an Affiliate Transferee.

 

“Operational Imbalance” has the meaning set forth in Section 6.14.

 

“Operational Issue” means an RP Operational Issue and/or a CO Operational Issue, as applicable.

 

“Original Agreement” has the meaning set forth in the recitals of this Agreement.

 

“Original Agreement Effective Date” has the meaning set forth in the recitals of this Agreement.

 

“OSG Chartering Letter” means [**], and [**].

 

“Other Logistics Assets” means, collectively, (a) the West Yard, including all improvements thereon or incidental thereto, (b) any railroads, railcars, rail loading and unloading facilities, (c) tanks that are (x) dedicated to any rail loading and unloading facility or (y) otherwise put into service after April 4, 2013, (d) pipeline infrastructure that connects any rail loading and unloading facility to these tanks and these tanks to the Refinery, (e) any assets and property interests which are subject to the rights of first refusal in favor of PESRM under the Terminaling Agreements, along with any pipeline infrastructure connecting these assets or property interests to the Refinery that are acquired by PESRM or any Guarantor after April 4, 2013, (f) any assets owned by PESRM and subject to a right of first offer or option pursuant to any agreement with PES Logistics, L.P. and (g) all contract rights and real estate rights related thereto.

 

“Other Third Party” means (i) Kinder Morgan Liquids Terminals, LLC (“KMLT”) and (ii) any other Person listed in Schedule 1.01(w), as amended from time to time, including any Affiliate Transferee that owns Other Third Party Infrastructure (as set forth on an amended

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Schedule 1.01(w) updated at any time any such Other Third Party Infrastructure is transferred to such Affiliate Transferee in accordance with this Agreement).

 

“Other Third Party Infrastructure” means (i) the infrastructure assets available to PESRM under the Master Services Agreement dated as of January 1, 1996, between KMLT and PESRM (as successor in interest to Sunoco R&M), as amended from time to time, including the infrastructure assets listed in Schedule 1.01(w) (as amended from time to time) and (ii) any other infrastructure assets of any Other Third Party that are listed in Schedule 1.01(w), as amended from time to time, including any infrastructure assets comprised of Affiliate Transferee Assets owned by an Affiliate Transferee (as set forth on an amended Schedule 1.01(w) updated at any time such infrastructure assets are transferred to such Affiliate Transferee in accordance with this Agreement), but excluding, for the avoidance of doubt, any Leased Affiliate Transferee Assets.

 

“Owner’s Title Policy” means that certain Owner’s Policy of Title Insurance issued by First American Title Insurance Company in favor of PESRM, Policy No. 5011442-0051311e, including any and all endorsements to the same.

 

“Parties” has the meaning set forth in the introductory paragraph of this Agreement.

 

“Party” has the meaning set forth in the introductory paragraph of this Agreement.

 

“Paulsboro Terminal” means that certain Hydrocarbon terminal, operated as of the date hereof by Sunoco PMT, which is located in Paulsboro, New Jersey.

 

“[**] Transaction” means each CO [**] Transaction and each Cover [**] Transaction.

 

“Performing Party” has the meaning set forth in Section 14.04(a)(i).

 

“Permit” means any permit, license, approval, registration, notification, exemption, consent or other authorization required by or from a Governmental Authority under any Applicable Law, not including any Environmental Law.

 

“Permitted Liens” has the meaning set forth in Section 11.02.

 

“Permitted Specified Transactions” has the meaning set forth in Section 11.15.

 

“Permitted Term Loan Facility” means (a) the secured term loan facility evidenced by the Existing Term Loan Credit Agreement, (b) to the extent the Existing Term Loan Facility is refinanced, in whole or in part, with (x) unsecured Indebtedness, and/or (y) a secured term loan facility (and any refinancing or replacement of any such secured term loan facility), provided that, in each case, (1) the aggregate principal amount of such secured and unsecured Indebtedness does not exceed an amount equal to the Term Loan Permitted Indebtedness Limit minus the aggregate principal amount of any Indebtedness outstanding under (A) any Permitted Term Loan Facility then outstanding minus, (B) any then-outstanding Development Financing secured by Liens on property other than the property to which such Development Financing relates and (C) any then-outstanding Indebtedness incurred under Section 11.01(y) secured by Liens on property other than the property to which such Indebtedness relates and (c) with respect

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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to any secured term loan facility permitted under the preceding clause (b), such secured Indebtedness (i) is not secured by Liens on any ABL/SOA Priority Collateral unless such Liens are subordinated to the Obligations pursuant to an intercreditor agreement on terms and conditions substantially similar to those set forth in the Existing Term-ABL Intercreditor Agreement or any intercreditor agreement with respect to ABL/SOA Priority Collateral in force immediately prior to the incurrence of such Indebtedness (such intercreditor agreement, together with the Existing Term-ABL Intercreditor Agreement, a “Term-ABL Intercreditor Agreement”), provided that, in no event shall any such intercreditor agreement result in the removal of any assets or property from the definitions of ABL/SOA Collateral or MLC Separate Assets and Collateral set forth in the Existing Term-ABL Intercreditor Agreement, except as set forth in and pursuant to Section 16.18, (ii) the material terms of such financing (including interest rates) are generally consistent with prevailing market terms for such type of financing facility available to similarly-situated borrowers in the refining industry at the time such financing facility is entered into, documented pursuant to a loan agreement (together with the Existing Term Loan Credit Agreement, the “Term Loan Credit Agreement”) and (iii) any scheduled amortization payments thereunder shall not exceed an amount per annum equal to 5.00% of the principal amount of Indebtedness incurred under such facility.

 

“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

 

“PESA” means PES Administrative Services, LLC.

 

“PESIC” means PES Inventory Company, LLC, a special purpose vehicle owned by Intermediate Holdco.

 

“PESIC Account” means that certain deposit account maintained at Bank of New York Mellon in the name of [**].

 

“PESIC Account Control Agreement” means an agreement in form [**].

 

“PESIC Failure” means any PESRM/PESIC Failure to Perform by PESIC that was not caused by the actions of, or inaction by, PESRM under the PESIC-PESRM Consulting Agreement or PESRM or an Affiliate of PESRM under the PESIC LLC Agreement and was caused by the actions or inactions of the holder(s) of Common Shares of PESIC.

 

“PESIC Security Agreement” means that certain Security Agreement, dated as of the date hereof, by and among PESIC, as grantor, and MLC.

 

“PESIC-PESRM Consulting Agreement” means the consulting agreement, dated as of the Effective Date, between PESIC and PESRM, as amended, restated, replaced, supplemented or otherwise modified from time to time.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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“PESIC-PESRM ISDA Master Agreement” means that certain 2002 PESRM-MLC ISDA Master Agreement, dated as of the date hereof, including the Schedule, exhibits and annexes thereto and the transactions thereunder, between PESRM and PESIC, as amended, restated, supplemented, replaced or otherwise modified from time to time.

 

“PESIC-PESRM Secured Prepay Transaction Documents” means the PESIC-PESRM ISDA Master Agreement, the PESIC-PESRM Consulting Agreement and the Consent to Assignment (each as defined in the Framework Agreement as in effect on the date of this Agreement).

 

“PESIC-PESRM Secured Prepay Transactions” means [**] and [**] conducted under [**].

 

“PESRM” has the meaning set forth in the introductory paragraph of this Agreement.

 

“PESRM Buy Request” has the meaning set forth in Section 3.09(b).

 

“PESRM Event of Default” has the meaning set forth in Section 14.01.

 

“PESRM/PESIC Failure to Perform” has the meaning set forth in Section 6.15.

 

“PESRM FTZ” has the meaning set forth in Section 6.16(a).

 

“PESRM Infrastructure” means (i) the Refinery and other infrastructure assets owned by PESRM that are reasonably necessary or desirable to the performance by the Parties of their respective obligations under this Agreement, including the infrastructure assets listed in Schedule 1.01(t), as amended from time to time and (ii) any Affiliate Transferee Assets that are not covered by clause (i) above, but that are owned by PESRM or any other Transaction Party (as set forth on an amended Schedule 1.01(t) updated at any time such infrastructure assets are acquired by PESRM or such other Transaction Party in accordance with this Agreement), including, for the avoidance of doubt, in respect of each of clauses (i) and (ii) above, any Leased Affiliate Transferee Assets.

 

“PESRM Prepayment Amount Failure” has the meaning set forth in Section 3.09(d).

 

“PESRM Sales Request” has the meaning set forth in Section 4.09(b).

 

“PESRM Transaction Documents” means this Agreement, the PESRM Transactions, the PESRM-MLC ISDA Master Agreement and the other PESRM-MLC ISDA Documents, the PESRM-MLC Secured Prepay Transactions, each Third Party Consent Agreement, the PESRM-MLC Consulting Agreement, the Products Sales Agreement, the Supply and Offtake Security Documents, the Intercreditor Agreement, the Master Netting Agreement and any other agreement entered into in connection with this Agreement or any other such agreement.

 

“PESRM Transactions” means (i) any CO Transaction, (ii) any RP Transaction, (iii) any Butane Sale Transaction and (iv) any PESRM-MLC Secured Prepay Transaction.

 

“PESRM-MLC CO Secured Prepay Transaction” means a PESRM-MLC Secured Prepay Transaction for supply of Crude Oil to the Refinery.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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“PESRM-MLC Consulting Agreement” means that certain Amended and Restated Consulting Agreement dated as of the Effective Date, between MLC (as assignee of JPMVEC) and PESRM, as amended, restated, replaced, supplemented or otherwise modified from time to time, as assigned by JPMVEC to MLC pursuant to the Assignment and Assumption Agreement.

 

“PESRM-MLC ISDA Master Agreement” means that certain 2002 PESRM-MLC ISDA Master Agreement, dated as of the date hereof, including the schedule, exhibits and annexes thereto and the transactions thereunder, between MLC and PESRM, pursuant to which MLC and PESRM may enter into PESRM-MLC Secured Prepay Transactions, as amended, restated, supplemented, replaced or otherwise modified from time to time.

 

“PESRM-MLC ISDA Documents” has the meaning ascribed to such term in the PESRM-MLC ISDA Master Agreement.

 

“PESRM-MLC [**] Transaction” has the meaning given to the term [**] in the [**].

 

“PESRM-MLC RP Secured Prepay Transaction” means a PESRM-MLC Secured Prepay Transaction for the sale of Refined Products.

 

“PESRM-MLC Secured Prepay Transaction” means a [**] and [**]. PESRM-MLC Secured Prepay Transaction may mean either a PESRM-MLC CO Secured Prepay Transaction, PESRM-MLC RP Secured Prepay Transaction or both, as the context may require.

 

“PESRM-MLC [**] Transaction” has the meaning given to such term [**] in the [**].

 

“Post Transfer Environmental Liabilities” has the meaning set forth in Section 11.08(p).

 

“PPC” means Lucknow-Highspire Terminals Co.

 

“Prepayment Amount” means, in connection with [**] (i) [**], (ii) [**], and/or (iii) [**].

 

“Priced Hydrocarbon Inventory” has the meaning set forth in Schedule 5(c).

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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“Principal CO Cover Terms” means, in respect of any CO Cover Transaction, the Principal CO Terms for such CO Cover Transaction.

 

“Principal CO Terms” means, in respect of any CO Supply Contract, those terms identified on [**], including (i) [**], (ii) [**], (iii) [**], (iv) [**], (v) [**], (vi) [**], (vii) [**] and (viii) [**].

 

“Principal Cover Terms” means the Principal RP Cover Terms and/or the Principal CO Cover Terms, as applicable.

 

“Principal RP Cover Terms” means, in respect of any RP Cover Transaction, the Principal RP Terms for such RP Cover Transaction.

 

“Principal RP Terms” means, in respect of any RP Sales Contract , those terms identified on [**], including (i) [**], (ii) [**], (iii) [**], (iv) [**], (v) [**], (vi) [**], (vii) [**] and (viii) [**].

 

“Principal Terms” means the Principal CO Cover Terms, Principal CO Terms, Principal RP Cover Terms and/or the Principal RP Terms, as the context may require.

 

“Proceeding” means any suit, action, proceeding, claim, challenge or other matter whether brought before a Governmental Authority, arbitration panel or other body.

 

“Product Purchaser” has the meaning set forth in Section 4.09(a).

 

“Product Purchaser Delivery Point” means the gauges or metering points, as applicable, set forth in Schedule 4.09 that, in each case, are located immediately prior to the point where the applicable Refined Product is delivered by MLC to a Product Purchaser pursuant to a RP Sales Contract on an FOB basis at the Refinery or the other Basic Infrastructure.

 

“Products Sales Agreement” means that certain Products Sales Agreement, dated as of the Effective Date, between PESRM and MLC.

 

“Protocols” means the Sourcing Protocols, the Sales Protocols and the Cover Protocols.

 

“Provisional FIFO Queue Report” means a report substantially in the form of Schedule 3.08(b)(iv).

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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“Rack” means a facility that is operating and capable of loading tank trucks with blended refined petroleum products for marketing refined petroleum products by truck and which provides blending and additive services, as more specifically set forth on Schedule 1.01(k), as amended from time to time.

 

“Rack Infrastructure Owner” means, with respect to each Rack, the entity set forth opposite the name of such Rack on Schedule 1.01(k), as amended from time to time.

 

“Rack Sale Prepayment Amount” means, for any [**], (a) [**] and (b) [**] (i) [**] (ii) [**].

 

“Rack Sales Contract” has the meaning set forth in Section 4.09(c).

 

“Real Property” means any parcel or tract, or portion thereof, of real property owned by any Transaction Party, which for purposes of this Agreement and the other PESRM Transaction Documents shall not include the North Yard and any improvements thereto or the West Yard and any improvements thereto.

 

“Recording Office” has the meaning set forth in Section 2.02(g).

 

“Refined Product” has the meaning set forth in Schedule 1.01(c).

 

“Refined Product Price Amount” has the meaning set forth in Schedule 5(b).

 

“Refined Product Specifications” means, in respect of any Refined Product, the applicable specifications for such Refined Product, set forth in Schedule 1.01(c), as amended from time to time.

 

“Refinery” means the refinery located in Philadelphia, Pennsylvania (consisting of two formerly separate refining operations commonly known as “Point Breeze” and “Girard Point”), as further described on Schedule 1.01(l) including the North Yard and the West Yard.

 

“Refinery Real Property” means the real property interests at the site of the Refinery as described in Schedule 1.0.1(m).

 

“Release” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, emanating or migrating of any Hazardous Material in, into, onto or through the Environment.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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“Relevant Day” has the meaning set forth in Section 3.05(a).

 

“Renewable Fuel Standards” means the regulatory requirements set forth in 40 C.F.R. Part 80, Subpart M, §§ 80.1400 et seq.

 

“Required Infrastructure” has the meaning set forth in Section 6.05(a).

 

“Response” means (a) “response” as such term is defined in CERCLA, 42 U.S.C. § 9601(24), and (b) all other actions required by any Governmental Authority or voluntarily undertaken to (i) clean up, remove, treat, abate or in any other way address any Hazardous Material in the Environment, (ii) prevent the Release or threat of Release, or minimize the further Release, of any Hazardous Material, or (iii) perform studies and investigations in connection with, or as a precondition to, or to determine the necessity of the activities described in, subclause (i) or (ii) above.

 

“RIN” has the meaning as set forth in 40 C.F.R. § 80.1401 and regulated as part of Renewable Fuel Standards.

 

“RINs Secured Obligations Agreement” has the meaning given to such term in the Intercreditor Agreement.

 

“RP Cover Throughput Service Fee” has the meaning set forth in Schedule 12.

 

“RP Cover Transaction Price Amount” has the meaning set forth in Schedule 12.

 

“RP Cover Transaction Volume Limitation” has the meaning set forth in Section 12.06(b).

 

“RP Cover Transactions” has the meaning set forth in Section 12.01(a)(i).

 

“RP Delivery Point” means the gauges or metering points, as applicable, set forth in Schedule 4.01.

 

“RP Operational Issue” means, as determined by MLC in good faith and a commercially reasonable manner based on information provided by PESRM, a circumstance or event that occurs with respect to the Refinery and/or any Required Infrastructure (including planned maintenance and mechanical failures) or any mode of transportation utilized by the Refinery to effect delivery under any RP Sales Contract or PESRM-MLC RP Secured Prepay Transaction and that results in a failure by the Refinery to (i) produce the quantity of Refined Product required to be delivered under any RP Sales Contract or PESRM-MLC RP Secured Prepay Transaction or (ii) deliver any Refined Product on the delivery dates, and to the Product Purchaser Delivery Point or other delivery point specified in any applicable RP Sales Contract or PESRM-MLC RP Secured Prepay Transaction.

 

“RP Sales Contract” has the meaning set forth in Section 4.09(c).

 

“RP Sales Contract Prepayment Amount” means [**], (a) [**] and (b) [**].

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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“RP Transaction” has the meaning set forth in Section 4.05(a).

 

“RP Transportation and Other Costs” means any and all direct expenses incurred by MLC (and not previously paid by PESRM) (including any such expenses payable to PESRM or any PESRM Affiliate), relating to the receipt, storage, transportation and/or delivery of Refined Products to, at and/or from the Refinery or the other Basic Infrastructure (including any costs of bank countersigned letters of indemnity, L/C Fees and Costs, MLC’s share of any inspection costs and any contractual obligation to indemnify or reimburse any Product Purchaser under any RP Sales Contract for any Indemnifiable Taxes (including any taxes thereon), damages, duties, imposts, tariffs, fees, costs of posting any bonds, charges, losses or liabilities of whatever nature together with any penalties and costs associated therewith), but excluding (i) any expenses after such Refined Products are delivered to third party purchasers at the applicable Product Purchaser Delivery Point and (ii) any Demurrage Costs.  RP Transportation and Other Costs shall not include any costs or increases of costs that arise from any MLC Event.

 

“RVO” means any Renewable Volume Obligation as defined in 40 C.F.R. § 80.1407 and regulated as part of Renewable Fuel Standards.

 

“S&P” means Standard & Poor’s Rating Agency Group, a division of McGraw Hill Companies, Inc., or any successor that is a nationally recognized statistical rating organization.

 

“Sales Protocols” has the meaning set forth in Section 4.09.

 

“Section 3.09(d) Funding Costs” has the meaning set forth in Section 3.09(d).

 

“Securities Account” has the meaning assigned to such term in the UCC.

 

“Senior Secured Credit Facility” means that certain Amended and Restated Revolving Credit and Guaranty Agreement dated as of the Effective Date, among PESRM, the Guarantors, the Lenders (as defined therein) party thereto from time to time, Bank of America, as sole lead arranger and sole bookrunner, Bank of America, as swingline lender, Bank of America and  JPMorgan Chase Bank, N.A. as issuing banks, and Bank of America, as administrative agent and as collateral agent, as amended, supplemented or otherwise modified from time to time.

 

“Senior Secured Credit Facility Documents” means the “Loan Documents” under the Senior Secured Credit Facility and as defined therein as of the Effective Date.

 

“Sleeve Transaction” has the meaning set forth in the Wind-Down Agreement.

 

“SOA Collateral Agent” means Merrill Lynch Commodities, Inc., in its capacity as collateral agent for the Supply and Offtake Secured Parties (as defined in the Supply and Offtake Security Agreement).

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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“Sourcing Protocols” has the meaning set forth in Section 3.09.

 

“Specified Losses and Costs” means any losses (or gains in which case expressed as a negative number), costs and expenses (including reasonable attorneys’ fees and disbursements) incurred by MLC in connection with (i) the occurrence of an Illegality under this Agreement or any PESRM Transaction, CO Supply Contract, PESRM-MLC Secured Prepay Transaction, RP Sales Contract, or Cover Transaction, or (ii) a breach, default (however defined) or other failure to perform by a counterparty under any CO Supply Contract, PESRM-MLC Secured Prepay Transaction, RP Sales Contract or Cover Transaction (excluding any loss, cost or expense to the extent caused by the bankruptcy or insolvency of the counterparty under such contract) and any losses, costs and expenses under this Agreement or a PESRM Transaction, or by PESRM under the PESRM-MLC ISDA Master Agreement or any PESRM-MLC Secured Prepay Transaction, to the extent related to or caused by such breach, default or other failure.

 

“Specified Transaction” means (i) any transaction (including an agreement with respect to any such transaction) now existing or hereafter entered into between PESRM and any third party (x) which is a rate swap transaction, swap option, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, credit protection transaction, credit swap, credit default swap, credit default option, total return swap, credit spread transaction, repurchase transaction, reverse repurchase transaction, buy/sell-back transaction, securities lending transaction, weather index transaction, forward purchase or sale of a security, commodity or other financial instrument or interest (including any option with respect to any of these transactions) or (y) which is a transaction similar to any transaction referred to in subclause (x) that is currently, or in the future becomes, regularly entered into in the financial markets (including terms and conditions incorporated by reference in such agreement) and which is a forward, swap, future, option or other derivative on one or more rates, currencies, commodities, equity securities or other equity instruments, debt securities or other debt instruments, or economic indices or measures of economic risk or value, or other benchmarks against which payments or deliveries are made and (ii) any combination of these transactions.  For the avoidance of doubt, “Specified Transaction” shall not include this Agreement, any PESRM Transaction, any PESIC-PESRM Secured Prepay Transaction, any MLC-PESIC Secured Prepay Transaction or the Financial Products ISDA Master Agreement.

 

“Specified Transaction Obligation” means obligations under or with respect to Specified Transactions.

 

“Subsidiary” means, with respect to any Person (the “parent”) at any date, (i) any Person the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, (ii) any corporation, limited liability company, association or other business entity of which securities or other ownership interests representing more than 50% of the voting power of all Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the election of the board of directors thereof are, as of such date, owned, controlled or held by the parent and/or one or more subsidiaries of the parent, (iii) any partnership (a) the sole general partner or the managing general partner of which is the parent and/or one or more subsidiaries of

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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the parent or (b) the only general partners of which are the parent and/or one or more subsidiaries of the parent and (iv) any other Person that is otherwise Controlled by the parent and/or one or more subsidiaries of the parent.  Unless the context requires otherwise, “Subsidiary” refers to a Subsidiary of PESRM.

 

“Sunoco” means Sunoco, LLC.

 

“Sunoco Pipeline” means Sunoco Pipeline L.P.

 

“Sunoco Pipeline Contracts” means (a) the Amended and Restated Inter-Refinery Pipeline Lease, between Sunoco Pipeline and PESRM, dated as of the Original Agreement Effective Date, as amended on November 30, 2012, (b) the Pipeline Connection Agreement (SRTF), between Sunoco Pipeline and PESRM, dated as of the Original Agreement Effective Date and (c) the Pipeline Connection Agreement (Outplant Lines), between Sunoco Pipeline and PESRM, dated as of the Original Agreement Effective Date, each as amended from time to time.

 

“Sunoco Pipeline Infrastructure” means the infrastructure assets made available to PESRM under the Sunoco Pipeline Contracts, including the infrastructure assets listed in Schedule 1.01(v), as amended from time to time.

 

“Sunoco PMT” means Sunoco Partners Marketing & Terminals L.P.

 

“Sunoco PMT Contracts” means (a) the Ft. Mifflin - Marine Dock & Terminaling Agreement, between Sunoco PMT and PESRM, dated as of the Original Agreement Effective Date, (b) the Paulsboro/Belmont — Products Terminal Services Agreement, between Sunoco PMT and PESRM, dated as of the Original Agreement Effective Date, (c) the Eagle Point — Terminaling & Storage Agreement, between Sunoco PMT and PESRM, dated as of the Original Agreement Effective Date, and (d) the Terminal Servies Agreement dated as of May 8, 2014 by and between Sunoco PMT and PESRM, each as amended from time to time.

 

“Sunoco PMT Infrastructure” means the infrastructure assets made available to PESRM under the Sunoco PMT Contracts, including the infrastructure assets listed in Schedule 1.01(u), as amended from time to time, and excluding any such infrastructure assets transferred to and owned by, or leased by a Transaction Party to, an Affiliate Transferee from and after the date such infrastructure assets are transferred or leased to such Affiliate Transferee in accordance with this Agreement (as set forth on an amended Schedule 1.01(u) updated on each such date).

 

“Sunoco R&M” means Sunoco, LLC (f/k/a Sunoco, Inc. (R&M).

 

“Supply and Offtake Documents” means the PESRM Transaction Documents.

 

“Supply and Offtake Perfection Certificate” means a duly completed and executed certificate substantially in the form of Schedule 1.01(g).

 

“Supply and Offtake Security Agreement” means that certain Second Amended and Restated Supply and Offtake Security Agreement, dated as of the date hereof, by and among PESRM, as Grantor, each other Grantor and the SOA Collateral Agent (as assignee of JPMVEC).

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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“Supply and Offtake Security Agreement Collateral” means all property pledged, granted or reaffirmed as collateral pursuant to the Supply and Offtake Security Agreement (a) on the Effective Date or (b) pursuant to Section 10.10.

 

“Supply and Offtake Security Documents” means the Supply and Offtake Security Agreement, the Mortgages, the Deed of Pledge and each other security document delivered in accordance with applicable local or foreign law to grant a valid, perfected security interest in any property as collateral for the Secured Obligations, and all UCC or other financing statements or instruments of perfection required by this Agreement, the Supply and Offtake Security Agreement, or any other such security document to be filed with respect to the security interests in property created pursuant to the Supply and Offtake Security Agreement and any other document or instrument utilized to pledge or grant or purport to pledge or grant a security interest or lien on any property as collateral for the Obligations. For the avoidance of doubt, “Supply and Offtake Security Documents” shall not include PESIC Security Agreement or [**].

 

“Survey” means an as-built survey of such Mortgaged Properties certified to MLC and the Title Company in a manner reasonably satisfactory to them, dated a date satisfactory to MLC and the Title Company by an independent professional licensed land surveyor reasonably satisfactory to MLC.

 

“SXL” means Sunoco Logistics Partners L.P. and any or all of its Subsidiaries, as the context requires.

 

“SXL Report” means a report produced by SXL substantially in the form of Schedule 4.04(a).

 

“Tank” means each of the tanks identified in Schedules 1.01(u), (v), (w) and (x) of this Agreement.

 

“Term” has the meaning set forth in Section 2.01.

 

“Term–ABL Intercreditor Agreement” has the meaning set forth in the definition of “Permitted Term Loan Facility”.

 

“Term Expiration Date” has the meaning set forth in Section 6.02(a).

 

“Term Loan Credit Agreement” has the meaning assigned to such term in the definition of “Permitted Term Loan Facility”.

 

“Terminaling Agreements” means any agreements to which PESRM is a party as of the Effective Date with respect to the receipt, handling, storage or delivery of crude oil, refined petroleum products (or any other products reasonably related or ancillary thereto).

 

“Terminated Transactions” has the meaning set forth in the definition of Loss.

 

“Termination Event” has the meaning set forth in Section 14.03(a).

 

“Termination Payment” has the meaning set forth in Section 14.04(b).

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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“Third Party” means Sunoco PMT, Sunoco Pipeline and any Other Third Party.

 

“Third Party Claim” has the meaning set forth in Section 7.01(f).

 

“Third Party Consent Agreement” means a consent agreement, in the form of Schedule 18 or otherwise in form and substance satisfactory to MLC, between an owner of Third Party Infrastructure and the SOA Collateral Agent.

 

“Third Party Contract” means any agreement entered into between PESRM and a third party owner from time to time that provides for infrastructure or equipment that loads, unloads, stores, blends, transports or processes MLC Separate Assets and Collateral.

 

“Third Party Infrastructure” means the Sunoco PMT Infrastructure, the Sunoco Pipeline Infrastructure and any Other Third Party Infrastructure.

 

“Throughput Service Fee” means (i) [**] and (ii) [**].

 

“Throughput Service Fee Implied Discount” means, in respect of [**], the sum of (a) the [**] plus (b) the [**].

 

“Throughput Service Fee Implied Discount True-Up” means, in respect of [**], an amount equal to (a) the [**] minus (b) an amount equal to (I) [**], (II) [**] and (III) [**], payable by (x) [**] and (y) [**].

 

“Title Company” means First American Title Insurance Company, or another title insurance company reasonably acceptable to MLC.

 

“Transaction Documents” means (i) the PESRM Transaction Documents and (ii) the Senior Secured Credit Facility Documents.

 

“Transaction Parties” has the meaning set forth in the introductory paragraph of this Agreement.

 

“Transferred Guarantor” has the meaning set forth in Section 13.10.

 

“True Up Calendar Month Crude Oil Differential” has the meaning set forth in Schedule 5(a).

 

“True-Up Crude Oil Price Amount” has the meaning set forth in Schedule 5(a).

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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“True-Up Refined Product Price Amount” has the meaning set forth in Schedule 5(b).

 

“UCC” means the Uniform Commercial Code, as in effect from time to time (except as otherwise specified) in any applicable state or jurisdiction.

 

“Uninvoiced Day” means any Day that is not a Business Day and for which an Invoice has not previously been prepared by MLC and delivered to PESRM pursuant to Section 5.01.

 

“United States” means, the United States of America.

 

“Unpaid Amounts” means, with respect to any Early Termination Date, but without duplication of any amounts included in the related calculation of Loss, the aggregate of the amounts that became payable (whether or not due) to PESRM or MLC hereunder prior to the occurrence of such Early Termination Date or as a result of the termination of this Agreement and that remain payable (whether or not due) as at such Early Termination Date (including any Working Capital Fee, any Auto-Bin Deemed Hedge Roll true-up and any indemnities) together with interest thereon from (and including) the date such amounts became due and payable to (but excluding) such Early Termination Date, at the interest rate set forth in Section 16.12.

 

“US Dollars” and “$” means the lawful money of the United States of America.

 

“VAT” means value added tax.

 

“Vessel” has the definition set forth in the PESRM-MLC ISDA Master Agreement.

 

“Volumetric Gain and Loss” means the value, as determined by MLC, of any gains or losses in respect of any volume of in-transit or in-storage Crude Oil, Refined Product or the measurement thereof (each relevant volume being measured in accordance with Section 6.11) in connection with the PESRM Transactions, CO Supply Contracts, RP Sales Contracts and Cover Transactions (including, in each case, any hedging gain or loss directly relating to any such volumetric gain or loss), for which, in the case of any loss, MLC has not been compensated by PESRM or any third party, and, in the case of any gain, MLC has not paid PESRM or any third party for the relevant excess volume (each such gain, a “Volumetric Gain”, and each such loss, a “Volumetric Loss”). PESRM shall have the right to require a review by a jointly appointed independent inspector of any MLC determination of a Volumetric Gain or Volumetric Loss by notice given to MLC within two (2) Business Days after PESRM is notified of such determination.

 

“West Yard” means the parcel of real properly (and any improvements to such parcel of real property) commonly referred to as the “west yard” described by metes and bounds on Schedule 1.01(j) and identified in the Owner’s Title Policy as Parcel E.

 

“Wind-Down Agreement” has the meaning set forth in the recitals hereto.

 

“Wind-down Liquidation” has the meaning set forth in Section 6.02(b).

 

“Working Capital Amount” means, [**]:

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(a) the sum of (i) [**], and (ii) [**];

 

PLUS

 

(b)           [**];

 

MINUS

 

(c)           [**];

 

MINUS

 

(d)           [**];

 

MINUS

 

(e)           [**].

 

“Working Capital Fee” means, [**], the product of (i) [**] and (ii) [**].

 

“Working Capital Rate” means, [**], for each Day, the sum of (i) [**] and (ii) [**].

 

Section 1.02          Principles of Construction.  The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”  The word “will” shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise (a) any definition of or reference to any PESRM Transaction Document, agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified or in effect (subject to any restrictions on such amendments, supplements or modifications set forth herein) unless the context expressly otherwise requires,

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(b) any reference herein to any person shall be construed to include such person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Annexes and Schedules shall be construed to refer to Articles and Sections of, and Annexes and Schedules to, this Agreement, (e) any reference to any law or regulation herein shall refer to such law or regulation as amended, modified or supplemented from time to time, and (f) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

 

Section 1.03          Accounting Terms; GAAP.  Except as otherwise expressly provided herein, all financial statements to be delivered pursuant to this Agreement shall be prepared in accordance with GAAP as in effect from time to time and all terms of an accounting or financial nature shall be construed and interpreted in accordance with GAAP, as in effect on the date hereof unless otherwise agreed to by MLC.  If, after the Effective Date, any change in the accounting principles used in the preparation of the most recent financial statements referred to in Section 10.01 is hereafter required or permitted by the rules, regulations, pronouncements and opinions of the Financial Accounting Standards Board or the American Institute of Certified Public Accountants (or any successors thereto) and such change is adopted by PESRM and results in a change in any of the calculations required by Article XI that would not have resulted had such accounting change not occurred, if requested by PESRM or MLC, the parties hereto agree to enter into negotiations in good faith in order to amend such provisions so as to equitably reflect such change such that the criteria for evaluating compliance with such covenants by PESRM shall be the same after such change as if such change had not been made; provided, that (i) no change in GAAP that would affect a calculation that measures compliance with any covenant contained in Article XI shall be given effect until such provisions are amended to reflect such changes in GAAP and (ii) PESRM shall provide to MLC financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between such calculations made before and after giving effect to such change in GAAP.

 

Section 1.04          Single Agreement.  All PESRM Transactions and all transactions contemplated thereby are entered into in reliance on the fact that this Agreement, the PESRM Transaction Documents and all PESRM Transactions, the PESIC-PESRM ISDA Master Agreement and all PESIC-PESRM Secured Prepay Transactions (and all transactions contemplated thereby) form a single integrated agreement among MLC and the Transaction Parties.

 

Section 1.05          Inconsistency.  In the event of any inconsistency between the provisions of any PESRM Transaction and this Agreement, the terms of such PESRM Transaction will prevail for purposes of such transaction.

 

Section 1.06          Additional Defined Terms.  For purposes of the definitions of “Excluded Subsidiary” and “Material Contracts” in Section 1.01, Section 1.01(j), Sections 2.02, 14.01(i), 14.01(l), 14.01(m), 14.02(g), 16.08, 16.18 and Articles VIII, IX, X, XI and XIII, the defined terms set forth in Annex I (except as otherwise specified in Annex I) (including each defined term that is used, directly or indirectly, in each defined term listed in Annex I, but that is not defined in this Agreement) shall have the meaning ascribed to such terms in the Senior Secured

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Credit Facility as in effect on the Effective Date without giving effect to any subsequent termination, amendment, modification, supplement or waiver to or of the Senior Secured Credit Facility.  References in the defined terms so incorporated herein pursuant to the preceding sentence (for purposes of such sections and articles hereof):

 

(a)                                 to “Administrative Agent”, “Collateral Agent”, “Lender” or “Lenders”, “Required Lenders”, “Secured Party” or “Secured Parties”, or “Swingline Lender” shall be deemed amended in each case to be a reference to MLC in its capacity as a Party to this Agreement, and the text of such defined terms shall be deemed amended, mutatis mutandis, to give effect to such deemed reference;

 

(b)                                 to “Borrower” shall be deemed amended in each case to be a reference to “PESRM” in its capacity as a Party to this Agreement, and the text of such defined term shall be deemed amended, mutatis mutandis, to give effect to such deemed reference;

 

(c)                                  to “Hedging Agreement” shall be deemed amended in each case to be a reference to “Specified Transaction”, as such term is defined in this Agreement, and the text of such defined term shall be deemed amended, mutatis mutandis, to give effect to such deemed reference;

 

(d)                                 to “Hedging Obligation” shall be deemed amended in each case to be a reference to “Specified Transaction Obligation”, as such term is defined in this Agreement, and the text of such defined term shall be deemed amended, mutatis mutandis, to give effect to such deemed reference;

 

(e)                                  to “Loan Document” or “Loan Documents” shall be deemed amended in each case to be a reference to “Senior Secured Credit Facility Documents”, as such term is defined in this Agreement, but without giving effect to any subsequent termination, amendment, modification, supplement or waiver to or of the Senior Secured Credit Facility, and the text of such defined terms shall be deemed amended, mutatis mutandis, to give effect to such deemed reference;

 

(f)                                   to “Loan Party” or “Loan Parties” shall be deemed amended in each case to be a reference to “Transaction Parties”, as such term is defined in this Agreement, and the text of such defined terms shall be deemed amended, mutatis mutandis, to give effect to such deemed reference;

 

(g)                                  to “Requirement of Law” or “Requirements of Law” shall be deemed amended in each case to be a reference to “Applicable Law”, as such term is defined in this Agreement, and the text of such defined terms shall be deemed amended, mutatis mutandis, to give effect to such deemed reference;

 

(h)                                 to “Security Document” or “Security Documents” shall be deemed amended in each case to be a reference to “Supply and Offtake Security Documents”, as such term is defined in this Agreement, and the text of such defined terms shall be deemed amended, mutatis mutandis, to give effect to such deemed reference; and

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(i)                                     to sections of the Senior Secured Credit Facility or Senior Secured Credit Facility Documents shall be deemed in each case to be a reference to the corresponding section in this Agreement or the other PESRM Transaction Documents, as applicable, and shall be deemed amended, mutatis mutandis, to give effect to such deemed reference; and

 

(j)                                    to “Collateral” shall be deemed to be a reference to “ABL/SOA Priority Collateral” (such term having the meaning ascribed thereto by operation of this Section 1.06), but only where the term “Collateral” appears in the definitions of the terms “Asset Sale” and “Reserves” in Section 1.01 of the Senior Secured Credit Facility, and the text of such defined terms shall be deemed amended, mutatis mutandis, to give effect to such deemed reference.

 

ARTICLE II.

 

TERM OF AGREEMENT; CONDITIONS TO THE EFFECTIVE DATE

 

Section 2.01                             Term of Agreement.  The initial term of this Agreement shall commence on the Effective Date and shall remain in full force and effect until the third (3rd) anniversary of the Effective Date (subject to Section 6.02, the “Term”).

 

Section 2.02                             PESRM Conditions to the Effective Date.  MLC’s obligations hereunder shall be subject to the satisfaction by PESRM or waiver by MLC of the following conditions:

 

(a)                                 Assignments and Transfers Effective; Effective Date Deliverables.  The Assignments and Transfers shall have been consummated and be effective pursuant to the terms of the Assignment Documents. There shall have been delivered to MLC, with respect to each Transaction Party, as applicable, an executed counterpart of each of the following documents:

 

i.                              this Agreement;

 

ii.                           the PESIC-PESRM Consulting Agreement;

 

iii.                        the PESRM-MLC Consulting Agreement;

 

iv.                       a Third Party Consent Agreement, duly executed and delivered by each Third Party owner of Third Party Infrastructure, except as set forth on Schedule 2.02(a);

 

v.                          the Supply and Offtake Security Agreement and the Deed of Pledge;

 

vi.                       the Products Sales Agreement;

 

vii.                    the Intercreditor Agreement;

 

viii.                 the PESRM-MLC ISDA Master Agreement and the other PESRM-MLC ISDA Documents;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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xi.                       the PESIC-PESRM ISDA Master Agreement;

 

xii.                    the OSG Chartering Letter;

 

xiii.                 the Master Netting Agreement;

 

xiv.                the MLC-PESIC ISDA Master Agreement;

 

xv.                   the Framework Agreement;

 

and in each case, such agreement shall be in full force and effect.

 

(b)                                 Corporate Documents.  MLC shall have received:

 

(i)                                     a certificate of the secretary or assistant secretary of each Transaction Party, dated the Effective Date, certifying (x) that attached thereto is a true and complete copy of each Organizational Document of such Transaction Party certified (to the extent applicable) as of a recent date by (if applicable) the Secretary of State of the state of its organization, (y) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Transaction Party authorizing the execution, delivery and performance of the Effective Date PESRM Transaction Documents and, if applicable, all documents related to the PESIC-PESRM Secured Prepay Transactions, to which such Person is a party and, in the case of PESRM, the Obligations hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (z) as to the incumbency and specimen signature of each officer executing any Effective Date PESRM Transaction Document, the PESIC-PESRM ISDA Master Agreement or any other document delivered in connection herewith on behalf of such Transaction Party (together with a certificate of another officer as to the incumbency and specimen signature of the secretary or assistant secretary executing the certificate in this subclause (i)); and

 

(ii)                                  a certificate as to the good standing of each Transaction Party (in each case, in so-called “long-form” if available) in its jurisdiction of organization as of a recent date, from such Secretary of State (or other applicable Governmental Authority).

 

(c)                                  Opinions of Counsel.  MLC shall have received a favorable written opinion of (i) Latham & Watkins LLP, special counsel for the Transaction Parties, (x) dated the Effective Date, (y) addressed to MLC and (z) covering such matters relating to the Effective Date PESRM Transaction Documents as MLC shall reasonably request and (ii) Buchanan Ingersoll & Rooney PC, special Pennsylvania counsel for the Transaction Parties, (x) dated the Effective Date, (y) addressed to MLC and (z) covering such matters relating to the Mortgage(as assigned and amended and restated on the Effective Date) as MLC shall reasonably request.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(d)                                Solvency Certificate.  MLC shall have received a solvency certificate in the form of Schedule 2.02(d), dated the Effective Date and signed by the chief financial officer or chief executive officer of PESRM.

 

(e)                                 Fees.  An amount equal to the aggregate of all amounts due and payable on or prior to the Effective Date, including, to the extent invoiced, reimbursement or payment of all reasonable and documented out of pocket expenses (including the reasonable and documented out of pocket legal fees and expenses of Skadden, Arps, Slate, Meagher & Flom LLP, special counsel to MLC incurred prior to September 1, 2014, and the reasonable and documented out-of-pocket fees and expenses of any local counsel, foreign counsel, appraisers, consultants and other advisors and legal counsels to MLC), shall be paid by PESRM (or arrangement for payment therefor satisfactory to MLC shall have been made), including any of the aforementioned fees and expenses incurred on or prior to the Effective Date in connection with the negotiation, execution and delivery of the Assignment and Assumption Agreement and the other Transaction Documents (as such term is defined in the Assignment and Assumption Agreement), and all documents related to any PESIC-PESRM Secured Prepay Transactions.

 

(f)                                  Personal Property Requirements.  MLC shall have received:

 

(i)                                   with respect to each Transaction Party, UCC financing statements (or amendments to existing financing statements, as applicable) in appropriate form for filing under the UCC and such other documents under domestic Applicable Law in each domestic jurisdiction as may be necessary or appropriate, in the reasonable opinion of MLC, to perfect (or maintain the perfection of, as applicable) the Liens created, or purported to be created, by the Supply and Offtake Security Documents (including, without limitation, by amending UCC financing statements on file in the applicable jurisdiction);

 

(ii)                                with respect to each Transaction Party, certified copies of UCC, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name any of the Transaction Parties as debtor and that are filed in those state and county jurisdictions in which any of the Transaction Parties is organized or maintains its principal place of business, and such other searches that are required by the Supply and Offtake Perfection Certificate with respect to any of the Transaction Parties or that MLC deems necessary or appropriate, none of which encumber, or reflect a Lien on, the Collateral covered or intended to be covered by the Supply and Offtake Security Documents (other than, solely in respect of the Supply and Offtake Security Agreement Collateral, Permitted Liens on such Collateral or any other Liens acceptable to MLC);

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(iii)                             with respect to each Transaction Party, evidence acceptable to MLC of payment or arrangements for payment of all applicable recording taxes, fees, charges, costs and expenses required for the recording of the Supply and Offtake Security Documents, if any; and

 

(iv)                            with respect to each Transaction Party, a Supply and Offtake Perfection Certificate, reflecting all Collateral pledged as of the Effective Date.

 

(g)                                 Real Property Requirements. PESRM shall have delivered or caused to be delivered the following: (i) an amended and restated Mortgage, in form and substance reasonably acceptable to MLC (the “Amended and Restated Mortgage”), duly executed by PESRM and in proper form for recording in the real estate records of the county in which the applicable Mortgaged Property is located (the “Recording Office”); (ii) UCC-3 financing statements and other termination documentation relating to the Existing Mortgage as may be reasonably requested by MLC; (iii) an endorsement to the mortgagee’s policy of title insurance (the “Mortgage Policy”), dated as of the Effective Date, insuring the assignment of the Existing Mortgage and the Amended and Restated Mortgage, and insuring MLC as the mortgagee of record as of the Effective Date, which endorsement shall reveal no liens or encumbrances other than Permitted Liens or other liens or encumbrances otherwise acceptable to MLC and shall otherwise be in form and substance reasonably acceptable to MLC and as is customarily issued in the Commonwealth of Pennsylvania by the Title Company; (iv) all affidavits and other documentation executed by JPMVEC, PESRM or MLC as reasonably requested by the Title Company in order for the Title Company to issue the title endorsement as described in the immediately preceding clause (iii); and (v) all other documentation reasonably necessary or advisable to effect the actions contemplated by this Section 2.02(g).

 

(h)                                Anti-Terrorism Laws.  MLC shall have timely received the information required under Section 10.17.

 

(i)                                    [Reserved]

 

(j)                                   Products Sales Agreement. The purchase and sale of the Products (as defined in the Products Sales Agreement) shall have been consummated prior to or substantially concurrently with the entry into this Agreement pursuant to terms of the Products Sales Agreement.

 

(k)                                Material Approvals.  All material Governmental Authority and, except as set forth on Schedule 2.02(k), all material third-party licenses, registrations, permits, consents and approvals necessary in connection with this Agreement, the PESRM Transaction Documents and the PESIC-PESRM ISDA Master Agreement and the transactions hereunder and thereunder shall have been obtained (without the imposition of any conditions that would materially impair the rights, or materially increase the liabilities or obligations, of MLC, without its prior consent (such consent not to be unreasonably withheld or delayed)) and no Applicable Laws are

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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then in effect that materially and adversely restrain or prevent this Agreement, the PESRM Transaction Documents and the PESIC-PESRM ISDA Master Agreement and the transactions hereunder and thereunder or impose conditions that materially impair the rights, or materially increase the liabilities or obligations, of MLC, without the prior consent of MLC (such consent not to be unreasonably withheld or delayed).

 

(l)                                    Outstanding Indebtedness.  After giving effect to this Agreement, the Effective Date PESRM Transaction Documents and the PESIC-PESRM ISDA Master Agreement and the transactions hereunder and thereunder, the Transaction Parties shall have no outstanding Indebtedness or preferred stock other than (i) the Obligations and obligations related to all PESIC-PESRM Secured Prepay Transactions, (ii) to the extent constituting Indebtedness, (x) Permitted Specified Transactions, and (y) obligations under the Senior Secured Credit Facility Documents, and (iii) other Indebtedness permitted by Section 11.01.

 

(m)                            Insurance Requirements.  MLC shall have received evidence reasonably satisfactory to it that PESRM has satisfied the Insurance Requirements, including receipt by MLC of insurance certificates, in form and substance acceptable to MLC, listing MLC as loss payee thereon and as an additional insured with respect to the applicable insurance policies maintained by PESRM in accordance with the Insurance Requirements.

 

(n)                                Effective Date Infrastructure.  None of the Refinery (including the Tanks, pipelines, racks, vessels, railroads, terminals and docks associated therewith), any other PESRM Infrastructure, any Sunoco PMT Infrastructure, any Sunoco Pipeline Infrastructure or any Other Third Party Infrastructure (collectively, the “Effective Date Infrastructure”) shall have been affected by loss or damage (whether or not covered by insurance) that reasonably would be expected to prevent PESRM from receiving and/or storing Crude Oil at the Effective Date Infrastructure, transporting Crude Oil to, within, among or from the Effective Date Infrastructure, delivering Crude Oil at the CO Delivery Point, receiving delivery of Refined Products at the RP Delivery Point, receiving and/or storing Refined Products at the Effective Date Infrastructure, transporting Refined Products to, within, among or from the Effective Date Infrastructure, or delivering Refined Products to any Product Purchaser Delivery Point, except to the extent that such damage can be remedied within 30 days and PESRM commits to make such repairs, in each case, in a manner and on terms reasonably satisfactory to MLC.

 

(o)                                Effective Date Material Adverse Effect.  Since December 31, 2013, no event, development, circumstance or other matter affecting PESRM, the Refinery or any other Effective Date Infrastructure or the transactions contemplated under this Agreement, the other PESRM Transaction Documents or the PESIC-PESRM ISDA Master Agreement has occurred which has had or would reasonably be expected to result in a Material Adverse Effect.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(p)                                Representations and Warranties.  Each of the representations set forth in Article VIII shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the Effective Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date.

 

(q)                                [Reserved].

 

(r)                                   Officers’ Certificate.  MLC shall have received a certificate, dated the Effective Date and signed by the chief executive officer and the chief financial officer of PESRM, confirming compliance with the conditions precedent set forth in this Section 2.02.

 

(s)                                  Senior Secured Credit Facility.  Copies of the duly executed Senior Secured Credit Facility Documents shall have been delivered to MLC in form and substance reasonably satisfactory to MLC and shall be in full force and effect save for any conditions expressly related to the occurrence of the Effective Date hereunder.

 

(t)                                   Intercreditor Agreements.  There shall have been delivered to MLC, with respect to each Transaction Party and each other Person party thereto, an executed counterpart of each of (i) an amendment to Exhibit A of the Term-ABL Intercreditor Agreement and (ii) an amendment to Exhibit A of the Intercreditor Agreement, in each case in form and substance satisfactory to MLC.

 

(u)                                PESIC Transactions.  PESRM shall have entered into the PESIC-PESRM ISDA Master Agreement, in form and substance satisfactory to MLC.

 

Section 2.03                            MLC Conditions to the Effective Date.  PESRM’s obligations hereunder shall be subject to the satisfaction by MLC or waiver by PESRM of the following condition:

 

(a)                                Opinion of Counsel.  PESRM shall have received a favorable written opinion of Skadden, Arps, Slate, Meagher & Flom LLP, special counsel for MLC, (i) dated the Effective Date, (ii) addressed to PESRM and (iii) covering the matters reasonably requested by PESRM.

 

ARTICLE III.

 

PURCHASE, SALE AND DELIVERY OF
 CRUDE OIL

 

Section 3.01                            Supply by MLC of Crude Oil Requirements.  From and after the Effective Date, MLC agrees to supply, sell and deliver to PESRM, and PESRM agrees to purchase and take delivery of, all of the Crude Oil requirements of the Refinery upon the terms and conditions set forth herein and MLC shall be the exclusive supplier of Crude Oil to the Refinery with respect to the requirements of the Refinery during the term; provided that, the foregoing shall not

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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be construed to prevent or limit any PESRM-MLC CO Secured Prepay Transactions otherwise entered into in accordance with the terms hereof or any other transaction permitted to be entered by PESRM pursuant to Section 3.09(c).  MLC shall sell the Crude Oil to PESRM at the CO Delivery Point in such volumes as PESRM may require for processing at the Refinery, subject to the provisions of Section 3.02.  MLC shall not be required to enter into any CO Supply Contract or PESRM-MLC CO Secured Prepay Transaction if, immediately after entering into such CO Supply Contract or PESRM-MLC CO Secured Prepay Transaction, the types and grades, and the aggregate volume of Crude Oil under all then-outstanding CO Supply Contracts and PESRM-MLC CO Secured Prepay Transactions would vary from the types and grades or exceed the reasonable volume expectations of the Crude Oil requirements for the Refinery for all months covered by such contracts, taking into account the refining capacity of the Refinery, the available capacity of the Basic Infrastructure and anticipated delivery dates of Crude Oil , but not taking into account any limitations imposed on any of the foregoing by any exercise by MLC of its rights under Sections 3.09(e) and 6.25.

 

Section 3.02                            Conditions to Crude Oil Supply Obligation.  Notwithstanding any other provision of this Article III, all of MLC’s obligations under this Article III are subject to (a) PESRM’s compliance with the Sourcing Protocols as set forth in Section 3.09, (b) the ability of third party suppliers of Crude Oil to MLC to meet MLC’s Credit Requirements, (c) the availability of Crude Oil supply in the market of the types and grades, and in the volumes, specified by PESRM in the applicable PESRM Buy Requests, and (d) no related Applicable Condition having occurred.

 

Section 3.03                            [Reserved].

 

Section 3.04                            Crude Oil Initial Sales.  MLC and PESRM agree that, notwithstanding anything in this Agreement to the contrary (i) MLC shall sell and deliver to PESRM, and PESRM shall purchase and receive from MLC, at the CO Delivery Point all of the types, grades and volumes of Crude Oil included in the In-Storage Inventory and acquired by MLC pursuant to any New MLC Transactions and (ii) each of the Inventory Sales Agreement and any New MLC Transactions for Crude Oil and the Assigned CO Contracts are hereby designated as CO Supply Contracts in respect of all Crude Oil purchased and to be purchased under such agreements, confirmations and contracts.

 

Section 3.05                            Daily Actual Production Books.

 

(a)                                At or before 1:00 p.m. ET of each Business Day during the Term commencing on the first Business Day following the Effective Date, [**].

 

(b)                                [**].

 




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Section 3.06                            Financial Report.  At or before 8:00 p.m. ET of each Business Day during the Term commencing on the first Business Day following the Effective Date, MLC shall provide PESRM with a Financial Report for each Day of the Term prior to such Business Day for which no Financial Report has previously been provided to MLC, subject, in each case, to the Business Day Convention.

 

Section 3.07                            [Reserved].

 

Section 3.08                            Certain Additional MLC Reports.

 

(a)                                On each Business Day during the Term commencing on the first Business Day following the Effective Date, MLC shall make commercially reasonable efforts to provide PESRM with a Daily Trades Done To Date Report, a Daily Raw Invoice Report, a Provisional FIFO Queue Report and a Daily Sales Report for each Day of the Term prior to such Business Day for which no Daily Trades Done To Date Report, Daily Raw Invoice Report, Provisional FIFO Queue Report and/or Daily Sales Report, as applicable, has previously been provided by MLC (and on the first Business Day following the Effective Date, for the Effective Date), subject, in each case, to the Business Day Convention.

 

(b)                                On each Monthly True-Up Date MLC shall make commercially reasonable efforts to provide PESRM with a Monthly CO FIFO Report for the calendar month immediately prior to the calendar month in which such Monthly CO FIFO Report is to be delivered.

 

Section 3.09                            Crude Oil Sourcing Protocols.  [**].

 

(a)                                During the Term, PESRM shall identify opportunities to acquire Crude Oil from suppliers (each, a “Counterparty”) of the types and grades, and in the volumes, necessary to satisfy such requirements and shall promptly notify MLC of such opportunities.  [**].

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(b)                                [**].

 

(c)                                 [**].

 




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(d)                                [**].

 




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(e)                                 [**].

 

(f)                                  [**].

 

(g)                                 [**].

 




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Section 3.10                            CO Transactions. During the Term, MLC shall sell to PESRM and PESRM shall purchase and take delivery from MLC all of the MLC Crude Oil Purchase at the CO Delivery Point, measured for each Day during the Term as the amount of Crude Oil of which PESRM takes delivery on such Day according to the Daily Actual Production Book (each such Day’s purchase, a “CO Transaction”), and which shall be priced by reference to Schedule 5(a).

 

Section 3.11                            Daily Trades Done To Date Report.  At or before 4:00 p.m. ET on each Business Day during the Term commencing on the first Business Day following the Effective Date, [**].

 

Section 3.12                            Crude Oil Title and Risk of Loss.  Title and risk of loss with respect to the Crude Oil subject to each CO Supply Contract or [**] shall pass to MLC when it receives delivery of such products.

 

Section 3.13                            Crude Oil Good and Marketable Title.  MLC represents and warrants that, on delivery of any Crude Oil to PESIC or PESRM in accordance with Section 3.12 (as applicable), good and marketable title to such Crude Oil shall pass to PESIC or PESRM (as applicable) on such delivery, free and clear of all Liens and encumbrances (except for security interests of MLC provided for in the PESRM Transaction Documents and security interests of PESIC provided for in the PESIC-PESRM Secured Prepay Transaction documents).

 

Section 3.14                            CRUDE OIL NO WARRANTY OF MERCHANTABILITY.  WITH RESPECT TO CO SUPPLY CONTRACTS AND PESRM-MLC CO SECURED PREPAY TRANSACTIONS, PESRM AGREES THAT (A) IT SHALL TAKE DELIVERY OF SUCH CRUDE OIL “AS IS, WHERE IS” AND “WITH ALL FAULTS”, AND (B) MLC MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ALL IMPLIED WARRANTIES ARE DISCLAIMED.

 




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Section 3.15          Crude Oil Payment Responsibility and Invoicing.

 

(a)           MLC shall be responsible for paying invoices with respect to CO Supply Contracts, [**] relating to Crude Oil and all related CO Transportation and Other Costs (it being understood and agreed that PESRM shall be directly responsible for any and all costs, including, costs relating to demurrage, incurred in connection with the transportation, delivery and receipt of Hydrocarbons pursuant to any PESRM-MLC Secured Prepay Transaction), which CO Transportation and Other Costs shall be included in the payments due under this Agreement, as provided for in Article V. Upon request, MLC shall promptly provide PESRM with copies of Counterparty and third party invoices, which may be redacted as deemed necessary by MLC in accordance with its policies and procedures; provided that, in no event shall MLC be required to provided PESRM with copies of greater than twenty-five (25) Counterparty or third party invoices in any calendar quarter. All refunds or adjustments of any type received by MLC related to the CO Transportation and Other Costs shall be for the account of PESRM and shall be reflected in an Invoice and/or Monthly True-Up Invoice, as applicable.

 

(b)           CO Transportation and Other Costs may not be invoiced by MLC to PESRM until MLC itself is invoiced, which for this purpose shall include a pro forma invoice, for such costs.

 

Section 3.16          Daily Actual Production Book; Further Assurances in Respect of On-Premise Infrastructure.  When (a) any infrastructure assets comprised of Affiliate Transferee Assets owned by an Affiliate Transferee are added to Other Third Party Infrastructure in accordance with the definition thereof and/or (b) any Affiliate Transferee Assets are leased by a Transaction Party to an Affiliate Transferee, the form of the Daily Actual Production Book will be amended by the parties hereto to include such Affiliate Transferee Assets.  In addition, if reasonably requested by MLC, with respect to any On-Premise Infrastructure comprised of Affiliate Transferee Assets, PESRM hereby agrees to provide, or cause to be provided, to MLC data and information concerning any such Affiliate Transferee Assets that is comparable to the data and information that MLC receives, as of the Effective Date, concerning other comparable, existing On-Premise Infrastructure.

 

Section 3.17          PESRM-MLC CO Secured Prepay Transactions; International Transactions.

 

(a)           [Reserved].

 

(b)           CO Supply Contract; PESRM-MLC CO Secured Prepay Transaction.  Notwithstanding anything to the contrary herein or in any other PESRM Transaction Document, [**].

 




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(c)           International Transactions.  [**].

 

Section 3.18          [Reserved].

 

Section 3.19          First Purchaser Requirements.

 

(a)           PESRM shall, on or before the Effective Date, provide to MLC a prioritized list of the United States jurisdictions in which PESRM anticipates requesting that MLC act as “first purchaser” of Product pursuant to CO Supply Contracts or PESRM-MLC CO Secured Prepay Transactions (such list being attached hereto as Schedule 3.19, it being understood that subsequent revisions to this list by PESRM shall not require an amendment to this Agreement).

 

(b)           MLC shall, promptly following the Effective Date, and promptly following the addition of any United States jurisdiction to Schedule 3.19, use commercially reasonable efforts to, with respect to each United States jurisdiction set forth on such list and in the priority order indicated thereon:

 

(i)            diligence such US jurisdiction’s Applicable Law with respect to the laws, rules and regulations applicable to “first purchasers” of Product (such laws, rules and regulations, “First Purchaser Requirements”);

 

(ii)           obtain all Governmental Approvals relating to such United States jurisdiction as are necessary or appropriate in order for MLC to act as a “first purchaser” of Product in connection with this Agreement and the other PESRM Transaction Documents, any PESRM-MLC CO Secured Prepay Transactions and any CO Supply Contracts; and

 

(iii)          put in place such operational and/or compliance policies, procedures, systems and/or personnel related to such United States jurisdiction as are 

 




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necessary or appropriate in connection with MLC’s compliance with the First Purchaser Requirements.

 

(c)           MLC and PESRM shall cooperate in good faith to facilitate the process described in this Section 3.19.

 

Prior to incurring any costs in connection with Section 3.19(b), MLC shall provide an estimate of such costs to PESRM for approval. Upon receipt of approval of such estimate from PESRM, MLC shall undertake the activities set forth in such estimate. PESRM shall reimburse MLC for all approved costs and expenses incurred by MLC in connection with the First Purchaser Requirements, including conducting diligence, obtaining Governmental Approvals, etc., in accordance with Article V.  Notwithstanding the above, PESRM acknowledges and agrees that MLC cannot make any assurances of being able to actually satisfy and implement all requirements under this Section 3.19(b) with respect to First Purchaser Requirements for any particular jurisdiction requested.

 

ARTICLE IV.

 

PURCHASE, SALE AND DELIVERY OF
 REFINED PRODUCTS

 

Section 4.01          Supply by PESRM of Refined Products Produced by the Refinery.  From and after the Effective Date, PESRM agrees to supply, sell and deliver to MLC, and MLC agrees to purchase and take delivery of, all of the Refined Products processed by the Refinery upon the terms and conditions set forth herein and MLC shall be the exclusive purchaser of Refined Products produced by the Refinery during the Term; provided that, the foregoing shall not be construed to prevent or limit any PESRM-MLC RP Secured Prepay Transactions otherwise entered into in accordance with the terms hereof or any transaction permitted to be entered by PESRM pursuant to Section 4.09(c).

 

Section 4.02          Conditions to Refined Product Purchase Obligation. Notwithstanding any other provision of this Article IV, all of MLC’s obligations under this Article IV are subject to (a) PESRM’s compliance with the Sales Protocols as set forth in Section 4.09, (b) the ability of third party purchasers of Refined Products from MLC to meet MLC’s Credit Requirements, and (c) no related Applicable Condition having occurred.

 

Section 4.03          Reserved.

 

Section 4.04          Third Party Reports.

 

(a)           At or before 4:00 p.m. ET of each Business Day during the Term, commencing on the first Business Day following the Effective Date, PESRM shall use commercially reasonable efforts to cause Third Party Infrastructure owners to provide to MLC any and all inventory, receipt, delivery and sales reports (and the SXL Report) prepared by such owners, identifying the Hydrocarbons owned by MLC or which are part of the MLC Separate Assets and Collateral in such Third Party Infrastructure, which reports with respect to sales of Refined Products at Racks owned by PPC and SXL shall be substantially in the form of Schedule 

 




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4.04(a)(i) and Schedule 4.04(a)(ii), respectively; provided that if any such reports are not delivered at or before 4:00 p.m. ET on any such Business Day, MLC shall, in its reasonable discretion, estimate any such deliveries and sales to Third Parties on such Day based on any such reports delivered on the prior Day, provided further that in no event shall any estimate determined pursuant to this proviso apply to any period longer than one Day.

 

(b)           MLC shall, in its reasonable discretion, determine the types, grades and volumes of Refined Products that were delivered to each applicable delivery point, and purchased and sold, on any Day pursuant to this Agreement, any PESRM Transactions, any CO Supply Contracts, any RP Sales Contracts and/or any Cover Transactions, as applicable.

 

Section 4.05          RP Transactions and Certain RP Sales Contracts.

 

(a)           On each Day during the Term, PESRM shall sell to MLC and MLC shall purchase from PESRM all Refined Products produced by PESRM at the Refinery (other than butane, Refined Products subject to Section 4.13 and, for the avoidance of doubt, Section 12.01(a)(i)(C)) to be delivered to MLC by PESRM at the RP Delivery Point, in each case by type, grade and volume, on each Day as set forth in the Daily Actual Production Book for such Day (each such binding purchase and sale obligation, an “RP Transaction”), with the pricing for each such RP Transaction to be determined by reference to Schedule 5(b).

 

(b)           Each of the Assigned RP Contracts is hereby designated as a RP Sales Contract in respect of all Refined Products sold or to be sold thereunder.

 

Section 4.06          Refined Product Title.  PESRM represents and warrants that, on delivery of any Refined Product to MLC at the RP Delivery Point, good and marketable title to such Refined Product shall pass to MLC on such delivery, free and clear of all Liens and encumbrances (except for security interests of MLC provided for in the PESRM Transaction Documents).

 

Section 4.07          REFINED PRODUCT - NO WARRANTY OF MERCHANTABILITY.  PESRM MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THAT THE REFINED PRODUCTS DELIVERED TO THE RP DELIVERY POINT OR PURSUANT TO ANY PESRM-MLC RP SECURED PREPAY TRANSACTION SHALL CONFORM TO THE APPLICABLE REFINED PRODUCT SPECIFICATIONS, AND ALL APPLICABLE ENVIRONMENTAL REGULATORY SPECIFICATIONS FOR SUCH REFINED PRODUCT OR TO SUCH OTHER SPECIFICATIONS AS ARE FROM TIME TO TIME AGREED UPON BY THE PARTIES.

 

Section 4.08          [Reserved].

 

Section 4.09          Refined Product Sales Protocols.  [**].

 




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(a)           [**], PESRM shall identify opportunities to sell Refined Products to purchasers (each, a “Product Purchaser”) of the types and grades, and in the volumes, reflected in the then current Oil Flow Report and shall promptly notify MLC of such opportunities. [**].

 

(b)           [**].

 

(c)           [**].

 




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(d)           [**].

 

(e)           [**].

 




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(f)            [**].

 

Section 4.10          Prepayments.

 

(a)           [**].

 

(b)           Starting from the first quarter following December 31, 2014, [**].

 

(c)           [**].

 




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[**].

 

Section 4.11          RP Payment Responsibility and Invoicing.

 

(a)           MLC shall be responsible for paying invoices with respect to Prepay Transactions relating to Refined Products and all RP Transportation and Other Costs (it being understood and agreed that PESRM shall be directly responsible for any and all costs, including, without limitation, costs relating to demurrage, incurred in connection with the transportation, delivery and receipt of Hydrocarbons pursuant to any PESRM-MLC Secured Prepay Transaction), which RP Transportation and Other Costs shall be included in the payments due under this Agreement, as provided for in Article V.  All refunds or adjustments of any type received by MLC related to the RP Transportation and Other Costs shall be for the account of PESRM and shall be reflected in an Invoice or the Monthly True-Up Invoice, as applicable.

 

(b)           RP Transportation and Other Costs may not be invoiced by MLC to PESRM until MLC itself is invoiced, which for this purpose shall include a pro forma invoice, for such costs.

 

Section 4.12          PESRM-MLC RP Secured Prepay Transactions; International Transactions.

 

(a)           [Reserved].

 

(b)           RP Sales Contract.  [**].

 

(c)           International Transactions.  [**].

 




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Section 4.13          Initial RP Purchases.  Notwithstanding anything in this Agreement to the contrary, each of MLC’s purchases of Refined Products  (a) under the Inventory Sales Agreement, (b) under the Products Sales Agreement and (c) pursuant to any New MLC Transactions (other than any Sleeve Transactions) under the Wind-Down Agreement (such purchases described in clauses (a), (b) and (c), collectively, the “Initial RP Purchases”) shall be deemed to be an RP Cover Transaction that was entered into by MLC; provided, that no Cover Throughput Service Fee shall be payable in respect of any Initial RP Purchase.  MLC shall calculate the applicable Cover Transaction Price Amounts with respect to such transactions, which Cover Transaction Price Amounts shall be payable by MLC or PESRM, as applicable, in accordance with Section 12.07.  In addition, PESRM shall be responsible for all Cover Transportation and Other Costs incurred, or owed by MLC, in connection with the Initial RP Purchases, which costs shall be payable in accordance with Section 12.07.

 

Section 4.14          Butane Sale Transactions.

 

(a)           Butane Sale Transactions.  On each Butane Inventory Draw Day, MLC shall be deemed to have sold to PESRM and PESRM shall be deemed to have purchased from MLC a volume of butane equal to the Butane Inventory Draw on such Day (each such transaction, a “Butane Sale Transaction”), in each case, of the type and grade set forth in the Daily Actual Production Book and/or the SXL Report, as applicable, with the pricing for each Butane Sale Transaction to be determined by reference to Schedule 5(b).  Notwithstanding the foregoing, all of MLC’s obligations with respect to Butane Sale Transactions are subject to no related Applicable Condition having occurred.

 

(b)           Butane Sale Transaction True-Ups.  In connection with the Butane Sale Transactions, in the event that either Party obtains knowledge of a discrepancy between the Butane Inventory reflected in the Daily Actual Production Book and the SXL Report and the actual volumes of butane (measured in Barrels) produced or acquired and used or sold by PESRM on any Day, such party shall promptly notify the other Party of such discrepancy, and the Parties shall work in good faith to confirm whether or not such discrepancy exists and, if so, the extent of such discrepancy.  Upon agreement between the Parties as to the existence and extent of any discrepancy, PESRM shall make an adjustment in the Daily Actual Production Book on the next Business Day to eliminate any such discrepancy. For the avoidance of doubt, any resulting increase or decrease in the Butane Inventory shall be taken into account in determining whether there is a Butane Inventory Build or a Butane Inventory Draw on the Day on which any such adjustment occurs.

 




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(c)                                  NO WARRANTY OF MERCHANTIBILITY.  WITH RESPECT TO ALL BUTANE SALE TRANSACTIONS, PESRM AGREES THAT (A) IT SHALL TAKE DELIVERY OF SUCH BUTANE “AS IS, WHERE IS” AND “WITH ALL FAULTS”, AND (B) MLC MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ALL IMPLIED WARRANTIES ARE DISCLAIMED.

 

(d)                                 Costs and Invoicing.  Any and all direct expenses incurred by MLC (and not previously paid by PESRM) that, if such Butane Sale Transaction were a sale of butane by MLC to a third party pursuant to an RP Sales Contract would be RP Transportation and Other Costs, shall be deemed to be RP Transportation and Other Costs for all purposes of this Agreement and the other PESRM Transaction Documents, which RP Transportation and Other Costs shall be included in the payments due under this Agreement, as provided for in Article V.

 

Section 4.15                             Off-Spec Product.  If any Refined Products delivered to MLC at the RP Delivery Point, held in storage by PESRM at the Basic Infrastructure or delivered to any Product Purchaser at the Product Purchaser Delivery Point or at any other delivery point in connection with a RP Sales Contract that is entered into in connection with a PESRM-MLC RP Secured Prepay Transaction (as approved by MLC in its sole discretion) do not meet the required specifications for such Refined Products , MLC shall have the right, by notice to PESRM, to require PESRM promptly to take such actions, at PESRM’s sole cost and expense, as are reasonably necessary to bring such products into compliance with the applicable required specifications or to provide replacement products (including pursuant to Cover Transactions) that meet such specifications.

 

Section 4.16                             PESRM as Obligated Party.  PESRM shall be the “obligated party” as the refiner of all Refined Products certified or designated, as applicable, pursuant to 40 C.F.R. Part 80.  Nothing in this Agreement shall be interpreted to impart any responsibility to MLC to comply with Renewable Fuel Standards (including requirements therein for RVOs and RINs) as an “obligated party” pursuant to 40 C.F.R. Part 80 by virtue of the transactions contemplated by this Agreement.  PESRM shall, as a refiner, comply with all Renewable Fuel Standards (including requirements therein for RVOs and RINs) and all applicable fuel and fuel additive requirements set forth in 40 C.F.R. Part 80, and all other Applicable Laws (including Environmental Laws) related thereto.

 

ARTICLE V.

 

PAYMENTS AND INVOICING

 

Section 5.01                             Daily Payment.  On each Business Day of each Calendar Week, MLC shall prepare and deliver to PESRM an invoice (an “Invoice”) specifying:

 

The sum of [**] on the prior Day and each other Uninvoiced Day;

 




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PLUS

 

The sum of [**] on the prior Day and each other Uninvoiced Day;

 

PLUS

 

The sum of [**] applied in respect of (i) [**], (ii) [**] and (iii) [**];

 

PLUS

 

The sum of [**] on the prior Day and each other Uninvoiced Day;

 

PLUS

 

The sum of [**] in respect of the prior Calendar Day and each other Uninvoiced Day;

 

PLUS

 

The sum of [**], that occurred during such prior Day and each other Uninvoiced Day;

 

PLUS

 

The sum of [**], in each case on the prior Day and each other Uninvoiced Day;

 

PLUS

 

The sum of [**], in each case in respect of the prior Day and each other Uninvoiced Day;

 

MINUS

 

The sum of [**] on the prior Day and each other Uninvoiced Day;

 




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MINUS

 

The sum of [**] in respect of the prior Day and each other Uninvoiced Day;

 

MINUS

 

The sum of [**], that occurred during the prior Day and each other Uninvoiced Day;

 

MINUS

 

The sum of [**], in each case on the prior Day and each other Uninvoiced Day;

 

PLUS

 

The sum of [**] on the prior Day and each other Uninvoiced Day;

 

PLUS

 

The sum of [**] and [**] applied in respect of [**] (i) [**], (ii) [**] and (iii) [**], in each case on the prior Day and each other Uninvoiced Day;

 

PLUS

 

The sum of [**] on prior Day and each other Uninvoiced Day;

 

PLUS

 

The sum of [**] in respect to the prior Day and each other Uninvoiced Day;

 

MINUS

 

The sum of [**] in respect of the prior Day and each other Uninvoiced Day;

 

PLUS

 

The sum of [**] in respect of the following Day;

 




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PLUS

 

The sum of [**] in respect to the prior Day and each other Uninvoiced Day;

 

MINUS

 

The sum of [**] on the prior Day and each other Uninvoiced Day;

 

PLUS

 

The sum of [**] for delivery on the following Day;

 

PLUS

 

The sum of [**] in respect of the prior Day and each other Uninvoiced Day;

 

MINUS

 

The sum of [**] in respect of the prior Day and each other Uninvoiced Day;

 

PLUS

 

[**], in respect of the prior Day and each other Uninvoiced Day;

 

MLC shall determine the amount payable in respect of each Invoice and the identity of the Party owing such payment, it being understood that if the above sum is positive, PESRM shall be the Party owing such payment, and if the above sum is negative, MLC shall be the Party owing such payment.  In the event that the terms of any CO Supply Contract, RP Sales Contract or Cover Transaction include any true-up that is not expressly contemplated by this Agreement, the financial consequences of such true-up will, without duplication, be passed through to PESRM in any Invoice or Monthly True-up Invoice issued following the occurrence of such true-up.  In the event that adjustments are required to any previously issued Invoice, MLC shall have the right to incorporate such adjustments in subsequent Invoices until all numbers are final and accurate.  All amounts due and owing in respect of each Invoice shall be paid by the owing Party to the other Party on the next Business Day following PESRM’s receipt of each Invoice.

 

Section 5.02                             Monthly True-Up.  For each calendar month during the Term, the monthly true-up (the “Monthly True-Up”) shall be a financial adjustment required to correct for actual [**] not already corrected in prior Invoices (with the sum of such corrections resulting in an amount payable either to MLC or to PESRM (and, if payable to PESRM, expressed as a negative number)),

 




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PLUS

 

The sum of [**] with respect to the prior calendar month;

 

PLUS

 

The Working Capital Fee, and the sum of [**] in the prior calendar month,

 

PLUS

 

The sum of [**] in respect of the prior calendar month,

 

PLUS

 

The sum of [**] in the prior calendar month,

 

PLUS

 

Without duplication, the sum of [**] under this Agreement,

 

MINUS

 

Without duplication, the sum of [**] under this Agreement, including [**],

 




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PLUS

 

The positive difference (if any) of (i) [**] (ii) the sum of [**] in the prior calendar month,

 

PLUS

 

Any [**] in respect of the prior calendar month,

 

MINUS

 

Any [**] of the prior calendar month.

 

On each Monthly True-Up Date, [**] shall determine the amount payable in respect of the Monthly True-Up for the calendar month immediately preceding the calendar month in which such Monthly True-Up Date occurs and the identity of the Party owing such payment, it being understood that if the above sum is positive, PESRM shall be the Party owing such payment, and if the above sum is negative, MLC shall be the Party owing such payment.  All amounts due and owing in respect of such Monthly True-Up shall be paid by the owing Party to the other Party [**] following PESRM’s receipt of the invoice (each, a “Monthly True-Up Invoice”) for such Monthly True-Up. In the event that adjustments are required to any previously issued Monthly True-Up Invoice, [**] shall have the right to incorporate such adjustments in subsequent Monthly True-Up Invoices until all numbers are final and accurate.

 

Hedging Gains and Losses for Hydrocarbons [**] on the Effective Date.   [**].

 

Section 5.03                             Auto Bin True-Ups.  [**].

 

Section 5.04                             Disputed Invoices.  If PESRM, in good faith, disputes the accuracy of the amount invoiced, PESRM shall pay the undisputed amount and the disputed amount in excess of $[**] and provide written notice stating the reasons why the disputed amount is incorrect, along with supporting documentation.  In the event the Parties are unable to resolve such dispute within ten (10) Business Days, either Party may pursue any remedy available at law or in equity

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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to enforce its rights hereunder.  In the event that it is determined or agreed that one of the Parties must or will pay or return all or any portion of the disputed amount, then such Party shall pay interest from and including the original payment due date until, but excluding, the date such amount is received by the owed party, at the Default Interest Rate.

 

Section 5.05                             Payment Netting.  The Parties agree to net all amounts that are due each other under this Agreement and any Rack Sales Contract on the same Business Day, and the Parties shall confirm at least one (1) Business Day prior to the payment date, in writing, the amounts to be netted and any amounts remaining after such net-out (if any).  Any remaining balance after net-out shall be paid by the Party owing such amount to the other Party on the applicable payment date.  The owing Party’s payment of a net amount shall satisfy each Party’s payment obligations included in the settlement on a payment date.

 

Section 5.06                             Payment Convention.  Unless otherwise expressly provided for in this Agreement (a) if any payment due date under this Agreement falls on a Saturday or non-Monday weekday that is not a Business Day, such payment shall be made on the immediately preceding Business Day and (b) if the payment due date falls on a Sunday or Monday which is not a Business Day, such payment shall be made on the immediately following Business Day.

 

Section 5.07                             Tax Status of the Parties.  Prior to the first due date of a payment under this Agreement (and from time to time thereafter upon the reasonable request of the other Party), each Party shall deliver to the other Party a duly executed original of IRS Form W-9 or successor form certifying or establishing that it is exempt from U.S. federal backup withholding tax.

 

ARTICLE VI.

 

DOWNGRADE TERMINATION EVENT,
 ACKNOWLEDGEMENT AND OTHER MATTERS

 

Section 6.01                             Downgrade and Cost of Assurance Trigger Event.  If a MLC Ratings Trigger Event occurs and is continuing or a Cost of Assurance Trigger Event has occurred as of the end of the previous fiscal quarter, notwithstanding any other provision of this Agreement, [**].

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Section 6.02                             Termination at Expiration of the Term.

 

(a)                                 On the expiration of the Term (such date, the “Term Expiration Date”), all then outstanding PESRM Transactions, this Agreement, all other PESRM Transaction Documents and all documents related to the PESIC-PESRM Secured Prepay Transactions shall be extended to the date (the “Final Termination Date”) that is necessary solely to allow for (i) the continued performance of all then outstanding PESRM Transactions, CO Supply Contracts, PESRM-MLC Secured Prepay Transactions, MLC-PESIC Secured Prepay Transactions, PESIC-PESRM Secured Prepay Transactions, RP Sales Contracts and Cover Transactions, and (ii) without duplication, the sale to PESRM and/or one or more mutually acceptable third party purchasers of all of then current in-transit and in-storage Crude Oil, Refined Product inventories with respect to this Agreement; provided, that at any time prior to the Final Termination Date, all of then current in-transit and in-storage Crude Oil and Refined Product inventories with respect to this Agreement may be sold to PESRM or a mutually acceptable third party, in each case on mutually agreed prices and terms (including arrangements for novations, back to back purchases and sales and/or settlement payments, as applicable, in respect of then outstanding CO Supply Contracts, PESRM-MLC Secured Prepay Transactions, RP Sales Contracts, Cover Transactions and/or PESRM Transactions, it being acknowledged that such novations and/or other transactions under such contracts (other than PESRM Transactions) will require the agreement of third parties), and MLC and PESRM shall cooperate in good faith to facilitate such sales.  During the period following the Term Expiration Date, but prior to the Final Termination Date, (x) each of the Parties shall cooperate in good faith with the other Party to implement an orderly transition, and (y) MLC shall assign and/or transfer to PESRM all of its rights, title, interest, liabilities and obligations under all Assigned Agreements and, to the extent reasonably requested by PESRM, shall request that each counterparty to any Assigned Agreement assign to PESRM any related assets (including using its commercially reasonable efforts, subject to applicable tariffs, to assign to or at the direction of PESRM any related records) which had been previously assigned or transferred to MLC in connection with the transactions contemplated under such Assigned Agreement.  If an Event of Default or Termination Event occurs during the period between the Term Expiration Date and the Final Termination Date, MLC and/or PESRM, as applicable, shall have all of the rights and remedies specified in Article XIV with respect to such Event of Default or Termination Event, as applicable.  Notwithstanding the occurrence of the Final Termination Date, MLC shall continue to issue invoices under this Agreement with respect to any amounts that remain outstanding between the Parties on and after the Final Termination Date and any true-ups or corrections required by this Agreement.

 

(b)                                 Notwithstanding any other provision of this Agreement, if the Final Termination Date has not occurred within sixty (60) days following the Term Expiration Date, MLC shall have the right, in its sole discretion, by written notice to PESRM to (x) terminate, liquidate and accelerate any or all of such PESRM Transactions, CO Supply Contracts, PESRM-MLC Secured Prepay Transactions, RP Sales

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Contracts and Cover Transactions and any of the PESIC-PESRM Secured Prepay Transactions (or, to the extent not entered into with PESRM, sell, assign or novate any CO Supply Contracts, Secured Prepay Transactions, RP Sales Contracts and Cover Transactions), and/or (y) without duplication, sell all of then current in-transit and/or in-storage Crude Oil and Refined Product inventories to one or more third party purchasers (such terminations, close-outs and sales, collectively, a “Wind-down Liquidation”).  PESRM shall reimburse MLC for any and all losses, costs and expenses (including any market structure or related costs under Schedule 5(c)) incurred by MLC (and after giving effect to any gains realized by MLC) with respect to such Wind-down Liquidation, which amounts shall be payable, from time to time, within two (2) Business Days following MLC’s delivery of an invoice to PESRM with respect to such amounts.  Sales by MLC of Hydrocarbons pursuant to this Section 6.02(b) shall not be subject to any of the Protocols.

 

Section 6.03                             Unexcused MLC Failure to Deliver or Accept.  Unless excused by Force Majeure or any other Applicable Condition, if MLC fails to deliver or accept all or part of the volume of the Hydrocarbons as required in any PESRM Transaction, CO Supply Contract, RP Sales Contract or Cover Transaction on the applicable delivery date, then the financial remedy set forth below shall apply:

 

(a)                                 Unexcused MLC Failure to Deliver under any PESRM Transaction.  MLC, as the seller under any PESRM Transaction, shall pay to PESRM under such PESRM Transaction, as part of the Monthly True-Up for the month in which the failure occurs, an amount equal to the product of (i) the amount of the Hydrocarbons that MLC failed to deliver (if any) and (ii) an amount equal to (x) the market offer price for the applicable Hydrocarbon at the applicable delivery point at the time the failure occurred minus (y) the price for such Hydrocarbon under this Agreement (except that if the difference between the amounts in subclauses (x) and (y) is zero or negative, then MLC shall have no obligation to make any payment to PESRM), all as determined by MLC, acting in a commercially reasonable manner.

 

(b)                                 Unexcused MLC Failure to Accept Delivery under any PESRM Transaction.  MLC, as the buyer under any PESRM Transaction, shall pay to PESRM as part of the Monthly True-Up for the month in which the failure occurred, an amount equal to the product of (i) the amount of the Hydrocarbon that MLC failed to accept (if any) and (ii) an amount equal to (x) the price for such Hydrocarbon under this Agreement minus (y) the market bid price for the applicable Hydrocarbon at the applicable delivery point at the time the failure occurred (except that if the difference between the amounts in subclauses (x) and (y) is zero or negative, then MLC shall have no obligation to make any payment to PESRM), all as determined by MLC, acting in a commercially reasonable manner.

 

(c)                                  Unexcused MLC Failure to Deliver under any RP Sales Contract.  MLC, as the seller under any RP Sales Contract, shall pay to PESRM as part of the Monthly True-Up for the month in which the failure occurred, an amount equal to the

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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positive True-Up Refined Product Price Amount (if any), as applicable, that would have been payable to PESRM under such RP Sales Contract if the relevant Hydrocarbons had been delivered to the purchaser on the scheduled delivery date under such RP Sales Contract; provided, that such amounts shall not be payable with respect to a failure to deliver by MLC that results from a failure by MLC to perform under a corresponding Cover Transaction that is subject to Section 6.03(d).

 

(d)                                 Unexcused MLC Failure to Deliver or Receive under any Cover Transaction.  MLC, as the purchaser or seller, as applicable, under any Cover Transaction, shall pay to PESRM, as part of the Monthly True-Up for the month in which such failure occurred, an amount equal to the Cover Transaction Price Amount, if any, that would have been payable to PESRM if MLC had delivered or received such Hydrocarbons on the scheduled delivery date under such Cover Transaction.

 

Section 6.04                             Semi-Annual Inspections.

 

(a)                                 On a semi-annual basis during the Term, MLC shall have the right, for the purpose of protecting MLC Separate Assets and Collateral against potential loss and at its own cost and expense, to have an independent inspector conduct surveys and inspections of any of the Tanks, and to observe any Hydrocarbon transfer, handling or related activities; provided, that such surveys and inspections shall be made during normal working hours and upon reasonable notice and shall not disrupt the normal operations of the Refinery or the other Basic Infrastructure, as applicable, and comply with the rules and procedures of the Refinery or the other Basic Infrastructure, as applicable.  In the event that such independent inspector, applying commercially reasonable industry standards, identifies any material adverse condition (a “Material Adverse Condition”), MLC shall notify PESRM (and, with respect to infrastructure not consisting of PESRM Infrastructure, the third party provider of such infrastructure) of the independent inspector’s findings, and MLC shall have the right in its sole discretion, by written notice to PESRM, to request PESRM not to store any additional MLC Separate Assets and Collateral in any Tanks or related infrastructure affected by such Material Adverse Conditions, and such affected Tanks and related infrastructure shall, on and after PESRM’s receipt of such notice and until the time such Material Adverse Condition is corrected, be deemed to be unavailable for purposes of Section 6.06.  PESRM shall have a commercially reasonable period of time to correct (or, with respect to infrastructure not consisting of PESRM Infrastructure, the third party provider of such infrastructure shall have a commercially reasonable period of time to correct), at its own cost and expense, such Material Adverse Condition; provided, that if such condition is of such a nature as can be reasonably remedied by relocating MLC Separate Assets and Collateral, as applicable, to other, non-affected Basic Infrastructure without materially diminishing any of the rights and services to which MLC is entitled under this Agreement and the other PESRM Transaction Documents, then PESRM will be deemed to have satisfied such correction obligation by accomplishing such relocation within such time period.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Section 6.05                             Required Infrastructure.

 

(a)                                 MLC’s obligations under this Agreement, the other PESRM Transaction Documents, the MLC-PESIC Secured Prepay Transactions, the CO Supply Contracts, the PESRM-MLC Secured Prepay Transactions, RP Sales Contracts and/or Cover Transactions to supply Crude Oil to PESRM, to sell Crude Oil to purchasers, to purchase Refined Products from PESRM, to sell Refined Products to purchasers identified by PESRM and to purchase Refined Products from suppliers identified by PESRM are, in all respects, subject to any limits imposed by the working capacity available to MLC at any time on any vessels, barges, docks, racks, railcars, railroads, railroad loading and unloading facilities, terminals, pipelines, storage tanks and other facilities and equipment that are necessary to the performance by PESRM or MLC of its obligations under the PESRM Transactions, the MLC-PESIC Secured Prepay Transactions, the CO Supply Contracts, the PESRM-MLC Secured Prepay Transactions, the RP Sales Contracts and/or the Cover Transactions, including any such facilities at the Refinery, the other Basic Infrastructure and the Butane Rail Facility (collectively, as of any date of determination, the “Required Infrastructure”), and any failure of performance by MLC under any such contracts or transactions that results, directly or indirectly, from any limits imposed by the working capacity allocated to MLC on Required Infrastructure shall be excused and shall not give rise to a MLC Event of Default.

 

(b)                                 In the event that working capacity allocated to MLC on Required Infrastructure becomes unavailable for any reason (including any provision of this Section 6.05 or Section 6.04), PESRM shall be required to use commercially reasonable efforts to secure replacement capacity at PESRM’s sole cost and expense as necessary to permit MLC to meet its delivery, receipt and resale obligations under the PESRM Transactions, the MLC-PESIC Secured Prepay Transactions, the CO Supply Contracts, the PESRM-MLC Secured Prepay Transactions, the RP Sales Contracts and/or the Cover Transactions, as applicable.

 

Section 6.06                             PESRM-MLC Secured Prepay Transactions.                                     Notwithstanding anything to the contrary in this Section 6.06, the Parties hereby acknowledge and agree that each [**] (x) [**] and, accordingly, (y) [**].

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Section 6.07                             Accounting Treatment. Each Transaction Party represents and warrants that it has taken all necessary steps including review of the PESRM Transaction Documents with a senior representative of its finance group and its external auditor, as necessary, to ensure the appropriate financial and accounting treatment, regulatory and disclosure standards are complied with in connection with the PESRM Transaction Documents for each Transaction Party and its Affiliates.

 

Section 6.08                             [Reserved].

 

Section 6.09                             Change in Law.  Each Party shall make reasonable efforts to monitor any proposed Change in Law which may reasonably be expected to have an impact on such Party’s performance of its obligations under the PESRM Transaction Documents or its ability to hedge its trading positions in a commercially reasonable manner, including those relating to purchases and sales under, and inventories maintained in connection with, this Agreement or its other business (“Hedging Activities”) and shall promptly notify the other Party upon becoming aware of any such proposed Change in Law.  Such notice shall identify the proposed Change in Law and set out, in reasonable detail, the effects the notifying Party anticipates such Change in Law would have upon the PESRM Transaction Documents (or such Party’s performance thereunder) or its Hedging Activities if enacted.  The Parties shall in good faith meet to discuss what measures (if any) can be taken by either Party (or both) to minimize and/or mitigate the effect of any such proposed Change in Law.  If a Change in Law results or would result in a Party (the “Adversely Affected Party”) (a) violating any Applicable Law in connection with its Hedging Activities, or (b) incurring incremental damages, losses, costs, expenses, fees, fines, payments, Indemnifiable Taxes, liabilities, penalties or other sanctions of a monetary nature in excess of $[**] per annum solely as a result of such Party’s performance of its obligations under the Transaction Documents or as a result of its Hedging Activities, in each case the Adversely Affected Party shall be entitled to request that the Parties meet for purposes of addressing such Change in Law by providing written notice (a “Change in Law Notice”) to the other Party (the “Non-Affected Party”).  Within seven (7) days of receipt of a Change in Law Notice, the Parties shall meet in good faith with a view to identifying any steps (the “Consequential Steps”) that would alleviate the effects of the relevant Change in Law on the Adversely Affected Party, which may include an agreement between the Parties to share the relevant incremental losses incurred by the Adversely Affected Party or the amendment of any PESRM Transaction Document.  In identifying the Consequential Steps, the Parties shall, as far as is reasonably practicable, do so in a manner that preserves the balance of the commercial agreement (including economic benefits, risk allocation, costs and liabilities) existing between the Parties under this Agreement as of the Effective Date.  In the event the Parties cannot reach agreement on the Consequential Steps and on the implementation of the same within thirty (30) days of receipt by the Non-Affected Party of the Change in Law Notice, either Party may terminate this Agreement in the manner provided for in Section 6.02 as if the Term Expiration Date had occurred by giving

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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the other Party thirty (30) days advance notice of such termination, and such thirtieth (30th) day shall be deemed to be the Term Expiration Date for purposes of Section 6.02.

 

Section 6.10                             PESRM Acknowledgement.  PESRM acknowledges and agrees that (a) MLC is a merchant of crude oil, non-crude feedstock, refined products and blendstock and may, from time to time, be dealing with prospective counterparties, or pursuing trading or hedging strategies, in connection with aspects of MLC’s business which are unrelated hereto and that such dealings and such trading or hedging strategies may be different from or opposite to those being pursued by or for PESRM, (b) MLC may, but is not required to, determine whether to advise PESRM of any potential transaction with a counterparty and prior to advising PESRM of any such potential transaction MLC may, in its discretion, determine not to pursue such transaction or to pursue such transaction in connection with another aspect of MLC’s business and MLC would have no liability of any nature to PESRM as a result of any such determination, (c) MLC has no fiduciary or trust obligations of any nature with respect to the Refinery or PESRM, (d) MLC may enter into transactions and purchase or sell crude oil, non-crude feedstock, refined products and/or blendstock for its own account or the account of others at prices more favorable than those being paid by or to PESRM hereunder, and (e) nothing herein would be construed to prevent MLC, or any of its advisors, agents, attorneys, consultants, contractors, directors, employees, officers, representatives, partners or Affiliates, in any way from purchasing, selling or otherwise trading in crude oil, non-crude feedstock, refined products, blendstock or any other commodity for its or their own account or for the account of others, whether prior to, simultaneously with, or subsequent to any transaction under this Agreement or any other PESRM Transaction Document.  Notwithstanding the foregoing, MLC would have the obligation to execute CO Supply Contracts, PESRM-MLC Secured Prepay Transactions, and RP Sales Contracts in a manner consistent with the PESRM Transaction Documents and to otherwise perform its obligations hereunder.

 

Section 6.11                             Inventory Volumes.  For purpose of this Agreement, all Hydrocarbon inventory volumes shall be determined on a net standard volume basis, such that the saleable volume of Hydrocarbon inventory shall exclude BS&W, and shall be adjusted to a standard temperature of 60 degrees Fahrenheit by the appropriate volume correction factor for the observed temperature and API gravity.

 

Section 6.12                             [Reserved].

 

Section 6.13                             Procedures for Resolving Claims Against Third Parties.  The Parties shall consult with each other and coordinate how to handle and resolve any claims that MLC may have against any Person with respect to any CO Supply Contract, any PESRM-MLC Secured Prepay Transaction, any RP Sales Contract, any Cover Transaction or any exchange of futures for physicals related to any of the foregoing, any leases, subleases or assignments of any Third Party Infrastructure or Assigned Agreements or any CO Transportation and Other Costs, RP Transportation and Other Costs, Cover Transportation and Other Costs or Demurrage Costs.  To the extent that PESRM believes that any claim should be made by MLC for the account of PESRM against any Person with respect to any CO Supply Contract, any PESRM-MLC Secured Prepay Transaction, any RP Sales Contract, any Cover Transaction or any exchange of futures for physicals related to any of the foregoing, or any such leases, subleases or assignments, or any CO Transportation and Other Costs, RP Transportation and Other Costs, Cover Transportation

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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and Other Costs or Demurrage Costs, MLC shall, in its sole discretion after consultation with PESRM (provided, that any such consultation with PESRM shall not limit MLC’s exercise of its sole discretion), either (a) take any commercially reasonable actions as requested by PESRM directly to prosecute such claim or (b) assign its rights and interests as necessary to allow PESRM to contest, litigate or resolve such matter by a mutually acceptable alternative means that shall allow PESRM to pursue the claim, in each case at PESRM’s sole cost and expense, and all recoveries resulting from the prosecution of such claim shall be for the account of PESRM (and MLC shall only be liable to PESRM to the extent of, and in the same form as, such recoveries actually received by MLC).  In any case covered by clause (a) above, MLC shall not settle or otherwise compromise the relevant claim without PESRM’s consent (such consent not to be unreasonably withheld, delayed or conditioned), and in any case covered by clause (b) of the immediately preceding sentence, MLC shall be entitled to assist PESRM in the prosecution of the relevant claim and shall cooperate with PESRM in such prosecution, in each case in a commercially reasonable manner and at PESRM’s sole cost and expense.

 

Section 6.14                             Operational Imbalances.  MLC and PESRM recognize that due to the normal operation of one or more pipeline systems, storage facilities, dock facilities and other loading and unloading facilities and the like, certain operational imbalances (each, an “Operational Imbalance”) may arise from time to time with respect to Hydrocarbons to be sold and delivered under this Agreement due to, among other things, variations in rates of the flow of such Hydrocarbons, transit times, inaccuracies in the measurement and allocation of such Hydrocarbons and other physical reasons.  To the extent any such Operational Imbalance occurs and causes either Party to be unable to satisfy all or any part of its delivery or purchase obligations with respect to a PESRM Transaction, such Party shall not be deemed to be in default hereunder with respect to its delivery or purchase obligation for such PESRM Transaction and the shortfall or excess quantity of Hydrocarbon, as applicable (the “Imbalance Quantity”), shall be carried forward to the following delivery month or delivery months, as applicable, and settled in cash or physically settled by delivery or redelivery as soon as possible as agreed by the Parties.  MLC and PESRM shall take all necessary steps to account for and settle any such Imbalance Quantity in a commercially reasonable manner and shall adjust future nominations and deliveries of Hydrocarbon in accordance with the foregoing provisions.

 

Section 6.15                             PESRM/PESIC Failure to Perform.  Any failure by PESRM or PESIC, respectively, to receive from, or deliver to, MLC, at the CO Delivery Point, the RP Delivery Point or the Product Purchaser Delivery Point, as applicable, on any Day, any Hydrocarbons that were scheduled to be received from, or delivered to, MLC on such Day under any PESRM Transaction, MLC-PESIC Secured Prepay Transaction, PESIC-PESRM Secured Prepay Transaction or Cover Transaction and that MLC was, at the time of such PESRM or PESIC failure, obligated to buy and receive from a seller, or sell and deliver to a purchaser under (x) any CO Supply Contract, any RP Sales Contract, MLC-PESIC Secured Prepay Transaction or any Cover Transaction or (y) any other purchase or sale of such Hydrocarbons, as applicable, that was entered into by MLC pursuant to this Agreement shall excuse (as between MLC and PESRM) any failure by MLC to perform under any such contracts or transactions to the extent of any such PESRM or PESIC failure (any such PESRM or PESIC failure, a “PESRM/PESIC Failure to Perform”).

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Section 6.16                             Foreign Trade Zone Operator; Imports and Exports.

 

(a)                                 Foreign Trade Zone Operator.  From and after the Effective Date, PESRM shall (i) be solely responsible for operating the Philadelphia Foreign Trade Zone No. 35 (the “PESRM FTZ”), (ii) prepare, maintain and file all necessary documentation in connection with operation of the PESRM FTZ, and (iii) maintain all records, inventories and accounts of operations within the PESRM FTZ in accordance with Applicable Laws and the requirements of the U.S. Customs and Border Protection Service (“Customs”) and any other Governmental Authority.

 

(b)                                 Imports.  PESRM shall be the importer of record (or, if applicable, the exporter of record) for any Crude Oil, imported by virtue of the transactions contemplated by this Agreement and shall (i) prepare, maintain and file all necessary documentation as importer of record, and (ii) pay any and all duties, fees or taxes imposed as a result of importation of Crude Oil in connection with the transactions contemplated by this Agreement.

 

(c)                                  Exports.  PESRM shall be the exporter of record with respect to any sales of Refined Products to third parties for export by virtue of transactions contemplated by this Agreement and, where applicable, shall prepare, maintain and file all necessary documentation as exporter of recordand (ii) pay any and all duties, fees or taxes imposed as a result of exportation of Refined Products in connection with the transactions contemplated by this Agreement.

 

Section 6.17                             MLC Guaranty.  During the Term, MLC shall provide and maintain with PESRM a guaranty agreement substantially in the form attached hereto as Schedule 6.17 (the “MLC Guaranty”), pursuant to which Bank of America Corporation (“MLC Guarantor”) shall guarantee the prompt payment when due of all of MLC’s obligations under the PESRM Transactions and the PESRM Transaction Documents in an aggregate amount not to exceed $[**].

 

Section 6.18                             Demurrage Cost Invoicing.  Demurrage Costs may not be invoiced by MLC to PESRM until MLC itself is invoiced, which for this purpose shall include a pro forma invoice, for such costs; provided, that if as of any Day, MLC reasonably determines that the aggregate amount of Demurrage Costs (that have been incurred by MLC, but for which it has not yet been invoiced) as of such Day exceeds $[**], MLC may invoice PESRM for such aggregate amount of Demurrage Costs.  The provisions of Section 5.04 shall not apply to any Demurrage Costs invoiced by MLC.  MLC shall not settle or otherwise compromise any demurrage claim without PESRM’s consent (such consent not to be unreasonably withheld, delayed or conditioned).

 

Section 6.19                             Inventory, Sale and Receipt Data Reconciliation.  Each Party will, and with respect to PESRM, will cause each of its Subsidiaries (other than Excluded Subsidiaries), upon the request of the other Party, to make commercially reasonable efforts to reconcile its inventory, sale and receipt data with the inventory, sale and receipt data of such other Party.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Section 6.20                             Anti-Corruption Laws.

 

(a)                                 The parties to this Agreement are committed to compliance with the Applicable Laws of the United States as well as the laws of other countries that are, or may be, of potential relevance, including all Applicable Laws to one or both Parties relating to bribery, money laundering and/or corrupt payments, such as the Foreign Corrupt Practices Act, 15 U.S.C. §§78dd-1 et. seq., and the UK Bribery Act of 2010 (all such laws being collectively referred to herein as the “Anti-Corruption Laws”).  Accordingly, each Party hereto hereby represents, warrants and covenants that:

 

(i)                                     It is now in compliance with the Applicable Laws required for its performance under this Agreement as well as the Anti-Corruption Laws of any other countries or jurisdictions that are applicable to the transactions that are contemplated herein and will remain in compliance with all such Applicable Laws for the duration of this Agreement.  The provisions of this Agreement and the transactions contemplated hereby are legal and binding under the laws of the relevant jurisdictions, including all applicable Anti-Corruption Laws and Applicable Laws and regulations relating to taxation and exchange control.

 

(ii)                                  It has not taken and will not take any actions in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any government official (including any officer or employee of a foreign government or government-controlled entity or of a public international organization, or any person acting in an official or representative capacity for or on behalf of any of the foregoing, or any political party or official thereof, or candidate for political office, or legislative, administrative or judicial officials whether or not elected or appointed, all of the foregoing being referred to as “Government Officials”) or to any other person while knowing that all or some portion of the money or value will be offered, given or promised to a Government Official for the purposes of obtaining or retaining business, an advantage in the conduct of business or securing any improper disadvantage.

 

(iii)                               It has not taken and will not take any actions in furtherance of an offer, payment, promise to pay or authorization of the payment or giving of, or a request or acceptance of, money or anything else of value, to or by any other person (whether or not a Government Official) while knowing that all or some portion of the money or value offered, given or promised to such other person is for the purpose of securing the improper performance of that person’s function or misuse of that person’s position.

 

(iv)                              No part of the payments received by a Party under this Agreement,  directly or indirectly, from the other Party will be used for any purpose which would cause a violation of the laws of the United States or any

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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other applicable jurisdiction including any applicable Anti-Corruption Laws.

 

(b)                                 [Reserved].

 

(c)                                  [Reserved].

 

(d)                                 Either Party may terminate this Agreement immediately upon written notice in the event that the other Party has breached any representation or warranty set forth in Section 6.20(a).  In the event of a breach of any of the representations and warranties set forth in this Section 6.20, any claims for payment by a Party with regard to any transaction for which a breach of the representations has occurred shall be void. The breaching Party shall further indemnify and hold the non-breaching Party harmless against any and all claims, losses or damages arising from or related to such breach.

 

Section 6.21                             [Reserved].

 

Section 6.22                             Transmix.  The volume of transmix that is created as the result of any shipment of Hydrocarbons pursuant to the terms of this Agreement shall be treated as a Volumetric Loss.  Any reimbursements received by MLC from third parties with respect to transmix volumes resulting from shipments pursuant to this Agreement shall be for PESRM’s account. Such transmix reimbursements shall be included in the Monthly True-Up Invoice that corresponds to the month in which such reimbursement was received by MLC.

 

Section 6.23                             [Reserved].

 

Section 6.24                             Aggregate Liability Limitations.

 

(a)                                 Unless otherwise agreed by MLC (in its sole discretion), notwithstanding anything to the contrary in this Agreement or any other PESRM Transaction Document or MLC-PESIC Secured Prepay Transaction, MLC shall have no obligation to enter into any CO Supply Contract, any RP Sales Contract, any PESRM-MLC Secured Prepay Transaction, MLC-PESIC Secured Prepay Transaction or any Cover Transaction if, as of any Monthly True-Up Date, the sum of (a) [**] plus (b) [**], the “Aggregate Liability

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Amount”), exceeds $[**], as determined by MLC, which determination shall be binding on the Parties absent manifest error.

 

(b)                                 MLC shall have no obligation to enter into any CO Supply Contract, any RP Sales Contract, any PESRM-MLC Secured Prepay Transaction, any MLC-PESIC Secured Prepay Transaction or any Cover Transaction if, as of any Day, the aggregate notional value (measured in U.S. Dollars) of all [**] under and as defined in the [**] outstanding as of such Day exceeds $[**], as determined by MLC, which determination shall be binding on the Parties absent manifest error.

 

Section 6.25                             [**] No Title to Hydrocarbons.  For the avoidance of doubt, except as [**] may hold title to Hydrocarbons in connection [**], in no event shall [**].

 

ARTICLE VII.

 

INDEMNITIES

 

Section 7.01                             Indemnities.

 

(a)                                 PESRM’s Duty to Indemnify.  Without duplication of any indemnity provided for in Section 7.01(b), to the fullest extent permitted by Applicable Law, PESRM shall defend, indemnify and hold harmless MLC, its Affiliates, and their respective advisors, agents, attorneys, consultants, contractors, directors, employees, officers, managers and representatives from and against any Liabilities directly or indirectly arising out of (i) any breach by (x) PESRM of any covenant contained in this Agreement, any other PESRM Transaction Document, the PESIC-PESRM ISDA Master Agreement or other PESIC-PESRM Secured Prepay Transaction Document or the PESRM-MLC ISDA Master Agreement or in connection therewith or (y) PESIC of any covenant contained in the PESIC-PESRM ISDA Master Agreement, any other PESIC-PESRM Secured Prepay Transaction Document, the MLC-PESIC ISDA Master Agreement or any other MLC-PESIC Secured Prepay Transaction Document or made in connection therewith, (ii) any representation or warranty of (x) PESRM made in this Agreement, any other PESRM Transaction Document, the PESIC-PESRM ISDA Master Agreement or the PESRM-MLC ISDA Master Agreement or in connection therewith or (y) PESIC made in the PESIC-PESRM ISDA Master Agreement, any other PESIC-PESRM Secured Prepay Transaction Document, the MLC-PESIC ISDA Master Agreement or any other MLC-PESIC Secured Prepay Transaction Document, in each case, proving to be false or misleading, (iii) any failure by PESRM or PESIC to comply with or observe any Applicable Law

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(including Environmental Laws and the failure to obtain or maintain any Environmental Permits), (iv) the failure to comply with Renewable Fuel Standards including requirements therein for RVOs and RINs, and all other requirements of 40 C.F.R. Part 80, (v) PESRM’s or PESIC’s negligence or willful misconduct, (vi) any indemnification by MLC of PESIC or any other Indemnified Party (as defined in the Framework Agreement) other than an MLC Caused Indemnity or (vii) injury, disease or death of any person, damage to or loss of any property or any fine or penalty, any of which is caused by PESRM, PESIC or either of its advisors, agents, attorneys, consultants, contractors, directors, employees, officers, managers or representatives in the exercise of any of the rights granted under this Agreement or any other PESRM Transaction Documents, the PESIC-PESRM ISDA Master Agreement, the other PESIC-PESRM Secured Prepay Transaction Documents, the MLC-PESIC ISDA Master Agreement, the other MLC-PESIC Secured Prepay Transaction Documents or the PESRM-MLC ISDA Master Agreement except to the extent that such injury, disease, death, or damage to or loss of property was caused by any MLC Event.

 

(b)                                 PESRM Indemnities with respect to Certain Contracts. Without duplication of any indemnity provided for in Section 7.01(c), to the fullest extent permitted by Applicable Law, PESRM shall defend, indemnify and hold harmless MLC, its Affiliates and their respective advisors, agents, attorneys, consultants, contractors, directors, employees, officers, managers and representatives from and against any Liabilities or claims directly or indirectly arising out of or relating to this Agreement, any other Transaction Documents, any CO Supply Contract, any PESRM-MLC Secured Prepay Transaction, any RP Sales Contract or any Cover Transaction, any MLC-PESIC Secured Prepay Transaction, any PESIC-PESRM Secured Prepay Transaction or MLC’s or any counterparty’s performance hereunder or thereunder (it being understood that any gains in connection therewith shall be for PESRM’s account), including:

 

(i)                                     any actual or alleged failure by PESRM or PESIC to receive from, or deliver to, MLC or PESIC, as applicable, at the CO Delivery Point, the RP Delivery Point or the Product Purchaser Delivery Point or any delivery point pursuant to a PESRM-MLC Secured Prepay Transaction or any delivery point pursuant to a PESIC-PESRM Secured Prepay Transaction or any delivery point pursuant to a MLC-PESIC Secured Prepay Transaction, as applicable, on any Day, any Hydrocarbons that were scheduled to be received from, or delivered to, MLC or PESIC, as applicable, on such Day under any PESRM Transaction, Cover Transaction, PESRM-MLC Secured Prepay Transaction, MLC-PESIC Secured Prepay Transaction or PESIC-PESRM Secured Prepay Transaction and that MLC or PESIC was, at the time of such PESRM failure, obligated to buy and receive from a seller, or sell and deliver to a purchaser under (x) any CO Supply Contract, any PESRM-MLC Secured Prepay Transaction, any MLC-PESIC Secured Prepay Transaction, any PESIC-PESRM Secured Prepay Transaction, any RP Sales Contract or any Cover Transaction or (y) any other purchase or sale of such

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Hydrocarbons, as applicable, that was entered into by MLC pursuant to this Agreement;

 

(ii)                                  any actual or alleged failure of any Hydrocarbon delivered pursuant to a CO Supply Contract, PESRM-MLC Secured Prepay Transaction, RP Sales Contract, Cover Transaction or PESIC-PESRM Secured Prepay Transaction to conform to the specifications set forth in such CO Supply Contract, RP Sales Contract or Cover Transaction, PESRM-MLC Secured Prepay Transaction, MLC-PESIC Secured Prepay Transaction or PESIC-PESRM Secured Prepay Transaction;

 

(iii)                               any actual or alleged breach by MLC of any representations and warranties relating to the Principal Terms of, or contained in the general terms and conditions applicable to, any CO Supply Contract, PESRM-MLC Secured Prepay Transaction, RP Sales Contract or Cover Transaction, but in each case excluding any actual or alleged breach by MLC of any such representations and warranties in respect of organization, powers, due authorization, enforceability, no conflicts, litigation and compliance with laws and material agreements that are specific to MLC;

 

(iv)                              without duplication of any indemnity provided for in any other subclause of this Section 7.01(b), any actual or alleged breach by MLC of any term of any CO Supply Contract, any PESRM-MLC Secured Prepay Transaction, any RP Sales Contract, any Cover Transaction or any Third Party Consent Agreement;

 

(v)                                 any actual or alleged breach by any counterparty of any term of any CO Supply Contract, any RP Sales Contract, any Cover Transaction or any Third Party Consent Agreement;

 

(vi)                              any allocation of Refined Products among outstanding RP Sales Contracts in respect of any shortfall in supply; or

 

(vii)                           any actual or alleged breach by MLC of any actual or alleged contractual duty of MLC to use commercially reasonable efforts to mitigate damages to the counterparty to any RP Sales Contract in sourcing Refined Products to cover any failure to deliver Refined Products under such RP Sales Contract.

 

provided, that PESRM shall have no duty to indemnify MLC in accordance with this Section 7.01(b) to the extent due to (x) any MLC Event; or (y) arising, directly or indirectly, from the bankruptcy or insolvency of a third party seller or third party purchaser under any CO Supply Contract, RP Sales Contract or Cover Transaction.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(c)                                  Additional PESRM Indemnities.

 

(i)                                     Without limiting the above-described indemnities, PESRM shall defend, indemnify and hold harmless MLC, its Affiliates, and their respective advisors, agents, attorneys, consultants, contractors, directors, employees, officers, managers and representatives from and against any Liabilities (including the costs of any Response, natural resources damages, personal injury and property damages, civil and criminal penalties and defense costs including reasonable attorneys’ fees and disbursements) under any applicable Environmental Law (including the Resource Conservation and Recovery Act, 42 U.S.C. §§6901 et seq., CERCLA, and the Pennsylvania Land Recycling and Environmental Remediation Standards Act, 35 P.S. §§6026.101 et seq. or any successor statutes thereto) resulting from the transportation and/or delivery to and from, and operations at, the Refinery or any other PESRM Infrastructure, except to the extent that such liability is due to the negligence or willful misconduct on the part of MLC, its Affiliates or any of their respective agents, consultants, contractors, directors, employees, officers or representatives; provided, that MLC shall not be responsible for any failure relating to the negligence or willful misconduct of PESRM, its Affiliates or any of their respective agents, consultants, contractors, directors, employees, officers, managers or representatives, in each case when acting as a consultant to MLC.

 

(d)                                 PESRM Tax Indemnification.

 

(i)                                     To the fullest extent permitted by Applicable Law, PESRM shall defend, indemnify and hold harmless MLC and its Affiliates against the amount of all Indemnifiable Taxes, and all penalties and interest thereon, paid, owing, asserted against, or incurred by MLC and/or its Affiliates directly or indirectly by reason of the procurement, purchase, ownership, storage, transfer, transport, sale or use of the Hydrocarbons or lease or use of any Required Infrastructure pursuant to this Agreement or any other PESRM Transaction Document, or any CO Supply Contract, PESRM-MLC Secured Prepay Transaction, MLC-PESIC Secured Prepay Transaction or any MLC-PESIC Secured Prepay Transaction Document, PESIC-PESRM Secured Prepay Transaction, RP Sales Contract (including any such RP Sales Contract with PESRM, notwithstanding any other tax provision that might be included in such RP Sales Contract with PESRM unless such tax provision makes specific reference to this Section 7.01(d)(i)), or Cover Transaction, or by reason of any other transaction or service contemplated hereunder or thereunder (including any PESRM-MLC Secured Prepay Transaction, MLC-PESIC Secured Prepay Transaction or any MLC-PESIC Secured Prepay Transaction Document, or PESIC-PESRM Secured Prepay Transaction), other than any taxes withheld from a payment made by MLC to a supplier under any CO Supply Contract, PESRM-MLC Secured Prepay Transaction, MLC-PESIC Secured Prepay Transaction or any MLC-PESIC Secured Prepay Transaction Document, PESIC-PESRM Secured Prepay Transaction, or Cover Transaction (which taxes, for the avoidance of doubt, are addressed elsewhere in this Agreement, including

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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in the definitions and treatment of CO Transportation and Other Costs and Cover Transportation and Other Costs).  In the event that PESRM is not permitted to pay such Indemnifiable Taxes, other amounts due from PESRM to MLC under the PESRM Transaction Documents shall be adjusted such that PESRM shall bear the economic burden of the Indemnifiable Taxes.

 

(ii)                                  To the extent permitted by Applicable Law, PESRM shall be required to pay when due such Indemnifiable Taxes described in Section 7.01(d)(i) unless there is an applicable exemption from such Indemnifiable Tax, with written confirmation of such tax exemption to be contemporaneously provided to MLC.  To the extent that MLC is the Person required by law to collect and account to the applicable tax authority for any such Indemnifiable Taxes, MLC will pay such Indemnifiable Taxes, and any applicable penalties or interest owing or assessed in relation thereto, to the applicable taxing authority, and one-hundred percent (100%) of such Indemnifiable Taxes (and such penalties and interest, to the extent the obligation to make payment of such penalties and interest was not the result of a negligent failure by MLC to timely remit the appropriate amount of taxes to the applicable tax authority) together with an amount equal to any taxes payable by MLC in respect of amounts paid or payable to MLC under this Section 7.01(d)(ii), shall be added to invoices as separately stated charges and paid in full by PESRM in accordance with the terms of this Agreement, unless PESRM is exempt from such Indemnifiable Taxes and timely furnishes MLC with a certificate of exemption, and, to the extent (i) such invoices are satisfied in full by PESRM or (ii) other amounts due under the PESRM Transaction Documents are adjusted such that PESRM has borne the economic burden of the Indemnifiable Taxes, MLC shall assume any and all responsibility for any interest and penalty assessments made by a tax authority against either Party to the extent such interest and penalties are assessed due to a failure by MLC to promptly remit the applicable Indemnifiable Taxes to the relevant tax authority following PESRM’s satisfaction of such invoices or such adjustment of payments under the PESRM Transaction Documents.

 

(iii)                               Each Party will reasonably cooperate with the other to minimize liability for any Indemnifiable Taxes to the extent legally permissible.  Each Party will provide and make available to the other upon request any direct pay permits, resale certificates, multiple points of use certificates, treaty certification, information regarding out-of state (or out-of-country) sales or use of equipment, materials, or services, and other exemption certificates or information reasonably requested by the other Party.  To the extent PESRM is exempt from any Indemnifiable Taxes, it will provide MLC with a copy of the applicable tax exemption (or direct pay or resale certificate, as applicable), and, to the extent such exemption or certifications are reasonably acceptable to MLC, MLC will not bill or

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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charge PESRM for such Indemnifiable Taxes.  MLC will, upon written request of PESRM and at the sole cost and expense of PESRM, cooperate and use commercially reasonable efforts to assist PESRM’s (i) lawful claims for any exemptions from any sales or services taxes, and (ii) lawful attempts to recoup or recover any VAT, similar taxes or other recoverable taxes.  At the sole cost and expense of PESRM, MLC will register as promptly as possible for all benefits for which it is eligible under the Keystone Opportunity Improvement Zone and will take all commercially reasonable efforts to maintain such benefits.

 

(iv)                              If PESRM disputes MLC’s determination that any Indemnifiable Tax not the subject of a Proceeding is due with respect to transactions under the PESRM Transaction Documents, or any documents related to the MLC-PESIC Secured Prepay Transactions, the PESIC-PESRM Secured Prepay Transactions, PESRM shall have the right to seek an administrative determination from the applicable taxing authority that no such Indemnifiable Tax is due, subject to its agreeing to indemnify MLC for the entire amount of such disputed Indemnifiable Tax (including any associated interest and/or late penalties), and any tax payable by MLC in respect of any amounts paid or payable to MLC under this Section 7.01(d)(iv), should such Indemnifiable Tax be determined applicable.  MLC shall agree to reasonably cooperate with PESRM, at PESRM’s cost and expense, in the event PESRM determines to seek such an administrative determination in respect of the disputed Indemnifiable Taxes.

 

(v)                                 PESRM and MLC shall be required to promptly inform each other in writing of any assertion by a taxing authority of additional Liability for Indemnifiable Taxes relating to the PESRM Transactions, the CO Supply Contracts, the MLC-PESIC Secured Prepay Transactions, the PESRM-MLC Secured Prepay Transactions, the RP Sales Contracts, the Cover Transactions or PESIC-PESRM Secured Prepay Transactions.  Any such Proceeding against MLC with respect to such asserted Liability (including any settlement thereof) shall be under MLC’s direction, but PESRM shall be consulted and, if the Proceeding solely relates to Indemnifiable Taxes relating to the PESRM Transactions, the CO Supply Contracts, the PESRM-MLC Secured Prepay Transactions, the RP Sales Contracts, the Cover Transactions, the MLC-PESIC Secured Prepay Transactions or the PESIC-PESRM Secured Prepay Transactions, as applicable, and no other matters, then MLC shall not settle or otherwise compromise the relevant claim without PESRM’s consent (such consent not to be unreasonably withheld, delayed or conditioned).  Any Proceeding against PESRM with respect to such asserted Liability (including any settlement thereof) shall be under PESRM’s direction, but MLC shall be consulted.  In any event, PESRM and MLC shall fully cooperate with each other as to the asserted Liability.  PESRM shall bear all of the reasonable costs of any such Proceeding undertaken by either Party.  If MLC, acting in good faith and a

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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commercially reasonable manner, concludes that any rebates or refunds it receives from any tax authority are in respect of Indemnifiable Taxes that were paid or borne by PESRM, it will pay such rebate or refunds to PESRM or otherwise adjust the payments under this Agreement such that PESRM shall have the economic benefit of such rebates or refunds.

 

(vi)                              This Section 7.01(d) shall survive until ninety (90) days after the expiration of the statute of limitation for the assessment, collection and levy of any Indemnifiable Tax.

 

(e)                                  MLC’s Duty to Indemnify.  Subject to Section 14.04(i), to the fullest extent permitted by Applicable Law MLC shall defend, indemnify and hold harmless PESRM, its Affiliates, and their respective advisors, agents, attorneys, consultants, contractors, directors, employees, officers, managers and representatives from and against any Liabilities directly or indirectly arising out of (i) any breach by MLC of any covenant or agreement contained in this Agreement, any other PESRM Transaction Document, the PESRM-MLC ISDA Master Agreement or made in connection therewith, (ii) any representation or warranty of MLC made in this Agreement, any other PESRM Transaction Document, the PESRM-MLC ISDA Master Agreement or in connection therewith, in each case, proving to be false or misleading, (iii) any failure by MLC to comply with or observe any Applicable Law (including Environmental Laws), (iv) MLC’s negligence or willful misconduct, or (v) injury, disease, or death of any person, damage to or loss of any property, or any fine or penalty, any of which is caused by MLC or its advisors, agents, attorneys, consultants, contractors, directors, employees, officers, managers or representatives in the exercise of any of the rights granted under this Agreement or any other PESRM Transaction Documents except to the extent that such injury, disease, death, or damage to or loss of property was caused by the gross negligence or willful misconduct on the part of PESRM, its Affiliates or any of their respective advisors, agents, attorneys, consultants, contractors, directors, employees, officers, managers or representatives.

 

(f)                                   Notice of Indemnity Claim.  The Party to be indemnified (the “Indemnified Party” shall notify the other Party (the “Indemnifying Party”) as soon as practicable after receiving notice of any Proceeding brought against the Indemnified Party which may give rise to the Indemnifying Party’s obligations under this Agreement and for which the Indemnified Party, at its election and upon notice to the Indemnifying Party, intends to exercise such right to indemnification (such Proceeding a “Third Party Claim”), and shall furnish to the Indemnifying Party the complete details of such Third Party Claim within its knowledge. Any delay or failure by the Indemnified Party to give notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations except to the extent (if any) that the Indemnifying Party shall have been materially prejudiced by reason of such delay or failure.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(g)                                 Defense of Indemnity Claim.  The Indemnifying Party shall have the right to assume the defense, at its own expense, of any Third Party Claim and to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including to employ and engage counsel of its own choice; provided, that such counsel is reasonably acceptable to the Indemnified Party. Notwithstanding the Indemnifying Party’s appointment of counsel to represent an Indemnified Party, the Indemnified Party shall have the right to employ separate counsel, and the Indemnifying Party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the Indemnifying Party to represent the Indemnified Party would present a conflict of interest or (ii) the Indemnifying Party shall not have employed counsel to represent the Indemnified Party within a reasonable time after notice of the institution of such Third Party Claim, provided that appointment within 30 Days after notice of the institution of such Third Party Claim shall be considered reasonable for the purposes of this section, and provided further that the Indemnified Party shall have the right to appoint separate counsel only after the receipt by the Indemnifying Party of a notice provided by the Indemnified Party that counsel has not been employed within a reasonable time after the institution of such Third Party Claim. If requested by the Indemnifying Party, the Indemnified Party agrees to reasonably cooperate with the Indemnifying Party and its counsel in contesting any Proceeding suit that the Indemnifying Party defends, including, if appropriate, making any counterclaim or cross-complaint. All costs and expenses incurred in connection with the Indemnified Party’s cooperation shall be borne by the Indemnifying Party, provided that the Indemnified Party shall provide, promptly upon request of the Indemnifying Party, evidence (which may be in the form of an invoice or receipt for such costs) of any such costs incurred up to the date of such request. Without in any way limiting the foregoing obligation of the Indemnifying Party with respect to cooperation by the Indemnified Party in connection with such Third Party Claim, the Indemnified Party may, at its own cost and expense, participate in the investigation, trial and defense of such Third Party Claim.

 

(h)                                Settlement of Third Party Claims.  No Third Party Claim may be settled or compromised (i) by the Indemnified Party without the consent of the Indemnifying Party or (ii) by the Indemnifying Party without the consent of the Indemnified Party.  Notwithstanding the foregoing, an Indemnifying Party shall not be entitled to assume responsibility for and control of any judicial or administrative proceedings after the occurrence and during the continuance of an Event of Default by the Indemnifying Party.

 

(i)                                    Insurance.  The mere purchase and existence of insurance does not reduce or release either Party from any liability incurred or assumed under this Agreement.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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ARTICLE VIII.

 

REPRESENTATIONS AND WARRANTIES OF THE TRANSACTION PARTIES

 

Each Transaction Party represents and warrants to MLC as of the Effective Date and as of each Day of the Term on which there is any outstanding transaction pursuant to any Applicable PESRM Transaction Document or the PESIC-PESRM ISDA Master Agreement:

 

Section 8.01                             Organization; Powers.  Each Transaction Party (a) is duly organized and validly existing under the laws of the jurisdiction of its organization, (b) has all requisite power and authority to carry on its business as now conducted and to own and lease its property and (c) is qualified and in good standing (to the extent such concept is applicable in the applicable jurisdiction) to do business in every jurisdiction where such qualification is required, except in such jurisdictions where the failure to so qualify or be in good standing, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

 

Section 8.02                             Authorization; Enforceability.  Each Applicable PESRM Transaction Document and the PESIC-PESRM ISDA Master Agreement and each transaction contemplated hereunder and thereunder entered into by each Transaction Party are within such Transaction Party’s powers and have been duly authorized by all necessary limited liability company action on the part of such Transaction Party.  This Agreement has been duly executed and delivered by each Transaction Party and constitutes, and each other Applicable PESRM Transaction Document to which any Transaction Party is to be a party, when executed and delivered by such Transaction Party (and the PESIC-PESRM ISDA Master Agreement, when executed and delivered by PESRM), will constitute, a legal, valid and binding obligation of such Transaction Party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

 

Section 8.03                            No Conflicts; Material Contracts.

 

(a)                                Each Applicable PESRM Transaction Document and the PESIC-PESRM ISDA Master Agreement and each transaction contemplated hereunder and thereunder (i) does not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority having authority over any Transaction Party, except (1) such as has been obtained or made and is in full force and effect, (2) filings necessary to perfect or maintain Liens created by the Applicable PESRM Transaction Documents and (3) consents, approvals, registrations, filings, permits or actions the failure of which to obtain or perform could not reasonably be expected to result in a Material Adverse Effect, (ii) does not violate the Organizational Documents of any Transaction Party, (iii) does not violate any Applicable Law, except for any such violation which could not reasonably be expected to result in a Material Adverse Effect, (iv) except as set forth on Schedule 8.03(a), does not violate or result in a default or require any consent or approval under any Material Contract binding upon any Transaction Party or its property, or the Senior Secured Credit Facility Documents, or give rise to a right under any of the foregoing to require any payment to be made by

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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any Transaction Party, except for violations, defaults or the creation of such rights that could not reasonably be expected to result in a Material Adverse Effect, and (v) does not result in the creation or imposition of any Lien on any property of any Transaction Party, except Permitted Liens.

 

(b)                                As of the Effective Date, except as specified on Schedule 8.03(b), PESRM is party to such contracts, agreements or arrangements as are required for the operation of the Refinery and the business of PESRM, and all such agreements are in full force and effect.

 

Section 8.04                            Financial Statements; Projections.

 

(a)                                Financial Statements.  All financial statements delivered pursuant to Sections 10.01(a), (b) and (c) have been prepared in accordance with GAAP consistently applied and present fairly and accurately in all material respects the financial condition and results of operations and cash flows of PESRM and its Subsidiaries as of the dates and for the periods to which they relate, except for, in the case of the statements delivered pursuant to Sections 10.01(b) and (c), the absence of footnote disclosures and normal year-end adjustments.

 

(b)                                No Material Adverse Effect. Since the Effective Date, there has been no event, change, circumstance or occurrence that, individually or in the aggregate, has had or could reasonably be expected to result in a Material Adverse Effect.

 

Section 8.05                            Properties.

 

(a)                                Generally.  Each Transaction Party has good title to, a license to or valid leasehold interests in, all its property material to its business, free and clear of all Liens except for, in the case of Collateral, Permitted Liens and, in the case of all other material property, Permitted Liens and minor irregularities or deficiencies in title that, individually or in the aggregate, do not interfere with its ability to conduct its business as currently conducted or to utilize such property for its intended purpose and except where the failure to have such title or other interest could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.  The property of the Transaction Parties, taken as a whole, (i) is in good operating order, condition and repair (ordinary wear and tear excepted) and (ii) constitutes all the property which is required for the business and operations of the Transaction Parties as presently conducted.

 

(b)                                No Casualty Event.  No Transaction Party has received any written notice of, nor has any knowledge of, the occurrence or pendency or contemplation of any Casualty Event affecting all or any portion of its property, which Casualty Event could reasonably be expected to have a Material Adverse Effect.

 

(c)                                 Collateral.  No claim has been made and remains outstanding that any Transaction Party’s use of any Collateral does or may violate the rights of any third party that could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Section 8.06                            Intellectual Property.  Each Transaction Party owns, licenses or possesses the right to use all of the IP Rights that are necessary for the operation of its respective business, as currently conducted, and such IP Rights do not conflict with the rights of any other Person, except to the extent such failure to own, license or possess or such conflicts, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.  The conduct of the business of any Transaction Party as currently conducted or as contemplated to be conducted does not infringe upon or violate any rights held by any other Person except for such infringements and violations which, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.  No claim or litigation regarding any of the foregoing is pending or, to the knowledge of PESRM, threatened in writing which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

 

Section 8.07                            Equity Interests and Subsidiaries. As of the Effective Date, each Transaction Party has no Subsidiaries other than those set forth on Schedule 8.07 and all of the outstanding Equity Interests in such Subsidiaries that are owned by a Transaction Party have been validly issued, are fully paid and non-assessable (to the extent such concepts are applicable in the relevant jurisdiction) and are owned free and clear of all Liens except Permitted Liens.

 

Section 8.08                            Litigation; Compliance with Laws; Permits; and Agreements.

 

(a)                                Except as set forth on Schedule 8.08(a), there are no Proceedings at law or in equity by or before any Governmental Authority now pending or, to the knowledge of any Transaction Party, threatened in writing against or affecting any Transaction Party or any business, property or rights of any Transaction Party (i) that involve this Agreement, any other Applicable PESRM Transaction Document or the PESIC-PESRM ISDA Master Agreement or, as of the Effective Date, any of the other transactions contemplated hereunder or thereunder or (ii) as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect (but only with respect to clauses (ii) and (iii) thereof).

 

(b)                                Except for matters covered by Section 8.18, no Transaction Party or any of its property is in violation of, nor will the continued operation of its property as currently conducted or contemplated by the Applicable PESRM Transaction Documents or the PESIC-PESRM ISDA Master Agreement violate any Applicable Law where such violation or default, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.

 

(c)                                 Except as set forth on Schedule 8.08(c) and except for matters covered by Section 8.18, PESRM has all Material Permits required for PESRM to conduct business at and operate all PESRM Infrastructure, including the Refinery, under Applicable Law.  (i) No event has occurred within the one (1) year prior to the date hereof that remains unresolved, and no circumstance or condition exists, that (with or without notice or lapse of time or both) would reasonably be expected to constitute or result in a material violation by PESRM or a failure of PESRM to comply with the terms of any such Material Permit, the result of which could not

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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reasonably be expected to result in a Material Adverse Effect;  (ii) no Transaction Party has received any written notification that any such Material Permit is not in full force and effect, has been violated in any material respect, or is subject to any suspension, revocation, modification or cancellation, except, in each case, as could not reasonably be expected to result in a Material Adverse Effect; and (iii) there is no Proceeding pending or, to the knowledge of the Transaction Parties, threatened regarding suspension, revocation, modification or cancellation of any such Material Permit, the result of which could be reasonably expected to result in a Material Adverse Effect.

 

(d)                                Each Transaction Party is in compliance with all indentures, agreements and other instruments binding upon it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.  As of the Effective Date, no Default has occurred and is continuing.  On any Day of the Term following the Effective Date that this representation is made, no Event of Default has occurred and is continuing.

 

Section 8.09                            [Reserved].

 

Section 8.10                            [Reserved].

 

Section 8.11                            Investment Company Act.  No Transaction Party is an “investment company” or a company “controlled” by an “investment company,” as defined in, or is subject to regulation under, the Investment Company Act of 1940, as amended.

 

Section 8.12                            [Reserved].

 

Section 8.13                            Taxes.  Each Transaction Party has (a) timely filed or caused to be timely filed all federal Tax Returns and all material state, local and foreign Tax Returns required to have been filed by it and all such Tax Returns are true and correct in all material respects, (b) duly and timely paid, collected or remitted or caused to be duly and timely paid, collected or remitted all Taxes (whether or not shown on any Tax Return) due and payable, collectible or remittable by it and all assessments received by it, except Taxes (i) that are being contested in good faith by appropriate Proceedings and for which such Transaction Party has set aside on its books adequate reserves in accordance with GAAP or (ii) which could not, individually or in the aggregate, have a Material Adverse Effect and (c) satisfied all of its withholding tax obligations except for failures that could not be reasonably expected to, individually or in the aggregate, result in a Material Adverse Effect.  Each Transaction Party has made adequate provision in accordance with GAAP for all material Taxes not yet due and payable.  Each Transaction Party is unaware of any proposed or pending tax assessments, deficiencies or audits that could be reasonably expected to, individually or in the aggregate, result in a Material Adverse Effect.

 

Section 8.14                            No Material Misstatements.  No written information, report, financial statement, certificate, instrument, exhibit or schedule furnished by or on behalf of any Transaction Party to MLC in connection with the negotiation of any Transaction Document or the PESIC-PESRM ISDA Master Agreement or included therein or delivered pursuant thereto, taken as a whole, contained or contains any material misstatement of fact or omitted or omits to state any material

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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fact necessary to make the statements therein, in the light of the circumstances under which they were or are made, not misleading in any material respect as of the date such information is dated or certified; provided, that to the extent any such written information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or projection (including pro forma financial information), each Transaction Party represents only that such information, report, financial statement, exhibit or schedule has been prepared in good faith by PESRM, based on the assumptions stated therein (which assumptions are believed by PESRM as of the time of the preparation thereof to be reasonable), it being understood that such projections or forecasts may vary from actual results and that such variances may be material.

 

Section 8.15                            Labor Matters.  As of the Effective Date, there are no strikes, lockouts or slowdowns against any Transaction Party pending or, to the knowledge of any Transaction Party, threatened.  The hours worked by and payments made to employees of each Transaction Party have not been in violation of the Fair Labor Standards Act of 1938, as amended, or any other Applicable Law dealing with such matters in any manner which could reasonably be expected to result in a Material Adverse Effect.  All payments due from any Transaction Party, or for which any claim may be made against any Transaction Party, on account of wages and employee health and welfare insurance and other benefits, have been paid or accrued as a liability on the books of such Transaction Party except where the failure to do so could not reasonably be expected to result in a Material Adverse Effect.  The consummation of this Agreement, the Applicable PESRM Transaction Documents or any documents related to the PESIC-PESRM Secured Prepay Transactions and each transaction contemplated hereunder and thereunder will not give rise to any right of termination or right of renegotiation on the part of any union under any collective bargaining agreement to which any Transaction Party is bound.

 

Section 8.16                            Solvency.  Immediately after the consummation of the transactions contemplated by the Effective Date PESRM Transaction Documents and all documents related to the PESIC-PESRM Secured Prepay Transactions, (a) the sum of the present fair saleable value of the assets owned by the Transaction Parties on a consolidated basis, on a going concern basis, is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of the Transaction Parties on a consolidated basis as they become absolute and matured, the amount of contingent or unliquidated liabilities having been computed at an amount that, in light of all of the facts and circumstances existing at the Effective Date, represents the amount that can reasonably be expected to become an actual or matured liability, (b) the Transaction Parties do not, on a consolidated basis, have unreasonably small capital in relation to their business, and (c) the Transaction Parties, on a consolidated basis, have not incurred, do not intend to incur, and do not believe they will incur, debts beyond their ability to pay such debts as such debts mature in the ordinary course of business.

 

Section 8.17                            Employee Benefit Plans.

 

(a)                                 Except as could not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect, (i) each Transaction Party and its ERISA Affiliates, and each Plan, is in compliance with the applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder, (ii) no ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events, could reasonably be expected to

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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result in any liability of any Transaction Party or the imposition of a Lien on any of the property of any Transaction Party, (iii) the present value of all accumulated benefit obligations (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) of each Pension Plan did not, as of the date of the most recent financial statements reflecting such amounts, exceed the fair market value of the property of such Pension Plan, (iv) using actuarial assumptions and computation methods consistent with subpart I of subtitle E of Title IV of ERISA, no Transaction Party would have liability to any Multiemployer Plan in the event of a complete withdrawal therefrom, as of the close of the most recent fiscal year of such Multiemployer Plan and (v) each Plan that is intended to be qualified under Section 401(a) of the Code is so qualified.

 

(b)                                Except as could not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect, and to the extent applicable, (i) each Foreign Plan has been maintained in substantial compliance with its terms and with the requirements of any and all Applicable Law and has been maintained, where required, in good standing with applicable regulatory authorities, (ii) no Transaction Party has incurred any material obligation in connection with the termination of or withdrawal from any Foreign Plan, (iii) the present value of the accrued benefit liabilities (whether or not vested) under each Foreign Plan which is funded, determined as of the end of the most recently ended fiscal year of the respective Transaction Party on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current value of the property of such Foreign Plan, (iv) for each Foreign Plan which is not funded, the obligations of such Foreign Plan are properly accrued, and (v) any employer and employee contributions under any Applicable Law or by the terms of any Foreign Plan have been made, or if applicable accrued, in accordance with accepted accounting practices.

 

Section 8.18                            Environmental Matters.

 

(a)                                Except as set forth in Schedule 8.18 (as may be updated by the Transaction Parties from time to time with the prior written consent of MLC), or except in the event of (i) through (v) below, inclusive, as, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect:

 

(i)                                   The Transaction Parties and their businesses, operations and Real Property are in compliance with, and the Transaction Parties have no liability under, any Environmental Law; and under the currently effective business plan of the Transaction Parties, no expenditures or operational adjustments which are not provided for in such business plan will be required during the next five years in order to comply with applicable Environmental Laws in effect as of the date of this Agreement;

 

(ii)                                PESRM has all Environmental Permits required for PESRM to conduct its business at and operate all PESRM Infrastructure, including the Refinery, in accordance with Environmental Law.  (i) All such Environmental

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Permits are valid and in good standing and, where subject to renewal and/or transfer, the Transaction Parties have timely submitted complete renewal and/or transfer applications; and (ii) there are no Proceedings pending or, to the knowledge of the Transaction Parties, threatened which could reasonably be expected to affect the validity of any such Environmental Permit or the ability of the Transaction Parties to renew, modify or transfer any Environmental Permits as required under any Environmental Law.  Under the currently effective business plan of PESRM, no material expenditures or operational adjustments which are not provided for in such business plan will be required during the next five years in order to renew or modify such Environmental Permits under applicable Environmental Law in effect as of the date such renewal or modification is required;

 

(iii)                             There has been no Release or threatened Release of Hazardous Material on, at, under or from any Real Property, or other facilities currently owned, leased or operated by the Transaction Parties that are material to their business, including the PESRM Infrastructure, that could result in liability of the Transaction Parties under any Environmental Law;

 

(iv)                            There is no Environmental Claim pending or, to the knowledge of the Transaction Parties, threatened against the Transaction Parties, or relating to any Real Property, or other facilities currently owned, leased or operated by the Transaction Parties that are material to their business, including the PESRM Infrastructure, and there are no actions, activities, circumstances, conditions, events or incidents that could form the basis of such an Environmental Claim; and

 

(v)                               No Person with an indemnity or contribution obligation to the Transaction Parties relating to compliance with or liability under Environmental Law is in default with respect to such obligation.

 

(b)                               Except as set forth in Schedule 8.18 or except, in the case of (i) through (v) below, inclusive, as individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect:

 

(i)                                   No Transaction Party is obligated to perform any action or otherwise incur any expense under Environmental Law pursuant to any order, decree, judgment or agreement by which it is bound or has assumed by contract, agreement or operation of law, and no Transaction Party is conducting or financing any Response pursuant to any Environmental Law with respect to any Real Property or any other location;

 

(ii)                                No Real Property or facility owned, leased or operated by the Transaction Parties that is material to their business, including the PESRM Infrastructure, is listed or proposed for listing on the National Priorities List promulgated pursuant to CERCLA, or included on any similar list

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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maintained by any Governmental Authority including any such list relating to petroleum;

 

(iii)                             No Lien has been recorded or, to the knowledge of any Transaction Party, threatened under any Environmental Law with respect to any Real Property or other assets of the Transaction Parties;

 

(iv)                            The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will not require any notification, registration, filing, reporting, disclosure, investigation, remediation or cleanup pursuant to any Governmental Real Property Disclosure Requirements or any other applicable Environmental Law; and

 

(v)                               The Transaction Parties have made available to MLC all material records and files in the possession, custody or control of, or otherwise reasonably available to, the Transaction Parties concerning compliance with or liability under Environmental Law, including those concerning the actual or suspected existence of Hazardous Material at Real Property or facilities currently or formerly owned, operated, leased or used by the Transaction Parties.

 

Section 8.19                             Insurance.  Schedule 8.19 sets forth a true, complete and correct description of all insurance maintained by each Transaction Party as of the Effective Date.  All insurance maintained by the Transaction Parties is in full force and effect, all premiums have been duly paid, no Transaction Party has received notice of any material violation or cancellation thereof, any properties insured, and the use, occupancy and operation thereof, comply in all material respects with all Insurance Requirements, and, to PESRM’s knowledge after due investigation, there exists no material default under any Insurance Requirement.

 

Section 8.20                             Security Documents.

 

(a)                                 Security Agreement.  The Supply and Offtake Security Agreement is effective to create in favor of MLC, legal, valid and enforceable (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law) Liens on, and security interests in, the Collateral to the extent that an enforceable Lien in such Collateral may be created under any applicable law of the United States or any state thereof, including the applicable UCC and when (i) financing statements (including any amendments to existing financing statements) and other filings in appropriate form are filed in the offices specified on Schedule 5 to the Supply and Offtake Perfection Certificate with payment of any associated filing fee and (ii) upon the taking of possession or control by MLC of the Collateral with respect to which a security interest may be perfected only by possession or control (which possession or control shall be given to MLC to the extent possession or control by MLC is required by the Supply and Offtake Security Agreement), the Liens created by the Supply and Offtake Security Agreement shall constitute perfected

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Liens on, and security interests in, all right, title and interest of the grantors in the Collateral (other than such Collateral in which a security interest cannot be perfected under the UCC as in effect at the relevant time in the relevant jurisdiction), in each case having priority over all other Liens on the Collateral (other than Permitted Liens) and subject to no Liens other than Permitted Liens.

 

(b)                                 Valid Liens.  Each of the Supply and Offtake Security Documents delivered pursuant to Sections 10.10 and 10.11 will, upon execution and delivery thereof, be effective to create in favor of MLC, legal, valid and enforceable (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a Proceeding in equity or at law) Liens on, and security interests in, all of the Transaction Parties’ right, title and interest in and to the Collateral thereunder, to the extent that a legal, valid and enforceable Lien in such Collateral may be created under any applicable law of the United States or any state thereof, including the applicable UCC, and (i) when all appropriate filings or recordings are made in the appropriate offices as may be required under Applicable Law and (ii) upon the taking of possession or control by the Collateral Agent (as defined in the Senior Secured Credit Facility) of such Collateral with respect to which a security interest may be perfected only by possession or control (which possession or control shall be given to the Collateral Agent to the extent required by such Supply and Offtake Security Document), such Supply and Offtake Security Document will constitute fully perfected Liens on, and security interests in, all right, title and interest of the Transaction Parties in such Collateral (other than such Collateral in which a security interest cannot be perfected under the UCC as in effect at the relevant time in the relevant jurisdiction), solely, in the case of Supply and Offtake Security Agreement Collateral, in each case having priority over all other Liens on the Collateral (other than Permitted Liens) and subject to no Liens other than the Permitted Liens.

 

Section 8.21                             Anti-Terrorism Laws.

 

(a)                                 No Transaction Party, none of its Subsidiaries and, to the knowledge of each Transaction Party, none of its Affiliates and none of the respective officers, directors, brokers or agents of such Transaction Party, such Subsidiary or Affiliate (i) has violated or is in violation of Anti-Terrorism Laws or (ii) has engaged or engages in any transaction, investment, undertaking or activity that conceals the identity, source or destination of the proceeds from any category of offenses designated in the “Forty Recommendations” and “Nine Special Recommendations” published by the Organisation for Economic Co-operation and Development’s Financial Action Task Force on Money Laundering.

 

(b)                                 No Transaction Party, none of its Subsidiaries and, to the knowledge of each Transaction Party, none of its Affiliates and none of the respective officers, directors, brokers or agents of such Transaction Party, such Subsidiary or such Affiliate acting or benefiting in any capacity, in connection with this Agreement,

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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the Applicable PESRM Transaction Documents, the PESIC-PESRM ISDA Master Agreement or the PESRM-MLC ISDA Master Agreement, and any transaction hereunder or thereunder, is an Embargoed Person.

 

(c)                                  No Transaction Party, none of its Subsidiaries and, to the knowledge of each Transaction Party, none of its Affiliates and none of the respective officers, directors, brokers or agents of such Transaction Party, such Subsidiary or such Affiliate acting or benefiting in any capacity in connection with this Agreement, the Applicable PESRM Transaction Documents, the PESIC-PESRM ISDA Master Agreement and any transaction hereunder or thereunder, (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Embargoed Person, (ii) deals in, or otherwise engages in any transaction related to, any property or interests in property blocked pursuant to any Anti-Terrorism Law or (iii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.

 

Section 8.22                             Location of Hydrocarbon Inventory.  Schedule 8.22 sets forth, as of the Effective Date, all locations in the United States where all hydrocarbon Inventory that constitutes MLC Separate Assets and Collateral is located or stored.  No hydrocarbon Inventory that constitutes MLC Separate Assets and Collateral is located or stored on any locations or premises not owned by the Transaction Parties, other than such locations and premises which are subject to a Third Party Consent Agreement.

 

Section 8.23                             [Reserved].

 

Section 8.24                             Affiliate Transactions.  As of the Effective Date, except as permitted by Section 11.08, there are no existing or proposed agreements, arrangements, understandings, or transactions between any Transaction Party, Affiliate of any Transaction Party or any of their respective officers, members, managers, directors, stockholders, parents, other interest holders or employees, or any members of their respective immediate families, and none of the foregoing Persons are directly or indirectly indebted to or have any direct or indirect ownership, partnership, or voting interest in any Affiliate of any Transaction Party or any Person with which any Transaction Party has a business relationship or which competes with any Transaction Party.

 

Section 8.25                             Common Enterprise.  The successful operation and condition of each of the Transaction Parties is dependent on the continued successful performance of the functions of the group of the Transaction Parties as a whole and the successful operation of each of the Transaction Parties is dependent on the successful performance and operation of each other Transaction Party.  Each Transaction Party expects to derive benefit (and its board of directors or other governing body has determined that it may reasonably be expected to derive benefit), directly and indirectly, from (a) successful operations of each of the other Transaction Parties and (b) the accommodations and rights extended by MLC to PESRM hereunder, both in their separate capacities and as members of the group of companies.  Each Transaction Party has determined that execution, delivery, and performance of this Agreement and any other Applicable PESRM Transaction Documents to be executed by such Transaction Party is within

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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its purpose, in furtherance of its direct and/or indirect business interests, will be of direct and/or indirect benefit to such Transaction Party, and is in its best interest.

 

Section 8.26                             Certain Additional Representations.

 

(a)                                 Each Transaction Party is an “Eligible Contract Participant” as defined in Section 1a of the Commodity Exchange Act (the “CEA”), as amended from time to time.

 

(b)                                Each Transaction Party is a “forward contract merchant” in respect of the PESRM Transactions and each purchase and sale or exchange of Crude Oil, and Refined Product is a “forward contract” for purposes of the Bankruptcy Code.

 

(c)                                 Each Transaction Party is acting for its own account, and it has made its own independent decisions to enter into the PESRM Transactions and the Applicable PESRM Transaction Documents and as to whether the PESRM Transactions and the Applicable PESRM Transaction Documents are appropriate or proper for it based upon its own judgment and upon advice from such advisors as it has deemed necessary; it is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into the PESRM Transaction or the Applicable PESRM Transaction Documents, it being understood that information and explanations related to the terms and conditions of any PESRM Transaction or any Applicable PESRM Transaction Document would not be considered investment advice or a recommendation to enter into any PESRM Transaction or any Applicable PESRM Transaction Document; no communication (written or oral) received from the other party would be deemed to be an assurance or guarantee as to the expected results of any PESRM Transaction or any Applicable PESRM Transaction Document; it is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts the terms, conditions and risks of any PESRM Transaction or any Applicable PESRM Transaction Document; it is also capable of assuming, and assumes, the risks of any PESRM Transaction or any Applicable PESRM Transaction Document; and the other Party is not acting as a fiduciary for or an advisor to it in respect of any PESRM Transaction or any Applicable PESRM Transaction Document.

 

(d)                                No Transaction Party has been contacted by or negotiated with any finder, broker or other intermediary in connection with this Agreement, any other Applicable PESRM Transaction Document or any transaction contemplated hereunder or thereunder, who is entitled to any compensation with respect thereto.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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ARTICLE IX.

 

REPRESENTATIONS AND WARRANTIES OF MLC

 

MLC represents and warrants to each Transaction Party as of the Effective Date and as of each Day of the Term on which there is any outstanding transaction pursuant to any Applicable PESRM Transaction Document or the MLC-PESIC ISDA Master Agreement:

 

Section 9.01          Organization; Powers.  MLC (a) is duly organized and validly existing under the laws of the jurisdiction of its organization, (b) has all requisite power and authority to carry on its business as now conducted and to own and lease property and (c) is qualified and in good standing (to the extent such concept is applicable in the applicable jurisdiction) to do business in every jurisdiction where such qualification is required, except in such jurisdictions where the failure to so qualify or be in good standing, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

 

Section 9.02          Authorization; Enforceability.  Each Applicable PESRM Transaction Document, the MLC-PESIC ISDA Master Agreement and the Framework Agreement and each transaction contemplated hereunder and thereunder entered into by MLC are within MLC’s powers and have been duly authorized by all necessary corporate action on the part of it.  This Agreement has been duly executed and delivered by MLC and constitutes, and each other Applicable PESRM Transaction Document to which MLC is to be a party, the Framework Agreement and the MLC-PESIC ISDA Master Agreement, when executed and delivered by MLC, will constitute, a legal, valid and binding obligation of MLC, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a Proceeding in equity or at law.

 

Section 9.03          No Conflicts.  Except as set forth on Schedule 9.03, each Applicable PESRM Transaction Document, the MLC-PESIC ISDA Master Agreement, the Framework Agreement each transaction contemplated hereunder and thereunder (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except (i) such as have been obtained or made and are in full force and effect, and (ii) consents, approvals, registrations, filings, permits or actions the failure of which to obtain or perform which could not reasonably be expected to result in a Material Adverse Effect, (b) will not violate the Organizational Documents of MLC, (c) will not violate any Applicable Law, except for any such violation which could not reasonably be expected to result in a Material Adverse Effect, and (d) will not violate or result in a default or require any consent or approval under any indenture, agreement or other instrument binding upon MLC or its property, or give rise to a right thereunder to require any payment to be made by MLC, except for violations, defaults or the creation of such rights that could not reasonably be expected to result in a Material Adverse Effect.

 

Section 9.04          Litigation; Compliance with Laws.  Except as set forth on Schedule 9.04, as of the Effective Date there are no Proceedings at law or in equity by or before any Governmental Authority now pending or, to the knowledge of MLC, threatened in writing against or affecting MLC or any business, property or rights of MLC (i) that involve this Agreement, any other 

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Applicable PESRM Transaction Document, the MLC-PESIC ISDA Master Agreement, the Framework Agreement or any of the transactions contemplated hereunder or thereunder, or (ii) as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect (but only with respect to clauses (ii) and (iii) thereof). Neither MLC nor any of its businesses, operations and Real Property is in violation of, nor will the continued operation of its businesses, operations or Real Property as currently conducted or contemplated by the Transaction Documents violate, any Applicable Law, where such violation or default, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.

 

Section 9.05          Wholly-Owned Subsidiary.  MLC (or any successor or permitted assign thereof) is a direct or indirect wholly-owned subsidiary of Bank of America Corporation.

 

ARTICLE X.

 

PESRM AFFIRMATIVE COVENANTS

 

Each Transaction Party covenants and agrees that so long as this Agreement shall remain in effect and until all Obligations have been paid in full, unless MLC shall otherwise consent in writing, each Transaction Party will, and will cause each of its Subsidiaries (other than Excluded Subsidiaries) to:

 

Section 10.01       Financial Statements, Reports, etc.  Furnish to MLC:

 

(a)                                 Annual Reports.  As soon as available and in any event within 90 days after the end of each fiscal year (i) the consolidated balance sheet of PESRM (provided that, in the event PESRM is a Wholly-Owned Subsidiary of a Permitted Reporting Company, PESRM shall be entitled to satisfy this requirement by delivering the corresponding consolidated and consolidating financial statements of the Permitted Reporting Company and its consolidated Subsidiaries) as of the end of such fiscal year and related consolidated and, if a Permitted Reporting Company, consolidating statements of income, cash flows and members’ equity for such fiscal year, in comparative form with such financial statements (if any) as of the end of, and for, the preceding fiscal year, and notes thereto, accompanied by an opinion of KPMG LLP or other independent public accountants of recognized national standing reasonably satisfactory to MLC (which opinion shall not be qualified as to scope or contain any going concern or other qualification), stating that such financial statements fairly present, in all material respects, the consolidated financial condition, results of operations and cash flows of PESRM (or, as applicable, of the Permitted Reporting Company and its consolidated Subsidiaries) as of the dates and for the periods specified in accordance with GAAP consistently applied; and (ii) a narrative report and management’s discussion and analysis, in a form reasonably satisfactory to MLC, of the financial condition and results of operations of PESRM for such fiscal year, as compared to amounts for the previous fiscal year;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(b)                                 Quarterly Reports. Until the date of the consummation of the IPO, as soon as available and in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year, beginning with the fiscal quarter ending September 30, 2014, and thereafter, promptly after the filing of such information with the Securities and Exchange Commission, in each case (i) the consolidated (and, in the case of a Permitted Reporting Company, consolidating) balance sheet of PESRM (or, as applicable, of a Permitted Reporting Company and its consolidated Subsidiaries) as of the end of such fiscal quarter and related consolidated (and, in the case of a Permitted Reporting Company, consolidating) statements of income and cash flows for such fiscal quarter and for the then elapsed portion of the fiscal year, in comparative form with the consolidated statements of income and cash flows (if any) for the comparable periods in the previous fiscal year, and notes thereto, and accompanied by an Officer’s Certificate stating that such financial statements fairly present, in all material respects, the consolidated financial condition, results of operations and cash flows of PESRM (or, as applicable, of the Permitted Reporting Company and its consolidated Subsidiaries) as of the date and for the periods specified therein in accordance with GAAP consistently applied, and on a basis consistent with audited financial statements referred to in clause (a) of this Section 10.01, subject to normal year-end audit adjustments and the absence of footnote disclosures and (ii) a narrative report and management’s discussion and analysis, in a form reasonably satisfactory to the Administrative Agent, of the financial condition and results of operations for such fiscal quarter and the then elapsed portion of the fiscal year, as compared to the comparable periods in the previous fiscal year;

 

(c)                                  Monthly Reports.  Beginning with the month in which the Effective Date occurs, within 30 days after the end of each month of each fiscal quarter, the consolidated balance sheet of PESRM as of the end of each such month and the related consolidated statements of income and cash flows of PESRM for such month and for the then elapsed portion of such fiscal year, accompanied by a certificate of a Financial Officer stating that such financial statements fairly present, in all material respects, the consolidated results of operations and cash flows of PESRM as of the date and for the periods specified therein in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnote disclosures;

 

(d)                                 Financial Officer’s Certificate.  Concurrently with any delivery of financial statements under Sections 10.01(a), (b) or (c), a Compliance Certificate certifying that no Default has occurred or, if such a Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;

 

(e)                                  Financial Officer’s Certificate Regarding Collateral.  Concurrently with any delivery of financial statements under Section 10.01(a), a certificate of a Financial Officer setting forth the information required pursuant to the Supply and Offtake Perfection Certificate or any supplement thereto or confirming that there has been 

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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no change in such information since the date of the Supply and Offtake Perfection Certificate or latest supplement thereto;

 

(f)                                   Management Letters.  Promptly after the receipt thereof by any Company, a copy of any “management letter” received by any such person from its certified public accountants and the management’s responses thereto;

 

(g)                                  Budgets.  Within 60 days after the beginning of each fiscal year, a budget for PESRM in form reasonably satisfactory to MLC, but to include balance sheets, statements of income and sources and uses of cash, for each month of such fiscal year prepared in detail with appropriate presentation and discussion of the principal assumptions upon which such budgets are based, accompanied by the statement of a Financial Officer of PESRM to the effect that the budget of PESRM is a reasonable estimate for the periods covered thereby and have been prepared in good faith on the basis of assumptions stated therein, which such assumptions were believed to be reasonable at the time of preparation of such budget, it being understood that actual results may vary from the budget and such variances may be material;

 

(h)                                 Notices under the Senior Secured Credit Facility Documents.  Promptly, and in any event within five (5) Business Days of the delivery thereof, provide copies of any notices delivered pursuant to the Senior Secured Credit Facility Documents with respect to any “Default,” “Event of Default,” (as each such term is defined in the Senior Secured Credit Facility) or similar other condition or event; and

 

(i)                                     PESIC Financial Statements.  Promptly after the same are available pursuant to the PESIC-PESRM Consulting Agreement, copies of all financial statements of PESIC and other reports produced by PESRM on behalf of or for the benefit of PESIC thereunder.

 

(j)                                    Other Information.  Promptly, from time to time, such other information regarding the operations, business affairs and financial condition of any Company, or compliance with the terms of any PESRM Transaction Document or the PESIC-PESRM ISDA Master Agreement, as MLC may reasonably request, including copies of any reports or other information delivered or required to be delivered by any Loan Party (as such term is defined in the Senior Secured Credit Facility) under any Senior Secured Credit Facility Document.

 

Section 10.02       Litigation and Other Notices.  Furnish to MLC written notice of the following promptly (and, in any event, within five (5) Business Days of the occurrence thereof (and in the case of any written threat or notice of intention referred to in clause (b) below, within five (5) Business Days of the date on which any Responsible Officer of a Transaction Party becomes aware or should have become aware of such occurrence)):

 

(a)                                 any Default, specifying the nature and extent thereof and the corrective action (if any) taken or proposed to be taken with respect thereto;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(b)                                 the filing or commencement of, or any written threat or notice of intention of any person to file or commence, any Proceeding, whether at law or in equity by or before any Governmental Authority, (i) against any Transaction Party or any Subsidiary that could reasonably be expected to result in a Material Adverse Effect or (ii) with respect to any PESRM Transaction Document or the PESIC-PESRM ISDA Master Agreement, provided that with respect the PESIC-PESRM ISDA Master Agreement, if such Proceeding is in respect of PESIC, PESRM has knowledge thereof;

 

(c)                                  any development that has resulted in, or could reasonably be expected to result in, a Material Adverse Effect;

 

(d)                                 the occurrence of a Casualty Event (i) to any portion of Collateral in excess of $[**] or (ii) to any portion of the assets of the Transaction Parties of any type whatsoever, in excess of $[**];

 

(e)                                  (i) all material amendments to any agreements related to Material Indebtedness (together with a copy of each such amendment) and (ii) any default, event of default, termination event, early termination event or force majeure, under any of the foregoing agreements (other than the Senior Secured Credit Facility Documents) or any event related thereto which with the giving of notice, the passage of time, or both, could result in such a default; and

 

(f)                                   any Lien (other than Permitted Liens) or claim that to PESRM’s knowledge has been made or asserted against any of the Collateral.

 

Section 10.03       Existence; Businesses and Properties.  Except as otherwise permitted under Sections 10.12, 11.05 or 11.06, at all times preserve and keep in full force and effect (a) its existence (except, in the case of any Subsidiary, where the failure to do so could not reasonably be expected to result in a Material Adverse Effect) and (b) except to the extent that non-compliance could not reasonably be expected to result in a Material Adverse Effect, all rights and franchises, and Permits and Environmental Permits material to its business; provided, no Transaction Party or any of its Subsidiaries shall be required to preserve any such existence, right or franchise, or Permits and Environmental Permits, if such Transaction Party or Subsidiary shall determine that the preservation thereof is no longer desirable in the conduct of the business of such Transaction Party or Subsidiary, and that the loss thereof is not disadvantageous in any material respect to such Transaction Party or Subsidiary or to the MLC.

 

Section 10.04       Insurance.

 

(a)                                 Generally.  Keep its property insured at all times in accordance with the insurance requirements set forth in Schedule 10.04 (the “Insurance Requirements”).

 

(b)                                 Requirements of Insurance.  All insurance policies maintained by PESRM from time to time shall (i) provide that no cancellation, material reduction in amount or material change in coverage thereof shall be effective until at least 30 days after receipt by MLC of written notice thereof or as otherwise reasonably acceptable to MLC, (ii) name MLC as mortgagee (in the case of property insurance) or 

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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additional insured (in the case of liability insurance) or loss payee (in the case of property insurance), as applicable, (iii) if reasonably requested by MLC, include a breach of warranty clause and (iv) be reasonably satisfactory in all other respects to MLC.

 

(c)                                  Notice to MLC.  Notify MLC promptly whenever any separate insurance concurrent in form or contributing in the event of loss with that required to be maintained under this Section 10.04 is taken out by any Company; and promptly deliver to MLC a duplicate original copy of such policy or policies.

 

Section 10.05       Taxes; Filings.

 

(a)                                 Payment of Taxes.  Pay and discharge promptly when due all Taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or in respect of its property, before the same shall become delinquent or in default; provided, that such payment and discharge shall not be required with respect to any such Tax, assessment, charge, levy or claim so long as (i)(x) the validity or amount thereof shall be contested in good faith by appropriate Proceedings timely instituted and diligently conducted and the applicable Company shall have set aside on its books adequate reserves or other appropriate provisions with respect thereto in accordance with GAAP, and (y) such contest operates to suspend collection of the contested obligation, Tax, assessment or charge and enforcement of a Lien other than a Permitted Lien or (ii) the failure to pay could not reasonably be expected to individually or in the aggregate result in a Material Adverse Effect.

 

(b)                                 Filing of Returns.  Timely and correctly file all material Tax Returns required to be filed by it.  Withhold, collect and remit all material Taxes that it is required to collect, withhold or remit.

 

Section 10.06       Employee Benefits.  Comply in all material respects with the applicable provisions of ERISA and the Code (except where any failure to comply could not reasonably be expected to result in a Material Adverse Effect), and furnish to MLC (a) as soon as possible after, and in any event within 5 days after any Responsible Officer of any Company or any ERISA Affiliates of any Company knows or has reason to know that, any ERISA Event has occurred or could be reasonably expected to occur that, alone or together with any other ERISA Event could reasonably be expected to result in liability of the Companies or any of their ERISA Affiliates in an aggregate amount exceeding $[**] or the imposition of a Lien on the assets of any Transaction Party, a statement of a Financial Officer of PESRM setting forth details as to such ERISA Event and the action (if any) that the Companies propose to take with respect thereto, (b) upon request by MLC, copies of (i) the most recent annual report (Form 5500 Series) filed by any Company or any ERISA Affiliate with the Department of Labor with respect to any Plan, (ii) the most recent actuarial valuation report for each Pension Plan, (iii) all notices received by any Company or any ERISA Affiliate from a Multiemployer Plan sponsor or any governmental agency concerning an ERISA Event, and (iv) such other documents or governmental reports or filings relating to any Plan as MLC shall reasonably request and (c) promptly following any request therefor, copies of (i) any documents described in Section 101(k) 

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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of ERISA that any Company or its ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(1) of ERISA that any Company or its ERISA Affiliate may request with respect to any Multiemployer Plan; provided, that if any Company or its ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, the applicable Company or ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof.

 

Section 10.07       Maintaining Records; Access to Properties and Inspections.  Keep proper books of record and account in which full, true and correct entries in conformity with GAAP consistently applied and all Applicable Law are made of all material dealings and transactions in relation to its business and activities.  Upon at least five (5) Business Days’ prior written notice, each Transaction Party will permit any representatives designated by MLC to visit and inspect the financial records (other than the records of the Board of Directors) and the property of such Transaction Party at reasonable times and as often as reasonably requested and to make extracts from and copies of such financial records, and permit any representatives designated by MLC to discuss the affairs, finances, accounts, prospects and condition of any Transaction Party with the officers and employees thereof and advisors therefor (including independent accountants); provided, that PESRM shall pay only for costs and expenses of one such inspection or visit per calendar year in the absence of an Event of Default pursuant to Section 14.01(a) or (f); provided, further, that when an Event of Default exists and is continuing, MLC (or any of their respective representatives) may do any of the foregoing at the expense of PESRM at any time during normal business hours and upon reasonable advance notice.  MLC shall give the Transaction Parties the opportunity to participate in any discussions with PESRM’s advisors (including independent public accountants).  Notwithstanding anything to the contrary in this Section 10.07, none of the Transaction Parties will be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter (i) in respect of which disclosure to MLC (or its respective representatives) is prohibited by Applicable Law or binding agreement or (ii) that is subject to attorney-client privilege or constitutes attorney work product.

 

Section 10.08       [Reserved].

 

Section 10.09       Compliance with Environmental Laws and Environmental Permits; Environmental Reports.

 

(a)                                 In accordance with the standards applicable to a reasonable and prudent refinery operator in the refining industry, comply, and use commercially reasonable efforts to cause all lessees, sub-lessees and other persons occupying Real Property owned, operated or leased by any Transaction Party to comply, in all material respects, with all Environmental Laws and Environmental Permits applicable to PESRM’s operations and PESRM Infrastructure, including the Refinery; obtain, renew, extend and/or transfer, as applicable, all Environmental Permits applicable to PESRM’s operations and PESRM Infrastructure, including the Refinery its operations and Real Property; and conduct any Responses undertaken by the Transaction Parties by, and in accordance with, Environmental Laws.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(b)                                 If a PESRM Event of Default (if any) caused by reason of a breach of Section 8.18 or Section 10.09(a) shall have occurred and be continuing for more than 30 days without the Companies commencing activities reasonably likely to cure such Event of Default (if any) in accordance with Environmental Laws, at the written request of MLC, provide to MLC within 60 days after such request, at the expense of PESRM, an environmental assessment report regarding the matters which are the subject of such PESRM Event of Default, including, where required by applicable Environmental Law, soil and/or groundwater sampling, prepared by an environmental consulting firm and, in the form reasonably acceptable to MLC.

 

Section 10.10       Additional Collateral; Additional Guarantors.

 

(a)                                 Subject to the terms and conditions of the Intercreditor Agreement, to the extent applicable, any Term-ABL Intercreditor Agreement then in effect and this Section 10.10, with respect to any property acquired after the Effective Date by any Transaction Party that is of the same type as that included as “Pledged Collateral” in the Supply and Offtake Security Agreement and that is intended to be subject to the Lien created by any of the Supply and Offtake Security Documents but is not so subject (which, for the avoidance of doubt, does not include assets held by any Excluded Subsidiary or Foreign Subsidiary), promptly (and in any event within 30 days after the acquisition thereof (or such longer period of time not to exceed an additional 30 days as may be permitted by written consent of MLC)) (i) execute and deliver to MLC such amendments or supplements to the relevant Supply and Offtake Security Documents or such other documents as MLC shall deem reasonably necessary or advisable to grant to MLC, for its benefit, a Lien on such property subject to no Liens other than Permitted Liens, and (ii) at the request of MLC, take all actions necessary to cause such Lien to be duly perfected to the extent required by such Supply and Offtake Security Document in accordance with all Applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by MLC.  The Transaction Parties shall otherwise take such actions and execute and/or deliver to MLC such documents as MLC shall require to confirm the validity, perfection and priority of the Lien of the Supply and Offtake Security Documents on such after-acquired properties.

 

(b)                                 Subject to the terms and conditions of the Intercreditor Agreement, to the extent applicable, any Term-ABL Intercreditor Agreement then in effect and PESRM’s election under Section 10.18, with respect to any person that is or becomes a Subsidiary (other than an Excluded Subsidiary or Foreign Subsidiary) after the Effective Date, promptly (and in any event within 30 days after such person becomes a Subsidiary) (or such longer period of time not to exceed an additional 30 days as may be permitted by written consent by MLC)) cause such new Subsidiary (other than an Excluded Subsidiary or Foreign Subsidiary) (A) to execute a Joinder Agreement or such comparable documentation to become a Guarantor and a joinder agreement to the Supply and Offtake Security Agreement, substantially in the form annexed thereto, and (B) to take all actions reasonably necessary or advisable in the opinion of MLC to cause the Lien 

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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created by the Supply and Offtake Security Agreement to be duly perfected to the extent required by such agreement in accordance with all Applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by MLC.

 

(c)                                  Subject to the terms and conditions of the Intercreditor Agreement, to the extent applicable, any Term-ABL Intercreditor Agreement then in effect, and PESRM’s election under Section 10.18, with respect to any new Subsidiary (other than an Excluded Subsidiary or Foreign Subsidiary) created or acquired after the Effective Date by PESRM or any Subsidiary other than an Excluded Subsidiary (which, for the purposes of this paragraph (c), shall include any existing Subsidiary that ceases to be an Excluded Subsidiary) or Foreign Subsidiary, promptly (i) execute and deliver to MLC such amendments to the Supply and Offtake Security Agreement as MLC deems, in its reasonable discretion, to be necessary or advisable to grant to MLC a perfected third lien security interest in the Equity Interests of such new Subsidiary that is owned by any Transaction Party, (ii) either (A) to the extent any Permitted Secured Term Loan Facility is then outstanding, deliver to the Term Loan Administrative Agent the certificates representing such Equity Interests, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Subsidiary, and (B) otherwise, deliver to Bank of America, N.A., as agent under the Senior Secured Credit Facility, the certificates representing such Equity Interests, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Subsidiary (iii) cause such new Subsidiary (other than an Excluded Subsidiary or Foreign Subsidiary) (A) to execute a Joinder Agreement or such comparable documentation to become a Guarantor, and a joinder agreement to the Security Agreement, substantially in the form annexed thereto, (B) to take such actions reasonably necessary or advisable to grant to MLC a perfected security interest in the Collateral described in the Supply and Offtake Security Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Supply and Offtake Security Agreement or by law or as may be reasonably requested by MLC, and (C) if requested by MLC, deliver to MLC legal opinions relating to the matters described above, which opinions shall be in form and substance comparable to the applicable opinions delivered on the Effective Date and shall be from counsel reasonably satisfactory to MLC.

 

(d)                                 Subject to the terms and conditions of the Intercreditor Agreement and, to the extent applicable, any Term-ABL Intercreditor Agreement then in effect, with respect to any fee interest in any real property having a value (together with improvements thereof or thereon) of at least $[**] (1) acquired after the Effective Date by PESRM or any Subsidiary which is not an Excluded Subsidiary or a Foreign Subsidiary or (2) owned by any Subsidiary that becomes a party to the Supply and Offtake Security Agreement (in each case other than (x) any such real property subject to a Lien expressly permitted by Section 11.02(d) and (y) real property acquired by any Excluded Subsidiary or Foreign Subsidiary), 

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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PESRM or such Subsidiary shall promptly (i) execute and deliver a Mortgage, in favor of MLC covering such real property, (ii) deliver to MLC a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to the Mortgaged Properties or parcels thereof with improvements thereon (together with a notice about special flood hazard area status and flood disaster assistance duly executed by PESRM in the event any portion of such Mortgaged Properties are located in a special flood hazard area) and (iii) deliver to MLC such other documentation related to such real property as MLC may reasonably request.  For the avoidance of doubt, this clause (e) shall not apply to the North Yard or the West Yard.

 

(e)                                  At any time that a Trigger Event shall have occurred, at the request of MLC, PESRM and each other Transaction Party shall, in the reasonable discretion of PESRM: (a) (i) execute and deliver to MLC such agreements and instruments (or amendments or supplements to the Supply and Offtake Security Agreement) as MLC may deem necessary or advisable to grant to MLC a perfected first priority Lien on all Securities Accounts, Commodities Accounts and other investment accounts of the Transaction Parties (the foregoing accounts, collectively, the “ABL/SOA Investment Accounts”), and on any and all cash, Cash Equivalents, checks, negotiable instruments, security entitlements, securities and other financial assets or other property or investment property credited to or held therein (all of the foregoing, the “Investment Assets”), and (ii) deliver, or cause to be delivered, to MLC a Control Agreement duly authorized, executed and delivered by each bank or financial institution where a Securities Account for the benefit of any Transaction Party is maintained or (b) liquidate all Investment Assets credited to or held in any and all ABL/SOA Investment Accounts and deposit or cause the deposit or credit of the proceeds thereof into the Collection Account for application and distribution in accordance with the Intercreditor Agreement; provided that, any such documentation delivered by any Transaction Party pursuant to this Section 10.10(e) shall provide that any Lien on assets granted pursuant to this Section 10.10(e) shall be released and the Transaction Parties’ obligations with respect to such Trigger Event under this Section 10.10(e) shall cease upon the cure or waiver of such Trigger Event.

 

(f)                                   Notwithstanding anything in this Agreement or any Supply and Offtake Security Document to the contrary, in no event shall the Collateral include, and no Transaction Party or any Subsidiary shall be required to take any action to create, grant or perfect a security interest in, (i) any property or assets that are subject to a jurisdiction other than the United States, any state thereof and the District of Columbia, (ii) any properties and assets as to which MLC determines in its reasonable discretion that the costs of obtaining such security interest are excessive in relation to the value of the security to be afforded thereby, or (iii) Excluded Property (as defined in the Supply and Offtake Security Agreement), other than any Deposit Account which ceases to be an Excluded Deposit Account; provided that, upon the reasonable request of MLC, each Transaction Party shall be required to take any action to create, grant or perfect a security interest in any of MLC Separate Assets and Collateral that are subject to a jurisdiction other than 

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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the United States, any state thereof and the District of Columbia in any case where MLC determines in its reasonable discretion that the costs of obtaining such security interest are not excessive in relation to the value of the security to be afforded thereby.

 

Section 10.11       Security Interests; Further Assurances.  Subject to the terms and conditions of the Intercreditor Agreement and, to the extent applicable, any Term-ABL Intercreditor Agreement then in effect, promptly, upon the reasonable request of MLC, at PESRM’s expense, execute, acknowledge and deliver, or cause the execution, acknowledgment and delivery of any document or instrument supplemental to or confirmatory of the Supply and Offtake Security Documents, or otherwise deemed by MLC reasonably necessary or desirable for the continued validity, perfection and priority of the Liens on the Collateral covered thereby subject to no other Liens except Permitted Liens, or obtain any consents or waivers as may be necessary or appropriate in connection therewith.  Upon the exercise by MLC of any power, right, privilege or remedy pursuant to any Supply and Offtake Security Document which requires any consent, approval, registration, qualification or authorization of any Governmental Authority, execute and deliver all applications, certifications, instruments and other documents and papers that MLC may reasonably require.

 

Section 10.12       Information Regarding Collateral.  Not effect any change (a) in any Transaction Party’s legal name, (b) in the location of any Transaction Party’s chief executive office, (c) in any Transaction Party’s organizational structure, (d) in any Transaction Party’s Federal Taxpayer Identification Number or organizational identification number (if any) or (e) in any Transaction Party’s jurisdiction of organization (in each case, including by merging with or into any other entity, reorganizing, dissolving, liquidating, reorganizing or organizing in any other jurisdiction), in each case, until (i) PESRM shall have given MLC not less than 30 days’ prior written notice (in the form of an Officers’ Certificate), or such lesser notice period agreed to by MLC, of its intention so to do (or, with respect to the change in PESRM’s name and organizational structure anticipated to occur in anticipation of or substantially concurrently with the IPO, ten (10) Business Days’ notice), clearly describing such change and providing such other information in connection therewith as MLC may reasonably request and (ii) the Transaction Parties shall have taken all action reasonably satisfactory to MLC to maintain the perfection and priority of the security interest of MLC in the Collateral, including such actions required to comply with the requirements of Section 3.4 of the Supply and Offtake Security Agreement and the Mortgage in favor of the SOA Collateral Agent.  Each Transaction Party agrees to promptly provide MLC with certified Organizational Documents reflecting any of the changes described in the preceding sentence.  Each Transaction Party also agrees to promptly notify MLC of any change in the location of any office in which it maintains books or records relating to Collateral owned by it or any office or facility at which Collateral is located (including the establishment of any such new office or facility), other than changes in location to a leased property subject to a Third Party Consent Agreement.

 

Section 10.13       Depository Banks. The Transaction Parties shall, on or prior to the Effective Date, (a) establish and maintain the Collection Account and the Operating Account with Bank of America or an Affiliate thereof and (b) within sixty (60) days of the Effective Date, designate and maintain Bank of America, as collateral agent under the Senior Secured Credit Facility, as its principal depository bank, including for the maintenance of all operating, administrative, cash 

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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management, collection activity, and other deposit and securities accounts for the conduct of its business, including with respect to any proceeds of any ABL/SOA Priority Collateral (including hydrocarbon Inventory).

 

Section 10.14       Affirmative Covenants with Respect to Required Infrastructure.

 

(a)                                 PESRM irrevocably grants MLC the right (without any obligation to do so) to remove MLC Separate Assets and Collateral from the PESRM Infrastructure at any time or times during the occurrence and continuation of an Event of Default.

 

(b)                                 PESRM shall make commercially reasonable efforts to cause each Third Party (or, if such Third Party is an Affiliate Transferee, PESRM shall cause such Affiliate Transferee) which provides Required Infrastructure to PESRM or MLC to (i) grant to MLC the right (without any obligation to do so) to remove MLC Separate Assets and Collateral and ABL/SOA Priority Collateral from Third Party Infrastructure, at any time or times during the period (1) during which a PESRM Event of Default has occurred and is continuing, or (2) commencing on the date on which an Early Termination Event has been designated and ending 90 days thereafter, and (ii) covenant and agree that such 90 day period described in clause (2) above will be tolled during any period in which MLC has been stayed from taking action to remove such MLC Separate Assets and Collateral and ABL/SOA Priority Collateral from the Third Party Infrastructure by any court or other governmental authority, and MLC shall have an additional period of time thereafter in which to repossess and/or dispose of the MLC Separate Assets and Collateral and ABL/SOA Priority Collateral equal to the period of such toll.

 

(c)                                  PESRM further covenants and agrees that (i) the storage tanks used to store MLC Separate Assets and Collateral, and the pipelines used to transport MLC Separate Assets and Collateral to or from such tanks, included in the PESRM Infrastructure (other than any Affiliate Transferee Assets leased by a Transaction Party to an Affiliate Transferee) and the Third Party Infrastructure (other than any Affiliate Transferee Assets owned by an Affiliate Transferee) shall be dedicated to  MLC Separate Assets and Collateral, and (ii) except to the extent necessary in response to, or to avoid a situation that threatens to imminently result in injury to individuals or material damage to property, under no circumstances shall PESRM commingle or permit the commingling of any of MLC Separate Assets and Collateral with hydrocarbon products of any other Person provided, that PESRM shall (x) promptly deliver notice to MLC of such commingling and (y) promptly upon the remedy of such emergency, segregate the affected MLC Separate Assets and Collateral from any other person’s hydrocarbon products. Notwithstanding the foregoing, MLC Separate Assets and Collateral may be commingled in tanks or pipelines constituting Third Party Infrastructure to the extent that a Third Party Consent Agreement which does not restrict such commingling has been entered into with respect to such Third Party Infrastructure.

 

Section 10.15       [Reserved].

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Section 10.16                      Designation of Excluded Subsidiaries.  PESRM may designate any Domestic Subsidiary acquired or formed after the Effective Date, within 30 days of the formation or acquisition thereof (or such longer period of time as may be permitted by MLC), as an Excluded Subsidiary by written notice to MLC; provided, that (i) immediately before and after such designation, no Default with respect to PESRM or PESRM Event of Default shall have occurred and be continuing; (ii) no Subsidiary may be designated as an Excluded Subsidiary if it owns any Required Infrastructure and (iii) except with respect to a transfer of Affiliate Transferee Assets to an Affiliate Transferee, after giving effect to such designation, the cash or assets contributed by the Transaction Parties to all Excluded Subsidiaries (other than Affiliate Transferees) shall not in the aggregate exceed the amount permitted to be contributed to such Excluded Subsidiaries pursuant to Section 11.04(n), measured, in each case, as of the date of each such designation; provided, further, that such Excluded Subsidiary may be re-designated by PESRM as a “Guarantor” upon 10 Business Days (or such shorter period of time as may be permitted by MLC) prior written notice to MLC as long as (x) the requirements of Section 10.10 are satisfied either before or concurrently with it becoming a Guarantor and (y) the Consolidated Fixed Charge Coverage Ratio for the Transaction Parties after such re-designation would be greater than such ratio for the Transaction Parties immediately prior to such re-designation.

 

Section 10.17                      Anti-Terrorism Laws. The Transaction Parties shall, and shall cause Carlyle PES to, deliver to MLC any certification or other evidence requested from time to time by MLC in its reasonable discretion, confirming the Transaction Parties’ and Carlyle PES’ compliance with Section 11.14.

 

Section 10.18                      Third Party Consent Agreements.  If after the Effective Date, any Transaction Party enters into an agreement for Required Infrastructure and such infrastructure is not already subject to a Third Party Consent Agreement and any Transaction Party intends to store or transport any MLC Separate Assets and Collateral in or through such Required Infrastructure, then, with respect to such Required Infrastructure (other than, with the exception of Sunoco Pipeline Infrastructure, in respect of any vessels, barges, railcars, railroads or pipelines), such Transaction Party shall (a) in the case in which such Required Infrastructure is owned by a Third Party that is not an Affiliate of PESRM, use commercially reasonable efforts to obtain and deliver to MLC a Third Party Consent Agreement executed by PESRM and the Third Party counterparty to such agreement and (b) in the case in which Required Infrastructure is owned by, or leased by a Transaction Party to, an Affiliate Transferee, obtain and deliver to MLC a Third Party Consent Agreement executed by PESRM and such Affiliate Transferee, in each case, contemporaneously with the execution of such agreement. PESRM shall use commercially reasonable efforts to deliver to MLC the executed Third Party Consent Agreements set forth on Schedule 2.02(a).

 

Section 10.19                      Refinery Turnaround, Maintenance and Closure.

 

(a)                                 PESRM shall provide to MLC (i) on the Effective Date (for the balance of the calendar year in which the Effective Date occurs) and (ii) on an annual basis thereafter, on or prior to the earlier of (x) 60 Days after the beginning of each fiscal year and (y) at least thirty (30) Days prior to any anticipated or scheduled maintenance and turnaround referred to below in such fiscal year, its anticipated timing of scheduled maintenance and turnaround that may affect deliveries and

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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receipts of Hydrocarbons at the Refinery or any other PESRM Infrastructure or the processing of Hydrocarbons at the Refinery during the upcoming year.  PESRM shall provide MLC with any updates to such schedule promptly after any decision is made to update such schedule, and in any event at least thirty (30) Days prior to the scheduled date of the earliest planned maintenance or turnaround that is modified or amended by such update.  PESRM shall cooperate with MLC in establishing maintenance and turnaround schedules that do not unnecessarily interfere with the delivery or receipt of Hydrocarbons that MLC has committed to purchase or sell.

 

(b)                                 PESRM shall promptly, and in any event within one (1) Business Day of PESRM first having knowledge of such unscheduled downtime, maintenance or turnaround with respect to the Refinery or any other PESRM Infrastructure, notify MLC orally (followed by prompt written notice) of any previously unscheduled downtime, maintenance or turnaround and the expected duration of such unscheduled downtime, maintenance or turnaround.

 

Section 10.20                      Certain PESRM Services.  PESRM shall at all times during the Term use commercially reasonable efforts to maintain sufficient staff and operational capabilities to meet its obligations under this Agreement, including sufficient staff to manage PESRM’s obligations under this Section 10.22 and under Article III and Article IV.  During the Term PESRM shall:

 

(a)                                 maintain staff necessary to prepare the reports and summaries required to be prepared by PESRM pursuant to Articles III and IV and to provide MLC, upon request, with all supporting documentation relating to such reports and summaries (including any related pipeline tickets and inspection reports);

 

(b)                                 maintain sufficient manual inputs into PESRM’s systems necessary to perform the reconciliations required under this Agreement;

 

(c)                                  maintain sufficient knowledge of the reporting requirements for relevant jurisdictions with respect to the purchase, sale and transport of Hydrocarbon necessary to satisfy such reporting requirements;

 

(d)                                 file, or cause to be filed, all reports required to be filed by any Transaction Party with respect to this Agreement, any PESRM Transaction or any PESRM Transaction Document;

 

(e)                                  upon MLC’s reasonable request, provide confirmation that PESRM has fulfilled all obligations, requirements and standards imposed by any Governmental Authority with respect to the Refinery, this Agreement and the transactions contemplated hereunder;

 

(f)                                   maintain appropriate information technology staff to:

 

(i)                                     support and maintain each Transaction Party’s information technology systems and infrastructure,

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(ii)                                  develop and maintain such data feeds as may be required by MLC with respect to the performance of MLC’s obligations under this Agreement, and

 

(iii)                               maintain and/or develop a data exchange to the extent required by MLC; and

 

(g)                                  provide to MLC such automated data feeds as MLC may reasonably require with respect to the performance of its obligations under this Agreement and the other PESRM Transaction Documents, including daily inventory balance feeds, run schedule information feeds and feeds detailing the movement of Hydrocarbon into and out of the Refinery and the movement of Hydrocarbon within the Refinery.

 

ARTICLE XI.

 

PESRM NEGATIVE COVENANTS

 

Each Transaction Party covenants and agrees that, so long as this Agreement shall remain in effect and until the Obligations and all obligations under any PESIC-PESRM Secured Prepay Transactions and any MLC-PESIC Secured Prepay Transactions have been paid in full, unless MLC shall otherwise consent in writing, no Transaction Party will, nor will it cause or permit any of its Subsidiaries (other than Excluded Subsidiaries) to:

 

Section 11.01                      Indebtedness.  Incur, create, assume or permit to exist, directly or indirectly, any Indebtedness, except:

 

(a)                                 Indebtedness incurred under this Agreement and the other PESRM Transaction Documents;

 

(b)                                 Indebtedness in respect of Specified Transaction Obligations permitted under Section 11.15;

 

(c)                                  Indebtedness permitted by Section 11.04(f), solely to the extent such Indebtedness is evidenced by the Intercompany Note;

 

(d)                                 Indebtedness in respect of Purchase Money Obligations, Attributable Indebtedness and Capital Lease Obligations, and any other Indebtedness financing the acquisition, construction, repair, replacement or improvement of any fixed or capital assets and refinancings or renewals thereof, in an aggregate amount not to exceed $[**] except that such limit shall not apply to any purchase money security interest of (x) MLC under the Supply and Offtake Agreement, (y) MLC under the PESRM-MLC ISDA Master Agreement or (z) PESIC under the PESIC-PESRM ISDA Master Agreement;

 

(e)                                  Indebtedness in respect of (x) bid, performance or surety bonds, workers’ compensation claims, self-insurance obligations and bankers acceptances issued for the account of any Company in the ordinary course of business, including guarantees or obligations of any Company with respect to letters of credit

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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supporting such bid, performance or surety bonds, workers’ compensation claims, self-insurance obligations and bankers acceptances (in each case other than for an obligation for money borrowed), in an aggregate amount not to exceed $[**] at any time outstanding and (y) federal excise tax bonds in an aggregate amount not to exceed $[**];

 

(f)                                   Contingent Obligations (including guarantees) of any Transaction Party in respect of Indebtedness otherwise permitted under this Section 11.01;

 

(g)                                  Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, that such Indebtedness is extinguished within five Business Days of incurrence;

 

(h)                                 Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;

 

(i)                                     unsecured Indebtedness and Subordinated Indebtedness of any Transaction Party in an aggregate amount not to exceed $[**]; provided, that such Indebtedness has a later final maturity date than the Indebtedness incurred under this Agreement and the other PESRM Transaction Documents; provided, further, that Specified Transaction Obligations permitted under Section 11.01(b) shall not be included in any calculation of the foregoing cap;

 

(j)                                    Indebtedness representing deferred compensation to employees of any Transaction Parties, Holdings, IPO Issuer or any of their respective Subsidiaries incurred in the ordinary course of business and/or incurred by such Person in connection with any Permitted Acquisitions or any other Investment expressly permitted hereunder in an aggregate principal amount not to exceed $[**];

 

(k)                                 Indebtedness representing deferred compensation to employees of any Transaction Parties incurred in the ordinary course of business and/or incurred by such Person in connection with any Permitted Acquisitions or any other Investment expressly permitted hereunder in an aggregate principal amount not to exceed $[**];

 

(l)                                     Indebtedness to current or former officers, directors, managers, consultants and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of any Transaction Parties (solely to the extent the proceeds of such Indebtedness are ultimately contributed to the Transaction Parties) in an aggregate principal amount not to exceed (x) $[**] on the Effective Date and (y) an additional $[**] after the Effective Date;

 

(m)                             Indebtedness incurred in connection with a Permitted Acquisition, any other Investment expressly permitted hereunder or any Asset Sale permitted hereunder, in each case, solely to the extent constituting Indebtedness as a result of

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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indemnification obligations or obligations in respect of purchase price (including earn-outs) or other similar adjustments;

 

(n)                                 Indebtedness resulting from obligations with respect to Treasury Services Agreements and other Indebtedness in respect of netting services, automatic clearinghouse arrangements, overdraft protections and similar arrangements in each case in connection with deposit accounts in the ordinary course of business;

 

(o)                                 Indebtedness consisting of the financing of insurance premiums in the ordinary course of business;

 

(p)                                 Indebtedness consisting of customer deposits and advance payments received in the ordinary course of business from customers for goods purchased;

 

(q)                                 obligations (including any guaranty thereof by any Transaction Party) under (x) the Financial Products ISDA Master Agreement and (y) the Senior Secured Credit Facility Documents in an aggregate principal amount not to exceed $[**];

 

(r)                                    Indebtedness incurred in connection with Environmental and Necessary Capex in an amount not to exceed $[**] in the aggregate;

 

(s)                                   Indebtedness under the Term Loan Credit Agreement and the Term Loan Documents and any Indebtedness under any other Permitted Term Loan Facility (including any guaranty thereof by any Transaction Party); provided, however, that, the proceeds of such Permitted Term Loan Facility shall not be used to make a Dividend to any person that is not a Transaction Party other than to the extent permitted by Section 11.07; provided, further, however, that the aggregate outstanding principal amount of Indebtedness under such Permitted Term Loan Facility shall not at any time exceed the Term Loan Permitted Indebtedness Limit;

 

(t)                                    Indebtedness incurred in connection with a Development Financing so long as the principal amount thereof outstanding at any time shall not exceed $[**];

 

(u)                                 Indebtedness arising from an unsecured guaranty provided by any Transaction Party in respect of the Indebtedness described in the preceding clause (t);

 

(v)                                 Indebtedness in respect of cash-collateralized letter of credit facilities for the purposes set forth in Section 11.02(cc);

 

(w)                              Indebtedness of any Transaction Party so long as any recourse against such Transaction Party in respect of such Indebtedness is expressly limited to the Equity Interests of an Excluded Subsidiary (on which a Lien was permitted to be granted pursuant to Section 11.02(dd));

 

(x)                                Indebtedness of any Transaction Party in respect of a deferred compensation plan that provides bonus payouts to employees of PESRM, Holdings or IPO Issuer or any of their respective Subsidiaries over a defined period based on a percentage of the bonus paid in any given year;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(y)                                Indebtedness financing the acquisition, construction, repair, replacement or improvement of any fixed or capital assets, including any sale-leaseback and refinancings or renewals of Vessels and rail cars, in an aggregate amount not to exceed $[**];

 

(z)                                  any Indebtedness in existence on the Effective Date and set forth on Schedule 11.01(z) and any Indebtedness granted as a replacement or substitute therefor; provided, that any such replacement or substitute Indebtedness is not in an aggregate amount greater than that such Indebtedness on the Effective Date;

 

(aa)                          any Indebtedness incurred in connection with the acquisition by any Loan Party of all or a portion of the Butane Rail Facility, in an aggregate amount not to exceed $[**]; and

 

(bb)                          general Indebtedness not otherwise permitted by clauses (a) through (aa) above in an aggregate amount not to exceed $[**] outstanding at any time;

 

provided that, notwithstanding anything to the contrary herein, Indebtedness permitted pursuant to any of the foregoing clauses shall not be included in the calculation of total amount of Indebtedness incurred pursuant to any other of the foregoing clauses.

 

Section 11.02                      Liens.  Create, incur, assume or permit to exist, directly or indirectly, any Lien on any property now owned or hereafter acquired by it or on any income or revenues or rights in respect of any thereof, except the following (collectively, the “Permitted Liens”):

 

(a)                                 inchoate Liens for Taxes, assessments or governmental charges or levies not yet due and payable or delinquent and Liens for Taxes, assessments or governmental charges or levies, which are being contested in good faith by appropriate Proceedings for which adequate reserves have been established in accordance with GAAP, which Proceedings (or orders entered in connection with such Proceedings) have the effect of preventing the forfeiture or sale of the property subject to any such Lien;

 

(b)                                 Liens in respect of property of any Company imposed by Applicable Law, which were incurred in the ordinary course of business and do not secure Indebtedness for borrowed money, such as carriers’, warehousemen’s, materialmen’s, landlords’, workmen’s, suppliers’, repairmen’s and mechanics’ Liens and other similar Liens arising in the ordinary course of business, and (i) which do not in the aggregate materially detract from the value of the property of the Companies, taken as a whole, and do not materially impair the use thereof in the operation of the business of the Companies, taken as a whole, and (ii) which, if they secure obligations that are then due and unpaid, are being contested in good faith by appropriate Proceedings for which adequate reserves have been established in accordance with GAAP, which Proceedings (or orders entered in connection with such Proceedings) have the effect of preventing the forfeiture or sale of the property subject to any such Lien;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(c)                                  any Lien in existence on the Effective Date and set forth on Schedule 11.02(c) and any Lien granted as a replacement or substitute therefor; provided, that any such replacement or substitute Lien (i) does not secure an aggregate amount of Indebtedness (if any) greater than that secured on the Effective Date and (ii) does not encumber any property other than the property subject thereto on the Effective Date and accessions thereto;

 

(d)                                 easements, rights-of-way, restrictions (including zoning restrictions and other similar permits), covenants, licenses, encroachments, protrusions and other similar charges or encumbrances, each matter listed as exceptions to title on Schedule B to the Owner’s Title Policy or disclosed in the Survey, and minor title deficiencies on or with respect to any Real Property, in each case whether now or hereafter in existence, not individually or in the aggregate materially interfering with the ordinary conduct of the business of the Transaction Parties at such Real Property;

 

(e)                                  Liens arising out of judgments, attachments or awards not resulting in a Default and in respect of which such Company shall in good faith be prosecuting an appeal or Proceedings for review in respect of which there shall be secured a subsisting stay of execution pending such appeal or Proceedings and, in the case of any such Lien which has or may become a Lien against any of the Collateral, such Lien is being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP, which proceedings (or orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the property subject to any such Lien;

 

(f)                                   Liens (other than any Lien imposed by ERISA) (i) imposed by Applicable Law or deposits made in connection therewith in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security legislation, (ii) incurred in the ordinary course of business to secure the performance of tenders, statutory obligations (other than Taxes), surety, stay, customs and appeal bonds, statutory bonds, bids, leases, government contracts, trade contracts, performance and return of money bonds and other similar obligations (exclusive of obligations for the payment of Indebtedness) or (iii) arising by virtue of deposits made in the ordinary course of business to secure liability for premiums to insurance brokers, carriers or insurance companies; provided, that (x) with respect to subclauses (i), (ii) and (iii) of this clause (f), such Liens are for amounts not yet delinquent or, to the extent such amounts are so delinquent, in excess of $[**], such amounts are being contested in good faith by appropriate Proceedings for which adequate reserves have been established in accordance with GAAP and, in connection with such Proceedings, orders have been entered that have the effect of preventing the forfeiture or sale of the property subject to any such Lien, and (y) to the extent such Liens are not imposed by Applicable Law, such Liens shall in no event encumber any property other than cash and Cash Equivalents (or in respect of subclause (iii), cash, Cash Equivalents and/or insurance proceeds);

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(g)                                  (i) Leases of the properties (other than Required Infrastructure) of any Company, granted by such Company, in each case entered into in the ordinary course of such Company’s business so long as such Leases do not, individually or in the aggregate, interfere in any material respect with the conduct of the business of any Company or any Transaction Party’s performance of and compliance with its obligations hereunder or under any Senior Secured Credit Facility Document;

 

(ii)                                  Leases of the properties from any Transaction Party to any Affiliate or Subsidiary granted by such Transaction Party (excluding all North Yard Assets and Other Logistics Assets), if the following requirements are met: (aa) such properties (1) do not constitute or include Required Infrastructure or (2) are Affiliate Transferee Assets or other PESRM Infrastructure subject to Leases only with an Affiliate Transferee; (bb) no Event of Default has occurred and is continuing; (cc) such property is not necessary for the business and operations of the Refinery, (dd) such lease will not cause at any time any material discontinuation or disruption of the business or operations conducted at the Refinery, (ee) such Lease will not interfere in any material respect with PESRM’s or any other Transaction Party’s performance of and compliance with its obligations hereunder or under any Senior Secured Credit Facility Document and (ff) such Transaction Party delivered to MLC a certificate certifying as to (aa) through (ee) of this subclause (ii) of this clause (g); and

 

(iii)                               Leases of the properties from any Transaction Party to any Affiliate or Subsidiary granted by such Transaction Party with respect to any North Yard Assets and Other Logistics Assets;

 

(iv)                              Leases of the Butane Rail Facility to any Affiliate or Subsidiary granted by such Transaction Party; and

 

(v)                                 Liens granted by any Affiliate or Subsidiary on any properties transferred in accordance with Section 11.02(g)(ii), Section 11.02(g)(iii) or Section 11.02(g)(iv);

 

(h)                                 Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by any Company in the ordinary course of business;

 

(i)                                     subject to the terms and conditions of the Intercreditor Agreement and, to the extent applicable, any Term-ABL Intercreditor Agreement then in effect, Liens securing Indebtedness and other obligations incurred pursuant to Section 11.01(d); provided, that any such Liens attach only to the property being financed pursuant to such Indebtedness and do not encumber any other property of any Company (other than improvements and accessions thereon) or the proceeds thereof;

 

(j)                                    bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to cash and Cash Equivalents on deposit in one or more deposit, securities and/or

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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other similar accounts maintained by any Company, in each case granted in the ordinary course of business in favor of the bank or banks with which such accounts are maintained, (i) securing fees, charge-backs and other similar obligations and (ii) securing amounts owing to such bank with respect to cash management and operating account arrangements, including those involving pooled accounts and netting arrangements;

 

(k)                                 Liens on property of a person existing at the time such person is acquired or merged with or into or consolidated with any Company to the extent permitted hereunder (and not created in anticipation or contemplation thereof); provided, that such Liens do not extend to property not subject to such Liens at the time of acquisition (other than improvements and accessions thereon) or to the proceeds thereof;

 

(l)                                     Liens granted pursuant to (i) the Supply and Offtake Security Documents to secure the Obligations and (ii) the Supply and Offtake Security Agreement to secure the other Secured Obligations (as defined therein);

 

(m)                             licenses of intellectual property (including Intellectual Property) granted by any Company in the ordinary course of business and not interfering in any material respect with the ordinary conduct of business of the Companies;

 

(n)                                 the filing of UCC financing statements solely as a precautionary measure in connection with operating leases or consignment of goods or the filing of UCC financing statements in connection with the Supply and Off-Take Documents or any Sale-Leaseback Transaction permitted hereunder;

 

(o)                                 Liens on Collateral securing the Secured Obligations under and as defined in the Senior Secured Credit Facility (as in effect on the Effective Date); provided, that such Liens are at all times subject to terms and conditions of the Intercreditor Agreement and, to the extent applicable, any Term-ABL Intercreditor Agreement then in effect;

 

(p)                                 Liens on MLC Separate Assets and Collateral in favor of (i) MLC, its Affiliates and/or an agent of any of the foregoing and (ii) the SOA Collateral Agent for the benefit of the Supply and Offtake Secured Parties (as defined in the Supply and Offtake Security Agreement); provided, that such Liens are at all times subject to the Intercreditor Agreement and, to the extent applicable, any Term-ABL Intercreditor Agreement then in effect;

 

(q)                                 Liens securing Indebtedness incurred with respect to Permitted Specified Transactions (other than Specified Hedging Obligations); provided, that in the event such Liens are on any Collateral, such Liens shall at all times be subordinated to the Liens securing the Obligations pursuant to an intercreditor agreement in form and substance reasonably satisfactory to MLC;

 

(r)                                    Liens securing Indebtedness in respect of any Permitted Secured Term Loan Facility incurred pursuant to Section 11.01(s); provided, that such Liens are at all

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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times subject to (x) the Existing Term-ABL Intercreditor Agreement or (y) to the extent the Existing Term Loan Facility has been refinanced with a Permitted Secured Term Loan Facility pursuant to which a Term-ABL Intercreditor Agreement has been entered into, a Term-ABL Intercreditor Agreement;

 

(s)                                   Liens incurred in the ordinary course of business of any Company with respect to obligations that do not in the aggregate exceed $[**] at any time outstanding, so long as such Liens, to the extent covering any Collateral, are junior to the Liens granted pursuant to the Supply and Offtake Security Documents;

 

(t)                                    Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;

 

(u)                                 Liens (i) on cash advances in favor of the seller of any property to be acquired as part of a Permitted Acquisition or (ii) consisting of an agreement to dispose of any property in an Asset Sale permitted hereunder, in each case, solely to the extent such Permitted Acquisition or Asset Sale, as the case may be, would have been permitted on the date of the creation of such Lien;

 

(v)                                 Liens that are contractual rights of set-off relating to purchase orders and other agreements entered into with customers, in the ordinary course of business;

 

(w)                               Liens solely on any cash earnest money deposits made by Holdings, IPO Issuer or any of their respective Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder;

 

(x)                                 Liens placed upon the assets of a Person or any of its Subsidiaries to secure Indebtedness (or to secure a guaranty of such Indebtedness) incurred pursuant to and in accordance with Section 11.01(j) in connection with such Permitted Acquisition and Liens on Equity Interests issued by an Excluded Subsidiary;

 

(y)                                 Liens on specific items of inventory or other goods and the proceeds thereof securing such Person’s obligations in respect of documentary letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or goods;

 

(z)                                  Liens on assets constituting or related to Environmental and Necessary Capex (but not ABL/SOA Priority Collateral) securing Indebtedness permitted by Section 11.01(r);

 

(aa)                          Liens on the Refinery (including the North Yard Assets and Other Logistics Assets) securing Indebtedness in respect of any Development Financing incurred pursuant to Section 11.01(t); provided, that such Liens are at all times subject to the Development Intercreditor Agreement;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(bb)                          To the extent constituting Liens, such easements, licenses and access rights granted to SXL to the extent required for the operation and maintenance of assets of SXL which are located at, under or on the Refinery Real Property as of the Effective Date, on the express condition that the exercise of such access, license or easement rights (x) not interfere with the operation of the Refinery and (y) could reasonably not give rise to a Material Adverse Effect;

 

(cc)                            Liens on cash collateral accounts (other than accounts constituting ABL/SOA Priority Collateral) securing obligations in connection with (A) any Governmental Authority, (B) any Permitted Hedging Obligations or PESRM Transaction Document, or (C) any letter of credit posted as collateral to secure the obligations contemplated in the foregoing clauses (A) and (B); provided that, for the avoidance of doubt, the granting of such Liens shall not be required to be subject to the intercreditor agreement contemplated by Section 11.02(q);

 

(dd)                          Liens on Equity Interests of an Excluded Subsidiary;

 

(ee)                            possessory Liens in favor of brokers and dealers arising in connection with the acquisition or disposition of Investments, provided that such Liens (i) attached only to such Investments and (ii) secure only obligations incurred in the ordinary course and arising in connection with the acquisition or disposition of such Investments and not any obligation in connection with margin financing or otherwise; and

 

(ff)                              Liens securing Indebtedness permitted by Section 11.01(y); provided that if Liens are granted by the Borrower on any ABL/SOA Priority Collateral in connection with such Indebtedness, such Liens shall be subject to an intercreditor agreement containing usual and customary terms for such type of financing facility; and

 

(gg)                            Liens not otherwise permitted by this Section 11.02 in an aggregate amount not to exceed $[**] outstanding at any time;

 

provided that, notwithstanding anything to the contrary herein, Liens permitted pursuant to any of the foregoing clauses shall not be included in the calculation of total amount of Liens incurred pursuant to any other of the foregoing clauses.

 

Section 11.03       Sale and Leaseback Transactions.  Other than a Platinum Sale and Leaseback Transaction, enter into any Sale and Leaseback Transaction unless at the time of consummation of any such Sale and Leaseback Transaction, both before and after giving effect to such Sale and Leaseback Transaction, (a) the Pro Forma Liquidity is greater than the Threshold Basket Amount at such time and (b) the Consolidated Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) is not less than the Minimum Fixed Charge Coverage Ratio and it being understood that such Sale and Leaseback Transaction shall be included in the calculation of Consolidated Fixed Charges for purposes of this clause (b), provided that satisfaction of the preceding clauses (a) and (b) shall not be required with respect to any Sale and Leaseback Transaction which involves any acquisition of property by the Company and consummation of a substantially simultaneous Sale and Leaseback Transaction with respect to such property.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Section 11.04       Investment, Loan, Advances and Acquisition.  Directly or indirectly, make any Investment, except that the following shall be permitted:

 

(a)                                 the Companies may consummate this Agreement, the PESRM Transaction Documents and each transaction contemplated hereunder and thereunder in accordance with the provisions of this Agreement and the other PESRM Transaction Documents, including (i) a conveyance, transfer or assignment of the North Yard and the West Yard to Sunoco or any nominee of Sunoco and (ii) the sale of the North Yard and any Other Logistics Assets to any third party;

 

(b)                                 Investments outstanding on the Effective Date, to the extent in excess of $[**] in the aggregate and identified on Schedule 11.04(b);

 

(c)                                  the Companies may (i) acquire and hold accounts receivables owing to any of them if created or acquired in the ordinary course of business, (ii) invest in, acquire and hold cash and Cash Equivalents, (iii) endorse negotiable instruments held for collection in the ordinary course of business or (iv) make lease, utility and other similar deposits in the ordinary course of business;

 

(d)                                 Permitted Specified Transactions;

 

(e)                                  loans and advances to (i) directors, employees and officers of PESRM and the Subsidiaries or (ii) to Management Personnel, in the case of each of clauses (i) and (ii) above, for bona fide business purposes or to purchase, or pay taxes related to, Equity Interests of Holdings, in an aggregate amount not to exceed $[**] at any time outstanding;

 

(f)                                   Investments by any Transaction Party in PESRM or any existing Guarantor;

 

(g)                                Investments in securities of trade creditors or customers in the ordinary course of business received upon foreclosure or settlement or pursuant to any plan of reorganization or liquidation or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers;

 

(h)                                 Permitted Acquisitions;

 

(i)                                     mergers and consolidations permitted by Section 11.05;

 

(j)                                    Investments made by PESRM or any Guarantor as a result of consideration received in connection with an Asset Sale permitted by Section 11.06;

 

(k)                                 Capital Expenditures made by PESRM or any Guarantor on behalf of itself, PESRM or any other Guarantor;

 

(l)                                     to the extent constituting Investments, purchases and other acquisitions of inventory, materials, equipment and other tangible property in the ordinary course of business;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(m)                             leases of real or personal property in the ordinary course of business which are not in violation of the PESRM Transaction Documents and which are permitted by Section 11.02(g);

 

(n)                                 other Investments, provided, that after giving effect to any such Investment, (i) Pro Forma Liquidity shall be greater than the Threshold Basket Amount, (ii) no Default or Event of Default shall have occurred or shall result therefrom and (iii) the Consolidated Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) is not less than the Minimum Fixed Charge Coverage Ratio and it being understood that such Investment shall be included in the calculation of Consolidated Fixed Charges for purposes of this subclause (iii));

 

(o)                                 to the extent constituting Investments, such Investments resulting from Liens, Indebtedness, fundamental changes, Asset Sales, other dispositions of assets and Dividends expressly permitted under another Section of this Article XI;

 

(p)                                 advances of payroll payments to employees in the ordinary course of business;

 

(q)                                 Investments to the extent that payment for such Investments is made with Equity Interests of PESRM (or any direct or indirect parent of PESRM);

 

(r)                                    Investments that are held at the time of the acquisition thereof by a Subsidiary acquired after the Effective Date (and not made in contemplation of such acquisition) or of a person merged with or consolidated with any Company in accordance with Section 11.05 after the Effective Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;

 

(s)                                   to the extent constituting Investments, any conveyance, sale, assignment, transfer or other disposition of the North Yard Assets or Other Logistics Assets permitted by Section 11.06; and

 

(t)                                    any Investments in connection with any acquisition of all or any portion of the Butane Rail Facility, in an aggregate amount not to exceed $[**];

 

provided that, notwithstanding anything to the contrary herein, Investments permitted pursuant to any of the foregoing clauses shall not be included in the calculation of total amount of Investments consummated pursuant to any other of the foregoing clauses.

 

An Investment shall be deemed to be outstanding to the extent not returned in the same form as the original Investment or in cash or Cash Equivalents to PESRM or any Guarantor, as applicable.  For the avoidance of doubt, any Investment made by a Transaction Party in, or for the benefit of, an Excluded Subsidiary shall constitute an Investment hereunder and be subject to the provisions of this Section 11.04 and any Investment made by an Excluded Subsidiary is not subject to the provisions of this Section 11.04.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Section 11.05       Mergers and Consolidations.  Wind up, liquidate or dissolve its affairs or consummate any transaction of merger or consolidation, except that the following shall be permitted:

 

(a)                                 the Transactions as contemplated by the Transaction Documents, including this Agreement, the PESRM Transaction Documents and each transaction contemplated hereunder and thereunder;

 

(b)                                 Asset Sales and other dispositions of assets permitted by Section 11.06 and Section 11.08;

 

(c)                                  acquisitions and other Investments permitted by Section 11.04;

 

(d)                                 any Company may merge or consolidate with or into PESRM or any Guarantor (as long as PESRM is the surviving person in the case of any merger or consolidation involving PESRM and a Guarantor is the surviving person and remains a Wholly Owned Subsidiary of PESRM in any other case); provided, that the Lien in such property constituting Collateral granted or to be granted in favor of MLC under the Supply and Offtake Security Documents shall be maintained or created in accordance with the provisions of Section 10.10 or Section 10.11, as applicable; and

 

(e)                                  any Guarantor may dissolve, liquidate or wind up its affairs at any time; provided, that such dissolution, liquidation or winding up, as applicable, is not reasonably expected to have a Material Adverse Effect;

 

provided that, notwithstanding anything to the contrary herein, transactions permitted pursuant to any of the foregoing clauses shall not be included in the calculation of total amount of transactions consummated pursuant to any other of the foregoing clauses.

 

To the extent MLC waives the provisions of this Section 11.05 with respect to the conveyance, sale, assignment, transfer or other disposition of any Collateral, or any Collateral is conveyed, sold, assigned, transferred or disposed of as permitted by this Section 11.05 or any other express term and condition of any PESRM Transaction Document, such Collateral (unless sold to a Transaction Party) shall be sold free and clear of the Liens created by Supply and Offtake Security Documents.

 

Section 11.06       Asset Sales. Consummate any Asset Sale other than:

 

(a)                                 disposition of used, worn out, damaged, obsolete or surplus property by any Company in the ordinary course of business and the abandonment or other disposition of intellectual property (including Intellectual Property) that is, in the reasonable judgment of PESRM, no longer commercially desirable to maintain or useful in the conduct of the business of the Companies taken as a whole;

 

(b)                                 leases of real or personal property in the ordinary course of business and not in violation of the PESRM Transaction Documents;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(c)                                  the Transactions as contemplated by the Transaction Documents, including (i) a conveyance, transfer or assignment of the North Yard or the West Yard to Sunoco or any nominee of Sunoco and (ii) the sale of the North Yard Assets, the Other Logistics Assets  or the Butane Rail Facility to any third party;

 

(d)                                 mergers and consolidations permitted by Section 11.05;

 

(e)                                  Investments permitted by Section 11.04;

 

(f)                                   dispositions of immaterial assets in the ordinary course of business and leases permitted by Section 11.02(g);

 

(g)                                  dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property that is promptly purchased or (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement property (which replacement property is actually promptly purchased);

 

(h)                                 to the extent constituting Asset Sales, transactions permitted by Section 11.03, 11.05 and 11.07;

 

(i)                                     sales of Cash Equivalents in the ordinary course of business consistent with past practice;

 

(j)                                    leases, subleases, licenses or sublicenses, in each case in the ordinary course of business consistent with past practice and which do not materially interfere with the business of the Companies, taken as a whole;

 

(k)                                 transfers of property subject to Casualty Events upon receipt of the Net Cash Proceeds of such Casualty Event;

 

(l)                                     Asset Sales of property not otherwise permitted under this Section 11.06; provided, that (i) at the time of such Asset Sale (other than any such Asset Sale made pursuant to a legally binding commitment entered into at a time when no Default exists), no Default shall exist or would result from such Asset Sale, and (ii) the aggregate fair market value of all property disposed of in reliance on this clause (l) shall not exceed $[**] per calendar year(with unused amounts in any calendar year being carried forward to the next succeeding (but no other) calendar year);

 

(m)                             Asset Sales 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;

 

(n)                                 Asset Sales of accounts receivable or notes receivable in the ordinary course of business in connection with the collection or compromise thereof solely to the extent not constituting ABL/SOA Priority Collateral;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(o)                                 any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Excluded Subsidiary;

 

(p)           the unwinding of any Specified Transaction, so long as the remaining Specified Transactions comply with Section 11.15;

 

(q)                                 a conveyance, sale, assignment, transfer or other disposition of the North Yard Assets or any Other Logistics Assets to an Affiliate Transferee; and

 

(r)                                    a conveyance, sale, assignment, transfer or other disposition of PESA to an Affiliate Transferee, so long as PESA does not own any material portion of the Refinery; and

 

(s)                                   any transaction under the Supply and Offtake Documents, to the extent constituting an Asset Sale;

 

provided that, notwithstanding anything to the contrary herein, Asset Sales permitted pursuant to any of the foregoing clauses shall not be included in the calculation of total amount of Asset Sales consummated pursuant to any other of the foregoing clauses.

 

To the extent MLC waives the provisions of this Section 11.06 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 11.06, such Collateral (unless sold to a Transaction Party) shall be sold free and clear of the Liens created by the Supply and Offtake Security Documents.

 

Section 11.07       Dividends.  Authorize, declare or pay, directly or indirectly, any Dividends, except that the following shall be permitted:

 

(a)                                 Dividends by any Company to PESRM or any Guarantor;

 

(b)                                 payments to Holdings to permit Holdings, to repurchase or redeem Qualified Capital Stock of Holdings held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of any Company, upon their death, disability, retirement, severance, resignation or termination of employment or service or pursuant to any employee or directors’ and/or officers’ equity or stock compensation plan; provided, that the aggregate cash consideration paid for all such redemptions and payments shall not exceed, in any fiscal year, $[**] (and up to [**]% of such $[**] not used in any fiscal year may be carried forward to the next succeeding (but no other) fiscal year);

 

(c)                                  (i) to the extent actually used by Holdings or Intermediate Holdco to pay such Taxes, costs and expenses, payments by PESRM to or on behalf of Holdings or Intermediate Holdco in an amount sufficient to pay franchise taxes and other fees required to maintain the legal existence of Holdings or Intermediate Holdco and (ii) payments by PESRM to or on behalf of Holdings or Intermediate Holdco in an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead in the ordinary course of business of Holdings

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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or Intermediate Holdco in an aggregate amount not to exceed $[**] in any fiscal year;

 

(d)                                 Dividends, provided that both before and after giving effect to any such Dividend, (i) Pro Forma Liquidity shall be greater than the Threshold Basket Amount, (ii) no Default or Event of Default shall have occurred or shall result therefrom and (iii) the Consolidated Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) is not less than the Minimum Fixed Charge Coverage Ratio and it being understood that such Dividend shall be included in the calculation of Consolidated Fixed Charges for purposes of this subclause (iii);

 

(e)                                  Permitted Tax Distributions and Employee Payment Distributions;

 

(f)                                   PESRM and each Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Capital Stock) of such Person;

 

(g)                                  to the extent ultimately contributed to PESRM, the Net Cash Proceeds from the sale of Equity Interests (other than Disqualified Capital Stock) of Holdings and, to the extent ultimately contributed to PESRM, Equity Interests of any of Holdings’ direct or indirect parent companies, in each case, to members of management, directors or consultants of Holdings, PESRM or any of their Subsidiaries;

 

(h)                                 any amount paid to Sponsor pursuant to the terms of the Advisory Agreement, but only to the extent that no Event of Default or Trigger Event (as such term is defined in the Senior Secured Credit Facility) has occurred and is continuing;

 

(i)                                     the Transactions as contemplated by the Transaction Documents, including (i) a conveyance, transfer or assignment of the North Yard and the West Yard to Sunoco or any nominee of Sunoco and (ii) the sale of the North Yard Assets and the Other Logistics Assets to any third party;

 

(j)                                    Dividends permitted under Section 11.02(g)(ii) and Section 11.08;

 

(k)                                 upon consummation of an IPO, (i) the net proceeds received by PESRM from the sale of securities in such IPO and (ii) dividends from Available Cash on and following such consummation, provided that, in the case of this clause (ii), after giving effect to any such dividend, Liquidity shall equal or exceed the greater of (x) an amount equal to [**]% of the then current Borrowing Base and (y) $[**]; and

 

(l)                                     Dividends taking the form of issuance of Qualified Capital Stock in PESRM;

 

(m)                             prior to, but in contemplation of an IPO, Dividends equal to existing cash and accounts receivable of PESRM (which upon consummation of the IPO (and in no event later than three (3) Business Days after the making of such Dividends), shall be replaced with an equal amount of IPO proceeds (which portion of the IPO

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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proceeds shall not, for the avoidance of doubt, be distributed pursuant to clause (k)(i) above); and

 

(n)                                 a distribution of the Equity Interests of PESA to an Affiliate Transferee, so long as PESA does not own any material portion of the Refinery,

 

provided that, notwithstanding anything to the contrary herein, Dividends permitted pursuant to any of the foregoing clauses shall not be included in the calculation of total amount of Dividends consummated pursuant to any other of the foregoing clauses.

 

Section 11.08       Transactions with Affiliates.  Enter into, directly or indirectly, any transaction or series of related transactions, whether or not in the ordinary course of business, with any Affiliate of any Company (other than between or among PESRM and any Transaction Party), other than any transaction or series of related transactions on terms and conditions at least as favorable to such Company as would reasonably be obtained by such Company at that time in a comparable arm’s-length transaction with a person other than an Affiliate, except that the following shall be permitted:

 

(a)                                 Dividends permitted by Section 11.07;

 

(b)                                 Investments permitted by Section 11.04(e), (f) and (m);

 

(c)                                  reasonable and customary director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification arrangements, in each case approved by the Board of Directors of PESRM;

 

(d)                                 transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods and services, in each case in the ordinary course of business and otherwise not prohibited by the PESRM Transaction Documents;

 

(e)                                  sales of Qualified Capital Stock of PESRM to Affiliates of PESRM not otherwise prohibited by the PESRM Transaction Documents and the granting of registration and other customary rights in connection therewith;

 

(f)                                   any transaction with an Affiliate where the only consideration paid by any Transaction Party is Qualified Capital Stock of PESRM;

 

(g)                                  the Transactions as contemplated by the Transaction Documents, this Agreement and the other PESRM Transaction Documents and each transaction contemplated hereunder and thereunder, including (i) a conveyance, transfer or assignment of the North Yard and the West Yard to Sunoco or any nominee of Sunoco and (ii) the sale of the North Yard and the Other Logistics Assets to any third party;

 

(h)                                 transactions with any person that becomes a Transaction Party as a result of such transaction;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(i)                                     the issuance of Equity Interests to any officer, director, employee or consultant of the Companies or any direct or indirect parent of PESRM to the extent permitted by Section 11.01(l);

 

(j)                                    Investments, loans and other transactions by PESRM and the Subsidiaries to the extent permitted under this Article XI;

 

(k)                                 employment and severance arrangements between any of the Companies and their respective officers and employees in the ordinary course of business and transactions pursuant to stock option plans and employee benefit plans and arrangements;

 

(l)                                     payments by any of the Companies (and any direct or indirect parent thereof) pursuant to any tax sharing agreements on customary terms to the extent attributable to the ownership or operation of the Companies;

 

(m)                             the payment of customary fees and reasonable out-of-pocket costs to, and indemnities provided on behalf of, current and former directors, officers, employees and consultants of any of the Companies or any direct or indirect parent of the Companies in the ordinary course of business to the extent attributable to the ownership or operation of the Companies;

 

(n)                                 to the extent not included in Schedule 11.08, customary payments by the Companies to the Sponsor made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities (including in connection with acquisitions or divestitures), which payments are approved by the person making such payment in good faith; provided, that (i) no Default or Event of Default shall have occurred and be continuing, or shall result therefrom and (ii) such payments shall not exceed $[**] in the aggregate during any fiscal year;

 

(o)                                 existing transactions as set forth on Schedule 11.08; and

 

(p)                                 (i) any conveyance, lease, sale, assignment, transfer or other disposition of the North Yard Assets and the Other Logistics Assets to an Affiliate Transferee or (ii) transactions and agreements with an Affiliate Transferee or its Subsidiaries so long as (x) such agreements contain arms-length terms as determined by the board of managers of PESRM in good faith, taking into account the terms of similar agreements entered into between Affiliates engaged in similar transactions, (y) PESRM’s indemnification obligations under Section 7.01(c) remain in full force and effect with respect to environmental site conditions in existence with respect to Affiliate Transferee Assets as of the date such Affiliate Transferee Assets are transferred to such Affiliate Transferee, and (z) such Affiliate Transferee indemnifies MLC against all Liabilities with respect to environmental conditions that arise after the date of such transfer as a result of operation of such Affiliate Transferee Assets by such Affiliate Transferee (“Post Transfer Environmental Liabilities”).  Such indemnity provided by the Affiliate Transferee to MLC may

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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exclude coverage to the extent that PESRM actually receives insurance proceeds with respect to or on account of such Post Transfer Environmental Liabilities; provided, however, that PESRM agrees that if such indemnity contains such an exclusion, PESRM shall pay over to MLC such insurance proceeds or shall otherwise indemnify MLC, to the extent that, by virtue of such exclusion, the indemnity MLC receives from the Affiliate Transferee does not cover MLC for all Post Transfer Environmental Liabilities;

 

(q)                                 any conveyance, sale, assignment, transfer or other disposition of PESA to an Affiliate Transferee, so long as PESA does not own any material portion of the Refinery;

 

(r)                                    any transactions undertaken pursuant the Supply and Offtake Documents; and

 

(s)                                   a conveyance, sale, assignment, transfer or other disposition of the Butane Rail Facility to an Affiliate Transferee,

 

provided that, notwithstanding anything to the contrary herein, transactions permitted pursuant to any of the foregoing clauses shall not be included in the calculation of total amount of transactions consummated pursuant to any other of the foregoing clauses.

 

Section 11.09                      [Reserved].

 

Section 11.10                      Prepayments of Other Indebtedness; Modifications of Organizational Documents and Other Documents, etc.  Directly or indirectly:

 

(a)                                 make any Subordinated Debt Payment, any Indebtedness outstanding under any Subordinated Indebtedness, except (i) any payment of principal at scheduled maturity, (ii) a refinancing permitted by Section 11.01, (iii) any payment to the extent made with the proceeds of Qualified Capital Stock of Holdings, (iv) prepayments or redemptions of Indebtedness outstanding under any Subordinated Indebtedness, provided that both before and after giving effect to such prepayment or redemption (x) Pro Forma Liquidity shall be greater than the Threshold Basket Amount, (y) no Default or Event of Default shall have occurred or shall result therefrom and (z) the Consolidated Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) is not less than the Minimum Fixed Charge Coverage Ratio at such time (it being understood that such prepayment or redemption shall not be included in the calculation of Consolidated Fixed Charges for purposes of this subclause (iv)), and (v) Subordinated Debt Payments with the Net Cash Proceeds of any Equity Issuances and/or the incurrence of the Permitted Secured Term Loan Facility for the purpose of making such Subordinated Debt Payment; or

 

(b)                                 terminate, amend or modify, or permit the termination, amendment or modification of, any provision of (i) any document governing Subordinated Indebtedness, (ii) any Organizational Document of any Transaction Party (it being agreed that changes that are not adverse to the material interests of MLC shall not be subject to this clause (b)(ii)) or (iii) any Permitted Secured Term Loan Facility,

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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provided that such Permitted Secured Term Loan Facility may be amended or modified as and to the extent, and solely as and to the extent, set forth in the relevant Term-ABL Intercreditor Agreement then applicable, if any (provided that notwithstanding the foregoing and for the avoidance of doubt, repayment thereof with the proceeds of Permitted Indebtedness shall be permitted).

 

Section 11.11                      Limitation on Certain Restrictions on Guarantors.  Create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any Guarantor to (a) pay dividends or make any other distributions on its capital stock or any other interest or participation in its profits owned by PESRM or any Guarantor, or pay any Indebtedness owed to PESRM or a Guarantor, (b) make loans or advances to PESRM or any Guarantor or (c) transfer any of its properties to PESRM or any Guarantor, except for such encumbrances or restrictions existing under or by reason of (i) Applicable Law, (ii) this Agreement, the other PESRM Transaction Documents and any documents related to the PESIC-PESRM Secured Prepay Transactions, (iii) the documents governing the Permitted Secured Term Loan Facility and any Development Financing, (iv) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of a Guarantor, (v) customary provisions restricting assignment of any agreement entered into by a Guarantor in the ordinary course of business, (vi) customary restrictions and conditions contained in any agreement relating to the sale of any property permitted under Section 11.06 pending the consummation of such sale, (vii) any agreement in effect at the time such Subsidiary becomes a Guarantor of PESRM, so long as such agreement was not entered into in connection with or in contemplation of such person becoming a Guarantor of PESRM, (viii) any instrument governing Indebtedness assumed in connection with any Permitted 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 properties or assets of the person so acquired, (ix) any Permitted Liens in respect of assets subject thereto, (x) customary provisions in joint venture agreements and other similar agreements or written arrangements applicable to joint ventures permitted hereunder and applicable solely to such joint venture, (xi) customary restrictions on leases, subleases, licenses, asset sale or similar agreements, including with respect to intellectual property and other similar agreements, otherwise permitted hereby so long as such restrictions relate to the assets subject thereto, (xii) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Company, (xiii) customary provisions restricting assignment of any agreement, (xiv) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business or otherwise permitted hereunder, or (xv) the Senior Secured Credit Facility Documents.  No Transaction Party will, nor will it permit any of its Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon the ability of such Transaction Party or any of its Subsidiaries to create, incur or permit to exist any Lien upon any of the Collateral (other than this Agreement, the PESRM Transaction Documents, any Permitted Secured Term Loan Facility, any Development Financing, the Senior Secured Credit Facility, any intercreditor agreement contemplated by Section 11.02(ff), the PESRM-MLC ISDA Master Agreement, the PESIC-PESRM ISDA Master Agreement and the PESIC-PESRM Consulting Agreement).

 

Section 11.12                      Business.  With respect to any Transaction Party, engage (directly or indirectly) in any business other than those businesses in which a Transaction Party is engaged (after giving effect to the transactions hereunder, under the other PESRM Transaction Documents and any

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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documents related to the PESIC-PESRM Secured Prepay Transactions) on the Effective Date and reasonable extensions thereof and businesses reasonably related or incidental thereto.

 

Section 11.13                      Fiscal Year.  Change its fiscal year-end to a date other than December 31.

 

Section 11.14                      Compliance with Anti-Terrorism Laws.

 

(a)                                 Directly or indirectly, in connection with this Agreement, the PESRM Transaction Documents, any documents related to any PESIC-PESRM Secured Prepay Transactions or any transaction hereunder or thereunder, knowingly (i) conduct any business or engage in making or receiving any contribution of funds, goods or services to or for the benefit of any Embargoed Person, (ii) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to any Anti-Terrorism Law or (iii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.

 

(b)                                 Directly or indirectly, in connection with this Agreement, the PESRM Transaction Documents, any documents related to any PESIC-PESRM Secured Prepay Transactions or any transaction hereunder or thereunder, knowingly cause or permit any of the funds of such Transaction Party that are used to perform and pay all its Obligations under this Agreement, the PESRM Transaction Documents or any transaction hereunder or thereunder, to be derived from any unlawful activity with the result that the making of any such performance or payment under this Agreement, the PESRM Transaction Documents, or any transaction contemplated hereunder or thereunder, would be in violation of any Anti-Terrorism Law.

 

(c)                                  Knowingly cause or permit (i) an Embargoed Person to have any direct or indirect interest in or benefit of any nature whatsoever in the Transaction Parties or (ii) any of the funds or properties of the Transaction Parties that are used to perform this Agreement, the PESRM Transaction Documents, any documents related to any PESIC-PESRM Secured Prepay Transactions or any transaction hereunder or thereunder, to constitute property of, or be beneficially owned directly or indirectly by, an Embargoed Person.

 

Section 11.15                      Speculative Transactions.  Enter into (a) any Specified Transaction, except for Specified Transactions entered into (i) to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of Holdings or any of its Subsidiaries, and (ii) to hedge or mitigate risks to which Holdings or any of its Subsidiaries has actual or anticipated exposure (other than those in respect of Equity Interests of PESRM or any of its Subsidiaries); provided, that Holdings will not, and will not permit any of its Subsidiaries to, enter into Specified Transactions that hedge the crack spread on more than eighty percent (80%) of the expected production of the Refinery for the current month and the immediately succeeding 23 months (“Permitted Specified Transactions”) or (b) any speculative transactions.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Section 11.16                      Title to Hydrocarbons.  Except as [**] may hold title to Hydrocarbons in connection with [**], cause or permit [**] to hold title to Hydrocarbons that are [**].

 

ARTICLE XII.

 

COVER TRANSACTIONS

 

Section 12.01                      Cover Transactions.

 

(a)                                 Subject to the terms of this Article XII, from time to time during the Term, PESRM shall request that MLC:

 

(i)                                     (A) enter into transactions with third party suppliers pursuant to which MLC will purchase Refined Products and/or (B) enter into arrangements with Product Purchasers under one or more RP Sales Contracts that will have the effect of terminating all or any portion of such RP Sales Contracts and/or (C) purchase any Refined Products (other than butane) from PESRM that are not produced by PESRM at the Refinery and/or (D) purchase any butane from PESRM (whether produced or not produced at the Refinery) in respect of any Butane Inventory Build Day (a “Butane Cover Transaction”) (each such transaction or termination, together with each Initial RP Purchase, an “RP Cover Transaction”); provided that, in connection with any such RP Cover Transaction pursuant to clause (C) above or any Butane Cover Transaction in respect of butane not produced at the Refinery, MLC may, using its commercially reasonable discretion, require that the payment terms of such RP Cover Transaction provide for payment on a shorter timeframe than that agreed between PESRM and the applicable third party Refined Product supplier (any such arrangement, including PESRM’s arrangement with a third party Refined Product supplier, a “Cover [**] Transaction”); and/or

 

(ii)                                  (x) enter into transactions with third party purchasers pursuant to which MLC will sell Crude Oil and/or (y) enter into arrangements with the Counterparties , that will have the effect of terminating all or any portion of a CO Supply Contracts (each such transaction or termination, a “CO Cover Transaction”).

 

(b)                                 All Cover Transactions other than Butane Cover Transactions (which shall be subject to Section 12.01(c)) shall be specified and executed subject to, and in accordance with, the Cover Protocols specified in Section 12.02.

 

(c)                                  Butane Cover Transactions; Third Party RP Cover Transactions.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(i)                                     On each Butane Inventory Build Day, PESRM shall be deemed to have sold to MLC and MLC shall be deemed to have purchased from PESRM a volume of butane equal to the Butane Inventory Build on such Day, in each case, of the type and grade set forth in the Daily Actual Production Book and/or the SXL Report, as applicable.

 

(ii)                                  On each day on which any Refined Products (other than butane) that are not produced by PESRM are received by PESRM at or delivered to the Refinery and are not otherwise subject to a written contract between PESRM and MLC for the sale or purchase of such Refined Products, PESRM shall be deemed to have sold to MLC and MLC shall be deemed to have purchased from PESRM a volume of such Refined Products equal to the volume of such Refined Products so received or delivered on such Day, in each case, of the type and grade set forth in the Daily Actual Production Book.

 

Section 12.02                      Cover Protocols.  [**], in accordance with the protocols set forth below (such protocols, the “Cover Protocols”).

 

(a)                                 [**].

 

(b)                                 [**].

 

(c)                                  [**].

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(d)                                 [**].

 

(e)                                  [**].

 

(f)                                   [**].

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(g)                                  [**].

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(h)                                 [**].

 

Section 12.03                      Applicable Conditions.  Notwithstanding any other provision of this Agreement, MLC’s obligations under this Article XII are subject to (i) PESRM’s compliance with its obligations under this Article XII, (ii) (x) the availability of Refined Product supply from the third party suppliers, and (y) the available demand for Crude Oil from the third party purchasers, in each case, of the types and grades, and in the volumes, at the differentials and on the delivery dates specified by PESRM in the applicable Cover Request, (iii) if applicable, the availability of the Required Infrastructure to receive or make delivery at the delivery point specified for such Cover Transaction, and (iv) no PESRM Event of Default or Termination Event having occurred.  For the avoidance of doubt, any Applicable Condition described in subclause (ii) and (iii) above shall only excuse or suspend MLC’s duty to perform its obligations with respect to the affected or corresponding Cover Transactions.

 

Section 12.04                      MLC Cover Transactions.  If (i) MLC is aware of the occurrence of any Operational Issue with respect to the Refinery, and (ii) PESRM has not requested that MLC enter into an Cover Transaction pursuant to Section 12.01(a) to address such Operational Issue in a manner that would permit MLC to meet its obligations under, and in accordance with the terms of, the CO Supply Contracts, and/or RP Sales Contracts affected by such Operational Issue, then MLC shall have the right, but not the obligation, upon notice to PESRM to source and enter into one or more Cover Transactions that MLC, in good faith and a commercially reasonable manner, deems reasonably necessary to permit MLC to meet its obligations under such affected CO Supply Contracts, and/or RP Sales Contracts, and MLC’s entry into such Cover Transactions shall not be subject to the Cover Protocols.

 

Section 12.05                      Cover Throughput Service Fees.  The CO Cover Throughput Service Fee or the RP Cover Throughput Service Fee, as applicable, shall be applied to (i) [**], and (ii) [**].

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Section 12.06                      Volume Limitations.  Unless otherwise agreed by MLC, MLC shall have no obligation to attempt to enter into:

 

(a)                                 [**]; or

 

(b)                                 [**].

 

Section 12.07                      Cover Transaction Invoicing.  MLC shall be responsible for paying or collecting, as applicable, all amounts invoiced by, or to, Cover Counterparties with respect to Cover Transactions.  The Cover Transaction Price Amounts, the Cover Throughput Service Fees and the Cover Transportation and Other Costs shall be payable by the party that owes such amounts and shall be included in the amounts invoiced under Article V. Upon request, MLC shall promptly provide PERSM with copies of Cover Counterparty and third party invoices, which may be redacted as deemed necessary by MLC in accordance with its policies and procedures; provided that, in no event shall MLC be required to provided PESRM with copies of greater than twenty-five (25) Counterparty or third party invoices in any calendar quarter. Cover Transportation and Other Costs may not be invoiced by MLC to PESRM until MLC itself is invoiced, which for this purpose shall include a pro forma invoice, for such costs.  All refunds or adjustments of any type received by MLC related to Cover Transportation and Other Costs shall be for the account of PESRM and shall be reflected in an Invoice or the Monthly True-Up Invoice, as applicable.

 

Section 12.08                      Termination of CO Supply Contracts and RP Sales Contracts.  As provided for in Sections 12.01(a)(i)(B) and 12.01(a)(ii)(y) of this Article XII and notwithstanding anything in this Agreement to the contrary, if a Cover Transaction consists of a termination of all or any portion of an RP Sales Contract or CO Supply Contract (as provided for in

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Sections 12.01(a)(i)(y) and 12.01(a)(ii)(y) of this Article XII), the Cover Transaction Price Amount payable with respect to such Cover Transaction shall be an amount equal to the sum of (i) [**] , and (ii) [**].  If such sum is a positive amount, such amount shall be payable by MLC, and if such sum is a negative amount, an amount equal to the absolute value thereof shall be payable by PESRM.  The Cover Transaction Price Amount with respect to the termination of any CO Supply Contract, or RP Sales Contract shall be payable under Article V on the date that such payment is due under the applicable Cover Transaction.  If such termination payment is payable by MLC under such Cover Transaction, an amount equal to such termination payment will be payable by PESRM under Article V.  If such termination payment is payable by the Cover Counterparty party to such Cover Transaction, an amount equal to such termination payment will be payable by MLC under Article V.

 

Section 12.09                      [Reserved].

 

Section 12.10                      Cover Transaction Event.  Any failure by a Cover Counterparty under a Cover Transaction (other than MLC or any of its Affiliates) to fully and timely perform or otherwise satisfy any of its obligations under such Cover Transaction shall excuse (as between PESRM and MLC) any corresponding failure by MLC to fully and timely perform or otherwise satisfy its obligations under any corresponding PESRM Transaction (each, a “Cover Transaction Event”); unless any such Cover Transaction Event is due to or arises out of (i) the bankruptcy or insolvency of such Cover Counterparty, or (ii) any MLC Event.

 

Section 12.11                      Renewable Fuels and RINS.  For the avoidance of doubt, MLC shall have no obligation under the Agreement or pursuant to any RP Cover Transaction to purchase renewable fuels (other than RIN-less ethanol and RIN-less biodiesel) or to import Transportation Fuels, without its consent in writing.  Notwithstanding anything in this agreement to the contrary, in no event shall MLC be under any obligation to import any Transportation Fuels.

 

ARTICLE XIII.

 

GUARANTEE

 

Section 13.01                      The Guarantee.  The Guarantors hereby jointly and severally guarantee (the “Guarantee”), each as a primary obligor and not as a surety to MLC, the prompt payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the Obligations and all other obligations of the Transaction Parties under this Agreement, the PESRM Transactions and the PESRM Transaction Documents (including any interest, fees, costs or charges that would accrue but for the provisions of the Title 11 of the United States Code or any other insolvency laws (the “Bankruptcy Code”) after any bankruptcy or insolvency petition under the Bankruptcy Code) (the “Guaranteed Obligations”). The Guarantors hereby jointly and severally agree that if PESRM or the other Transaction Party(ies) shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, the Transaction Parties will promptly pay the

 




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same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.

 

Section 13.02                      Rights of MLC.  Each Guarantor agrees that MLC, upon such terms as it deems appropriate, without notice or demand to or on any Person and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may, in accordance with the terms of this Agreement and the other PESRM Transaction Documents, (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of any Guaranteed Obligations, (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, any Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations, (iii) request and accept other guaranties of any Guaranteed Obligations and take and hold security for the payment hereof or any Guaranteed Obligations, (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of any Guaranteed Obligations, any other guaranties of any Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations, (v) enforce and apply any security now or hereafter held by or for the benefit of MLC in respect hereof or any Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that MLC may have against any such security, in each case as MLC in its discretion may determine consistent with the applicable PESRM Transaction Document and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or non-judicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against PESRM or any security for its Guaranteed Obligations, and (vi) exercise any other rights available to it under the applicable PESRM Transaction Document.

 

Section 13.03                      Obligations Unconditional.  The obligations of the Guarantors under Section 13.01 shall constitute a guaranty of payment and, to the fullest extent permitted by Applicable Law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of PESRM under this Agreement or the other PESRM Transaction Documents, or any other agreement or instrument referred to herein or therein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Transaction Party (except for payment in full or an amendment or waiver adopted in accordance with Section 16.10).  Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Guarantors hereunder which shall remain absolute, irrevocable and unconditional under any and all circumstances as described above:

 




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(i)                                     at any time or from time to time, without notice to the Guarantors, the time for any performance of or compliance with any of the Guaranteed Obligations shall be extended, or such performance or compliance shall be waived;

 

(ii)                                  any of the acts mentioned in any of the provisions of this Agreement or the other PESRM Transaction Documents or any other agreement or instrument referred to herein or therein shall be done or omitted;

 

(iii)                               the maturity of any of the Guaranteed Obligations shall be accelerated, or any of the Guaranteed Obligations shall be amended in any respect, or any right under the PESRM Transaction Documents or any other agreement or instrument referred to herein or therein shall be amended or waived in any respect or any other guarantee of any of the Guaranteed Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt with;

 

(iv)                              any Lien or security interest granted to, or in favor of, MLC as security for any of the Guaranteed Obligations shall fail to be perfected; or

 

(v)                                 the release of any other Transaction Party pursuant to Section 13.10 or Section 16.10.

 

The Guarantors hereby expressly waive diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that MLC exhaust any right, power or remedy or proceed against PESRM or any other agreement or instrument referred to herein or therein, or against any other person under any other guarantee of, or security for, any of the Guaranteed Obligations.  The Guarantors waive:

 

(i)                                     any and all notice of the creation, renewal, extension, waiver, termination or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by MLC upon this Guarantee or acceptance of this Guarantee, and the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guarantee, and all dealings between PESRM and MLC shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guarantee,

 

(ii)                                  any defense arising by reason of the incapacity, lack of authority or any disability of PESRM or any Guarantor including any defense based on or arising out of the lack of validity or the unenforceability of the Guaranteed Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of PESRM or any other Guarantor from any cause other than payment in full of the Guaranteed Obligations (other than any Unasserted Contingent Obligations); provided, that each Guarantor reserves, and does not waive, any other defenses, set-offs and counterclaims of PESRM, which shall be available to Guarantor to the same extent as such defenses, set-offs or counterclaims are available to PESRM and may be asserted by Guarantor in respect of its obligations

 




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hereunder, in each case whether or not asserted by PESRM; provided, further that the Guarantors’ liability under this Guarantee remains in effect irrespective of (A) any change in the amount, time, manner or place of payment of, or in any other term of, any Guaranteed Obligation, or any other amendment or waiver of or any consent to departure from any terms of any Guaranteed Obligation; (B) any release or amendment or waiver of, or consent to departure from, any other guarantee or support document, or any exchange, release or non-perfection of any collateral, for any Guaranteed Obligation; (C) the absence of any action to enforce any Guaranteed Obligation or any collateral therefor; (D) the rendering of any judgment against PESRM or any action to enforce the same; (E) any bankruptcy or insolvency of PESRM or any proceeding relating thereto; and (F) any lack or limitation of status or of corporate or limited liability company power of PESRM, or any incapacity or disability of any signatory for PESRM, or of any other guarantor or obligor in respect of any Guaranteed Obligation, or any change whatsoever in the objects, capital structure, or business of PESRM; and

 

(iii)                               any defense based upon any Applicable Law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal.

 

This Guarantee shall be construed as a continuing, absolute, irrevocable and unconditional guarantee of payment without regard to any right of offset with respect to the Guaranteed Obligations at any time or from time to time held by MLC, and the obligations and liabilities of the Guarantors hereunder shall not be conditioned or contingent upon the pursuit by MLC or any other person at any time of any right or remedy against PESRM or against any other person which may be or become liable in respect of all or any part of the Guaranteed Obligations or against any collateral, security or guarantee therefor or right of offset with respect thereto.  This Guarantee shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantors and the successors and assigns thereof, and shall inure to the benefit of MLC and its successors and assigns, notwithstanding that from time to time during the term of this Agreement there may be no Guaranteed Obligations outstanding until payment in full thereof (other than Unasserted Contingent Obligations, or any amendment or waiver adopted in accordance with Section 16.10 or any other express provision set forth in a PESRM Transaction Document).

 

Section 13.04                      Reinstatement.  The obligations of the Guarantors under this Article XIII shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of PESRM or other Transaction Party in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any Proceedings in bankruptcy or reorganization or otherwise.

 

Section 13.05                      Subrogation; Subordination.  Each Guarantor hereby agrees that, until the payment and satisfaction in full in cash of all Guaranteed Obligations (other than Unasserted Contingent Obligations) under the PESRM Transaction Documents, it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by

 




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it of its guarantee in Section 13.01, whether by subrogation or otherwise, against PESRM or any other Transaction Party of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.  Any Indebtedness of any Guarantor permitted pursuant to Section 11.01(c) shall be subordinated to such Guarantor’s Secured Obligations in the manner set forth in the Intercompany Note evidencing such Indebtedness.

 

Section 13.06                      Remedies.  Subject to the terms of the Intercreditor Agreement and, to the extent applicable, any Term-ABL Intercreditor Agreement then in effect, the Guarantors jointly and severally agree that, as between the Guarantors and MLC, the obligations of PESRM under this Agreement and the other PESRM Transaction Documents may be declared to be forthwith due and payable as provided in Section 14.04 (and shall be deemed to have become automatically due and payable in the circumstances provided in Section 14.04) for purposes of Section 13.01, notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against PESRM and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by PESRM) shall forthwith become due and payable by the Guarantors for purposes of Section 13.01.

 

Section 13.07                      Instrument for the Payment of Money.  Each Guarantor hereby acknowledges that the guarantee in this Article XIII constitutes an instrument for the payment of money, and consents and agrees that MLC, at its sole option, in the event of a dispute by such Guarantor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.

 

Section 13.08                      Continuing Guarantee.  The guarantee in this Article XIII is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising.

 

Section 13.09                      General Limitation on Guarantee Obligations.  In any Proceeding involving any state corporate, limited partnership or limited liability company law, or any Applicable Law affecting the rights of creditors generally, if the obligations of any Guarantor under Section 13.01 would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 13.01, then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Guarantor, any other Transaction Party or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 13.11) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such Proceeding.

 

Section 13.10                      Release of Transaction Parties.  If, in compliance with the terms and provisions of the PESRM Transaction Documents, all of the Equity Interests of any Guarantor are sold, conveyed, assigned, disposed of, distributed or otherwise transferred (a “Transferred Guarantor”) to a Person or Persons, none of which is PESRM, a Guarantor or an Affiliate thereof, such Transferred Guarantor shall, upon the consummation of such sale or transfer, be automatically released from its obligations under this Agreement (including under Article VII) and its obligations to pledge and grant any Collateral owned by it pursuant to any Supply and Offtake Security Document shall be automatically released, and, so long as PESRM shall have provided MLC such reasonable certifications or reasonable documents as MLC shall reasonably request,

 




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MLC shall take such actions as are necessary or reasonably requested by PESRM to effect each release described in this Section 13.10 in accordance with the relevant provisions of the Supply and Offtake Security Documents.

 

Section 13.11                      Right of Contribution.  Each Guarantor hereby agrees that to the extent that a Guarantor shall have paid more than its proportionate share of any payment made hereunder, such Guarantor shall be entitled to seek and receive contribution from and against any other Guarantor hereunder which has not paid its proportionate share of such payment.  Each Guarantor’s right of contribution shall be subject to the terms and conditions of Section 13.05.  The provisions of this Section 13.11 shall in no respect limit the obligations and liabilities of any Guarantor to MLC, and each Guarantor shall remain liable to MLC for the full amount of the Guaranteed Obligations.

 

Section 13.12                      Default; Remedies; Bankruptcy; Etc.

 

(a)                                 The Guaranteed Obligations of each Guarantor hereunder are independent of and separate from the Obligations of such Guarantor.  If any Obligation of PESRM is not paid when due, or upon any Event of Default hereunder or upon any default by PESRM as provided in any other PESRM Transaction Document, MLC may, at its sole election, proceed directly and at once, without notice, against any Guarantor to collect and recover the full amount or any portion of the Obligations of PESRM then due, without first proceeding against PESRM or any other guarantor (including the Guarantors) of its Guaranteed Obligations, or against any Collateral under the PESRM Transaction Documents or joining PESRM or any other guarantor (including the Guarantors) in any Proceeding against any Guarantor.  At any time after maturity of the Guaranteed Obligations of a Guarantor, MLC may (unless such Guaranteed Obligations have been paid in full (other than Unasserted Contingent Obligations)), without notice to such Guarantor and regardless of the acceptance of any Collateral for the payment thereof, appropriate and apply toward the payment of such Guaranteed Obligations (a) any indebtedness due or to become due from MLC to such Guarantor and (b) any moneys, credits or other property belonging to such Guarantor at any time held by or coming into the possession of MLC or any of its Affiliates.

 

So long as any Guaranteed Obligations remain outstanding, no Guarantor shall, without the prior written consent of MLC, commence or join with any other Person in commencing any bankruptcy, reorganization, or insolvency case or proceeding of or against PESRM or any other Guarantor.  The obligations of the Guarantors hereunder shall not be reduced, limited, impaired, discharged, deferred, suspended or terminated by any case or proceeding, voluntary or involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of PESRM or any other Guarantor or by any defense which PESRM or any other Guarantor may have by reason of the order, decree or decision of any court or applicable body resulting from any such Proceeding (except as described in Section 13.09).  Each Guarantor acknowledges and agrees that any interest on any portion of the Guaranteed Obligations which accrues after the commencement of any Proceeding referred to in the immediately preceding sentence (or, if interest on any portion of the Guaranteed Obligations ceases to accrue by operation of law by reason of the commencement of such case or proceeding, such interest as

 




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would have accrued on such portion of the Guaranteed Obligations if such case or proceeding had not been commenced) shall be included in the Guaranteed Obligations because it is the intention of the Guarantors and MLC that the Guaranteed Obligations which are guaranteed by Guarantors pursuant hereto should be determined without regard to any rule of law or order which may relieve PESRM of any portion of such Guaranteed Obligations.  Guarantors will permit any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar Person to pay MLC, or allow the claim of MLC in respect of, any such interest accruing after the date on which such case or proceeding is commenced.  In the event that all or any portion of any Guaranteed Obligations are paid by PESRM, the obligations of the Guarantors hereunder shall continue and remain in full force and effect or be reinstated, as the case may be, in the event that all or any part of such payment or payments are rescinded or recovered directly or indirectly from MLC as a preference, fraudulent transfer or otherwise, and any such payments which are so rescinded or recovered shall constitute Guaranteed Obligations for all purposes hereunder.

 

ARTICLE XIV.

 

EVENTS OF DEFAULT; REMEDIES

 

Section 14.01                      PESRM Events of Default.  The occurrence of any of the following events shall constitute a “PESRM Event of Default” under this Agreement:

 

(a)                                 any Transaction Party fails to make, when due, any payment under (i) this Agreement required to be made by it if such failure is not remedied on or before the second (2nd) Business Day after notice of such failure is given to PESRM; provided, that no PESRM Prepayment Amount Failure shall constitute a PESRM Event of Default, or (ii) any other Core PESRM Transaction Document required to be made by it if such failure to pay shall continue un-remedied beyond any applicable cure period or grace period;

 

(b)                                 (i) an Event of Default or Termination Event (each as defined in the PESRM-MLC ISDA Master Agreement) (other than the non-payment Event of Default under clause (a)(ii) above) shall have occurred in respect of any Transaction Party under the PESRM-MLC ISDA Master Agreement, and such event shall continue un-remedied beyond any applicable cure period or grace period; or (ii) an Event of Default or Termination Event (each as defined in the Financial Products ISDA Master Agreement) shall have occurred in respect of any Transaction Party under the Financial Products ISDA Master Agreement, and such event shall continue un-remedied beyond any applicable cure period or grace period;

 

(c)                                  an Event of Default (as defined in the Senior Secured Credit Facility) shall have occurred in respect of PESRM or any of its Affiliates under the Senior Secured Credit Facility, and such event shall continue un-remedied beyond any applicable cure period or grace period;

 

(d)                                 any representation or warranty made or deemed made by a Transaction Party in or in connection with this Agreement or any other Applicable PESRM Transaction

 




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Document, or any representation, warranty, statement or information contained in any written report, certificate, financial statement or other written instrument furnished by a Transaction Party in connection with or pursuant to this Agreement or any other PESRM Transaction Document, shall prove to have been false or misleading in any material respect (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall not have been false or misleading in all respects as so qualified) when so made, deemed made or furnished, unless, if such misstatement (and any effect thereof) is capable of being cured, such Transaction Party cures such misstatement (and any effect thereof) within 5 Business Days of receipt of notice thereof or a Responsible Officer of PESRM becoming aware thereof. Notwithstanding the foregoing, no misstatement which, subsequent to the date of such misstatement, ceases to be a misstatement (through cure or otherwise) shall give rise to a Default or Event of Default pursuant to this Section 14.01(d);

 

(e)                                  default shall be made in the due observance or performance by any Transaction Party of any covenant, condition or agreement contained in (i) Section 2 of the PESRM-MLC Consulting Agreement with respect to the Services (as defined in the PESRM-MLC Consulting Agreement) listed on Part VIII of Exhibit A thereto and such default shall continue unremedied for a period of two (2) Business Days after notice of such default is given to PESRM, (ii) Sections 3.05(a) or Section 4.04(a) and such default shall continue unremedied for a period of two (2) Business Days after notice of such default is given to PESRM, (iii) Sections 10.02(a), 10.03, 10.04, or Article XI, (iv) Sections 10.02(b), (c), (d) and (e) and such default shall continue unremedied for a period of five (5) Business Days, or (iv) Section 10.01 and such default shall continue unremedied for a period of twenty (20) consecutive calendar days after notice of such default is given to PESRM;

 

(f)                                   any Transaction Party or PESIC (i) is dissolved (other than pursuant to a consolidation, amalgamation or merger), (ii) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due, (iii) makes a general assignment, arrangement or composition with or for the benefit of its creditors, (iv) institutes or has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, (v) has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger), (vi) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets, (vii) has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, (viii) causes or is subject to any event with respect to it, which under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in subclauses (i) to (vii) (inclusive), or (ix)

 




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takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts;

 

(g)                                  default shall be made in the due observance or performance by any Transaction Party of any covenant, condition, agreement or other Obligation contained in this Agreement (other than those which would constitute a separate PESRM Event of Default under this Section 14.01 or as otherwise provided in Section 14.04(j)) or under any other PESRM Transaction Document and such default shall continue unremedied or shall not be waived for a period of thirty (30) calendar days after written notice thereof from MLC to PESRM;

 

(h)                                 any Transaction Party (i) defaults under any transaction or agreement with MLC, MLC Guarantor or any of their Affiliates (other than this Agreement or the Senior Secured Credit Facility) (each, a “MLC Transaction”), and after giving effect to any applicable notice requirement or grace period, there occurs a liquidation of obligations under, or an early termination of, that MLC Transaction, (ii) defaults, after giving effect to any applicable notice requirement or grace period, in making any payment or delivery due on the last payment, delivery or exchange date of, or any payment on early termination of, any MLC Transaction, or (iii) disaffirms, disclaims, repudiates or rejects, in whole or in part, any MLC Transaction (or such action is taken by any person or entity appointed or empowered to operate it or act on its behalf);

 

(i)                                     a “default,” “event of default,” “termination event,” “early termination event” or other similar event shall be incurred by any Transaction Party in respect of any Specified Transaction Obligation, in an amount in excess of $[**], which event shall extend beyond any applicable cure periods or grace periods, provided, that in respect of Specified Transaction Obligations of such Transaction Party owed to the applicable counterparty at such time, the amount for purposes of this Section 14.01(i) shall be the amount payable by such Transaction Party to such counterparty as if all Specified Transactions relating to such Specified Transaction Obligations were terminated at such time and provided further, that such event in each case described in this clause (i) is unremedied and is not waived by the holders of such Specified Transaction Obligation;

 

(j)                                    any Transaction Party shall (i) fail to pay any principal or interest, regardless of amount, due in respect of any Indebtedness (other than any Obligation and any Specified Transaction Obligation), when and as the same shall become due and payable beyond any applicable grace period, or (ii) fail to observe or perform any other term, covenant, condition or agreement contained in any agreement or instrument evidencing or governing any such Indebtedness, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity; provided, that it shall not constitute a PESRM Event of

 




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Default pursuant to this clause (j) unless the aggregate amount of all such Indebtedness referred to in subclauses (i) and (ii) in respect of which a Default has occurred then exceeds $[**] at any one time; provided, further, that this clause shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is expressly permitted hereunder;

 

(k)                                 one or more judgments, orders or decrees for the payment of money in an aggregate amount in excess of $[**] shall be rendered against any Transaction Party or any combination thereof and the same shall remain undischarged, unvacated, uninsured or unbonded for a period of thirty (30) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon properties of any Transaction Party to enforce any such judgment;

 

(l)                                     (i)  this Agreement, the Supply and Offtake Security Agreement or the Intercreditor Agreement or any material provision thereof shall at any time and for any reason be declared by a court of competent jurisdiction to be null and void, (ii) any other Core PESRM Transaction Document shall at any time and for any reason be declared by a court of competent jurisdiction to be null and void, the effect of which is or could be reasonably expected to result in a Material Adverse Effect, or (iii) a Proceeding shall be commenced by any Transaction Party seeking to establish the invalidity or unenforceability thereof (exclusive of questions of interpretation of any provision thereof), or any Transaction Party shall repudiate or deny (in writing) any material portion of the Collateral, or any portion of its liability, Guarantee, or Obligations;

 

(m)                             one or more ERISA Events or similar events with respect to Foreign Plans shall have occurred that, in the opinion of MLC, when taken together with all other such ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect or in the imposition of any Lien on any properties of a Transaction Party;

 

(n)                                 there shall have occurred a Change in Control with respect to PESRM;

 

(o)                                 (i) any component of the Refinery, the PESRM Infrastructure or any component of the PESRM Infrastructure is sold or a contract is entered into to sell such component of the Refinery, the PESRM Infrastructure or such component of the PESRM Infrastructure (in each case, other than to an Affiliate Transferee in accordance with the provisions hereof) the effect of which is or could be reasonably expected to result in a Material Adverse Effect; or (ii) the Refinery is sold or a contract is entered into to sell the Refinery; or

 

(p)                                 any security interest and Lien purported to be created by any Supply and Offtake Security Document after delivery thereof shall cease to be in full force and effect with respect to a material portion of the Collateral (other than in accordance with its terms), or shall cease to give MLC the Liens, rights, powers and privileges

 




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purported to be created and granted under such Supply and Offtake Security Document (including a perfected first priority security interest in and Lien on a material portion of the Collateral thereunder (except as otherwise expressly provided in such Supply and Offtake Security Document)) in favor of MLC, or shall be asserted by PESRM or any other Transaction Party not to be a valid, perfected, and in the case of Collateral, first priority (except as otherwise expressly provided in this Agreement or such Supply and Offtake Security Document) security interest in or Lien on the Collateral covered thereby; except, in each case described in this Section 14.01(p), to the extent that any such loss of force and effect, loss of benefit, Liens, rights, powers and privileges, perfection or priority results from the failure of MLC to file UCC continuation statements;

 

(q)                                 any security interest or Lien purported to be created pursuant to the PESIC Security Agreement shall cease to be valid, perfected and in full force and effect with respect to any collateral granted therein (other than in accordance with its terms), or shall cease to give MLC the Liens, rights, powers and privileges purported to be created and granted under the PESIC Security Agreement (other than due to a PESIC Failure);

 

(r)                                    any unexcused failure of the Refinery to operate (in aggregate) at a level equal to at least [**] of its aggregate named capacity for at least [**] consecutive days; provided, that any such failure shall be excused if such failure is due to Force Majeure or a MLC Event;

 

(s)                                   an event of default or termination event (each as defined in the PESIC-PESRM ISDA Master Agreement) shall have occurred in respect of PESIC or PESRM under the PESIC-PESRM ISDA Master Agreement, other than due to a PESIC Failure, provided that a termination of the MLC-PESIC ISDA Master Agreement by PESIC as a result of a termination of the guaranty provided by the parent of MLC thereunder shall not be a Default or Event of Default for the purposes of this Agreement;

 

(t)                                    an event of default or termination event (each as defined in the MLC-PESIC ISDA Master Agreement) shall have occurred in respect of PESIC under the MLC-PESIC ISDA Master Agreement other than due to a PESIC Failure;

 

(u)                                 PESRM’s unexcused failure to receive delivery of Crude Oil at the CO Delivery Point for five (5) consecutive Days in any delivery month for which there is available MLC Crude Oil Purchase to meet the delivery requirements set forth in the then current Oil Flow Report for all such Days; provided, that any such failure shall be excused if such failure is due to Force Majeure;

 

(v)                                 PESRM fails to make, when due, any payment under any Third Party Contract required to be made by it if such failure is not remedied on or before the [**] Business Day after such failure occurs, or any other event of default (however described) shall have occurred in respect of PESRM or a Third Party

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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under any Third Party Contract, and such event shall continue un-remedied beyond any applicable cure period or grace period; or

 

(w)                               any event of default (however described) shall have occurred in respect of Sunoco PMT under any Third Party Contract, and such event shall continue un-remedied beyond any applicable cure period or grace period.

 

Section 14.02                      MLC Events of Default.  The occurrence of any of the following events shall constitute a “MLC Event of Default” under this Agreement:

 

(a)                                 MLC fails to make, when due, any payment under this Agreement or any other Core PESRM Transaction Document required to be made by it if such failure is not remedied on or before the second (2nd) Business Day after notice of such failure is given to MLC;

 

(b)                                 any representation or warranty made or deemed made by MLC in or in connection with this Agreement or any PESRM Transaction Document, any representation, warranty, statement or information contained in any written report, certificate, financial statement or other written instrument furnished by MLC in connection with or pursuant to this Agreement or any PESRM Transaction Document, or any representation or warranty made or deemed made by the MLC Guarantor under the MLC Guaranty, shall prove to have been false or misleading in any material respect (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall not have been false or misleading in all respects) when so made, deemed made or furnished, unless, if such misstatement (and any effect thereof) is capable of being cured, MLC cures such misstatement (and any effect thereof) within 5 Business Days of receipt of notice thereof or an executive officer of MLC with responsibility for the administration of the obligations of MLC in respect of this Agreement becoming aware thereof. Notwithstanding the foregoing, no misstatement which, subsequent to the date of such misstatement, ceases to be a misstatement (through cure or otherwise) shall give rise to a Default or Event of Default pursuant to this Section 14.02(b);

 

(c)                                  MLC or the MLC Guarantor (i) is dissolved (other than pursuant to a consolidation, amalgamation or merger), (ii) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due, (iii) makes a general assignment, arrangement or composition with or for the benefit of its creditors, (iv) institutes or has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation; (v) has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger); (vi) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets; (vii) has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, (viii) causes or is subject to any event with respect to which, under the Applicable Laws of any jurisdiction, has an analogous effect to any of the events specified in subclauses (i) to (vii) (inclusive), or (ix) takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts;

 

(d)                                 MLC’s unexcused failure to tender Crude Oil for delivery at the CO Delivery Point for five (5) consecutive Days in any delivery month for which there are CO Supply Contracts for delivery of Crude Oil sufficient to satisfy all the delivery requirements in the then current Oil Flow Report for all such Days; provided, that MLC’s failure to perform is excused to the extent that such failure is due to Force Majeure or an Applicable Condition;

 

(e)                                  MLC shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those which would constitute a separate MLC Event of Default under this Section 14.02 or as otherwise provided in Section 14.04(i)) or under any other PESRM Transaction Document and such default shall continue unremedied or shall not be waived for a period of 30 calendar days after written notice thereof from PESRM to MLC;

 

(f)                                   a “default” or “event of default,” or other similar event shall be incurred by MLC or by the MLC Guarantor in respect of any Specified Transaction Obligation with PESRM or any other Transaction Party, in an amount in excess of 3.0% of the stockholders’ equity of MLC Guarantor, which event shall extend beyond any applicable cure periods or grace periods, provided, that in respect of Specified Transaction Obligations of MLC or of the MLC Guarantor, as applicable, owed to the applicable counterparty at such time, the amount for purposes of this Section 14.02(f) shall be the amount payable by MLC or the MLC Guarantor, as applicable, to such counterparty as if all Specified Transactions relating to such Specified Transaction Obligations were terminated at such time and provided further, that such event in each case described in this clause (f) is unremedied and is not waived by the holders of such Specified Transaction Obligation;

 

(g)                                  MLC or the MLC Guarantor shall (i) fail to pay any principal or interest, regardless of amount, due in respect of any indebtedness in respect of borrowed money, when and as the same shall become due and payable beyond any applicable grace period, or (ii) fail to observe or perform any other term, covenant, condition or agreement contained in any agreement or instrument evidencing or governing any such indebtedness, and any such failure referred to in subclause (i) or (ii) shall continue un-remedied beyond any applicable cure period or grace period; provided, that it shall not constitute a MLC Event of Default pursuant to this Section 14.02(g) unless the aggregate amount of all such indebtedness referred to in subclauses (i) and (ii) in respect of which a failure has occurred then exceeds 3.0% of the stockholders’ equity of MLC Guarantor at any one time

 




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(h)                                 MLC Guarantor fails to comply with or perform any agreement or obligation to be complied with or performed by it in accordance with the MLC Guaranty if such failure is continuing after any applicable grace period has elapsed;

 

(i)                                     the MLC Guaranty shall cease to be in full force and effect for the purpose of this Agreement (other than in accordance with its terms) prior to the satisfaction of all obligations to which such MLC Guaranty relates without the written consent of PESRM;

 

(j)                                    the MLC Guaranty or any material provisions thereof shall at any time and for any reason be declared by a court of competent jurisdiction to be null and void, or a proceeding shall be commenced by MLC or the MLC Guarantor seeking to establish the invalidity or unenforceability thereof (exclusive of questions of interpretation of any provision thereof), or MLC or the MLC Guarantor shall repudiate or deny (in writing) any material portion of the MLC Guaranty; or

 

(k)                                 an Event of Default or Termination Event (each as defined in the Financial Products ISDA Master Agreement) shall have occurred in respect of MLC under the Financial Products ISDA Master Agreement, and such event shall continue un-remedied beyond any applicable cure period or grace period.

 

Section 14.03                      Termination Events.

 

(a)                                 The occurrence of any of the following events with respect to a Party shall constitute a “Termination Event” under this Agreement:

 

(i)                                     Illegality.  Due to any event or circumstance (other than an action taken by a Party), occurring after a PESRM Transaction, a CO Supply Contract, a PESRM-MLC Secured Prepay Transaction, a PESIC-PESRM Secured Prepay Transaction, a MLC-PESIC Secured Prepay Transaction, a RP Sales Contract or a Cover Transaction is entered into, it becomes unlawful under Applicable Law (other than as a result of a breach by the party of its representation under Section 10.03) for a Party (which will be the Affected Party) (x) to perform any absolute or contingent obligation to make a payment or delivery or to receive a payment or delivery in respect of any such PESRM Transaction, CO Supply Contract, Secured Prepay Transaction, RP Sales Contract or Cover Transaction or to comply with any other material provision of this Agreement relating to any such PESRM Transaction or other such transaction or contract, or (y) to perform, or for any of its Affiliates to perform, any contingent or other obligation which the Affected Party or its Affiliate has under any PESRM Transaction Document, PESRM Transaction, CO Supply Contract, PESRM-MLC Secured Prepay Transaction, PESIC-PESRM Secured Prepay Transaction, MLC-PESIC Secured Prepay Transaction, RP Sales Contract or Cover Transaction (each, an “Illegality”).

 




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(ii)                                  Credit Event Upon Merger. MLC, the MLC Guarantor or any Transaction Party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all its assets to, another entity and the resulting, surviving or transferee entity assumes all of the obligations of such Party under this Agreement and any other PESRM Transaction Document to which it is a party, but the creditworthiness of the resulting, surviving or transferee entity is materially weaker than that of such Party immediately prior to the consolidation, amalgamation, merger or transfer of assets (a “Credit Event Upon Merger”); provided, that [**], “materially weaker” means (x) [**], (y) [**], or (z) [**]. If a Credit Event Upon Merger occurs with respect to MLC or the MLC Guarantor, MLC shall be the Affected Party. If a Credit Event Upon Merger occurs with respect to any Transaction Party, PESRM shall be the Affected Party.

 

(iii)                               ISDA Termination Event.  An “Early Termination Date” (as defined in the MLC-PESIC ISDA Master Agreement or the PESIC-PESRM ISDA Master Agreement) has been designated under either the MLC-PESIC ISDA Master Agreement or the PESIC-PESRM ISDA Master Agreement (other than as a direct result of the occurrence of a Termination Event under this Agreement) (an “ISDA Termination Event”). If an ISDA Termination Event occurs, PESRM shall be the Affected Party.

 

(b)                                 If at any time a Termination Event has occurred and is continuing with respect to a Party, then the Party that is not the Affected Party (or, in the case of Illegality or if both Parties are Affected Parties, either Party) shall have the right (but not the obligation) by written notice to the other Party:

 

(i)                                     to terminate this Agreement in the manner provided for in Section 6.02 as if the Term Expiration Date had occurred and the effective date of such notice shall be deemed to be the Term Expiration Date for purposes of Section 6.02; provided, that the remedy set forth in this subclause (i) shall not be available to the extent that its implementation could reasonably be expected to result in an Illegality; or

 

(ii)                                  to designate a Day not earlier than the Day such notice is effective as an Early Termination Date on which to terminate, liquidate and accelerate the Affected Transactions, and the Party that is not the Affected Party shall calculate a Termination Payment (including the application of any rights

 




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of set-off) with respect to such Affected Transactions in accordance with Section 14.04 as if an Event of Default had occurred and such Party was not the Defaulting Party.  If there are two Affected Parties, each Party will determine a Termination Payment, and the amount payable will be the arithmetic mean of the two.

 

If any Termination Event occurs, the Affected Party will, promptly upon becoming aware of it, notify the other Party, specifying the nature of the Termination Event and will also give such other information about that Termination Event as the other party may reasonably require.

 

Section 14.04                      Remedies.

 

(a)                                 (i)                                     Notwithstanding any other term or provision of this Agreement, any other PESRM Transaction Document or the MLC-PESIC ISDA Master Agreement or the PESIC-PESRM ISDA Master Agreement, if at any time an Event of Default has occurred and is continuing with respect to a Party (the “Defaulting Party”), the other Party (the “Performing Party”) shall have the right, in its sole discretion, and in addition to any other remedies available hereunder, under any other PESRM Transaction Document, Applicable Laws, or otherwise, to (x) immediately withhold and/or suspend any or all performance under this Agreement and any other PESRM Transaction Documents, including deliveries or payments to, and/or receipts from, the Defaulting Party upon notice to the Defaulting Party (except with respect to the occurrence of any Event of Default under Section 14.01(f) or Section 14.02(c), in which case no notice shall be required), and/or (y) designate a date (not earlier than the date of such notice) (an “Early Termination Date”) on which to terminate, liquidate and accelerate this Agreement and any or all PESRM Transactions and calculate an aggregate Termination Payment in the manner set forth in this Section 14.04.  If and to the extent that, in the reasonable opinion of the Performing Party, any PESRM Transaction is commercially impracticable to liquidate and terminate or may not be liquidated, terminated or accelerated under Applicable Laws on the Early Termination Date, such PESRM Transaction shall be terminated as soon thereafter as is reasonably practicable and permitted under Applicable Law, in which case the actual termination date for such PESRM Transaction will be the Early Termination Date in respect thereof for purposes hereof.

 

(ii)                                  In any case where MLC is the Performing Party, (x) PESRM acknowledges and agrees that MLC has the right to remove its Hydrocarbons from the Basic Infrastructure under (1) this Agreement and (2) the Third Party Consent Agreements, as applicable, in accordance with their respective terms, and (y) PESRM covenants and agrees that, at its sole cost and expense, it will use best efforts to (1) provide MLC and its representatives, upon request, with full access to the Refinery and the other Basic Infrastructure, (2) maintain within or otherwise protect and

 




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preserve any of MLC’s Hydrocarbons contained at the Refinery and the other Basic Infrastructure, and (3) perform such storage, terminaling, throughput and transportation operations and services as MLC may request (including loading, unloading, blending, delivery, receipt, throughput, storage, metering, pumpover, provision of all needed pipeline connections, and other necessary services) to remove the MLC Separate Assets and Collateral from the relevant Basic Infrastructure in accordance with MLC’s instructions.

 

(iii)                               In any case where PESRM is the Performing Party and exercises its right to terminate this Agreement and any or all of the PESRM Transactions, PESRM shall, in its sole discretion, have the right to demand that MLC sell to PESRM any or all of MLC’s then current in-transit and in-storage Crude Oil, and/or Refined Product inventories at prices determined by reference to the payment and invoicing provisions of this Agreement for CO Transactions and RP Transactions set forth in Schedule 5(a) and Schedule 5(b), as applicable, as if all such Crude Oil, Refined Product had been delivered on the Day of MLC’s receipt of such demand.  For the avoidance of doubt, such prices shall include all amounts that would otherwise have been payable with respect to such inventories pursuant to Article V.

 

(b)                                 On or as soon as reasonably practicable following each Early Termination Date, the Performing Party shall (i) determine the final amount payable between the Parties under this Agreement and any other PESRM Transaction Documents as provided in this Section 14.04 (the “Termination Payment”), and (ii) provide to the other Party a statement showing, in reasonable detail, the calculations (including all relevant quotations) underlying such Termination Payment.

 

(c)                                  In each case covered by Section 14.04(a), the Performing Party shall calculate the Termination Payment by:

 

(i)                                     [**];

 

(ii)                                  [**];

 

(iii)                               [**];

 




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(iv)                              [**]; and

 

(v)                                 [**].

 

(d)                                 Without limiting any other term or provision of this Agreement (but without duplication), the Defaulting Party shall, in addition to the amounts set forth above, indemnify and hold harmless the Performing Party for any damages, losses, fees, costs and expenses which the Performing Party may pay or incur from, as a result of or in connection with the enforcement of and protection of any of its rights and remedies under this Agreement, any PESRM Transaction, any CO Supply Contract, any PESRM-MLC Secured Prepay Transaction, any RP Sales Contract, any Cover Transaction or any other PESRM Transaction Document as a result of the early termination of this Agreement or any such contract, transaction or document (including reasonable attorneys’ fees and disbursements). Notwithstanding the occurrence of an Early Termination Date or the payment of any Termination Payment, MLC shall have the right to issue invoices under this Agreement with respect to any true-ups or corrections required by this Agreement that would have resulted in an adjustment to any Termination Payment.

 

(e)                                  If the Defaulting Party owes the Termination Payment to the Performing Party, then, within one (1) Business Day of the date upon which the Performing Party’s notice of the Termination Payment is effective, the Defaulting Party shall pay the Termination Payment to the Performing Party.  If the Performing Party owes the Termination Payment to the Defaulting Party, then, within two (2) Business Days following the final exercise of the Performing Party’s set-off rights under Section 14.04(f), the Performing Party shall pay the Termination Payment to the Defaulting Party.  If the Termination Payment is not paid by the date such payment is due in accordance with the terms of this Section 14.04(e), such Termination Payment shall accrue interest at a rate per annum equal to (i) the Default Interest Rate, if such payment is owed by the Performing Party, or (ii) the Default Interest Rate plus 2.0%, if such payment is owed by the Defaulting Party.

 

(f)                                   At any time or from time to time after the occurrence of an Event of Default or Termination Event, the Performing Party (without prior notice to the Defaulting Party) may, at the Performing Party’s election, set off any or all amounts which the Defaulting Party owes to the Performing Party or any Affiliate of the Performing Party against any or all amounts which the Performing Party or any

 




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Affiliate of the Performing Party owes to the Defaulting Party (in each case, whether under this Agreement, any other agreement or otherwise, and whether or not then due, and irrespective of the currency, place of payment or booking office of the obligation); provided, that any amount not then due which is included in such setoff shall be discounted to present value as at the time of setoff (to take account of the period between the time of setoff and the date on which such amount would have otherwise been due) at the applicable rate for that period determined by the Performing Party in any commercially reasonable manner.  The Performing Party shall give notice to the other Party of any set-off effected under this Section 14.04(f).  For this purpose, any amount (or the relevant portion of such amounts) may be converted by the Performing Party into the currency in which the other is denominated at the rate of exchange at which such Party would be able, acting in a reasonable manner and in good faith, to purchase the relevant amount of such currency.  If an obligation is unascertained, the Performing Party may in good faith estimate that obligation and set-off in respect of the estimate, subject to the relevant party accounting to the other when the obligation is ascertained.  Nothing in this Section 14.04(f) shall be effective to create a charge or other security interest.

 

(g)                                  In the case of any bankruptcy, insolvency, receivership or similar Proceeding with respect to a Transaction Party, and to the extent permitted by Applicable Law, each Party hereto intends that (i) the other Party’s right to liquidate, collect, net and set off under this Agreement and liquidate and terminate this Agreement shall not be stayed, avoided, or otherwise limited by the Bankruptcy Code, including Sections 362(a), 547, 548 or 553 thereof, (ii) the other Party shall be entitled to the rights, remedies and protections afforded by and under, among other Sections, Sections 362(b)(6), 362(b)(17), 362(b)(27), 362(o), 546(e), 546(g), 546(j), 548(d), 553, 556, 560, 561 and 562 of the Bankruptcy Code, and (iii) any cash, securities or other property provided as performance assurance, credit, support or collateral with respect to the PESRM Transactions shall constitute “margin payments” as defined in Section 101(48) of the Bankruptcy Code and all payments for, under or in connection with the PESRM Transactions shall constitute “settlement payments” as defined in Section 101(51A) of the Bankruptcy Code.

 

(h)                                 The Performing Party’s rights and remedies under this Section 14.04 shall be in addition to, and not in limitation or exclusion of, any other rights of setoff, recoupment, combination of accounts, Lien or other right which it may have, whether by agreement, operation of law or otherwise, including any and all rights available to MLC under the Supply and Offtake Security Agreement.  No delay or failure on the part of a Performing Party to exercise any right or remedy shall constitute an abandonment of such right or remedy, and the Performing Party shall be entitled to exercise such right or remedy at any time after an Event of Default has occurred, so long as such Event of Default is continuing.

 

(i)                                     Except as otherwise provided in Section 14.02(d), any unexcused failure by MLC to deliver or receive any Hydrocarbons pursuant to any PESRM Transaction, CO Supply Contract, PESRM-MLC Secured Prepay Transaction, RP Sales Contract

 




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or Cover Transaction shall not constitute an Event of Default, and cover damages under Section 6.03 shall be the sole remedy for such failure.  Notwithstanding the foregoing, failure by MLC to pay cover damages under Section 6.03 when due shall constitute a payment default under Section 14.02(a).

 

(j)                                    Except as otherwise provided in Section 14.01(s), any unexcused failure by PESRM to receive any delivery of Crude Oil, or to deliver Refined Products  shall not constitute an Event of Default, and the other payment, reimbursement and indemnity provisions of this Agreement (including the indemnity in Section 7.01(b)(i)) shall be the sole remedies for any such failures; provided, that this provision shall not relieve PESRM of its obligations to sell and deliver all of the Refined Products produced by the Refinery during the Term to MLC.  Notwithstanding the foregoing, failure by PESRM to pay reimbursement or indemnity amounts owed by it when due shall constitute a payment default under Section 14.01(a).

 

ARTICLE XV.

 

FORCE MAJEURE

 

Section 15.01       Force Majeure.

 

(a)                                 A Party shall be excused from the performance of its obligations under this Agreement, any PESRM Transaction and any PESIC-PESRM Secured Prepay Transaction to the extent its performance of such obligations is prevented, in whole or in part, due to the occurrence of any event or circumstance, whether foreseeable or unforeseeable, that is reasonably beyond the control of such Party and which, by the exercise of due diligence, such Party could not have been able to remedy, avoid or overcome (any such event, a “Force Majeure” event), including any of the following events:

 

(i)                                     Compliance with Applicable Law;

 

(ii)                                  Hostilities of war (declared or undeclared), embargoes, blockades, civil unrest, riots, disorders, terrorism or sabotage;

 

(iii)                               Fires, explosions, lightning, maritime peril, collisions, storms, landslides, earthquakes, floods and other acts of nature;

 

(iv)                              Strikes, lockouts or other labor difficulties (whether or not involving employees of either Party); provided, that settlement of strikes and other labor difficulties shall be wholly within the discretion of the Party having difficulty;

 

(v)                                 Disruption or breakdown of production or transportation facilities, equipment, labor or materials, including the closing of harbors, railroads or pipelines; or

 




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(vi)                              a failure of performance of any third party under any CO Supply Contract, PESRM-MLC Secured Prepay Transaction, PESIC-PESRM Secured Prepay Transaction, MLC-PESIC Secured Prepay Transaction, RP Sales Contract, Cover Transaction or any contract or arrangement with a supplier of transportation, storage, or other services relating to any Hydrocarbons to the extent that such failure was caused by (x) an event that would otherwise satisfy the definition of a Force Majeure event as set forth in this Section 15.01, or (y) an event that satisfies the definition of force majeure pursuant to the terms of any such CO Supply Contract, PESRM-MLC Secured Prepay Transaction, PESIC-PESRM Secured Prepay Transaction, MLC-PESIC Secured Prepay Transaction, RP Sales Contract, Cover Transaction or such contract or arrangement with such supplier of transportation, storage or other services relating to any Hydrocarbons.

 

(b)                                 For purposes of this Agreement, the term “Force Majeure” expressly excludes: (i) a failure of performance of any Person other than the Parties, except to the extent that such failure was caused by an event that would otherwise satisfy the definition of a Force Majeure event as set forth in this Article XV, (ii) the loss of either Party’s market or any market conditions for any Crude Oil or Refined Product, as applicable, that are unfavorable to either Party, and (iii) any failure by a Party to apply for, obtain or maintain any permit, license, approval or right of way necessary under Applicable Law for the performance of any obligation hereunder.

 

(c)                                  In the event that a Party believes a Force Majeure event has occurred that will require it to invoke the provisions in this Article XV, such Party shall use commercially reasonable efforts to give verbal notice to the other Party followed by written notice within two (2) Business Days following the occurrence of such event, of the underlying circumstances of the particular causes of Force Majeure, the expected duration thereof and the volume of the Hydrocarbons affected (in each case to the extent known). The Party claiming Force Majeure shall also use commercially reasonable efforts to give the other Party notice of cessation of the Force Majeure event and the date when performance is expected to resume.

 

Section 15.02       Force Majeure with Respect to Certain Facilities.  Without limiting Section 15.01, if a Force Majeure event occurs and is continuing in respect of the Refinery or any other Basic Infrastructure, MLC shall be relieved of its obligations to sell and deliver Crude Oil or purchase and receive Refined Products in each case to the extent MLC determines, in its reasonable judgment, that such Force Majeure event interfered with its ability to perform its obligations in respect of such Crude Oil or Refined Products .

 

Section 15.03       PESRM Force Majeure Indemnity.  PESRM shall be responsible for, and shall indemnify MLC against, any and all losses, costs and damages that MLC incurs, directly or indirectly, in connection with the occurrence of a Force Majeure event that prevents either party from performing its obligations including hedging losses incurred by MLC arising from delivery reductions under any PESRM Transactions, CO Supply Contracts, PESRM-MLC Secured

 




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Prepay Transactions, PESIC-PESRM Secured Prepay Transactions, MLC-PESIC Secured Prepay Transactions, RP Sales Contracts, or Cover Transactions due to such Force Majeure event.

 

Section 15.04       Force Majeure Termination.  If a Force Majeure event occurs that is unique to MLC or that is unique to PESRM (including a hurricane or other natural disaster destroying some or all of the Refinery or the other PESRM Infrastructure) and such Force Majeure event prevents the Refinery from operating at a level equal to at least [**]% of its aggregate named capacity for at least [**] consecutive days, then either Party shall have the right to terminate this Agreement on thirty (30) days prior written notice, and any such termination shall be conducted by, and all damages shall be determined by, MLC in accordance with Section 14.04 as if an Event of Default had occurred with respect to PESRM (if the Force Majeure event occurred with respect to PESRM) or MLC (if the Force Majeure event occurred with respect to MLC).

 

Section 15.05       Payments Not Excused.  Notwithstanding the provisions of Section 15.01, nothing contained in this Agreement shall relieve a Party of its obligation to make payments when due with respect to performance prior to the occurrence of a Force Majeure event, including PESRM’s obligation to pay in full the purchase price or any other amounts due.

 

Section 15.06       No Extension.  No curtailment or suspension of deliveries or acceptance of deliveries pursuant to this Article XV shall operate to extend the Term of this Agreement or the term of any PESRM Transaction.

 

ARTICLE XVI.

 

MISCELLANEOUS

 

Section 16.01       Governing Law and Submission to Jurisdiction.

 

(a)                                 This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, without reference to conflict of law principles (except Sections 5-1401 and 5-1402 of the New York General Obligations Law).

 

(b)                                 WITH RESPECT TO ANY PROCEEDING RELATING TO THIS AGREEMENT (AN “ACTION”), SUCH PROCEEDING SHALL BE BROUGHT IN THE COURTS OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK OR, TO THE EXTENT FEDERAL JURISDICTION IS NOT PERMITTED, COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY, BOROUGH OF MANHATTAN, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS.  EACH PARTY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

159











 

HAVE TO THE BRINGING OF ANY ACTION IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR OTHER DOCUMENT RELATED HERETO.  EACH PARTY WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.  NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS AGREEMENT SHALL PRECLUDE EITHER PARTY FROM BRINGING AN ACTION IN ANY OTHER JURISDICTION IN ORDER TO ENFORCE ANY JUDGMENT OBTAINED IN ANY ACTION REFERRED TO IN THE PRECEDING SENTENCE, NOR WILL THE BRINGING OF ANY ENFORCEMENT ACTIONS IN ANY ONE OR MORE JURISDICTIONS PRECLUDE THE BRINGING OF ENFORCEMENT ACTIONS IN ANY OTHER JURISDICTION.

 

(c)                                  Notwithstanding anything to the contrary set forth herein, any action brought by MLC to obtain possession, custody or control of any assets constituting Collateral or to exercise any rights in respect of any lien affecting such assets may be commenced in a court of competent jurisdiction in the State in which such asset is located.

 

Section 16.02       Waivers.

 

(a)                                 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT, OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

 

(b)                                 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL ASSERT, AND EACH PARTY HEREBY WAIVES, ANY CLAIM AGAINST THE OTHER PARTY, 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

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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HEREBY OR THEREBY; PROVIDED, THAT NOTHING IN THIS SECTION 16.02(b) OR IN ANY OTHER PROVISION OF THIS AGREEMENT SHALL BE CONSTRUED TO WAIVE OR ALTER EITHER PARTY’S RIGHT TO RECOVER ANY AMOUNT EXPRESSLY PROVIDED FOR IN SECTION 6.02, ARTICLE VII OR ARTICLE XIV, INCLUDING TO THE EXTENT SUCH SECTIONS OR ARTICLES APPLY PURSUANT TO SECTION 14.04 AND SECTION 15.04.

 

(c)                                  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY, WITH RESPECT TO ITSELF AND ITS REVENUES AND ASSETS, HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ALL IMMUNITY ON THE GROUNDS OF SOVEREIGNTY OR OTHER SIMILAR GROUNDS FROM SUIT, JURISDICTION OF ANY COURT, RELIEF BY WAY OF INJUNCTION, ORDER FOR SPECIFIC PERFORMANCE OR FOR RECOVERY OF PROPERTY, ATTACHMENT OF ITS ASSETS WHETHER BEFORE OR AFTER JUDGMENT AND EXECUTION OR ENFORCEMENT OF ANY JUDGMENT TO WHICH IT OR ITS REVENUES OR ASSETS MIGHT OTHERWISE BE ENTITLED IN ANY ACTIONS IN THE COURTS OF ANY JURISDICTION AND IRREVOCABLY AGREES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THAT IT WILL NOT CLAIM ANY SUCH IMMUNITY IN ANY ACTIONS.

 

Section 16.03       Further Assurances.  Each Party shall take all such further actions reasonably requested by the other Party and to execute, acknowledge and deliver all such further documents as are reasonably requested by the other Party to carry out the purposes of the transactions contemplated hereby.

 

Section 16.04       Regulatory Filings.  Each Party shall make all regulatory filings (if any) that are necessary in order to effectuate the transactions contemplated by this Agreement.

 

Section 16.05       No Waiver.  No waiver by either Party of any one or more defaults by the other in the performance of any provisions of this Agreement shall operate or be construed as a waiver of any future default or defaults, whether of a similar or dissimilar character.

 

Section 16.06       Severability.  If any provision of this Agreement is held to be illegal, invalid or unenforceable and such holding does not constitute or result in an Illegality under Section 14.03(a)(i) (in which case this Section 16.06 shall not apply), (a) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby and (b) the parties hereto 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; provided, that this Section 16.06 shall not be applicable with respect to any provision of Article XIV that is held to be illegal, invalid or unenforceable.  The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Section 16.07       Successors and Assigns.  This Agreement shall be binding on the parties hereto and any of their respective successors and permitted assigns. Neither Party shall assign this Agreement or its rights hereunder without first having obtained the written consent of the other Party; provided, that MLC may, without recourse and without the consent of PESRM, assign this Agreement and/or any of its rights or obligations hereunder to an Affiliate of MLC so long as:

 

(a)                                 MLC Guarantor (or another entity with a credit rating at least equal to that of MLC Guarantor) must guarantee such transferred obligations of the transferee pursuant to a guaranty in substantially the form of the guaranty of MLC Guarantor specified in this Agreement, or such transferee must have a credit rating at least equal to that of MLC Guarantor;

 

(b)                                 PESRM will not, as a result of such transfer, be required to pay to the transferee an amount in respect of any Indemnifiable Tax (including any withholding tax) greater than the amount which PESRM would have been required to pay to MLC in the absence of such transfer;

 

(c)                                  it does not become unlawful for either Party to perform any obligation under this Agreement as a result of such transfer; and

 

(d)                                 an Event of Default does not occur as a result of such transfer.

 

Any Party’s transfer or assignment in violation of this Section 16.07 shall be void as to the other Party.

 

Section 16.08       Confidentiality.  The contents of this Agreement and all other documents relating to this Agreement, and any information made available by one Party to the other Party with respect to this Agreement is confidential and shall not be disclosed to any third party (nor shall any public announcement relating to this Agreement be made by either Party, except as mutually agreed), except for such information (a) as may become generally available to the public other than due to breach of this provision, (b) as may be required or appropriate in response to any summons, subpoena, or otherwise in connection with any litigation or to comply with any Applicable Law or accounting disclosure rule or standard, (c) as may be obtained from a non-confidential source that disclosed such information in a manner that did not violate its obligations to the non-disclosing Party in making such disclosure, (d) as is disclosed to regulators or examiners, (e) as may be furnished to the disclosing Party’s Affiliates, and to each of such Person’s auditors, attorneys, advisors, lenders or potential lenders, investors or potential investors, or buyers or potential buyers which are required to keep the information that is disclosed in confidence or (f) as required to be filed or disclosed in connection with an IPO after good faith efforts are made by the Company to obtain confidential treatment of sensitive terms of this Agreement (or parts thereof, as are consistent with confidentially requests customarily granted by the Securities and Exchange Commission) and any other documents relating to this Agreement, as applicable; provided that, PESRM shall inform MLC of any confidential or proprietary information of MLC that will be disclosed as a result of such IPO prior to its disclosure or filing and shall cooperate with MLC to request redactions to this Agreement and any other documents relating hereto.  With respect to information provided with respect to a PESRM Transaction, this obligation shall survive for a period of one (1) year following the

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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expiration or termination of such PESRM Transaction.  With respect to information made available pursuant to this Agreement, this obligation shall survive for a period of one (1) year following the delivery of such information.  With respect to the contents of this Agreement, this obligation shall survive for a period of one (1) year following the expiration or termination of this Agreement.

 

Section 16.09       Notices.  All notices, requests, statements or payments required to be made under this Agreement shall be made as specified below.  Except as expressly set forth in this Agreement, all notices are required to be in writing and shall be delivered by letter, facsimile, email, other electronic communication or other documentary form; provided that, any notices delivered pursuant to Article XIV may not be delivered by email or other electronic communication.  Notice by facsimile or hand delivery shall be deemed to have been received on the Business Day on which it was transmitted or delivered (unless transmitted or delivered after 5:00 p.m. Eastern Time in which case it shall be deemed received on the next Business Day).  A Party may change its addresses by providing notice of same in accordance herewith.  Notices shall be sent as follows:

 

If to MLC, addressed to:

 

Merrill Lynch Commodities, Inc.
 20 E. Greenway Plaza, Suite 700

Houston, Texas 77046

Attention:  Chief Operating Officer

Email: [**]

 

with a copy to (which shall not constitute notice):

 

Merrill Lynch Commodities, Inc.

20 E. Greenway Plaza, Suite 900

Houston, Texas 77046

Facsimile: [**]

Attention:  Legal Department

 

With a copy to:

 

Skadden, Arps, Slate, Meagher & Flom LLP

4 Times Square

New York, NY 10036

Attention: Tatiana Monastyrskaya

Phone: [**]

Email: [**]

 

If to any Transaction Party, to PESRM at:

 

Philadelphia Energy Solutions Refining and Marketing LLC

1735 Market Street

Philadelphia PA 19103

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

163











 

Attention:   James T. Rens


	
 
    	
 
    	
John   B. McShane
    
	
 
    	
Treasury   Department
    




 


	
 
    	
Fax:        [**]
    
	
 
    	
Email:
    	
[**]
    




 

With a copy to:

 

Latham & Watkins LLP

885 Third Avenue

New York, New York 10022

Attention: James Gorton

Phone: [**]

Fax: [**]

Email: [**]

 

Section 16.10                      Amendments, Etc.  No amendment or waiver of any provision of this Agreement, and no consent to any departure by any Party therefrom, shall in any event be effective unless the same shall be in writing and signed by the Parties, and then such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.

 

Section 16.11                      Nature of the Transaction and Relationship of Parties.

 

(a)                                 No Partnership.  This Agreement and the PESRM Transaction Documents, including any arrangement to share profits, shall not be construed as creating a partnership, association or joint venture between MLC and any Transaction Party.  Neither MLC nor any Transaction Party shall have a relationship of principal and agent or employer and employee between them and neither MLC nor any Transaction Party shall have the authority to bind MLC or such Transaction Party, as applicable.

 

(b)           [Reserved]

 

(c)                                  No Authority.  Neither Party shall have the right or authority to negotiate, conclude or execute any contract or legal document with any third Person on behalf of the other Party, to assume, create, or incur any liability of any kind, express or implied, against or in the name of the other Party, or to otherwise act as the representative of the other Party, unless expressly authorized in writing by the other Party.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

164









 

Section 16.12       Interest.

 

(a)                                 All payments under any PESRM Transaction not paid by the date such payment is due in accordance with the terms of this Agreement and the PESRM Transaction Documents shall accrue interest at a rate per annum (the “Default Interest Rate”) equal to (a) the Base Interest Rate plus (b) the Applicable Margin plus (c) 2%.  Interest at the Default Interest Rate shall run from, and including, the applicable due date of the payment to, but excluding, the date that payment is received.

 

(b)                                 After the occurrence and during the continuance of a PESRM Event of Default, the Working Capital Rate for any Day shall be equal to the Default Rate for such Day.

 

Section 16.13       Recording of Conversations.  Each Party (a) consents to the recording of telephone conversations between the trading, marketing and other relevant personnel of MLC and any Transaction Party in connection with this Agreement or any PESRM Transaction, (b) agrees to obtain any necessary consent of and give any necessary notice of such recording to its relevant personnel and (c) agrees that all such recordings shall be held and maintained in accordance with Applicable Laws (including applicable privacy laws).

 

Section 16.14       Counterparts.  This Agreement may be executed by the parties hereto in separate counterparts and initially delivered by facsimile transmission or otherwise, with original signature pages to follow, and all such counterparts shall together constitute one and the same instrument.

 

Section 16.15       No Third Party Beneficiaries.  Except as expressly provided in Article VII, nothing in this Agreement will provide any benefit to any third party or entitle any third party to any claim, cause of action, remedy or right of any kind, it being the intent of MLC and each Transaction Party that this Agreement will not be construed as a third-party beneficiary contract.

 

Section 16.16       Entire Agreement.  This Agreement and the other PESRM Transaction Documents constitute the entire agreement between MLC and the Transaction Parties with respect to the subject matter hereof and thereof and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of MLC and the Transaction Parties.  There are no oral agreements among any of MLC and the Transaction Parties as to the subject of this Agreement and the other PESRM Transaction Documents except as explicitly provided for herein.

 

Section 16.17       Survival.  Except where otherwise specified herein, the covenants, representations and warranties contained in this Agreement and any document, certificate or other instrument delivered by or on behalf of a Party pursuant to this Agreement shall survive expiration or termination of this Agreement and shall continue in full force and effect for the benefit of the Party to whom they are given.  No expiration or termination of this Agreement, however effected, shall affect or extinguish any rights or obligations of MLC or any Transaction Party (including with respect to the Person’s indemnification obligations) which accrued prior to the date of termination or affect or extinguish any remedies available to any of MLC or any Transaction Party by contract, at law, in equity or otherwise.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Section 16.18       Release of Collateral.  In the event (x) the Term Loan Secured Obligations (as defined in the Existing Term-ABL Intercreditor Agreement) have been repaid in full or if the Liens securing such obligations are released pursuant to the Term Loan Documents (including upon the occurrence of the IPO), or (y) at any time, the outstanding Permitted Term Loan Facilities do not require that the Loan Parties grant Liens to the financing parties thereunder in respect of the ABL/SOA Priority Collateral or such Liens on the ABL/SOA Priority Collateral are released, in each case the Liens on all Term Loan Priority Collateral in favor of MLC are automatically released and MLC will, at PESRM’s expense, execute and deliver to such Transaction Party such documents as such Transaction Party may reasonably request to evidence the release of the Term Loan Priority Collateral from the Liens granted under the Supply and Offtake Security Documents.

 

Section 16.19       Costs and Expenses.  PESRM shall pay (i) all reasonable and documented out-of-pocket expenses incurred by MLC (including the reasonable and documented out-of-pocket fees, charges and disbursements of one (1) legal counsel, together with local counsel, as appropriate) in connection with the due diligence investigation, travel expenses, preparation, negotiation, execution, delivery and administration of this Agreement, the other PESRM Transaction Documents, the Assignment and Assumption Agreement and the other Transaction Documents (as such term is defined in the Assignment and Assumption Agreement) or any amendment, amendment and restatement, modification or waiver of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), including in connection with post-closing searches to confirm that security filings and recordations have been properly made, and (ii) all reasonable and documented out-of-pocket expenses incurred by MLC (including the reasonable and documented out-of-pocket fees, charges and disbursements of legal counsels to MLC) in connection with the enforcement or protection of its rights in connection with this Agreement, the other PESRM Transaction Documents, including its rights under this Section 16.19, the Assignment and Assumption Agreement and the other Transaction Documents (as such term is defined in the Assignment and Assumption Agreement) including all such reasonable and documented out-of-pocket expenses incurred during any workout, restructuring or negotiations.

 

Section 16.20       Amendment and Restatement.  It is the intention of each of the parties hereto that the Original Agreement be amended and restated in its entirety pursuant to this Agreement so as to preserve the perfection and priority of all security interests and Liens securing obligations outstanding under the Original Agreement and that all Obligations of PESRM hereunder shall be secured by the Liens granted or purported to be granted pursuant to the Supply and Offtake Security Documents and that this Agreement does not constitute a novation or termination of the “Obligations” under and as defined in, and existing under, the Original Agreement (other than any “Obligations” under or relating to the Original Agreement).  PESRM, MLC and each other Person party hereto further acknowledges and agrees that this Agreement constitutes an amendment of the Original Agreement made under and in accordance with the terms of Section 16.10 of the Original Agreement.  In addition, from and after the Effective Date, all references to the “Supply and Offtake Agreement” contained in the other Effective Date PESRM Documents shall be deemed to refer to this Agreement.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

166











 

[Signature Pages Follow]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

167











 

EXECUTED as of the date first written above by MLC, PESRM and PESA.

 

	
 
    	
MLC:
    
	
 
    	
 
    
	
 
    	
MERRILL   LYNCH COMMODITIES, INC.
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Faiz Ahmad
    
	
 
    	
 
    	
Name:   Faiz Ahmad
    
	
 
    	
 
    	
Title:   Managing Director
    


 

[Signature Page to Amended and Restated Supply and Offtake Agreement]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

	
 
    	
PESRM:
    
	
 
    	
 
    
	
 
    	
PHILADELPHIA   ENERGY SOLUTIONS REFINING AND MARKETING LLC
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   James T. Rens
    
	
 
    	
 
    	
Name:   James T. Rens
    
	
 
    	
 
    	
Title:   Chief Financial Officer
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
PESA:
    
	
 
    	
 
    	
 
    
	
 
    	
PES   Administrative Services, LLC,
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   James T. Rens
    
	
 
    	
 
    	
Name:   James T. Rens
    
	
 
    	
 
    	
Title:   Chief Financial Officer
    


 

[Signature Page to Amended and Restated Supply and Offtake Agreement]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

ANNEX I

 

TERMS DEFINED BY REFERENCE TO THE SENIOR SECURED CREDIT FACILITY

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

ABL/SOA Priority Collateral

Advisory Agreement

Attributable Indebtedness

Available Cash

Board of Directors

Borrowing Base

Capital Expenditures

Capital Lease Obligations

Cash Equivalents

Casualty Event

Change in Control

Collection Account

Company

Compliance Certificate

Consolidated EBITDA

Consolidated Fixed Charge Coverage Ratio

Consolidated Fixed Charges

Consolidated Net Income

Contingent Obligation

Disqualified Capital Stock

Dividend

Domestic Subsidiary

Effective Date Material Adverse Effect

Eligible Hydrocarbon Inventory

Embargoed Person

Environmental and Necessary Capex

Equity Interests

Equity Issuance

ERISA

ERISA Affiliate

ERISA Event

Financial Officer

Foreign Plan

Hedging Agreement

Indebtedness

Intellectual Property

Intercompany Note

Intercreditor Agreement

Inventory

Investment

IP Rights

IPO

IPO Issuer

Lease

Material Indebtedness

Minimum Fixed Charge Coverage Ratio

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

1











 

MLC Separate Assets and Collateral

Multiemployer Plan

Net Cash Proceeds

Officer’s Certificate

Operating Account

Organizational Document

Pension Plan

Permitted Acquisition

Permitted Hedging Obligations

Permitted Reporting Company

Permitted Tax Distributions

Plan

Platinum Sale and Leaseback Transaction

Pro Forma Basis

Pro Forma Liquidity

Purchase Money Obligations

Qualified Capital Stock

Responsible Officer

Sale and Leaseback Transaction

Secured Obligations

Specified Hedging Obligations

Sponsor

Subordinated Debt Payment

Subordinated Indebtedness(1)

Tax

Tax Return

Term Loan Administrative Agent

Term Loan Documents

Term Loan Permitted Indebtedness Limit

Term Loan Priority Collateral

Terminaling Agreements

Threshold Basket Amount

Title Insurance Company

Transactions

Treasury Services Agreements

Trigger Event

Unasserted Contingent Obligation

Wholly Owned Subsidiary

 




(1)  The defined term “Obligation” as used in the definition of “Subordinated Indebtedness” shall have the meaning ascribed to such term in the Senior Secured Credit Facility.

 

** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

2









 

SCHEDULE 1.01(a)

 

ASSIGNED AGREEMENTS

 

Part I - Assigned CO/NCF Contracts

 

	
JPM Contract #
    	
 
    	
Supplier
    	
 
    	
Product
    
	
HEI14TP0004
    	
 
    	
Hess
    	
 
    	
Bakken Crude
    


 

Part II - Assigned RP/B Contracts

 

	
JPM Contract #
    	
 
    	
Counterparty
    	
 
    	
Product
    
	
MAR14TS0016
    	
 
    	
Marathon
    	
 
    	
Gasoline
    
	
Various - Monthly
    	
 
    	
Sunoco
    	
 
    	
Gasoline & Diesel
    
	
MIE14TS0006
    	
 
    	
Mieco
    	
 
    	
Ultra Low Sulfur Diesel
    
	
MIE14TS0008
    	
 
    	
Mieco
    	
 
    	
Ultra Low Sulfur Heat
    
	
MIE14PE0073
    	
 
    	
Mieco
    	
 
    	
Ultra Low Sulfur Heat
    
	
SUT13TS0004
    	
 
    	
Superior
    	
 
    	
Gasoline & Diesel
    
	
HSC12TS0015
    	
 
    	
Honeywell
    	
 
    	
Cumene
    
	
KIF12TS0001
    	
 
    	
Kinder Morgan Transmix
    	
 
    	
Gasoline
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 1.01(b)

 

GUARANTORS

 

PES Administrative Services, LLC

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

1











 

SCHEDULE 1.01(c)

 

HYDROCARBON SPECIFICATIONS

 

	
Commodity ID
    	
 
    	
Commodity Description
    	
 
    	
Typical Specification
    
	
133400
    	
 
    	
83RB
    	
 
    	
Fungible 83RB
    
	
023800
    	
 
    	
83CB23 (9#)
    	
 
    	
Fungible 83CB 9# Summer, or Winter
    
	
023820
    	
 
    	
83CB20 (7.8#)/Winter
    	
 
    	
Fungible 83CB 7.8# Summer, or Winter
    
	
132100
    	
 
    	
91RB
    	
 
    	
Fungible 91RB
    
	
225000
    	
 
    	
91CB23 (9#)/Winter
    	
 
    	
Fungible 91CB 9# Summer, or Winter
    
	
225020
    	
 
    	
91CB20 (7.8#)
    	
 
    	
Fungible 91CB 7.8# Summer, or Winter
    
	
127400
    	
 
    	
87CF
    	
 
    	
Fungible 87CF 9# Summer, or Winter
    
	
84800
    	
 
    	
ETHANOL
    	
 
    	
51 to 83 vol% Ethanol
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
000500
    	
 
    	
GCOM - Alkylate
    	
 
    	
91 octane, <6# RVP
    
	
038300
    	
 
    	
GCOM - Alkylated Reformate
    	
 
    	
100 octane, <1# RVP
    
	
042600
    	
 
    	
GCOM - Misc
    	
 
    	
<430 end point, <14 RVP
    
	
425900
    	
 
    	
GCOM - Raffinate
    	
 
    	
70 octane, 11# RVP
    
	
442500
    	
 
    	
GCOM - Light Naphtha
    	
 
    	
naphtha ~70 octane, ~9#
    
	
443300
    	
 
    	
GCOM - Heavy Naphtha
    	
 
    	
naphtha ~65-70 octane, ~5-9#
    
	
492900
    	
 
    	
GCOM - Untreated Cat
    	
 
    	
85 octane, 5# RVP
    
	
496500
    	
 
    	
GCOM - Heavy Reformate
    	
 
    	
100 octane, <1# RVP
    
	
497000
    	
 
    	
GCOM - Light Cat
    	
 
    	
88 octane, 11# RVP
    
	
497100
    	
 
    	
GCOM - Heavy Cat
    	
 
    	
85 octane, 5# RVP
    
	
223300
    	
 
    	
GCOM - Butane/Pentane
    	
 
    	
Pressuring Agent, 18-55# RVP
    
	
17400
    	
 
    	
NAPHVY - Heavy Naphtha
    	
 
    	
200 deg.F IBP, 405 degF EP by D86
    
	
000800
    	
 
    	
BUTANE-BUTYLENE MIX
    	
 
    	
<25% n-C4
    
	
001001
    	
 
    	
ISO BUTANE
    	
 
    	
>90% purity Isobutane
    
	
495400
    	
 
    	
Udex Feedstock
    	
 
    	
>20% total aromatics
    
	
006700
    	
 
    	
BENZENE
    	
 
    	
Benzene
    
	
084800
    	
 
    	
ETHANOL
    	
 
    	
> 92.1 vol% Ethanol
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
023101
    	
 
    	
JET A
    	
 
    	
Fungible JetA
    
	
224400
    	
 
    	
ULSD #1 15 MOTOR VEHICLE
    	
 
    	
Fungible ULSD1 and/or JetA
    
	
224600
    	
 
    	
ULSD #2 15 MOTOR VEHICLE
    	
 
    	
Fungible ULSD2
    
	
224630
    	
 
    	
ULSD #2 15 MOTOR VEHICLE - Export
    	
 
    	
Fungible ULSD2
    
	
227300
    	
 
    	
HO COMP - UNDYED
    	
 
    	
Fungible 2FO, Undyed
    
	
227900
    	
 
    	
ULSHO - UNDYED
    	
 
    	
Fungible 2FO, Undyed, <15 ppm
    
	
1800
    	
 
    	
HS2FO
    	
 
    	
0.20 wt% Sulfur max
    
	
233200
    	
 
    	
Biodiesel
    	
 
    	
Biodiesel B100
    
	
228720
    	
 
    	
ULSD 15MV2 B5 Soy
    	
 
    	
4.5 to 5.0 vol% Biodiesel
    
	
228710
    	
 
    	
ULSD 15MV2 B3 Soy
    	
 
    	
2.5 to 3.5 vol% Biodiesel
    
	
228700
    	
 
    	
ULSD 15MV2 B2 Soy
    	
 
    	
2.0 to 3 vol% Biodiesel
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
002700
    	
 
    	
Distillate Stocks
    	
 
    	
Virgin Distillate, <20F cloud, >15 ppm   sulfur
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
042500
    	
 
    	
Distillate Stocks - Surge Storage
    	
 
    	
Virgin Distillate, <20F cloud, >15 ppm   sulfur
    
	
005300
    	
 
    	
LCO
    	
 
    	
<700 deg.F end point, >135 deg.F flash
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

1



 






 

	
136900
    	
 
    	
LCO - Treated
    	
 
    	
<700 deg.F end point, >135 deg.F flash
    
	
225500
    	
 
    	
DIST BLDSTK UNDYED
    	
 
    	
30 deg.API min, 0.10 wt% sulfur max
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
428300
    	
 
    	
FUEL OIL 6 0.3% S HP
    	
 
    	
0.3 wt% max sulfur 6FO
    
	
428900
    	
 
    	
CLARIFIED SLURRY OIL
    	
 
    	
0-10 API gravity, 0.3-1.0% sulfur
    
	
429600
    	
 
    	
1.0% #6 FUEL OIL
    	
 
    	
1.0 wt% max sulfur 6FO
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
016000
    	
 
    	
VACUUM GAS OIL
    	
 
    	
Low Sulfur type: <0.5 wt% sulfur, >175   Deg.F aniline point, 2.0 wt% CCR max, 20 deg API min
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

2











 

Schedule 1.01(e)

 

FORM OF JOINDER AGREEMENT

 

Reference is hereby made to that certain Amended and Restated Supply and Offtake Agreement, dated as of [            ][    ], 2014 (as amended, restated, supplemented or otherwise modified from time to time, the “Agreement”), among Merrill Lynch Commodities, Inc., a Delaware corporation (“MLC”), Philadelphia Energy Solutions Refining and Marketing LLC, a Delaware limited liability company (“PESRM”) and the Guarantors (as defined therein) party thereto from time to time.  Capitalized terms used but not defined herein have the meanings ascribed to them in the Agreement.

 

W I T N E S S E T H:

 

WHEREAS, PESRM and the Guarantors have entered into the Agreement in order to, among other things, induce MLC to provide certain arrangements with respect to the (i) purchase of Crude Oil from sellers identified by PESRM, (ii) sale of the same types, grades and volumes of Crude Oil to PESRM, (iii) purchase of Refined Products from PESRM, and (iv) sale of the same types, grades and volumes of Refined Products to purchasers identified by PESRM, in each case, as agreed from time to time during the Term, subject to the terms of and conditions thereunder; and

 

WHEREAS, pursuant to Section 10.10(b) of the Agreement, each Subsidiary, other than an Excluded Subsidiary, [that was not in existence on the date of the Agreement] [that is a Domestic Subsidiary] [is required to become a Guarantor] under the Agreement by executing a Joinder Agreement. The undersigned Subsidiary (the “New Guarantor”) is executing this joinder agreement (“Joinder Agreement”) to the Agreement in order to induce MLC to continue entering into the arrangements contemplated by the Agreement and as consideration for the arrangements previously made pursuant to the Agreement.

 

NOW, THEREFORE, MLC and the New Guarantor hereby agree as follows:

 

1.             Guarantee. In accordance with Section 10.10(b) of the Agreement, the New Guarantor by its signature below becomes a Guarantor under the Agreement with the same force and effect as if originally named therein as a Guarantor.  The New Guarantor hereby agrees to all the terms and provisions of the Agreement applicable to it as a Guarantor thereunder.

 

2.             If required, the New Guarantor shall, simultaneously with the execution of this Joinder Agreement, execute and deliver such PESRM Transaction Documents (and such other documents and instruments) as requested by MLC in accordance with the Agreement.

 

3.             Representations and Warranties.  The New Guarantor represents and warrants that the representations and warranties made by it as a Guarantor under the Agreement are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” is true and correct in all respects as so qualified) on and as of the date hereof. Each reference to a Guarantor in the Agreement is deemed to include the New Guarantor. The New Guarantor hereby attaches supplements to each of the schedules to the Agreement applicable to it.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

3.             Severability. Any provision of this Joinder Agreement that is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability and without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction.

 

4.             Counterparts. This Joinder Agreement may be executed in counterparts, each of which constitutes an original. Delivery of an executed signature page to this Joinder Agreement by facsimile transmission or portable document format (pdf) is as effective as delivery of a manually executed counterpart of this Joinder Agreement.

 

5.             No Waiver. Except as expressly supplemented hereby, the Agreement remains in full force and effect.

 

6.             Notices. All notices, requests and demands to or upon the New Guarantor or MLC are governed by the terms of Section 16.09 of the Agreement.

 

7.             Governing Law. THIS JOINDER AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

[Signature Pages Follow]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

IN WITNESS WHEREOF, the undersigned have caused this Joinder Agreement to be duly executed and delivered by their duly authorized officers as of the day and year first above written.

 

	
 
    	
[NEW   SUBSIDIARY GUARANTOR]
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
Address   for Notices:
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
MERRILL   LYNCH COMMODITIES, INC.
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

Schedule 1.01(g)

 

FORM OF SUPPLY AND OFFTAKE PERFECTION CERTIFICATE

 

This Perfection Certificate, dated as of [    ], 2014, is delivered pursuant to that certain Amended and Restated Supply and Offtake Agreement, dated as of [    ], 2014, among Philadelphia Energy Solutions Refining and Marketing LLC (“PESRM”), a Delaware limited liability company, the Guarantors party thereto from time to time (together with PESRM, the “Transaction Parties,” and each, a “Transaction Party”) and Merrill Lynch Commodities Inc. (“MLC”),  and the Second Amended and Restated Pledge and Security Agreement, dated as of the date hereof (the “Security Agreement”), among PESRM, PES Administrative Services, LLC, a Delaware limited liability company (“PES Admin” and, together with PESRM, the “Transaction Parties”), as a grantor, and MLC, as collateral agent (in such capacity, the “SOA Collateral Agent”). Capitalized terms used but not defined herein have the meanings assigned to them in the Security Agreement.

 

The undersigned, Chief Financial Officer of each Transaction Party, hereby certifies, in his capacity as such, and not in his individual capacity, to the SOA Collateral Agent that as of the date hereof:

 

1)                Names.  (a) Set forth on Schedule 1(a) attached hereto is a schedule of the following: (i) the exact legal name of each Transaction Party, as such name appears in its respective certificate of incorporation or any other organizational document; (ii) confirmation that such entity is a limited liability company organized under the laws of the State of Delaware; and (iii) the organizational identification number, if any, of each Transaction Party that is a registered organization; the Federal Taxpayer Identification Number of each Transaction Party; and the jurisdiction of formation of each Transaction Party.

 

(b)           Set forth on Schedule 1(b) attached hereto is a schedule of any other corporate or organizational name each Transaction Party has had in the past five years, together with the date of the relevant change.

 

2)                Current Locations.  (a) Set forth on Schedule 2(a) attached hereto is the location of the chief executive office of each Transaction Party.

 

(b)           Set forth on Schedule 2(b) attached hereto are all locations where each Transaction Party maintains any books or records relating to any Pledged Collateral.

 

(c)           Set forth on Schedule 2(c) attached hereto are all the places of business of each Transaction Party.

 

(d)           Set forth on Schedule 2(d) attached hereto are all locations where each Transaction Party stores or maintains any of the Pledged Collateral consisting of inventory as of the date hereof, other than inventory in transit.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

(e)           Set forth on Schedule 2(e) attached hereto are the names and addresses of all persons or entities other than each Transaction Party, such as lessees, consignees or warehousemen, which have possession of the Pledged Collateral consisting of inventory.

 

3)                UCC Filings.  Set forth on Schedule 3 attached hereto and made a part hereof is a schedule of the financing statements (duly authorized by each Transaction Party constituting the debtor therein), including the indications of the collateral relating to the Security Agreement, and such financing statements are in the appropriate forms for filing in the filing offices in the jurisdictions identified in Schedule 4 hereto.

 

4)                Schedule of Filings.  Attached hereto as Schedule 4 is a schedule of the appropriate filing offices for the financing statements attached hereto as Schedule 3 and any other actions required to create and perfect the security interests in the Pledged Collateral (as defined in the Security Agreement) granted to the SOA Collateral Agent pursuant to the Security Agreement.  No other filings or actions are required to create and perfect the security interests in the Pledged Collateral granted to the SOA Collateral Agent pursuant to the Security Agreement.

 

5)                Deposit Accounts.  Attached hereto as Schedule 5 is a true and complete list of all Deposit Accounts maintained by each Transaction Party, including the name of each institution where each such account is held, the name of each such account and the name of each entity that holds each account.

 

6)                Real Property.  Attached hereto as Schedule 6 is a list of all (i) real property to be encumbered by a Mortgage and fixture filing (such real property, the “Mortgaged Property”), which constitutes all real property owned by such Transaction Party (other than the North Yard and the West Yard) with a value in excess of $5,000,000, (ii) addresses of each Mortgaged Property and (iii) appropriate filing offices for the Mortgages and fixture filings relating to the Mortgaged Property.

 

7)                Stock Ownership and Other Equity Interests.  Attached hereto as Schedule 7 is a true and correct list of all of the stock, partnership interests, limited liability company membership interests or other equity interests owned by each Transaction Party and the record and beneficial owners of such stock, partnership interests, membership interests or other equity interests setting forth the percentage of such equity interests pledged under the Security Agreement.

 

8)                Instruments and Tangible Chattel Paper.  Attached hereto as Schedule 8  is a true and correct list of all promissory notes, instruments (other than checks to be deposited in the ordinary course of business), tangible chattel paper, electronic chattel paper and other evidence of indebtedness held by each Transaction Party that are part of the Pledged Collateral (as defined in the Security Agreement) as of the date hereof in an amount in excess of $10,000.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

9)                Trademarks.

 

(a)               Attached hereto as Schedule 9(a) is a schedule setting forth each Transaction Party’s Trademarks applied for or registered with the United States Patent and Trademark Office (the “USPTO”), including the name of the registered owner or applicant and the registration, application, or publication number, as applicable, of each registered or applied for Trademark owned by each Transaction Party.

 

(b)               Attached hereto as Schedule 9(b) is a schedule setting forth all Trademarks which are the subject of any licensing or franchise agreement pursuant to which such Grantor is the licensor or franchisor (whether or not recorded with the USPTO), in each case, under which a Transaction Party is the licensor or franchisor of a Trademark, including the relevant signatory parties to each license along with the date of execution thereof and, if applicable, a recordation number or other such evidence of recordation.

 

10)              Termination Statements.  Attached hereto as Schedule 10 is a schedule setting forth, other than with respect to Liens (as defined in the Supply and Offtake Agreement) permitted pursuant to Section 11.02 of the Supply and Offtake Agreement, all termination statements relating to financing statements or public notices or similar statements covering or purporting to cover any interest of any kind in the Pledged Collateral  (a) filed against such Transaction Party in such Transaction Party’s jurisdiction of organization or (b) authorized by such Transaction Party to be filed in any jurisdiction in the last five years prior to the Closing Date.

 

[SIGNATURE PAGES FOLLOW]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

IN WITNESS WHEREOF, we have hereunto signed this Perfection Certificate as of the day first set forth above.

 

	
 
    	
 
    	
TRANSACTION PARTIES:
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
PHILADELPHIA ENERGY SOLUTIONS REFINING AND   MARKETING LLC
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
 
    
	
 
    	
 
    	
 
    	
Name: 
    	
James T. Rens
    
	
 
    	
 
    	
 
    	
Title: 
    	
Chief Financial Officer
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
PES ADMINISTRATIVE SERVICES, LLC
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
 
    
	
 
    	
 
    	
 
    	
Name: 
    	
James T. Rens
    
	
 
    	
 
    	
 
    	
Title: 
    	
Chief Financial Officer
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 









 

Schedule 1.01(h)

 

MORTGAGED PROPERTIES

 

MORTGAGED PROPERTIES consisting of Parcels A, B-1, C and D as identified as such in the Owner’s Policy of Title Insurance

 

PARCEL A Description. (Parcel A)

 

Beginning at a point on the northern side of Lanier Avenue and the corner of lands now or late owned by Atlantic Refining & Marketing Corp., a Delaware corporation, North 58°52’39” East, a distance of 31.47 feet; thence South 31°07’21” East, a distance of 136.40feet;  thence South 58°52’39” West, a distance of 50.41 feet to a point a corner of lands of Conrail; thence along lands of Conrail the 14 following courses and distances:

 

(1) South 31°52’50” East, a distance of 90.73 feet to a point of curvature;

(2) by a curve to the right having a radius of 335.54 feet and a central angle of 39°39’00” an arc length of 232.20 feet a chord which bears South 12°03’20” East 227.60 feet to a point;

(3)South 07°46’10” West tangent to said curve, a distance of 541.48 feet;

(4) North 35°26’10” East, a distance of 282.33 feet;

(5) North 35°47’10” East, a distance of 273.76 feet;

(6) South 07°46’01” West, a distance of 1297.42 feet;

(7) South 07°54’07” West, a distance of 144.68 feet;

(8) South 09°10’51” West, a distance of 320.82 feet;

(9)South 04°26’38” West, a distance of 122.85 feet;

(10) South 07°38’04” West, a distance of 30.09 feet;

(11) South 08°09’35” West, a distance of 119.06 feet;

(12) South 06°59’31” West, a distance of 139.54 feet;

(13) South 81°41’24” East, a distance of 89.38 feet;

(14) South 07°57’20” West, a distance of 232.50 feet to a point on the pierhead and bulkhead of the Schuylkill River;

 

thence along the bulkhead of the Schuylkill River the 56 following courses and distances:

 

(1) North 83°40’40” West, a distance of 484.75 feet;

(2) North 80°59’10” West, a distance of 293.05 feet;

(3) North 80°57’45” West, a distance of 291.76 feet;

(4) North 80°39’50” West, a distance of 367.78 feet;

(5) North 09°10’46” East, a distance of 47.72 feet;

(6) North 63°43’59” West, a distance of 87.28 feet;

(7) North 61°57’14” West, a distance of 104.02 feet;

(8) South 26°32’09” West, a distance of 51.72 feet;

(9) North 62°59’30” West, a distance of 133.92 feet;

(10) North 62°12’53” West, a distance of 166.29 feet;

(11) North 26°44’06” East, a distance of 55.61 feet;

(12) North 62°58’22” West, a distance of 247.86 feet;

(13) North 62°17’56” West, a distance of 287.77 feet;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

1











 

(14) North 45°26’57” West, a distance of 211.11 feet;

(15) North 46°31’00” West, a distance of 354.57 feet;

(16) North 64°57’13” West, a distance of 65.87 feet;

(17) North 34°41’49” West, a distance of 109.10 feet;

(18) North 46°10’22” West, a distance of 380.64 feet;

(19) North 29°33’57” West, a distance of 210.22 feet;

(20) North 28°49’08” West, a distance of 356.96 feet;

(21) North 29°42’09” West, a distance of 364.44 feet;

(22) North 16°12’31” West, a distance of 42.38 feet;

(23) North 09°26’20” West, a distance of 45.39 feet;

(24) North 15°41’58” West, a distance of 913.99 feet;

(25) North 15°05’58” West, a distance of 56.31 feet;

(26) North 08°17’52” West, a distance of 173.70 feet;

(27) North 05°19’22” West, a distance of 64.01 feet;

(28) North 07°37’01” West, a distance of 1136.34 feet;

(29) North 08°01’22” East, a distance of 380.08 feet;

(30) North 28°44’59” East, a distance of 7.74 feet;

(31) North 43°42’20” East, a distance of 197.15 feet;

(32) North 42°26’02” East, a distance of 89.30 feet;

(33) North 44°10’07” East, a distance of 72.09 feet;

(34) North 72°36’31” East, a distance of 27.87 feet;

(35) North 75°53’49” East, a distance of 101.72 feet;

(36) North 77°19’59” East, a distance of 293.03 feet;

(37) South 86°50’08” East, a distance of 373.53 feet;

(38) South 86°29’05” East, a distance of 408.99 feet;

(39) North 84°56’19” East, a distance of 6.58 feet;

(40) North 81°27’07” East, a distance of 156.35 feet;

(41) North 85°23’48” East, a distance of 75.71 feet;

(42) North 80°50’16” East, a distance of 28.45 feet;

(43) South 15°42’39” East, a distance of 2.48 feet;

(44) North 74°42’14” East, a distance of 40.34 feet;

(45) North 79°38’24” East, a distance of 11.24 feet;

(46) North 84°28’14” East, a distance of 78.29 feet;

(47) North 71°34’56” East, a distance of 10.59 feet;

(48) North 85°13’53” East, a distance of 68.60 feet;

(49) North 53°43’35” East, a distance of 138.34 feet;

(50)North 55°19’46” East, a distance of 24.25 feet;

(51) North 49°12’19” East, a distance of 21.57 feet;

(52) North 50°49’59” East, a distance of 22.71 feet;

(53) North 63°34’55” East, a distance of 37.80 feet;

(54) North 48°56’08” East, a distance of 17.60 feet;

(55) North 48°01’38” East, a distance of 37.79 feet;

(56) North 57°04’27” East, a distance of 220.24 feet to a point, a corner of lands now or late owned by Atlantic Refining & Marketing Corp., a Delaware corporation;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

2











 

thence along lands now or late owned by Atlantic Refining & Marketing Corp., a Delaware corporation,  the following 9 courses and distances:

 

(1) South 66°43’40” East, a distance of 165.74 feet;

(2) South 26°47’19” West, a distance of 173.62 feet to a point of curvature;

(3) by a curve to the left having a radius of 313.83 feet and a central angle of 55°00’41” an arc length of 301.32 feet a chord which bears South 00°06’24” West 289.88 feet;

(4) South 28°44’58” East, a distance of 198.19 feet;

(5) North 78°06’33” East, a distance of 1489.09 feet;

(6) South 07°46’10” West, a distance of 1288.62 feet;

(7) South 60°40’29” West, a distance of 577.59 feet;

(8) South 29°33’29” East, a distance of 525.42 feet;

(9) South 32°34’13” East, a distance of 529.63 feet to the point of Beginning.

 

Containing 394.96 Acres, more or less.

 

OPA#885044000 - 3600 Lanier  Ave

OPA#884096500 - 3404 Penrose Ave

OPA#884095400 - 3000 Penrose Ferry Rd

OPA#884095500 - 3002 Penrose Ferry Rd

 

PARCEL B-1 Description (Parcel B-1)

 

Beginning at a point on the western side of 26th street;  thence along the western side of 26th Street the 16 following courses and distances:

 

(1) South 07°45’55” West, a distance of 169.94 feet;

(2) South 00°16’02” East, a distance of 38.37 feet;

(3) South 06°25’58” West, a distance of 199.87 feet;

(4) South 07°53’20” West, a distance of 211.08 feet;

(5) South 07°47’37” West, a distance of 1509.96 feet;

(6) South 07°52’07” West, a distance of 726.03 feet;

(7) South 07°38’49” West, a distance of 48.89 feet;

(8) South 09°29’34” West, a distance of 130.93 feet;

(9) South 07°13’47” West, a distance of 401.40 feet;

(10) South 07°57’21” West, a distance of 318.70 feet;

(11) South 15°50’52” West, a distance of 136.31 feet;

(12) South 07°45’11” West, a distance of 118.07 feet;

(13) North 80°01’54” West, a distance of 17.81 feet;

(14) South 14°08’03” West, a distance of 552.84 feet to a point of curvature;

(15) by a curve to the left having a radius of 200.76 feet and a central angle of 66°30’21” an arc length of 233.04 feet and a chord which bears South 34°54’40” West 220.17 feet;

(16) South 01°46’40” West, a distance of 293.89 feet;

 

thence along the north side of Penrose Avenue South 43°34’41” West, a distance of 665.73 feet to a point of curvature; thence by a curve to the right having a radius of 126.09 feet and a central angle of 73°01’54” an arc length of 160.71 feet a chord which bears South 87°07’45” West 150.05 feet point of reverse curvature;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

3











 

thence by a reverse curve to the left having a radius of 167.93 feet and a central angle of 102°48’10” an arc length of 301.32 feet and a chord South 78°02’49” West and a distance of 262.49 feet;

 

thence along the northern side of Lanier Avenue the eight following courses and distances:

 

(1) South 28°41’02” West, a distance of 84.04 feet;

(2) South 30°01’19” West, a distance of 182.61 feet;

(3)South 33°23’20” West, a distance of 122.68 feet to a point of curvature;

(4) by a curve to the left having a radius of 365.09 feet and a central angle of 10°02’31” an arc length of 63.99 feet a chord which bears South 38°14’27” West 63.90 feet;

(5) South 45°13’17” West, a distance of 69.72 feet to a point of curvature;

(6) by a curve to the left having a radius of 248.69 feet and a central angle of 11°28’08” an arc length of 49.78 feet a chord which bears South 50°30’20” West 49.70 feet;

(7)South 55°40’25” West, a distance of 127.19 feet;

(8) South 58°52’39” West, a distance of 504.43 feet;

 

thence along Girard Point property the following ten courses and distances:

 

(1) South 58°52’39” West, a distance of 31.47 feet;

(2) North 32°34’13” West, a distance of 529.63 feet;

(3) North 29°33’29” West, a distance of 525.42 feet;

(4) North 60°40’29” East, a distance of 577.59 feet;

(5) North 07°46’10” East, a distance of 1288.62 feet;

(6) South 78°06’33” West, a distance of 1489.09 feet;

(7) North 28°44’58” West, a distance of 198.19 feet to a point of curvature;

(8) by a curve to the right having a radius of 313.83 feet and a central angle of 55°00’41” an arc length of 301.32 feet a chord which bears North 00°06’24” East 289.88 feet to a point;

(9) North 26°47’19” East, a distance of 173.62 feet;

(10) North 66°43’40” West,  a distance of 165.74 feet to a point on the bulkhead of the Schuylkill River;

 

thence along the bulkhead of the Schuylkill River the 29 following courses and distances:

 

(1) North 43°24’56” East, a distance of 135.15 feet;

(2) North 32°59’59” East, a distance of 197.67 feet;

(3) North 28°46’15” East, a distance of 207.21 feet;

(4) South 67°36’32” East, a distance of 25.00 feet;

(5) North 28°53’49” East, a distance of 525.99 feet;

(6) North 23°14’16” East, a distance of 296.55 feet;

(7) North 16°27’07” East, a distance of 155.27 feet;

(8) North 09°56’26” East, a distance of 211.86 feet;

(9) North 26°32’07” East, a distance of 130.56 feet;

(10) North 45°19’27” West, a distance of 43.11 feet;

(11) North 23°44’32” East, a distance of 11.78 feet;

(12) North 58°39’44” East, a distance of 10.33 feet;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

4











 

(13) North 13°19’01” East, a distance of 20.88 feet;

(14) North 21°53’43” East, a distance of 22.65 feet;

(15) North 33°53’23” East, a distance of 15.69 feet;

(16) North 22°37’41” East, a distance of 36.18 feet;

(17) North 12°06’28” East, a distance of 42.35 feet;

(18) South 78°45’03” East, a distance of 9.60 feet;

(19) North 12°10’53” East, a distance of 13.10 feet;

(20) North 84°10’16” West, a distance of 12.72 feet;

(21) North 23°48’41” East, a distance of 452.70 feet;

(22) North 23°48’41” East, a distance of  453.47 feet;

(23) South 72°18’38” East, a distance of 4.28 feet;

(24) North 19°03’43” East, a distance of 23.84 feet;

(25) North 15°47’28” East, a distance of 46.32 feet;

(26) South 80°51’48” East, a distance of 21.53 feet;

(27) North 13°26’19” East, a distance of 231.84 feet;

(28) North 07°22’43” East, a distance of 111.24 feet;

(29) North 03°41’43” West, a distance of 175.93 feet;

(30) North 15°46’02” West, a distance of 105.60 feet;

 

thence North 74°54’45” East, a distance of 126.56 feet; thence continuing along same North 74°54’45” East, a distance of 225.13 feet; thence South 14°27’15” East, a distance of 45.83 feet to a point on the southern side of Passyunk Avenue;

 

thence along the southern side of Passyunk Avenue North 74°50’12” East, a distance of 1289.66 feet;  thence leaving said side of Passyunk Avenue South 15°09’48” East, a distance of 364.36 feet;  thence North 74°50’12” East, a distance of 218.00 feet;  thence South 15°09’48” East, a distance of 63.00 feet;  thence South 89°08’54” East, a distance of 10.00 feet; thence South 25°09’48” East, a distance of 60.00 feet;  thence South 63°09’48” East, a distance of 27.00 feet; thence North 71°05’39” East, a distance of 79.00 feet; thence North 66°10’39” East, a distance of 201.00 feet;  thence North 04°50’39” East, a distance of 61.00 feet;  thence South 85°09’21” East, a distance of 82.00 feet;  thence North 74°50’39” East, a distance of 253.00 feet;  thence South 82°09’21” East, a distance of 224.77 feet to the Point of Beginning.

 

Containing 360.55 Acres, more or less.

 

OPA #884097044 - 3144 W. Passyunk Ave

 

PARCEL C Description. (Parcel C)

 

ALL THAT CERTAIN tract or piece of land. SITUATE in the Forty-eighth Ward of the City of Philadelphia, described in accordance with an ALTA/ACSM Land Title Survey made by Ludgate Engineering Corporation dated 5/1/2012, as follows, to wit: Beginning at a point on the eastern side of Essington Avenue and a corner of lands of Pacific Atlantic Terminal;  thence along lands of Pacific Atlantic Terminal South 82°10’16” East, a distance of 367.00 feet;  thence continuing along said lands South 77°59’17” East, a distance of 668.27 feet to a point of curvature; thence by a curve to the left having a radius of 1463.35 feet and a central angle of 25°44’18” an arc

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

5











 

length of 657.36 feet a chord which bears South 18°58’02” East 651.85 feet; thence South 31°50’11” East a distance of 827.78 feet;  thence South 31°50’11” East, a distance of 1456.50 feet;  thence along Mingo Creek South 58°16’51” West, a distance of 2698.79 feet;  thence North 64°39’14” West, a distance of 673.96 feet to a point on the eastern side of Mingo Avenue;  thence along Mingo Avenue North 00°03’26” West, a distance of 1413.86 feet to a point on the eastern side of Essington Avenue;  thence along Essington Avenue North 10°51’10” East, a distance of 2507.54 feet to the Point of Beginning.

 

Containing 171.18 Acres, more or less.

 

Being a portion of OPA#884096700 — 6900 Essington Avenue

 

PARCEL D Description. (Parcel D)

 

ALL THAT CERTAIN tract or piece of land. SITUATE in the Forty-eighth Ward of the City of Philadelphia, described in accordance with an ALTA/ACSM Land Title Survey made by Ludgate Engineering Corporation dated 5/1/2012, as follows, to wit: 

 

Beginning at a point a corner of lands of Pacific Atlantic Terminal;  thence along lands of Pacific Atlantic Terminal South 89°16’27” East, a distance of 989.92 feet to a point on the west side of the Schuylkill River; thence along said river the 4 following courses and distances: (1) South 03°54’17” East, a distance of 294.15 feet; (2) South 15°35’28” East, a distance of 973.86 feet; (3) South 15°35’28” East, a distance of 196.10 feet;  (4)South 29°06’56” East, a distance of 955.16 feet;  thence South 54°55’41” West, a distance of 467.65 feet to a point on the east side of lands of Pacific Atlantic Terminal; thence along lands of Pacific Atlantic Terminal the three following courses and  distances: (1) North 31°50’11” West, a distance of 1423.21 feet;  (2) North 31°50’11” West, a distance of 857.35 feet to a point of curvature; (3) by a curve to the right having a radius of 1397.46 feet a central angle of 26°08’53” an arc length of 637.75 feet a chord which bears North 18°45’45” West a distance of 632.23 feet  to the Point of Beginning.

 

Containing 39.90 Acres, more or less.

 

Being a portion of OPA#884096700 — 6900 Essington Avenue

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

6











 

SCHEDULE 1.01(i)

 

NORTH YARD

 

NORTH YARD consisting of Parcels B-2, B-3, B-4, H-1 and H-2 as identified as such in the Owner’s Policy of Title Insurance

 

PARCEL B-2 Description. (Parcel B-2)

 

Beginning at a point on the south side of Passyunk Avenue and on the pierhead and bulkhead of the Schuylkill River; thence along the bulkhead of the Schuylkill River the thirty-three following courses and distances:

 

(1) North 15°46’02” West, a distance of 155.02 feet;

(2) North 31°09’33” West, a distance of 148.28 feet;

(3) North 39°25’25” West, a distance of 180.29 feet;

(4) North 44°07’32” West, a distance of 80.71 feet;

(5) North 65°32’53” West, a distance of 13.18 feet;

(6) North 49°22’28” West, a distance of 8.41 feet;

(7) North 65°46’02” West, a distance of 30.05 feet;

(8) South 54°50’25” West, a distance of 5.48 feet;

(9) North 40°45’12” West, a distance of 48.68 feet;

(10) North 56°19’58” West, a distance of 156.17 feet;

(11) North 57°58’20” West, a distance of 145.68 feet;

(12) North 75°17’24” West, a distance of 42.80 feet;

(13) North 83°31’11” West, a distance of 86.58 feet;

(14) North 83°31’11” West, a distance of 95.61 feet;

(15) North 83°00’35” West, a distance of 187.03 feet;

(16) South 80°37’47” West, a distance of 809.03 feet;

(17) South 80°01’56” West, a distance of 46.99 feet;

(18) South 85°22’16” West, a distance of 35.86 feet;

(19) South 86°42’51” West, a distance of 95.79 feet;

(20) North 05°28’09” West, a distance of 30.00 feet;

(21) North 72°05’27” West, a distance of 480.36 feet;

(22) North 49°21’34” West, a distance of 277.55 feet;

(23) North 44°46’47” West, a distance of 91.93 feet;

(24) North 27°49’54” West, a distance of 198.68 feet;

(25) North 23°47’26” West, a distance of 139.41 feet;

(26) North 27°22’11” West, a distance of 140.79 feet;

(27) North 00°58’58” West, a distance of 695.54 feet;

(27) North 14°12’09” East, a distance of 375.02 feet;

(28) North 06°23’54” West, a distance of 78.53 feet;

(29) North18°25’26” East, a distance of 447.84 feet;

(30) South 74°33’15” East, a distance of 65.04 feet;

(31) North 24°55’08” East, a distance of 22.18 feet;

(32) South 81°55’09” East, a distance of 191.39 feet;

(33) North 42°08’32” East, a distance of 43.36 feet;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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thence leaving bulkhead and along lands of Conrail South 82°20’38” East, a distance of 644.83 feet;  thence continuing along lands of Conrail the 11 following courses and distances:

 

(1) South 16°15’57” East, a distance of 120.19 feet to a point of curvature;

(2) by a curve to right having a radius of 653.39 feet and a central angle of 54°52’25” an arc length of 625.77 feet a chord

which bears South 44°45’52” East 602.12 feet;

(3) South 82°10’05” East, a distance of 379.22 feet;

(4) South 81°54’46” East, a distance of 281.13 feet;

(5) South  82°09’55” East, a distance of 185.06 feet;

(6) South 82°22’37” East, a distance of 375.54 feet;

(7) South 82°19’05” East, a distance of 329.39 feet;

(8) South 81°52’05” East, a distance of 339.43 feet;

(9) South 82°21’18” East, a distance of 639.33 feet;

(10) South 82°07’25” East, a distance of 230.24 feet to a point of curvature;

(11) by a  of a curve to the right having a radius of 1028.90 feet and a central angle of 18°15’10” an arc length of 327.78 feet a chord which bears South 73°24’01”East 326.40 feet;

 

thence South 07°48’50” West, a distance of 86.27 feet to a point in line of lands owned by the City of Philadelphia; thence along lands of Philadelphia the 16 following courses and distances:

 

(1) by a curve to the left having a radius of 499.91 feet and a central angle of 22°54’36” an arc length of 199.89 feet a chord which bears South 82°53’51” West 198.56 feet;

(2) South 68°52’37” West, a distance of 368.16 feet to a point of curvature;

(3) by a curve to the left having a radius of 759.85 feet and a central angle of 9°50’11” an arc length of 130.45 feet a chord which bears South 74°48’53” West 130.29 feet;

(4) South 79°06’45” West, a distance of 310.68 feet;

(5) South 74°37’16” West, a distance of 96.75 feet;

(6) South 56°20’07” West, a distance of 70.00 feet;

(7) South 64°28’35” West, a distance of 251.25 feet;

(8) South 67°27’07” West, a distance of 302.11 feet;

(9) South 67°27’07” West, a distance of 402.58 feet;

(10) South 67°27’07” West, a distance of 141.14 feet;

(11) South 53°20’14” West, a distance of 50.00 feet;

(12) South 23°28’34” East, a distance of 32.51 feet;

(13) South 23°28’34” East, a distance of 299.99 feet;

(14) South 35°54’01” East, a distance of 737.38 feet;

(15) South 16°59’51” East, a distance of 113.90 feet;

(16) South 44°15’26” East, a distance of 25.66 feet;

 

thence South 74°54’45” West, a distance of 126.56 feet to the Point of Beginning.

 

Containing 141.00 Acres, more or less.

 

Being a portion of OPA #884097200 - 3143 W. Passyunk Ave

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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PARCEL B-3 Description. (Parcel B-3)

 

Beginning at a point on the right of way of Moore Street; thence along the southern right of way of Moore Street South 76°59’06” East, a distance of 85.84 feet;  thence continuing along said right of way South 76°04’48” East, a distance of 329.50 feet to a point on the western right of way line of 35th Street;  thence along the western right of way line of 35th Street South 13°57’01” West, a distance of 518.75 feet; thence South 82°07’46” East, a distance of 497.03 feet to a point on the western right of way line of 34th Street;  thence along the western right of way line of 34th Street South 20°22’25” West, a distance of 139.66 feet to a point on the southern right of  way line of Maiden Lane; thence along the southern right of way line of Maiden Lane South 64°11’02” East, a distance of 1256.82 feet to a point of curvature; thence by a  curve to the right entering the western side of 26th Street having a radius of 491.39 feet and a central angle of 18°49’29” an arc length of 161.45 feet and a chord which bears South 55°27’35” East 160.72 feet;

 

thence along the western side of 26th Street the eight following courses and distances:

 

(1) South 43°44’58” West, a distance of 2.95 feet;

(2) South 40°36’48” East, a distance of 169.81 feet;

(3) South 37°29’46” East, a distance of 210.70 feet;

(4) South 37°08’53” East, a distance of 599.67 feet;

(5)South 37°13’25” East, a distance of 255.57 feet;

(6) South 45°31’16” West, a distance of 2.49 feet;

(7) South 34°13’50” East, a distance of 144.39 feet;

(8) South 33°56’02” East, a distance of 266.03 feet;

 

thence leaving the western side of 26th Street and going along the northern side of lands of Conrail the 24 following courses and distances:

 

(1) North 81°59’00” West, a distance of 236.77 feet;

(2) North 58°22’13” East, a distance of 33.81 feet;

(3) North 74°29’15” West, a distance of 121.44 feet;

(4) North 76°18’45” West, a distance of 250.63 feet;

(5) North 84°05’02” West, a distance of 285.50 feet;

(6) South 47°15’52” West, a distance of 15.18 feet;

(7) North 75°52’55” West, a distance of 46.21 feet;

(8) North 82°02’14” West, a distance of 525.00 feet;

(9) North 02°36’38” East, a distance of 6.00 feet;

(10)North 82°03’42” West, a distance of 209.46 feet;

(11) North 82°26’26” West, a distance of 197.26 feet;

(12) North 82°16’24” West, a distance of 149.97 feet;

(13)North 82°06’49” West, a distance of 452.25 feet;

(14) South 11°06’33” West, a distance of 15.19 feet;

(15) North 81°57’23” West, a distance of 288.33 feet;

(16) North 80°02’02” West, a distance of 92.49 feet;

(17)North 83°48’02” West, a distance of 66.93 feet:

(18) North 79°34’03” West, a distance of 240.34 feet to a point of curvature;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

9











 

(19) by a curve to the right having a radius of 665.76 feet and a central angle of 55°53’57” an arc length of 649.53 feet and a chord which bears North 53°19’49” West 624.07 feet to a point of compound curvature;

(20) by a compound curve to the right having a radius of 733.68 feet and a central angle of 44°51’23” an arc length of 574.39 feet and a chord which bears North 00°47’49” East 559.84 feet;

(21) North 21°41’17” East, a distance of 358.44 feet;

(22) North 26°05’47” East, a distance of 92.79 feet;  (23) South 82°19’34” East, a distance of 223.64 feet;

(24) North 13°55’44” East, a distance of 990.16 feet to the Point of Beginning.

 

Containing 106.64 Acres, more or less.

 

Being a portion of OPA #884097200 - 3143 W. Passyunk Ave

 

PARCEL B-4 Description. (Parcel B-4)

 

Beginning at a point on the northerly side of Moore Street with the centerline of the said former 36th Street, stricken from the city plan at 50 feet wide; thence along the centerline of the said former 36th Street North 13°59’19” East, a distance of

240.14 feet to a point on the southerly side of the said former Fish House Lane (at 23.208 feet wide); thence along the said former Fish House Lane the following 5 courses and distances:

 

(1) North 79°29’59” West, a distance of 30.06 feet;

(2) North 13°59’19” East, a distance of 23.25 feet;

(3) South 79°29’59” East, a distance of 495.93 feet;

(4) South 13°59’19” West, a distance of 23.25 feet;

(5) North 79°29’59” West, a distance of 25.05 feet to a point on the centerline of the said former 35th Street (50 feet wide); thence along the centerline of said former 35th Street South 13°59’19” West, a distance of 266.97 feet to a point on the northerly side of Moore Street; 

 

thence along the northerly side of Moore Street  North 76°00’41” West, a distance of 440.00 feet to the Point of Beginning.

 

Containing 2.83 Acres, more or less.

 

OPA#884214115 — 3515 Moore Street

 

PARCELS H-1 and H-2 Descriptions.

 

ALL THOSE CERTAIN tracts, pieces or parcels of land, situate former 36th Street and Moore Street, 36th Ward, City of Philadelphia, Commonwealth of Pennsylvania, as shown on a plan prepared by Van Demark & Lynch, Inc., Engineers, Planners and Surveyors, Wilmington, Delaware, Drawing No. 39945-F, dated April 23, 2010, entitled “Subdivision Plat, Premises “H”, prepared for Sunoco, Inc.” and being more particularly described as follows, to wit:

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

10









 

PARCEL “H-1”:

 

BEGINNING at a point, the intersection of the northerly side of Moore Street, shown on the city plan and legally open at 50 feet wide, with the centerline of former 36th Street, stricken from the city plan at 50 feet wide, being the southwesterly corner of Premises ‘H-1’, Sunoco Propane Terminal (13-S-23/3) on a easterly line for land now or formerly of CSX Transportation, Inc. (13-S-24/4);

 

THENCE through the said land now or formerly of CSX Transportation, Inc. the seven (7) following described courses and distances:

 

(Courses 1 through 3 along or near a 6 foot chain link fence)

 

1.                                      North 68° 50’ 44” West, 77.400 feet to a point;

2.                                      North 18° 57’ 36” East, 199.926 feet to a point;

3.                                      North 23° 20’ 54” East, 201.193 feet to a fence corner;

4.                                      North 25° 18’ 02” East, 84.179 feet to a point;

5.                                      North 27° 45’ 33” East, 22.761 feet to a point; and

6.                                      South 68° 50’ 44” East, 43.650 feet to a point, the northwesterly corner for the herein described Parcel “B” on the westerly line of the said former 36th Street; (Course 7 along the said westerly side of former 36th Street, being the westerly line for the said Parcel “H-2”)

7.                                      South 21° 09’ 16” West, 245.524 feet to a point on the northerly side of former Fish House Lane, at 23.208 feet wide;

 

THENCE along the northerly side, westerly terminus and southerly side of the said former Fish House Lane the three (3) following described courses and distances:

 

1.                                      North 72° 20’ 02” West, 5.018 feet to a point;

2.                                      South 21° 09’ 16” West, 23.250 feet to a point; and

3.                                      South 72° 20’02” East, 30.064 feet to a point on the said centerline of former 36th Street;

 

THENCE along the said centerline of former 36th Street, South 21° 09’ 16” West, 240.143 feet to the point and place of Beginning.

 

CONTAINING within said metes and bounds, 33,558 square feet (0.770 acres) of land, being the same, more or less.

 

PARCEL H-2

 

BEGINNING at a point, a southeasterly corner for the above described Parcel “H-1”, the intersection of the westerly side of former 36th Street, stricken from the city plan at 50 feet wide, with the northerly side of former Fish House Lane, at 23.208 feet wide, being on a southeasterly line for land now or formerly of CSX Transportation, Inc. (13-S-2414), said point being measured the four (4) following courses and distances from the intersection of the northerly side of Moore Street, shown on the city plan and legally open at 50 feet wide, with the centerline of the said former 36th Street;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

11











 

(Course 1 along the centerline of said former 36th Street)

 

1.                                      North 21° 09’ 16” East, 240.143 feet to a point on the southerly side of the said former Fish House Lane;

(Course 2 through 4 along the said former Fish House Lane)

2.                                      North 72° 20’ 02” West, 30.064 feet to a point;

3.                                      North 21° 09’ 16” East, 23.250 feet to a point; and

4.                                      South 72° 20’ 02” East, 5.018 feet to the Point of Beginning;

 

THENCE from said point of Beginning, through the said land now or formerly of CSX Transportation, Inc. the two (2) following courses and distances:

 

(Course 1 along an easterly line for the said Parcel “H-1”)

1.                                      North 21° 09’ 16” East, 245.524 feet to a point; and

2.                                      South 68° 50’ 44” East, 25.000 feet to a point on the centerline for the said formerly 36th Street;

 

THENCE along the said centerline of the former 36th Street, South 21° 09’ 16” West, 244.000 feet to a point on the said northerly side of former Fish House Lane;

 

THENCE along the said northerly side of former Fish House Lane, North 72° 20’ 02” West, 25.046 feet to the point and place of Beginning.

 

CONTAINING within said metes and bounds, 6,119 square feet (0.140 acres) of land, being the same, more or less.

 

CONTAINING within said metes and bounds for Parcels “H-1” and “H-2”, a total of 39,677 square feet (0.911 acres) of land, being the same, more or less.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

12











 

SCHEDULE 1.01(j)

 

WEST YARD

 

WEST YARD consisting of Parcel E as identified as such in the Owner’s Policy of Title Insurance

 

PARCEL E: West Yard Description. (Parcel E)

 

ALL THAT CERTAIN tract or piece of land. SITUATE in the Forty-eighth Ward of the City of Philadelphia, described in accordance with an ALTA/ACSM Land Title Survey made by Ludgate Engineering Corporation dated 5/1/2012, as follows, to wit:

 

Beginning at a point on the southern right of way of Passyunk Avenue and a  corner of lands of now or late Thy B. Ma;  thence along said lands of Ma and along lands of now or late Joseph & Rosanna Mitchell South 69°19’58” East, a distance of 315.10 feet to a point a corner of lands of the now or late Phing Tan  and Khanh Buu Huynh;  thence along said lands and lands of Passyunk Avenue Realty En. North 82°44’45” East, a distance of 601.48 feet to a point a corner of the now or late lands of Passyunk Avenue Realty En;  thence along said lands South 61°00’00” East, a distance of 218.91 feet;  thence South 68°14’30” East, a distance of 251.05 feet;  thence along lands of Auto Recycling Real Estate North 88°16’32” East, a distance of  288.19 feet;  thence continuing along said lands and along lands of S.R.S. Inc. North 35°03’05” East, a distance of 1800.00 feet near the Schuylkill River;

 

thence in and along the Schuylkill River the 10 following courses and distances:

 

(1)South 80°39’14” East, a distance of 401.15 feet;

(2) South 42°01’03” East, a distance of 297.66 feet;

(3) South 04°55’59” West, a distance of 350.17 feet;

(4) South 15°52’29” West, a distance of 487.33 feet;

(5) South 23°42’54” West, a distance of 196.89 feet;

(6) South 22°35’18” West, a distance of 384.45 feet;

(7) South 14°15’27” West, a distance of 121.55 feet;

(8) South 15°59’35” West, a distance of 219.74 feet;

(9) South 21°40’33” West, a distance of 445.70 feet;

(10) South 23°20’44” West, a distance of 324.02 feet to a point a corner of lands of Convoy Realty LP;

 

thence along lands of Convoy North 63°18’58” West, a distance of 1362.47 feet;  thence North 07°11’32” East, a distance of 231.25 feet to a point of curvature; thence by a curve to the left having a radius of 5000.00 feet and a central angle of 1°29’17” an arc length of 129.85 feet a chord which bears North 70°46’37” West 129.85 feet;

 

thence along lands of Point Breeze Terminal LLC the eight following courses and distances:

 

(1) North 67°11’05” West, a distance of 14.72 feet;

(2) South 83°51’36” West, a distance of 839.02 feet;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

13











 

(3)North 60°55’04” East, a distance of 31.00 feet;

(4) North 25°30’00” East, a distance of 145.00 feet;

(5) North 00°00’00” East, a distance of 50.83 feet;

(6) North 00°00’00” East, a distance of 41.00 feet;

(7) North 85°21’56” West, a distance of 972.06 feet;

(8) North 07°07’07” East, a distance of 171.91 feet to a point on the southern side of Passyunk Avenue;

 

thence along the southern side of Passyunk Avenue the three following courses and distances:

 

(1) North 74°48’30” East, a distance of 226.91 feet;

(2) South 15°11’30” East, a distance of 6.00 feet;

(3) North 74°48’30” East, a distance of 349.28 feet to the Point of Beginning.

 

Containing 80.84 Acres, more or less.

 

OPA# 884097130 — 6300 W. Passyunk Avenue

OPA#884097140 — 6030 W. Passyunk Avenue

OPA#884097110  — 3701 S. 63rd Street

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

14











 

SCHEDULE 1.01(k)

 

RACKS AND RACK INFRASTRUCTURE OWNERS

 

	
Rack
    	
 
    	
Rack Infrastructure Owner
    
	
 
    	
 
    	
 
    
	
Belmont   Truck Rack, the truck rack that is located adjacent to the Refinery at 2700   Passyunk Ave., Philadelphia, PA 19145 and that is owned by Sunoco PMT,   subject to that certain Products Terminal Services Agreement dated as of   September 8, 2012 between Sunoco PMT and PESRM (as amended from time to   time)
    	
 
    	
Sunoco   PMT
    
	
 
    	
 
    	
 
    
	
Westville 1000 Crown Point Rd., Westville NJ 08093-1317
    	
 
    	
Sunoco   PMT
    
	
 
    	
 
    	
 
    
	
Sinking Spring 901 Mountain Home Rd., Sinking Spring, PA 19608
    	
 
    	
Lucknow-Highspire   Terminals Company
    
	
 
    	
 
    	
 
    
	
Highspire Terminal 900 Eisenhower   Blvd., Middletown, PA 17057
    	
 
    	
Lucknow-Highspire   Terminals Company
    
	
 
    	
 
    	
 
    
	
Mechanicsburg Terminal 127 Texaco   Road, Mechanicsburg, PA 17050
    	
 
    	
Lucknow-Highspire   Terminals Company
    
	
 
    	
 
    	
 
    
	
Altoona, 1100 Burns Ave., Altoona PA 16602
    	
 
    	
Lucknow-Highspire   Terminals Company
    
	
 
    	
 
    	
 
    
	
Northumberland, P.O. Box 300, Route 11 North, Northumberland PA   17857-0300
    	
 
    	
Lucknow-Highspire   Terminals Company
    
	
 
    	
 
    	
 
    
	
Kingston, 60 S. Wyoming Ave., Edwardsville PA 18704-3102
    	
 
    	
Sunoco   PMT
    
	
 
    	
 
    	
 
    
	
Allentown, 1134 N. Quebec St., Allentown PA 18109-1609
    	
 
    	
Lucknow-Highspire   Terminals Company
    
	
 
    	
 
    	
 
    
	
Fullerton, 2480 Main Street, Whitehall PA 18052-4607
    	
 
    	
Sunoco   PMT
    
	
 
    	
 
    	
 
    
	
Tonawanda, 3733 River Road, Tonawanda NY 14150
    	
 
    	
Sunoco   PMT
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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Rochester, 1840 Lyell Avenue, Rochester NY 14606
    	
 
    	
Sunoco   PMT
    
	
 
    	
 
    	
 
    
	
Coraopolis South, 9 Thorn Street, Coraopolis PA 15108
    	
 
    	
Lucknow-Highspire   Terminals Company
    
	
 
    	
 
    	
 
    
	
Dupont, RD 675 Suscon Road, Pittston, PA 18640
    	
 
    	
Lucknow-Highspire   Terminals Company
    
	
 
    	
 
    	
 
    
	
Van Buren, 2951 Energy Drive, Warners NY 13164
    	
 
    	
Sunoco   PMT
    
	
 
    	
 
    	
 
    
	
Exton Terminal, 601 Lincoln Highway, Exton PA 19341
    	
 
    	
Sunoco   PMT
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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SCHEDULE 1.01(l)

 

REFINERY

 

Originally built in 1866, the Philadelphia refinery is a 330,000 bpd refinery with a Nelson complexity of 9.3 located in Philadelphia, Pennsylvania.  It is the oldest continuously operating petroleum facility in the world.  The Philadelphia refinery as it is known and configured today is a combination of two formerly separate refineries often referred to as Girard Point (previously owned by Gulf and later Chevron) and Point Breeze (previously owned by ARCO and later Atlantic).  The integration of the two refineries into the single Philadelphia complex was completed by Sunoco in 1995.  The Philadelphia refinery is located on a 1,400 acre site and processes light, sweet, residual cracking and heavy sweet crudes.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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SCHEDULE 1.01(m)

 

REFINERY REAL PROPERTY

 

Consisting of Parcels A, B-1, B-2, B-3, B-4, C, D, E, G, H-1 & H-2  as identified as such in the Owner’s Policy of Title Insurance

 

PARCEL A

 

Beginning at a point on the northern side of Lanier Avenue and the corner of lands now or late owned by Atlantic Refining & Marketing Corp., a Delaware corporation, North 58°52’39” East, a distance of 31.47 feet; thence South 31°07’21” East, a distance of 136.40feet;  thence South 58°52’39” West, a distance of 50.41 feet to a point a corner of lands of Conrail; thence along lands of Conrail the 14 following courses and distances:

 

(1) South 31°52’50” East, a distance of 90.73 feet to a point of curvature;

(2) by a curve to the right having a radius of 335.54 feet and a central angle of 39°39’00” an arc length of 232.20 feet a chord which bears South 12°03’20” East 227.60 feet to a point;

(3)South 07°46’10” West tangent to said curve, a distance of 541.48 feet;

(4) North 35°26’10” East, a distance of 282.33 feet;

(5) North 35°47’10” East, a distance of 273.76 feet;

(6) South 07°46’01” West, a distance of 1297.42 feet;

(7) South 07°54’07” West, a distance of 144.68 feet;

(8) South 09°10’51” West, a distance of 320.82 feet;

(9)South 04°26’38” West, a distance of 122.85 feet;

(10) South 07°38’04” West, a distance of 30.09 feet;

(11) South 08°09’35” West, a distance of 119.06 feet;

(12) South 06°59’31” West, a distance of 139.54 feet;

(13) South 81°41’24” East, a distance of 89.38 feet;

(14) South 07°57’20” West, a distance of 232.50 feet to a point on the pierhead and bulkhead of the Schuylkill River;

 

thence along the bulkhead of the Schuylkill River the 56 following courses

and distances:

 

(1) North 83°40’40” West, a distance of 484.75 feet;

(2) North 80°59’10” West, a distance of 293.05 feet;

(3) North 80°57’45” West, a distance of 291.76 feet;

(4) North 80°39’50” West, a distance of 367.78 feet;

(5) North 09°10’46” East, a distance of 47.72 feet;

(6) North 63°43’59” West, a distance of 87.28 feet;

(7) North 61°57’14” West, a distance of 104.02 feet;

(8) South 26°32’09” West, a distance of 51.72 feet;

(9) North 62°59’30” West, a distance of 133.92 feet;

(10) North 62°12’53” West, a distance of 166.29 feet;

(11) North 26°44’06” East, a distance of 55.61 feet;

(12) North 62°58’22” West, a distance of 247.86 feet;

(13) North 62°17’56” West, a distance of 287.77 feet;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(14) North 45°26’57” West, a distance of 211.11 feet;

(15) North 46°31’00” West, a distance of 354.57 feet;

(16) North 64°57’13” West, a distance of 65.87 feet;

(17) North 34°41’49” West, a distance of 109.10 feet;

(18) North 46°10’22” West, a distance of 380.64 feet;

(19) North 29°33’57” West, a distance of 210.22 feet;

(20) North 28°49’08” West, a distance of 356.96 feet;

(21) North 29°42’09” West, a distance of 364.44 feet;

(22) North 16°12’31” West, a distance of 42.38 feet;

(23) North 09°26’20” West, a distance of 45.39 feet;

(24) North 15°41’58” West, a distance of 913.99 feet;

(25) North 15°05’58” West, a distance of 56.31 feet;

(26) North 08°17’52” West, a distance of 173.70 feet;

(27) North 05°19’22” West, a distance of 64.01 feet;

(28) North 07°37’01” West, a distance of 1136.34 feet;

(29) North 08°01’22” East, a distance of 380.08 feet;

(30) North 28°44’59” East, a distance of 7.74 feet;

(31) North 43°42’20” East, a distance of 197.15 feet;

(32) North 42°26’02” East, a distance of 89.30 feet;

(33) North 44°10’07” East, a distance of 72.09 feet;

(34) North 72°36’31” East, a distance of 27.87 feet;

(35) North 75°53’49” East, a distance of 101.72 feet;

(36) North 77°19’59” East, a distance of 293.03 feet;

(37) South 86°50’08” East, a distance of 373.53 feet;

(38) South 86°29’05” East, a distance of 408.99 feet;

(39) North 84°56’19” East, a distance of 6.58 feet;

(40) North 81°27’07” East, a distance of 156.35 feet;

(41) North 85°23’48” East, a distance of 75.71 feet;

(42) North 80°50’16” East, a distance of 28.45 feet;

(43) South 15°42’39” East, a distance of 2.48 feet;

(44) North 74°42’14” East, a distance of 40.34 feet;

(45) North 79°38’24” East, a distance of 11.24 feet;

(46) North 84°28’14” East, a distance of 78.29 feet;

(47) North 71°34’56” East, a distance of 10.59 feet;

(48) North 85°13’53” East, a distance of 68.60 feet;

(49) North 53°43’35” East, a distance of 138.34 feet;

(50)North 55°19’46” East, a distance of 24.25 feet;

(51) North 49°12’19” East, a distance of 21.57 feet;

(52) North 50°49’59” East, a distance of 22.71 feet;

(53) North 63°34’55” East, a distance of 37.80 feet;

(54) North 48°56’08” East, a distance of 17.60 feet;

(55) North 48°01’38” East, a distance of 37.79 feet;

(56) North 57°04’27” East, a distance of 220.24 feet to a point, a corner of lands now or late owned by Atlantic Refining & Marketing Corp., a Delaware corporation;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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thence along lands now or late owned by Atlantic Refining & Marketing Corp., a Delaware corporation,  the following 9 courses and distances:

 

(1) South 66°43’40” East, a distance of 165.74 feet;

(2) South 26°47’19” West, a distance of 173.62 feet to a point of curvature;

(3) by a curve to the left having a radius of 313.83 feet and a central angle of 55°00’41” an arc length of 301.32 feet a chord which bears South 00°06’24” West 289.88 feet;

(4) South 28°44’58” East, a distance of 198.19 feet;

(5) North 78°06’33” East, a distance of 1489.09 feet;

(6) South 07°46’10” West, a distance of 1288.62 feet;

(7) South 60°40’29” West, a distance of 577.59 feet;

(8) South 29°33’29” East, a distance of 525.42 feet;

(9) South 32°34’13” East, a distance of 529.63 feet to the point of Beginning.

 

Containing 394.96 Acres, more or less.

 

OPA#885044000 - 3600 Lanier  Ave

OPA#884096500 - 3404 Penrose Ave

OPA#884095400 - 3000 Penrose Ferry Rd

OPA#884095500 - 3002 Penrose Ferry Rd

 

PARCEL B-1

 

Beginning at a point on the western side of 26th street;  thence along the western side of 26th Street the 16 following courses and distances:

 

(1) South 07°45’55” West, a distance of 169.94 feet;

(2) South 00°16’02” East, a distance of 38.37 feet;

(3) South 06°25’58” West, a distance of 199.87 feet;

(4) South 07°53’20” West, a distance of 211.08 feet;

(5) South 07°47’37” West, a distance of 1509.96 feet;

(6) South 07°52’07” West, a distance of 726.03 feet;

(7) South 07°38’49” West, a distance of 48.89 feet;

(8) South 09°29’34” West, a distance of 130.93 feet;

(9) South 07°13’47” West, a distance of 401.40 feet;

(10) South 07°57’21” West, a distance of 318.70 feet;

(11) South 15°50’52” West, a distance of 136.31 feet;

(12) South 07°45’11” West, a distance of 118.07 feet;

(13) North 80°01’54” West, a distance of 17.81 feet;

(14) South 14°08’03” West, a distance of 552.84 feet to a point of curvature;

(15) by a curve to the left having a radius of 200.76 feet and a central angle of 66°30’21” an arc length of 233.04 feet and a chord which bears South 34°54’40” West 220.17 feet;

(16) South 01°46’40” West, a distance of 293.89 feet;

 

thence along the north side of Penrose Avenue South 43°34’41” West, a distance of 665.73 feet to a point of curvature; thence by a curve to the right having a radius of 126.09 feet and a central angle of 73°01’54” an arc length of 160.71 feet a chord which bears South 87°07’45” West 150.05 feet point of reverse curvature;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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thence by a reverse curve to the left having a radius of 167.93 feet and a central angle of 102°48’10” an arc length of 301.32 feet and a chord South 78°02’49” West and a distance of 262.49 feet;

 

thence along the northern side of Lanier Avenue the eight following courses and distances:

 

(1) South 28°41’02” West, a distance of 84.04 feet;

(2) South 30°01’19” West, a distance of 182.61 feet;

(3)South 33°23’20” West, a distance of 122.68 feet to a point of curvature;

(4) by a curve to the left having a radius of 365.09 feet and a central angle of 10°02’31” an arc length of 63.99 feet a chord which bears South 38°14’27” West 63.90 feet;

(5) South 45°13’17” West, a distance of 69.72 feet to a point of curvature;

(6) by a curve to the left having a radius of 248.69 feet and a central angle of 11°28’08” an arc length of 49.78 feet a chord which bears South 50°30’20” West 49.70 feet;

(7)South 55°40’25” West, a distance of 127.19 feet;  (8) South 58°52’39” West, a distance of 504.43 feet;

 

thence along Girard Point property the following ten courses and distances:

 

(1) South 58°52’39” West, a distance of 31.47 feet;

(2) North 32°34’13” West, a distance of 529.63 feet;

(3) North 29°33’29” West, a distance of 525.42 feet;

(4) North 60°40’29” East, a distance of 577.59 feet;

(5) North 07°46’10” East, a distance of 1288.62 feet;

(6) South 78°06’33” West, a distance of 1489.09 feet;

(7) North 28°44’58” West, a distance of 198.19 feet to a point of curvature;

(8) by a curve to the right having a radius of 313.83 feet and a central angle of 55°00’41” an arc length of 301.32 feet a chord which bears North 00°06’24” East 289.88 feet to a point;

(9) North 26°47’19” East, a distance of 173.62 feet;

(10) North 66°43’40” West,  a distance of 165.74 feet to a point on the bulkhead of the Schuylkill River;

 

thence along the bulkhead of the Schuylkill River the 29 following courses and distances:

 

(1) North 43°24’56” East, a distance of 135.15 feet;

(2) North 32°59’59” East, a distance of 197.67 feet;

(3) North 28°46’15” East, a distance of 207.21 feet;

(4) South 67°36’32” East, a distance of 25.00 feet;

(5) North 28°53’49” East, a distance of 525.99 feet;

(6) North 23°14’16” East, a distance of 296.55 feet;

(7) North 16°27’07” East, a distance of 155.27 feet;

(8) North 09°56’26” East, a distance of 211.86 feet;

(9) North 26°32’07” East, a distance of 130.56 feet;

(10) North 45°19’27” West, a distance of 43.11 feet;

(11) North 23°44’32” East, a distance of 11.78 feet;

(12) North 58°39’44” East, a distance of 10.33 feet;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(13) North 13°19’01” East, a distance of 20.88 feet;

(14) North 21°53’43” East, a distance of 22.65 feet;

(15) North 33°53’23” East, a distance of 15.69 feet;

(16) North 22°37’41” East, a distance of 36.18 feet;

(17) North 12°06’28” East, a distance of 42.35 feet;

(18) South 78°45’03” East, a distance of 9.60 feet;

(19) North 12°10’53” East, a distance of 13.10 feet;

(20) North 84°10’16” West, a distance of 12.72 feet;

(21) North 23°48’41” East, a distance of 452.70 feet;

(22) North 23°48’41” East, a distance of  453.47 feet;

(23) South 72°18’38” East, a distance of 4.28 feet;

(24) North 19°03’43” East, a distance of 23.84 feet;

(25) North 15°47’28” East, a distance of 46.32 feet;

(26) South 80°51’48” East, a distance of 21.53 feet;

(27) North 13°26’19” East, a distance of 231.84 feet;

(28) North 07°22’43” East, a distance of 111.24 feet;

(29) North 03°41’43” West, a distance of 175.93 feet;

(30) North 15°46’02” West, a distance of 105.60 feet;

 

thence North 74°54’45” East, a distance of 126.56 feet; thence continuing along same North 74°54’45” East, a distance of 225.13 feet;  thence South 14°27’15” East, a distance of 45.83 feet to a point on the southern side of Passyunk Avenue;  

 

thence along the southern side of Passyunk Avenue North 74°50’12” East, a distance of 1289.66 feet;  thence leaving said side of Passyunk Avenue South 15°09’48” East, a distance of 364.36 feet;  thence North 74°50’12” East, a distance of 218.00 feet;  thence South 15°09’48” East, a distance of 63.00 feet;  thence South 89°08’54” East, a distance of 10.00 feet; thence South 25°09’48” East, a distance of 60.00 feet;  thence South 63°09’48” East, a distance of 27.00 feet; thence North 71°05’39” East, a distance of 79.00 feet; thence North 66°10’39” East, a distance of 201.00 feet;  thence North 04°50’39” East, a distance of 61.00 feet;  thence South 85°09’21” East, a distance of 82.00 feet;  thence North 74°50’39” East, a distance of 253.00 feet;  thence South 82°09’21” East, a distance of 224.77 feet to the Point of Beginning.

 

Containing 360.55 Acres, more or less.

 

OPA #884097044 - 3144 W. Passyunk Ave

 

PARCEL B-2

 

Beginning at a point on the south side of Passyunk Avenue and on the pierhead and bulkhead of the Schuylkill River; thence along the bulkhead of the Schuylkill River the thirty-three following courses and distances:

 

(1) North 15°46’02” West, a distance of 155.02 feet;

(2) North 31°09’33” West, a distance of 148.28 feet;

(3) North 39°25’25” West, a distance of 180.29 feet;

(4) North 44°07’32” West, a distance of 80.71 feet;

(5) North 65°32’53” West, a distance of 13.18 feet;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(6) North 49°22’28” West, a distance of 8.41 feet;

(7) North 65°46’02” West, a distance of 30.05 feet;

(8) South 54°50’25” West, a distance of 5.48 feet;

(9) North 40°45’12” West, a distance of 48.68 feet;

(10) North 56°19’58” West, a distance of 156.17 feet;

(11) North 57°58’20” West, a distance of 145.68 feet;

(12) North 75°17’24” West, a distance of 42.80 feet;

(13) North 83°31’11” West, a distance of 86.58 feet;

(14) North 83°31’11” West, a distance of 95.61 feet;

(15) North 83°00’35” West, a distance of 187.03 feet;

(16) South 80°37’47” West, a distance of 809.03 feet;

(17) South 80°01’56” West, a distance of 46.99 feet;

(18) South 85°22’16” West, a distance of 35.86 feet;

(19) South 86°42’51” West, a distance of 95.79 feet;

(20) North 05°28’09” West, a distance of 30.00 feet;

(21) North 72°05’27” West, a distance of 480.36 feet;

(22) North 49°21’34” West, a distance of 277.55 feet;

(23) North 44°46’47” West, a distance of 91.93 feet;

(24) North 27°49’54” West, a distance of 198.68 feet;

(25) North 23°47’26” West, a distance of 139.41 feet;

(26) North 27°22’11” West, a distance of 140.79 feet;

(27) North 00°58’58” West, a distance of 695.54 feet;

(27) North 14°12’09” East, a distance of 375.02 feet;

(28) North 06°23’54” West, a distance of 78.53 feet;

(29) North18°25’26” East, a distance of 447.84 feet;

(30) South 74°33’15” East, a distance of 65.04 feet;

(31) North 24°55’08” East, a distance of 22.18 feet;

(32) South 81°55’09” East, a distance of 191.39 feet;

(33) North 42°08’32” East, a distance of 43.36 feet;

 

thence leaving bulkhead and along lands of Conrail South 82°20’38” East, a distance of 644.83 feet;  thence continuing along lands of Conrail the 11 following courses and distances:

 

(1) South 16°15’57” East, a distance of 120.19 feet to a point of curvature;

(2) by a curve to right having a radius of 653.39 feet and a central angle of 54°52’25” an arc length of 625.77 feet a chord

which bears South 44°45’52” East 602.12 feet;

(3) South 82°10’05” East, a distance of 379.22 feet;

(4) South 81°54’46” East, a distance of 281.13 feet;

(5) South  82°09’55” East, a distance of 185.06 feet;

(6) South 82°22’37” East, a distance of 375.54 feet;

(7) South 82°19’05” East, a distance of 329.39 feet;

(8) South 81°52’05” East, a distance of 339.43 feet;

(9) South 82°21’18” East, a distance of 639.33 feet;

(10) South 82°07’25” East, a distance of 230.24 feet to a point of curvature;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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(11) by a  of a curve to the right having a radius of 1028.90 feet and a central angle of 18°15’10” an arc length of 327.78 feet a chord which bears South 73°24’01”East 326.40 feet;

 

thence South 07°48’50” West, a distance of 86.27 feet to a point in line of lands owned by the City of Philadelphia; thence along lands of Philadelphia the 16 following courses and distances:

 

(1) by a curve to the left having a radius of 499.91 feet and a central angle of 22°54’36” an arc length of 199.89 feet a chord which bears South 82°53’51” West 198.56 feet;

(2) South 68°52’37” West, a distance of 368.16 feet to a point of curvature;

(3) by a curve to the left having a radius of 759.85 feet and a central angle of 9°50’11” an arc length of 130.45 feet a chord which bears South 74°48’53” West 130.29 feet;

(4) South 79°06’45” West, a distance of 310.68 feet;

(5) South 74°37’16” West, a distance of 96.75 feet;

(6) South 56°20’07” West, a distance of 70.00 feet;

(7) South 64°28’35” West, a distance of 251.25 feet;

(8) South 67°27’07” West, a distance of 302.11 feet;

(9) South 67°27’07” West, a distance of 402.58 feet;

(10) South 67°27’07” West, a distance of 141.14 feet;

(11) South 53°20’14” West, a distance of 50.00 feet;

(12) South 23°28’34” East, a distance of 32.51 feet;

(13) South 23°28’34” East, a distance of 299.99 feet;

(14) South 35°54’01” East, a distance of 737.38 feet;

(15) South 16°59’51” East, a distance of 113.90 feet;

(16) South 44°15’26” East, a distance of 25.66 feet;

 

thence South 74°54’45” West, a distance of 126.56 feet to the Point of Beginning.

 

Containing 141.00 Acres, more or less.

 

Being a portion of OPA #884097200 - 3143 W. Passyunk Ave

 

PARCEL B-3

 

Beginning at a point on the right of way of Moore Street; thence along the southern right of way of Moore Street South 76°59’06” East, a distance of 85.84 feet;  thence continuing along said right of way South 76°04’48” East, a distance of 329.50 feet to a point on the western right of way line of 35th Street;  thence along the western right of way line of 35th Street South 13°57’01” West, a distance of 518.75 feet; thence South 82°07’46” East, a distance of 497.03 feet to a point on the western right of way line of 34th Street;  thence along the western right of way line of 34th Street South 20°22’25” West, a distance of 139.66 feet to a point on the southern right of  way line of Maiden Lane; thence along the southern right of way line of Maiden Lane South 64°11’02” East, a distance of 1256.82 feet to a point of curvature; thence by a  curve to the right entering the western side of 26th Street having a radius of 491.39 feet and a central angle of 18°49’29” an arc length of 161.45 feet and a chord which bears South 55°27’35” East 160.72 feet;

 

thence along the western side of 26th Street the eight following courses and distances:

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

7











 

(1) South 43°44’58” West, a distance of 2.95 feet;

(2) South 40°36’48” East, a distance of 169.81 feet;

(3) South 37°29’46” East, a distance of 210.70 feet;

(4) South 37°08’53” East, a distance of 599.67 feet;

(5)South 37°13’25” East, a distance of 255.57 feet;

(6) South 45°31’16” West, a distance of 2.49 feet;

(7) South 34°13’50” East, a distance of 144.39 feet;

(8) South 33°56’02” East, a distance of 266.03 feet;

 

thence leaving the western side of 26th Street and going along the northern side of lands of Conrail the 24 following courses and distances:

 

(1) North 81°59’00” West, a distance of 236.77 feet;

(2) North 58°22’13” East, a distance of 33.81 feet;

(3) North 74°29’15” West, a distance of 121.44 feet;

(4) North 76°18’45” West, a distance of 250.63 feet;

(5) North 84°05’02” West, a distance of 285.50 feet;

(6) South 47°15’52” West, a distance of 15.18 feet;

(7) North 75°52’55” West, a distance of 46.21 feet;

(8) North 82°02’14” West, a distance of 525.00 feet;

(9) North 02°36’38” East, a distance of 6.00 feet;

(10)North 82°03’42” West, a distance of 209.46 feet;

(11) North 82°26’26” West, a distance of 197.26 feet;

(12) North 82°16’24” West, a distance of 149.97 feet;

(13)North 82°06’49” West, a distance of 452.25 feet;

(14) South 11°06’33” West, a distance of 15.19 feet;

(15) North 81°57’23” West, a distance of 288.33 feet;

(16) North 80°02’02” West, a distance of 92.49 feet;

(17)North 83°48’02” West, a distance of 66.93 feet:

(18) North 79°34’03” West, a distance of 240.34 feet to a point of curvature;

(19) by a curve to the right having a radius of 665.76 feet and a central angle of 55°53’57” an arc length of 649.53 feet and a chord which bears North 53°19’49” West 624.07 feet to a point of compound curvature;

(20) by a compound curve to the right having a radius of 733.68 feet and a central angle of 44°51’23” an arc length of 574.39 feet and a chord which bears North 00°47’49” East 559.84 feet;

(21) North 21°41’17” East, a distance of 358.44 feet;

(22) North 26°05’47” East, a distance of 92.79 feet;  (23) South 82°19’34” East, a distance of 223.64 feet;

(24) North 13°55’44” East, a distance of 990.16 feet to the Point of Beginning.

 

Containing 106.64 Acres, more or less.

 

Being a portion of OPA #884097200 - 3143 W. Passyunk Ave

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

8











 

PARCEL B-4

 

Beginning at a point on the northerly side of Moore Street with the centerline of the said former 36th Street, stricken from the city plan at 50 feet wide; thence along the centerline of the said former 36th Street North 13°59’19” East, a distance of 240.14 feet to a point on the southerly side of the said former Fish House Lane (at 23.208 feet wide); thence along the said former Fish House Lane the following 5 courses and distances:

 

(1) North 79°29’59” West, a distance of 30.06 feet;

(2) North 13°59’19” East, a distance of 23.25 feet;

(3) South 79°29’59” East, a distance of 495.93 feet;

(4) South 13°59’19” West, a distance of 23.25 feet;

(5) North 79°29’59” West, a distance of 25.05 feet to a point on the centerline of the said former 35th Street (50 feet wide); thence along the centerline of said former 35th Street South 13°59’19” West, a distance of 266.97 feet to a point on the northerly side of Moore Street;

 

thence along the northerly side of Moore Street  North 76°00’41” West, a distance of 440.00 feet to the Point of Beginning.

 

Containing 2.83 Acres, more or less.

 

OPA#884214115 — 3515 Moore Street

 

PARCEL C

 

ALL THAT CERTAIN tract or piece of land. SITUATE in the Forty-eighth Ward of the City of Philadelphia, described in accordance with an ALTA/ACSM Land Title Survey made by Ludgate Engineering Corporation dated 5/1/2012, as follows, to wit: 

 

Beginning at a point on the eastern side of Essington Avenue and a corner of lands of Pacific Atlantic Terminal;  thence along lands of Pacific Atlantic Terminal South 82°10’16” East, a distance of 367.00 feet;  thence continuing along said lands South 77°59’17” East, a distance of 668.27 feet to a point of curvature; thence by a curve to the left having a radius of 1463.35 feet and a central angle of 25°44’18” an arc length of 657.36 feet a chord which bears South 18°58’02” East 651.85 feet;  

thence South 31°50’11” East a distance of 827.78 feet;  thence South 31°50’11” East, a distance of 1456.50 feet;  thence along Mingo Creek South 58°16’51” West, a distance of 2698.79 feet;  thence North 64°39’14” West, a distance of 673.96 feet to a point on the eastern side of Mingo Avenue;  thence along Mingo Avenue North 00°03’26” West, a distance of 1413.86 feet to a point on the eastern side of Essington Avenue;  thence along Essington Avenue North 10°51’10” East, a distance of 2507.54 feet to the Point of Beginning.

 

Containing 171.18 Acres, more or less.

 

Being a portion of OPA#884096700 — 6900 Essington Avenue

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

9











 

PARCEL D

 

ALL THAT CERTAIN tract or piece of land. SITUATE in the Forty-eighth Ward of the City of Philadelphia, described in accordance with an ALTA/ACSM Land Title Survey made by Ludgate Engineering Corporation dated 5/1/2012, as follows, to wit:

 

Beginning at a point a corner of lands of Pacific Atlantic Terminal;  thence along lands of Pacific Atlantic Terminal South 89°16’27” East, a distance of 989.92 feet to a point on the west side of the Schuylkill River; thence along said river the 4 following courses and distances: (1) South 03°54’17” East, a distance of 294.15 feet; (2) South 15°35’28” East, a distance of 973.86 feet; (3) South 15°35’28” East, a distance of 196.10 feet;  (4)South 29°06’56” East, a distance of 955.16 feet;  thence South 54°55’41” West, a distance of 467.65 feet to a point on the east side of lands of Pacific Atlantic Terminal;  

 

thence along lands of Pacific Atlantic Terminal the three following courses and  distances: (1) North 31°50’11” West, a distance of 1423.21 feet;  (2) North 31°50’11” West, a distance of 857.35 feet to a point of curvature; (3) by a curve to the right having a radius of 1397.46 feet a central angle of 26°08’53” an arc length of 637.75 feet a chord which bears North 18°45’45” West a distance of 632.23 feet  to the Point of Beginning.

 

Containing 39.90 Acres, more or less.

 

Being a portion of OPA#884096700 — 6900 Essington Avenue

 

PARCEL E

 

ALL THAT CERTAIN tract or piece of land. SITUATE in the Forty-eighth Ward of the City of Philadelphia, described in accordance with an ALTA/ACSM Land Title Survey made by Ludgate Engineering Corporation dated 5/1/2012, as follows, to wit:

 

Beginning at a point on the southern right of way of Passyunk Avenue and a corner of lands of now or late Thy B. Ma;  thence along said lands of Ma and along lands of now or late Joseph & Rosanna Mitchell South 69°19’58” East, a distance of 315.10 feet to a point a corner of lands of the now or late Phing Tan  and Khanh Buu Huynh;  thence along said lands and lands of Passyunk Avenue Realty En. North 82°44’45” East, a distance of 601.48 feet to a point a corner of the now or late lands of Passyunk Avenue Realty En;  thence along said lands South 61°00’00” East, a distance of 218.91 feet;  thence South 68°14’30” East, a distance of 251.05 feet;  thence along lands of Auto Recycling Real Estate North 88°16’32” East, a distance of  288.19 feet;  thence continuing along said lands and along lands of S.R.S. Inc. North 35°03’05” East, a distance of 1800.00 feet near the Schuylkill River;

 

thence in and along the Schuylkill River the 10 following courses and distances:

 

(1)South 80°39’14” East, a distance of 401.15 feet;

(2) South 42°01’03” East, a distance of 297.66 feet;

(3) South 04°55’59” West, a distance of 350.17 feet;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

10











 

(4) South 15°52’29” West, a distance of 487.33 feet;

(5) South 23°42’54” West, a distance of 196.89 feet;

(6) South 22°35’18” West, a distance of 384.45 feet;

(7) South 14°15’27” West, a distance of 121.55 feet;

(8) South 15°59’35” West, a distance of 219.74 feet;

(9) South 21°40’33” West, a distance of 445.70 feet;

(10) South 23°20’44” West, a distance of 324.02 feet to a point a corner of lands of Convoy Realty LP;

 

thence along lands of Convoy North 63°18’58” West, a distance of 1362.47 feet;  thence North 07°11’32” East, a distance of 231.25 feet to a point of curvature; thence by a curve to the left having a radius of 5000.00 feet and a central angle of 1°29’17” an arc length of 129.85 feet a chord which bears North 70°46’37” West 129.85 feet;

 

thence along lands of Point Breeze Terminal LLC the eight following courses and distances:

 

(1) North 67°11’05” West, a distance of 14.72 feet;

(2) South 83°51’36” West, a distance of 839.02 feet;

(3)North 60°55’04” East, a distance of 31.00 feet;

(4) North 25°30’00” East, a distance of 145.00 feet;

(5) North 00°00’00” East, a distance of 50.83 feet;

(6) North 00°00’00” East, a distance of 41.00 feet;

(7) North 85°21’56” West, a distance of 972.06 feet;

(8) North 07°07’07” East, a distance of 171.91 feet to a point on the southern side of Passyunk Avenue;

 

thence along the southern side of Passyunk Avenue the three following courses and distances:

 

(1) North 74°48’30” East, a distance of 226.91 feet;

(2) South 15°11’30” East, a distance of 6.00 feet;

(3) North 74°48’30” East, a distance of 349.28 feet to the Point of Beginning.

 

Containing 80.84 Acres, more or less.

 

OPA# 884097130 — 6300 W. Passyunk Avenue

OPA#884097140 — 6030 W. Passyunk Avenue

OPA#884097110  — 3701 S. 63rd Street

 

PARCELS H-1 and H-2 Descriptions.

 

ALL THOSE CERTAIN tracts, pieces or parcels of land, situate former 36th Street and Moore Street, 36th Ward, City of Philadelphia, Commonwealth of Pennsylvania, as shown on a plan prepared by Van Demark & Lynch, Inc., Engineers, Planners and Surveyors, Wilmington, Delaware, Drawing No. 39945-F, dated April 23, 2010, entitled “Subdivision Plat, Premises “H”, prepared for Sunoco, Inc.” and being more particularly described as follows, to wit:

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

11











 

PARCEL “H-1”:

 

BEGINNING at a point, the intersection of the northerly side of Moore Street, shown on the city plan and legally open at 50 feet wide, with the centerline of former 36th Street, stricken from the city plan at 50 feet wide, being the southwesterly corner of Premises ‘H-1’, Sunoco Propane Terminal (13-S-23/3) on a easterly line for land now or formerly of CSX Transportation, Inc. (13-S-24/4);

 

THENCE through the said land now or formerly of CSX Transportation, Inc. the seven (7) following described courses and distances:

 

(Courses 1 through 3 along or near a 6 foot chain link fence)

 

1.                                      North 68° 50’ 44” West, 77.400 feet to a point;

2.                                      North 18° 57’ 36” East, 199.926 feet to a point;

3.                                      North 23° 20’ 54” East, 201.193 feet to a fence corner;

4.                                      North 25° 18’ 02” East, 84.179 feet to a point;

5.                                      North 27° 45’ 33” East, 22.761 feet to a point; and

6.                                      South 68° 50’ 44” East, 43.650 feet to a point, the northwesterly corner for the herein described Parcel “B” on the westerly line of the said former 36th Street;

 

(Course 7 along the said westerly side of former 36th Street, being the westerly line for the said Parcel “H-2”)

 

7.                                      South 21° 09’ 16” West, 245.524 feet to a point on the northerly side of former Fish House Lane, at 23.208 feet wide;

 

THENCE along the northerly side, westerly terminus and southerly side of the said former Fish House Lane the three (3) following described courses and distances:

 

1.                                      North 72° 20’ 02” West, 5.018 feet to a point;

2.                                      South 21° 09’ 16” West, 23.250 feet to a point; and

3.                                      South 72° 20’02” East, 30.064 feet to a point on the said centerline of former 36th Street;

 

THENCE along the said centerline of former 36th Street, South 21° 09’ 16” West, 240.143 feet to the point and place of Beginning.

 

CONTAINING within said metes and bounds, 33,558 square feet (0.770 acres) of land, being the same, more or less.

 

PARCEL H-2

 

BEGINNING at a point, a southeasterly corner for the above described Parcel “H-1”, the intersection of the westerly side of former 36th Street, stricken from the city plan at 50 feet wide, with the northerly side of former Fish House Lane, at 23.208 feet wide, being on a southeasterly line for land now or formerly of CSX Transportation, Inc. (13-S-2414), said point being measured the four (4) following courses and distances from the intersection of the northerly side of Moore Street, shown on the city plan and legally open at 50 feet wide, with the centerline of the said former 36th Street;

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

12











 

(Course 1 along the centerline of said former 36th Street)

 

1.                                      North 21° 09’ 16” East, 240.143 feet to a point on the southerly side of the said former Fish House Lane;

 

(Course 2 through 4 along the said former Fish House Lane)

 

2.                                      North 72° 20’ 02” West, 30.064 feet to a point;

3.                                      North 21° 09’ 16” East, 23.250 feet to a point; and

4.                                      South 72° 20’ 02” East, 5.018 feet to the Point of Beginning;

 

THENCE from said point of Beginning, through the said land now or formerly of CSX Transportation, Inc. the two (2) following courses and distances:

 

(Course 1 along an easterly line for the said Parcel “H-1”)

 

1.                                      North 21° 09’ 16” East, 245.524 feet to a point; and

2.                                      South 68° 50’ 44” East, 25.000 feet to a point on the centerline for the said formerly 36th Street;

 

THENCE along the said centerline of the former 36th Street, South 21° 09’ 16” West, 244.000 feet to a point on the said northerly side of former Fish House Lane;

 

THENCE along the said northerly side of former Fish House Lane, North 72° 20’ 02” West, 25.046 feet to the point and place of Beginning.

 

CONTAINING within said metes and bounds, 6,119 square feet (0.140 acres) of land, being the same, more or less.

 

CONTAINING within said metes and bounds for Parcels “H-1” and “H-2”, a total of 39,677 square feet (0.911 acres) of land, being the same, more or less.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

13









 

SCHEDULE 1.01(q)

 

APPROVED TERMS AND CONDITIONS

 

[**]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

1











 

SCHEDULE 1.01(r)

 

BUSINESS DAYS

 

	
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** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

1











 

	
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Tue Feb 03   15
    
	
Sun Feb 01   15
    	
 
    	
Mon Feb 02   15
    	
 
    	
 
    	
 
    	
Tue Feb 03   15
    	
 
    	
Wed Feb 04   15
    
	
Tue Feb 03   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Feb 04   15
    	
 
    	
Thu Feb 05   15
    
	
Wed Feb 04   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Feb 05   15
    	
 
    	
Fri Feb 06   15
    
	
Thu Feb 05   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Feb 06   15
    	
 
    	
Mon Feb 09   15
    
	
Fri Feb 06   15
    	
 
    	
Sat Feb 07   15
    	
 
    	
 
    	
 
    	
Mon Feb 09   15
    	
 
    	
Tue Feb 10   15
    
	
Sun Feb 08   15
    	
 
    	
Mon Feb 09   15
    	
 
    	
 
    	
 
    	
Tue Feb 10   15
    	
 
    	
Wed Feb 11   15
    
	
Tue Feb 10   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Feb 11   15
    	
 
    	
Thu Feb 12   15
    
	
Wed Feb 11   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Feb 12   15
    	
 
    	
Fri Feb 13   15
    
	
Thu Feb 12   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Feb 13   15
    	
 
    	
Tue Feb 17   15
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

2











 

	
Fri Feb 13   15
    	
 
    	
Sat Feb 14   15
    	
 
    	
Sun Feb 15   15
    	
 
    	
Tue Feb 17   15
    	
 
    	
Wed Feb 18   15
    
	
Mon Feb 16   15
    	
 
    	
Tue Feb 17   15
    	
 
    	
 
    	
 
    	
Wed Feb 18   15
    	
 
    	
Thu Feb 19   15
    
	
Wed Feb 18   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Feb 19   15
    	
 
    	
Fri Feb 20   15
    
	
Thu Feb 19   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Feb 20   15
    	
 
    	
Mon Feb 23   15
    
	
Fri Feb 20   15
    	
 
    	
Sat Feb 21   15
    	
 
    	
 
    	
 
    	
Mon Feb 23   15
    	
 
    	
Tue Feb 24   15
    
	
Sun Feb 22   15
    	
 
    	
Mon Feb 23   15
    	
 
    	
 
    	
 
    	
Tue Feb 24   15
    	
 
    	
Wed Feb 25   15
    
	
Tue Feb 24   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Feb 25   15
    	
 
    	
Thu Feb 26   15
    
	
Wed Feb 25   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Feb 26   15
    	
 
    	
Fri Feb 27   15
    
	
Thu Feb 26   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Feb 27   15
    	
 
    	
Mon Mar 02   15
    
	
Fri Feb 27   15
    	
 
    	
Sat Feb 28   15
    	
 
    	
 
    	
 
    	
Mon Mar 02   15
    	
 
    	
Tue Mar 03   15
    
	
Sun Mar 01   15
    	
 
    	
Mon Mar 02   15
    	
 
    	
 
    	
 
    	
Tue Mar 03   15
    	
 
    	
Wed Mar 04   15
    
	
Tue Mar 03   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Mar 04   15
    	
 
    	
Thu Mar 05   15
    
	
Wed Mar 04   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Mar 05   15
    	
 
    	
Fri Mar 06   15
    
	
Thu Mar 05   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Mar 06   15
    	
 
    	
Mon Mar 09   15
    
	
Fri Mar 06   15
    	
 
    	
Sat Mar 07   15
    	
 
    	
 
    	
 
    	
Mon Mar 09   15
    	
 
    	
Tue Mar 10   15
    
	
Sun Mar 08   15
    	
 
    	
Mon Mar 09   15
    	
 
    	
 
    	
 
    	
Tue Mar 10   15
    	
 
    	
Wed Mar 11   15
    
	
Tue Mar 10   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Mar 11   15
    	
 
    	
Thu Mar 12   15
    
	
Wed Mar 11   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Mar 12   15
    	
 
    	
Fri Mar 13   15
    
	
Thu Mar 12   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Mar 13   15
    	
 
    	
Mon Mar 16   15
    
	
Fri Mar 13   15
    	
 
    	
Sat Mar 14   15
    	
 
    	
 
    	
 
    	
Mon Mar 16   15
    	
 
    	
Tue Mar 17   15
    
	
Sun Mar 15   15
    	
 
    	
Mon Mar 16   15
    	
 
    	
 
    	
 
    	
Tue Mar 17   15
    	
 
    	
Wed Mar 18   15
    
	
Tue Mar 17   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Mar 18   15
    	
 
    	
Thu Mar 19   15
    
	
Wed Mar 18   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Mar 19   15
    	
 
    	
Fri Mar 20   15
    
	
Thu Mar 19   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Mar 20   15
    	
 
    	
Mon Mar 23   15
    
	
Fri Mar 20   15
    	
 
    	
Sat Mar 21   15
    	
 
    	
 
    	
 
    	
Mon Mar 23   15
    	
 
    	
Tue Mar 24   15
    
	
Sun Mar 22   15
    	
 
    	
Mon Mar 23   15
    	
 
    	
 
    	
 
    	
Tue Mar 24   15
    	
 
    	
Wed Mar 25   15
    
	
Tue Mar 24   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Mar 25   15
    	
 
    	
Thu Mar 26   15
    
	
Wed Mar 25   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Mar 26   15
    	
 
    	
Fri Mar 27   15
    
	
Thu Mar 26   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Mar 27   15
    	
 
    	
Mon Mar 30   15
    
	
Fri Mar 27   15
    	
 
    	
Sat Mar 28   15
    	
 
    	
 
    	
 
    	
Mon Mar 30   15
    	
 
    	
Tue Mar 31   15
    
	
Sun Mar 29   15
    	
 
    	
Mon Mar 30   15
    	
 
    	
 
    	
 
    	
Tue Mar 31   15
    	
 
    	
Wed Apr 01   15
    
	
Tue Mar 31   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Apr 01   15
    	
 
    	
Thu Apr 02   15
    
	
Wed Apr 01   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Apr 02   15
    	
 
    	
Mon Apr 06   15
    
	
Thu Apr 02   15
    	
 
    	
Fri Apr 03   15
    	
 
    	
 
    	
 
    	
Mon Apr 06   15
    	
 
    	
Tue Apr 07   15
    
	
Sat Apr 04   15
    	
 
    	
Sun Apr 05   15
    	
 
    	
Mon Apr 06   15
    	
 
    	
Tue Apr 07   15
    	
 
    	
Wed Apr 08   15
    
	
Tue Apr 07   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Apr 08   15
    	
 
    	
Thu Apr 09   15
    
	
Wed Apr 08   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Apr 09   15
    	
 
    	
Fri Apr 10   15
    
	
Thu Apr 09   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Apr 10   15
    	
 
    	
Mon Apr 13   15
    
	
Fri Apr 10   15
    	
 
    	
Sat Apr 11   15
    	
 
    	
 
    	
 
    	
Mon Apr 13   15
    	
 
    	
Tue Apr 14   15
    
	
Sun Apr 12   15
    	
 
    	
Mon Apr 13   15
    	
 
    	
 
    	
 
    	
Tue Apr 14   15
    	
 
    	
Wed Apr 15   15
    
	
Tue Apr 14   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Apr 15   15
    	
 
    	
Thu Apr 16   15
    
	
Wed Apr 15   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Apr 16   15
    	
 
    	
Fri Apr 17   15
    
	
Thu Apr 16   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Apr 17   15
    	
 
    	
Mon Apr 20   15
    
	
Fri Apr 17   15
    	
 
    	
Sat Apr 18   15
    	
 
    	
 
    	
 
    	
Mon Apr 20   15
    	
 
    	
Tue Apr 21   15
    
	
Sun Apr 19   15
    	
 
    	
Mon Apr 20   15
    	
 
    	
 
    	
 
    	
Tue Apr 21   15
    	
 
    	
Wed Apr 22   15
    
	
Tue Apr 21   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Apr 22   15
    	
 
    	
Thu Apr 23   15
    
	
Wed Apr 22   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Apr 23   15
    	
 
    	
Fri Apr 24   15
    
	
Thu Apr 23   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Apr 24   15
    	
 
    	
Mon Apr 27   15
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

3











 

	
Fri Apr 24   15
    	
 
    	
Sat Apr 25   15
    	
 
    	
 
    	
 
    	
Mon Apr 27   15
    	
 
    	
Tue Apr 28   15
    
	
Sun Apr 26   15
    	
 
    	
Mon Apr 27   15
    	
 
    	
 
    	
 
    	
Tue Apr 28   15
    	
 
    	
Wed Apr 29   15
    
	
Tue Apr 28   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Apr 29   15
    	
 
    	
Thu Apr 30   15
    
	
Wed Apr 29   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Apr 30   15
    	
 
    	
Fri   May 01 15
    
	
Thu Apr 30   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri   May 01 15
    	
 
    	
Mon   May 04 15
    
	
Fri   May 01 15
    	
 
    	
Sat   May 02 15
    	
 
    	
 
    	
 
    	
Mon   May 04 15
    	
 
    	
Tue   May 05 15
    
	
Sun   May 03 15
    	
 
    	
Mon   May 04 15
    	
 
    	
 
    	
 
    	
Tue   May 05 15
    	
 
    	
Wed   May 06 15
    
	
Tue   May 05 15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed   May 06 15
    	
 
    	
Thu   May 07 15
    
	
Wed   May 06 15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu   May 07 15
    	
 
    	
Fri   May 08 15
    
	
Thu   May 07 15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri   May 08 15
    	
 
    	
Mon   May 11 15
    
	
Fri   May 08 15
    	
 
    	
Sat   May 09 15
    	
 
    	
 
    	
 
    	
Mon   May 11 15
    	
 
    	
Tue   May 12 15
    
	
Sun   May 10 15
    	
 
    	
Mon   May 11 15
    	
 
    	
 
    	
 
    	
Tue   May 12 15
    	
 
    	
Wed   May 13 15
    
	
Tue   May 12 15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed   May 13 15
    	
 
    	
Thu   May 14 15
    
	
Wed   May 13 15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu   May 14 15
    	
 
    	
Fri   May 15 15
    
	
Thu May 14   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri   May 15 15
    	
 
    	
Mon   May 18 15
    
	
Fri   May 15 15
    	
 
    	
Sat   May 16 15
    	
 
    	
 
    	
 
    	
Mon   May 18 15
    	
 
    	
Tue   May 19 15
    
	
Sun   May 17 15
    	
 
    	
Mon   May 18 15
    	
 
    	
 
    	
 
    	
Tue   May 19 15
    	
 
    	
Wed   May 20 15
    
	
Tue   May 19 15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed   May 20 15
    	
 
    	
Thu   May 21 15
    
	
Wed   May 20 15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu   May 21 15
    	
 
    	
Fri May 22   15
    
	
Thu   May 21 15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri   May 22 15
    	
 
    	
Tue   May 26 15
    
	
Fri   May 22 15
    	
 
    	
Sat   May 23 15
    	
 
    	
 
    	
 
    	
Tue   May 26 15
    	
 
    	
Wed   May 27 15
    
	
Sun   May 24 15
    	
 
    	
Mon   May 25 15
    	
 
    	
Tue   May 26 15
    	
 
    	
Wed   May 27 15
    	
 
    	
Thu   May 28 15
    
	
Wed   May 27 15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu   May 28 15
    	
 
    	
Fri   May 29 15
    
	
Thu   May 28 15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri   May 29 15
    	
 
    	
Mon Jun 01   15
    
	
Fri   May 29 15
    	
 
    	
Sat   May 30 15
    	
 
    	
 
    	
 
    	
Mon Jun 01   15
    	
 
    	
Tue Jun 02   15
    
	
Sun   May 31 15
    	
 
    	
Mon Jun 01   15
    	
 
    	
 
    	
 
    	
Tue Jun 02   15
    	
 
    	
Wed Jun 03   15
    
	
Tue Jun 02   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jun 03   15
    	
 
    	
Thu Jun 04   15
    
	
Wed Jun 03   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jun 04   15
    	
 
    	
Fri Jun 05   15
    
	
Thu Jun 04   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jun 05   15
    	
 
    	
Mon Jun 08   15
    
	
Fri Jun 05   15
    	
 
    	
Sat Jun 06   15
    	
 
    	
 
    	
 
    	
Mon Jun 08   15
    	
 
    	
Tue Jun 09   15
    
	
Sun Jun 07   15
    	
 
    	
Mon Jun 08   15
    	
 
    	
 
    	
 
    	
Tue Jun 09   15
    	
 
    	
Wed Jun 10   15
    
	
Tue Jun 09   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jun 10   15
    	
 
    	
Thu Jun 11   15
    
	
Wed Jun 10   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jun 11   15
    	
 
    	
Fri Jun 12   15
    
	
Thu Jun 11   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jun 12   15
    	
 
    	
Mon Jun 15   15
    
	
Fri Jun 12   15
    	
 
    	
Sat Jun 13   15
    	
 
    	
 
    	
 
    	
Mon Jun 15   15
    	
 
    	
Tue Jun 16   15
    
	
Sun Jun 14   15
    	
 
    	
Mon Jun 15   15
    	
 
    	
 
    	
 
    	
Tue Jun 16   15
    	
 
    	
Wed Jun 17   15
    
	
Tue Jun 16   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jun 17   15
    	
 
    	
Thu Jun 18   15
    
	
Wed Jun 17   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jun 18   15
    	
 
    	
Fri Jun 19   15
    
	
Thu Jun 18   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jun 19   15
    	
 
    	
Mon Jun 22   15
    
	
Fri Jun 19   15
    	
 
    	
Sat Jun 20   15
    	
 
    	
 
    	
 
    	
Mon Jun 22   15
    	
 
    	
Tue Jun 23   15
    
	
Sun Jun 21   15
    	
 
    	
Mon Jun 22   15
    	
 
    	
 
    	
 
    	
Tue Jun 23   15
    	
 
    	
Wed Jun 24   15
    
	
Tue Jun 23   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jun 24   15
    	
 
    	
Thu Jun 25   15
    
	
Wed Jun 24   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jun 25   15
    	
 
    	
Fri Jun 26   15
    
	
Thu Jun 25   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jun 26   15
    	
 
    	
Mon Jun 29   15
    
	
Fri Jun 26   15
    	
 
    	
Sat Jun 27   15
    	
 
    	
 
    	
 
    	
Mon Jun 29   15
    	
 
    	
Tue Jun 30   15
    
	
Sun Jun 28   15
    	
 
    	
Mon Jun 29   15
    	
 
    	
 
    	
 
    	
Tue Jun 30   15
    	
 
    	
Wed Jul 01   15
    
	
Tue Jun 30   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jul 01   15
    	
 
    	
Thu Jul 02   15
    
	
Wed Jul 01   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jul 02   15
    	
 
    	
Mon Jul 06   15
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

4











 

	
Thu Jul 02   15
    	
 
    	
Fri Jul 03   15
    	
 
    	
 
    	
 
    	
Mon Jul 06   15
    	
 
    	
Tue Jul 07   15
    
	
Sat Jul 04   15
    	
 
    	
Sun Jul 05   15
    	
 
    	
Mon Jul 06   15
    	
 
    	
Tue Jul 07   15
    	
 
    	
Wed Jul 08   15
    
	
Tue Jul 07   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jul 08   15
    	
 
    	
Thu Jul 09   15
    
	
Wed Jul 08   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jul 09   15
    	
 
    	
Fri Jul 10   15
    
	
Thu Jul 09   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jul 10   15
    	
 
    	
Mon Jul 13   15
    
	
Fri Jul 10   15
    	
 
    	
Sat Jul 11   15
    	
 
    	
 
    	
 
    	
Mon Jul 13   15
    	
 
    	
Tue Jul 14   15
    
	
Sun Jul 12   15
    	
 
    	
Mon Jul 13   15
    	
 
    	
 
    	
 
    	
Tue Jul 14   15
    	
 
    	
Wed Jul 15   15
    
	
Tue Jul 14   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jul 15   15
    	
 
    	
Thu Jul 16   15
    
	
Wed Jul 15   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jul 16   15
    	
 
    	
Fri Jul 17   15
    
	
Thu Jul 16   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jul 17   15
    	
 
    	
Mon Jul 20   15
    
	
Fri Jul 17   15
    	
 
    	
Sat Jul 18   15
    	
 
    	
 
    	
 
    	
Mon Jul 20   15
    	
 
    	
Tue Jul 21   15
    
	
Sun Jul 19   15
    	
 
    	
Mon Jul 20   15
    	
 
    	
 
    	
 
    	
Tue Jul 21   15
    	
 
    	
Wed Jul 22   15
    
	
Tue Jul 21   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jul 22   15
    	
 
    	
Thu Jul 23   15
    
	
Wed Jul 22   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jul 23   15
    	
 
    	
Fri Jul 24   15
    
	
Thu Jul 23   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jul 24   15
    	
 
    	
Mon Jul 27   15
    
	
Fri Jul 24   15
    	
 
    	
Sat Jul 25   15
    	
 
    	
 
    	
 
    	
Mon Jul 27   15
    	
 
    	
Tue Jul 28   15
    
	
Sun Jul 26   15
    	
 
    	
Mon Jul 27   15
    	
 
    	
 
    	
 
    	
Tue Jul 28   15
    	
 
    	
Wed Jul 29   15
    
	
Tue Jul 28   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jul 29   15
    	
 
    	
Thu Jul 30   15
    
	
Wed Jul 29   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jul 30   15
    	
 
    	
Fri Jul 31   15
    
	
Thu Jul 30   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jul 31   15
    	
 
    	
Mon Aug 03   15
    
	
Fri Jul 31   15
    	
 
    	
Sat Aug 01   15
    	
 
    	
 
    	
 
    	
Mon Aug 03   15
    	
 
    	
Tue Aug 04   15
    
	
Sun Aug 02   15
    	
 
    	
Mon Aug 03   15
    	
 
    	
 
    	
 
    	
Tue Aug 04   15
    	
 
    	
Wed Aug 05   15
    
	
Tue Aug 04   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Aug 05   15
    	
 
    	
Thu Aug 06   15
    
	
Wed Aug 05   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Aug 06   15
    	
 
    	
Fri Aug 07   15
    
	
Thu Aug 06   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Aug 07   15
    	
 
    	
Mon Aug 10   15
    
	
Fri Aug 07   15
    	
 
    	
Sat Aug 08   15
    	
 
    	
 
    	
 
    	
Mon Aug 10   15
    	
 
    	
Tue Aug 11   15
    
	
Sun Aug 09   15
    	
 
    	
Mon Aug 10   15
    	
 
    	
 
    	
 
    	
Tue Aug 11   15
    	
 
    	
Wed Aug 12   15
    
	
Tue Aug 11   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Aug 12   15
    	
 
    	
Thu Aug 13   15
    
	
Wed Aug 12   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Aug 13   15
    	
 
    	
Fri Aug 14   15
    
	
Thu Aug 13   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Aug 14   15
    	
 
    	
Mon Aug 17   15
    
	
Fri Aug 14   15
    	
 
    	
Sat Aug 15   15
    	
 
    	
 
    	
 
    	
Mon Aug 17   15
    	
 
    	
Tue Aug 18   15
    
	
Sun Aug 16   15
    	
 
    	
Mon Aug 17   15
    	
 
    	
 
    	
 
    	
Tue Aug 18   15
    	
 
    	
Wed Aug 19   15
    
	
Tue Aug 18   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Aug 19   15
    	
 
    	
Thu Aug 20   15
    
	
Wed Aug 19   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Aug 20   15
    	
 
    	
Fri Aug 21   15
    
	
Thu Aug 20   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Aug 21   15
    	
 
    	
Mon Aug 24   15
    
	
Fri Aug 21   15
    	
 
    	
Sat Aug 22   15
    	
 
    	
 
    	
 
    	
Mon Aug 24   15
    	
 
    	
Tue Aug 25   15
    
	
Sun Aug 23   15
    	
 
    	
Mon Aug 24   15
    	
 
    	
 
    	
 
    	
Tue Aug 25   15
    	
 
    	
Wed Aug 26   15
    
	
Tue Aug 25   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Aug 26   15
    	
 
    	
Thu Aug 27   15
    
	
Wed Aug 26   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Aug 27   15
    	
 
    	
Fri Aug 28   15
    
	
Thu Aug 27   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Aug 28   15
    	
 
    	
Mon Aug 31   15
    
	
Fri Aug 28   15
    	
 
    	
Sat Aug 29   15
    	
 
    	
 
    	
 
    	
Mon Aug 31   15
    	
 
    	
Tue Sep 01   15
    
	
Sun Aug 30   15
    	
 
    	
Mon Aug 31   15
    	
 
    	
 
    	
 
    	
Tue Sep 01   15
    	
 
    	
Wed Sep 02   15
    
	
Tue Sep 01   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Sep 02   15
    	
 
    	
Thu Sep 03   15
    
	
Wed Sep 02   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Sep 03   15
    	
 
    	
Fri Sep 04   15
    
	
Thu Sep 03   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Sep 04   15
    	
 
    	
Tue Sep 08   15
    
	
Fri Sep 04   15
    	
 
    	
Sat Sep 05   15
    	
 
    	
 
    	
 
    	
Tue Sep 08   15
    	
 
    	
Wed Sep 09   15
    
	
Sun Sep 06   15
    	
 
    	
Mon Sep 07   15
    	
 
    	
Tue Sep 08   15
    	
 
    	
Wed Sep 09   15
    	
 
    	
Thu Sep 10   15
    
	
Wed Sep 09   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Sep 10   15
    	
 
    	
Fri Sep 11   15
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

5









 

	
Thu Sep 10   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Sep 11   15
    	
 
    	
Mon Sep 14   15
    
	
Fri Sep 11   15
    	
 
    	
Sat Sep 12   15
    	
 
    	
 
    	
 
    	
Mon Sep 14   15
    	
 
    	
Tue Sep 15   15
    
	
Sun Sep 13   15
    	
 
    	
Mon Sep 14   15
    	
 
    	
 
    	
 
    	
Tue Sep 15   15
    	
 
    	
Wed Sep 16   15
    
	
Tue Sep 15   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Sep 16   15
    	
 
    	
Thu Sep 17   15
    
	
Wed Sep 16   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Sep 17   15
    	
 
    	
Fri Sep 18   15
    
	
Thu Sep 17   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Sep 18   15
    	
 
    	
Mon Sep 21   15
    
	
Fri Sep 18   15
    	
 
    	
Sat Sep 19   15
    	
 
    	
 
    	
 
    	
Mon Sep 21   15
    	
 
    	
Tue Sep 22   15
    
	
Sun Sep 20   15
    	
 
    	
Mon Sep 21   15
    	
 
    	
 
    	
 
    	
Tue Sep 22   15
    	
 
    	
Wed Sep 23   15
    
	
Tue Sep 22   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Sep 23   15
    	
 
    	
Thu Sep 24   15
    
	
Wed Sep 23   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Sep 24   15
    	
 
    	
Fri Sep 25   15
    
	
Thu Sep 24   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Sep 25   15
    	
 
    	
Mon Sep 28   15
    
	
Fri Sep 25   15
    	
 
    	
Sat Sep 26   15
    	
 
    	
 
    	
 
    	
Mon Sep 28   15
    	
 
    	
Tue Sep 29   15
    
	
Sun Sep 27   15
    	
 
    	
Mon Sep 28   15
    	
 
    	
 
    	
 
    	
Tue Sep 29   15
    	
 
    	
Wed Sep 30   15
    
	
Tue Sep 29   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Sep 30   15
    	
 
    	
Thu Oct 01   15
    
	
Wed Sep 30   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Oct 01   15
    	
 
    	
Fri Oct 02   15
    
	
Thu Oct 01   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Oct 02   15
    	
 
    	
Mon Oct 05   15
    
	
Fri Oct 02   15
    	
 
    	
Sat Oct 03   15
    	
 
    	
 
    	
 
    	
Mon Oct 05   15
    	
 
    	
Tue Oct 06   15
    
	
Sun Oct 04   15
    	
 
    	
Mon Oct 05   15
    	
 
    	
 
    	
 
    	
Tue Oct 06   15
    	
 
    	
Wed Oct 07   15
    
	
Tue Oct 06   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Oct 07   15
    	
 
    	
Thu Oct 08   15
    
	
Wed Oct 07   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Oct 08   15
    	
 
    	
Fri Oct 09   15
    
	
Thu Oct 08   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Oct 09   15
    	
 
    	
Tue Oct 13   15
    
	
Fri Oct 09 15
    	
 
    	
Sat Oct 10 15
    	
 
    	
 
    	
 
    	
Mon Oct 12 15
    	
 
    	
Tue Oct 13 15
    
	
Sun Oct 11   15
    	
 
    	
Mon Oct 12   15
    	
 
    	
 
    	
 
    	
Tue Oct 13   15
    	
 
    	
Wed Oct 14   15
    
	
Tue Oct 13   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Oct 14   15
    	
 
    	
Thu Oct 15   15
    
	
Wed Oct 14   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Oct 15   15
    	
 
    	
Fri Oct 16   15
    
	
Thu Oct 15   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Oct 16   15
    	
 
    	
Mon Oct 19   15
    
	
Fri Oct 16   15
    	
 
    	
Sat Oct 17   15
    	
 
    	
 
    	
 
    	
Mon Oct 19   15
    	
 
    	
Tue Oct 20   15
    
	
Sun Oct 18   15
    	
 
    	
Mon Oct 19   15
    	
 
    	
 
    	
 
    	
Tue Oct 20   15
    	
 
    	
Wed Oct 21   15
    
	
Tue Oct 20   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Oct 21   15
    	
 
    	
Thu Oct 22   15
    
	
Wed Oct 21   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Oct 22   15
    	
 
    	
Fri Oct 23   15
    
	
Thu Oct 22   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Oct 23   15
    	
 
    	
Mon Oct 26   15
    
	
Fri Oct 23   15
    	
 
    	
Sat Oct 24   15
    	
 
    	
 
    	
 
    	
Mon Oct 26   15
    	
 
    	
Tue Oct 27   15
    
	
Sun Oct 25   15
    	
 
    	
Mon Oct 26   15
    	
 
    	
 
    	
 
    	
Tue Oct 27   15
    	
 
    	
Wed Oct 28   15
    
	
Tue Oct 27   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Oct 28   15
    	
 
    	
Thu Oct 29   15
    
	
Wed Oct 28   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Oct 29   15
    	
 
    	
Fri Oct 30   15
    
	
Thu Oct 29   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Oct 30   15
    	
 
    	
Mon Nov 02   15
    
	
Fri Oct 30   15
    	
 
    	
Sat Oct 31   15
    	
 
    	
 
    	
 
    	
Mon Nov 02   15
    	
 
    	
Tue Nov 03   15
    
	
Sun Nov 01   15
    	
 
    	
Mon Nov 02   15
    	
 
    	
 
    	
 
    	
Tue Nov 03   15
    	
 
    	
Wed Nov 04   15
    
	
Tue Nov 03   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Nov 04   15
    	
 
    	
Thu Nov 05   15
    
	
Wed Nov 04   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Nov 05   15
    	
 
    	
Fri Nov 06   15
    
	
Thu Nov 05   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Nov 06   15
    	
 
    	
Mon Nov 09   15
    
	
Fri Nov 06   15
    	
 
    	
Sat Nov 07   15
    	
 
    	
 
    	
 
    	
Mon Nov 09   15
    	
 
    	
Tue Nov 10   15
    
	
Sun Nov 08   15
    	
 
    	
Mon Nov 09   15
    	
 
    	
 
    	
 
    	
Tue Nov 10   15
    	
 
    	
Thu Nov 12   15
    
	
Tue Nov 10   15
    	
 
    	
Wed Nov 11   15
    	
 
    	
 
    	
 
    	
Thu Nov 12   15
    	
 
    	
Fri Nov 13   15
    
	
Thu Nov 12   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Nov 13   15
    	
 
    	
Mon Nov 16   15
    
	
Fri Nov 13   15
    	
 
    	
Sat Nov 14   15
    	
 
    	
 
    	
 
    	
Mon Nov 16   15
    	
 
    	
Tue Nov 17   15
    
	
Sun Nov 15   15
    	
 
    	
Mon Nov 16   15
    	
 
    	
 
    	
 
    	
Tue Nov 17   15
    	
 
    	
Wed Nov 18   15
    
	
Tue Nov 17   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Nov 18   15
    	
 
    	
Thu Nov 19   15
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

6











 

	
Wed Nov 18   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Nov 19   15
    	
 
    	
Fri Nov 20   15
    
	
Thu Nov 19   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Nov 20   15
    	
 
    	
Mon Nov 23   15
    
	
Fri Nov 20   15
    	
 
    	
Sat Nov 21   15
    	
 
    	
 
    	
 
    	
Mon Nov 23   15
    	
 
    	
Tue Nov 24   15
    
	
Sun Nov 22   15
    	
 
    	
Mon Nov 23   15
    	
 
    	
 
    	
 
    	
Tue Nov 24   15
    	
 
    	
Wed Nov 25   15
    
	
Tue Nov 24   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Nov 25   15
    	
 
    	
Fri Nov 27   15
    
	
Wed Nov 25   15
    	
 
    	
Thu Nov 26   15
    	
 
    	
Fri Nov 27   15
    	
 
    	
Mon Nov 30   15
    	
 
    	
Tue Dec 01   15
    
	
Sat Nov 28   15
    	
 
    	
Sun Nov 29   15
    	
 
    	
Mon Nov 30   15
    	
 
    	
Tue Dec 01   15
    	
 
    	
Wed Dec 02   15
    
	
Tue Dec 01   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Dec 02   15
    	
 
    	
Thu Dec 03   15
    
	
Wed Dec 02   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Dec 03   15
    	
 
    	
Fri Dec 04   15
    
	
Thu Dec 03   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Dec 04   15
    	
 
    	
Mon Dec 07   15
    
	
Fri Dec 04   15
    	
 
    	
Sat Dec 05   15
    	
 
    	
 
    	
 
    	
Mon Dec 07   15
    	
 
    	
Tue Dec 08   15
    
	
Sun Dec 06   15
    	
 
    	
Mon Dec 07   15
    	
 
    	
 
    	
 
    	
Tue Dec 08   15
    	
 
    	
Wed Dec 09   15
    
	
Tue Dec 08   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Dec 09   15
    	
 
    	
Thu Dec 10   15
    
	
Wed Dec 09   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Dec 10   15
    	
 
    	
Fri Dec 11   15
    
	
Thu Dec 10   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Dec 11   15
    	
 
    	
Mon Dec 14   15
    
	
Fri Dec 11   15
    	
 
    	
Sat Dec 12   15
    	
 
    	
 
    	
 
    	
Mon Dec 14   15
    	
 
    	
Tue Dec 15   15
    
	
Sun Dec 13   15
    	
 
    	
Mon Dec 14   15
    	
 
    	
 
    	
 
    	
Tue Dec 15   15
    	
 
    	
Wed Dec 16   15
    
	
Tue Dec 15   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Dec 16   15
    	
 
    	
Thu Dec 17   15
    
	
Wed Dec 16   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Dec 17   15
    	
 
    	
Fri Dec 18   15
    
	
Thu Dec 17   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Dec 18   15
    	
 
    	
Mon Dec 21   15
    
	
Fri Dec 18   15
    	
 
    	
Sat Dec 19   15
    	
 
    	
 
    	
 
    	
Mon Dec 21   15
    	
 
    	
Tue Dec 22   15
    
	
Sun Dec 20   15
    	
 
    	
Mon Dec 21   15
    	
 
    	
 
    	
 
    	
Tue Dec 22   15
    	
 
    	
Wed Dec 23   15
    
	
Tue Dec 22   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Dec 23   15
    	
 
    	
Thu Dec 24   15
    
	
Wed Dec 23   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Dec 24   15
    	
 
    	
Mon Dec 28   15
    
	
Thu Dec 24   15
    	
 
    	
Fri Dec 25   15
    	
 
    	
 
    	
 
    	
Mon Dec 28   15
    	
 
    	
Tue Dec 29   15
    
	
Sat Dec 26   15
    	
 
    	
Sun Dec 27   15
    	
 
    	
Mon Dec 28   15
    	
 
    	
Tue Dec 29   15
    	
 
    	
Wed Dec 30 15
    
	
Tue Dec 29   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Dec 30   15
    	
 
    	
Thu Dec 31   15
    
	
Wed Dec 30   15
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Dec 31   15
    	
 
    	
Mon Jan 04   16
    
	
Thu Dec 31   15
    	
 
    	
Fri Jan 01   16
    	
 
    	
 
    	
 
    	
Mon Jan 04   16
    	
 
    	
Tue Jan 05   16
    
	
Sat Jan 02   16
    	
 
    	
Sun Jan 03   16
    	
 
    	
Mon Jan 04   16
    	
 
    	
Tue Jan 05   16
    	
 
    	
Wed Jan 06   16
    
	
Tue Jan 05   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jan 06   16
    	
 
    	
Thu Jan 07   16
    
	
Wed Jan 06   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jan 07   16
    	
 
    	
Fri Jan 08   16
    
	
Thu Jan 07   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jan 08   16
    	
 
    	
Mon Jan 11   16
    
	
Fri Jan 08   16
    	
 
    	
Sat Jan 09   16
    	
 
    	
 
    	
 
    	
Mon Jan 11   16
    	
 
    	
Tue Jan 12   16
    
	
Sun Jan 10   16
    	
 
    	
Mon Jan 11   16
    	
 
    	
 
    	
 
    	
Tue Jan 12   16
    	
 
    	
Wed Jan 13   16
    
	
Tue Jan 12   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jan 13   16
    	
 
    	
Thu Jan 14   16
    
	
Wed Jan 13   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jan 14   16
    	
 
    	
Fri Jan 15   16
    
	
Thu Jan 14   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jan 15   16
    	
 
    	
Tue Jan 19   16
    
	
Fri Jan 15   16
    	
 
    	
Sat Jan 16   16
    	
 
    	
Sun Jan 17   16
    	
 
    	
Tue Jan 19   16
    	
 
    	
Wed Jan 20   16
    
	
Mon Jan 18   16
    	
 
    	
Tue Jan 19   16
    	
 
    	
 
    	
 
    	
Wed Jan 20   16
    	
 
    	
Thu Jan 21   16
    
	
Wed Jan 20   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jan 21   16
    	
 
    	
Fri Jan 22   16
    
	
Thu Jan 21   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jan 22   16
    	
 
    	
Mon Jan 25   16
    
	
Fri Jan 22   16
    	
 
    	
Sat Jan 23   16
    	
 
    	
 
    	
 
    	
Mon Jan 25   16
    	
 
    	
Tue Jan 26   16
    
	
Sun Jan 24   16
    	
 
    	
Mon Jan 25   16
    	
 
    	
 
    	
 
    	
Tue Jan 26   16
    	
 
    	
Wed Jan 27   16
    
	
Tue Jan 26   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jan 27   16
    	
 
    	
Thu Jan 28   16
    
	
Wed Jan 27   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jan 28   16
    	
 
    	
Fri Jan 29   16
    
	
Thu Jan 28   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jan 29   16
    	
 
    	
Mon Feb 01   16
    
	
Fri Jan 29   16
    	
 
    	
Sat Jan 30   16
    	
 
    	
 
    	
 
    	
Mon Feb 01   16
    	
 
    	
Tue Feb 02   16
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

7











 

	
Sun Jan 31   16
    	
 
    	
Mon Feb 01   16
    	
 
    	
 
    	
 
    	
Tue Feb 02   16
    	
 
    	
Wed Feb 03   16
    
	
Tue Feb 02   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Feb 03   16
    	
 
    	
Thu Feb 04   16
    
	
Wed Feb 03   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Feb 04   16
    	
 
    	
Fri Feb 05   16
    
	
Thu Feb 04   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Feb 05   16
    	
 
    	
Mon Feb 08   16
    
	
Fri Feb 05   16
    	
 
    	
Sat Feb 06   16
    	
 
    	
 
    	
 
    	
Mon Feb 08   16
    	
 
    	
Tue Feb 09   16
    
	
Sun Feb 07   16
    	
 
    	
Mon Feb 08   16
    	
 
    	
 
    	
 
    	
Tue Feb 09   16
    	
 
    	
Wed Feb 10   16
    
	
Tue Feb 09   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Feb 10   16
    	
 
    	
Thu Feb 11   16
    
	
Wed Feb 10   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Feb 11   16
    	
 
    	
Fri Feb 12   16
    
	
Thu Feb 11   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Feb 12   16
    	
 
    	
Tue Feb 16   16
    
	
Fri Feb 12   16
    	
 
    	
Sat Feb 13   16
    	
 
    	
 
    	
 
    	
Tue Feb 16   16
    	
 
    	
Wed Feb 17   16
    
	
Sun Feb 14   16
    	
 
    	
Mon Feb 15   16
    	
 
    	
Tue Feb 16   16
    	
 
    	
Wed Feb 17   16
    	
 
    	
Thu Feb 18   16
    
	
Wed Feb 17   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Feb 18   16
    	
 
    	
Fri Feb 19   16
    
	
Thu Feb 18   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Feb 19   16
    	
 
    	
Mon Feb 22   16
    
	
Fri Feb 19   16
    	
 
    	
Sat Feb 20   16
    	
 
    	
 
    	
 
    	
Mon Feb 22   16
    	
 
    	
Tue Feb 23   16
    
	
Sun Feb 21   16
    	
 
    	
Mon Feb 22   16
    	
 
    	
 
    	
 
    	
Tue Feb 23   16
    	
 
    	
Wed Feb 24   16
    
	
Tue Feb 23   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Feb 24   16
    	
 
    	
Thu Feb 25   16
    
	
Wed Feb 24   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Feb 25   16
    	
 
    	
Fri Feb 26   16
    
	
Thu Feb 25   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Feb 26   16
    	
 
    	
Mon Feb 29   16
    
	
Fri Feb 26   16
    	
 
    	
Sat Feb 27   16
    	
 
    	
 
    	
 
    	
Mon Feb 29   16
    	
 
    	
Tue Mar 01   16
    
	
Sun Feb 28   16
    	
 
    	
Mon Feb 29   16
    	
 
    	
 
    	
 
    	
Tue Mar 01   16
    	
 
    	
Wed Mar 02   16
    
	
Tue Mar 01   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Mar 02   16
    	
 
    	
Thu Mar 03   16
    
	
Wed Mar 02   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Mar 03   16
    	
 
    	
Fri Mar 04   16
    
	
Thu Mar 03   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Mar 04   16
    	
 
    	
Mon Mar 07   16
    
	
Fri Mar 04   16
    	
 
    	
Sat Mar 05   16
    	
 
    	
 
    	
 
    	
Mon Mar 07   16
    	
 
    	
Tue Mar 08   16
    
	
Sun Mar 06   16
    	
 
    	
Mon Mar 07   16
    	
 
    	
 
    	
 
    	
Tue Mar 08   16
    	
 
    	
Wed Mar 09   16
    
	
Tue Mar 08   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Mar 09   16
    	
 
    	
Thu Mar 10   16
    
	
Wed Mar 09   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Mar 10   16
    	
 
    	
Fri Mar 11   16
    
	
Thu Mar 10   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Mar 11   16
    	
 
    	
Mon Mar 14   16
    
	
Fri Mar 11   16
    	
 
    	
Sat Mar 12   16
    	
 
    	
 
    	
 
    	
Mon Mar 14   16
    	
 
    	
Tue Mar 15   16
    
	
Sun Mar 13   16
    	
 
    	
Mon Mar 14   16
    	
 
    	
 
    	
 
    	
Tue Mar 15   16
    	
 
    	
Wed Mar 16   16
    
	
Tue Mar 15   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Mar 16   16
    	
 
    	
Thu Mar 17   16
    
	
Wed Mar 16   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Mar 17   16
    	
 
    	
Fri Mar 18   16
    
	
Thu Mar 17   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Mar 18   16
    	
 
    	
Mon Mar 21   16
    
	
Fri Mar 18   16
    	
 
    	
Sat Mar 19   16
    	
 
    	
 
    	
 
    	
Mon Mar 21   16
    	
 
    	
Tue Mar 22   16
    
	
Sun Mar 20   16
    	
 
    	
Mon Mar 21   16
    	
 
    	
 
    	
 
    	
Tue Mar 22   16
    	
 
    	
Wed Mar 23   16
    
	
Tue Mar 22   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Mar 23   16
    	
 
    	
Thu Mar 24   16
    
	
Wed Mar 23   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Mar 24   16
    	
 
    	
Mon Mar 28   16
    
	
Thu Mar 24   16
    	
 
    	
Fri Mar 25   16
    	
 
    	
 
    	
 
    	
Mon Mar 28   16
    	
 
    	
Tue Mar 29   16
    
	
Sat Mar 26   16
    	
 
    	
Sun Mar 27   16
    	
 
    	
Mon Mar 28   16
    	
 
    	
Tue Mar 29   16
    	
 
    	
Wed Mar 30   16
    
	
Tue Mar 29   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Mar 30   16
    	
 
    	
Thu Mar 31   16
    
	
Wed Mar 30   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Mar 31   16
    	
 
    	
Fri Apr 01   16
    
	
Thu Mar 31   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Apr 01   16
    	
 
    	
Mon Apr 04   16
    
	
Fri Apr 01   16
    	
 
    	
Sat Apr 02   16
    	
 
    	
 
    	
 
    	
Mon Apr 04   16
    	
 
    	
Tue Apr 05   16
    
	
Sun Apr 03   16
    	
 
    	
Mon Apr 04   16
    	
 
    	
 
    	
 
    	
Tue Apr 05   16
    	
 
    	
Wed Apr 06   16
    
	
Tue Apr 05   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Apr 06   16
    	
 
    	
Thu Apr 07   16
    
	
Wed Apr 06   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Apr 07   16
    	
 
    	
Fri Apr 08   16
    
	
Thu Apr 07   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Apr 08   16
    	
 
    	
Mon Apr 11   16
    
	
Fri Apr 08   16
    	
 
    	
Sat Apr 09   16
    	
 
    	
 
    	
 
    	
Mon Apr 11   16
    	
 
    	
Tue Apr 12   16
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

8











 

	
Sun Apr 10   16
    	
 
    	
Mon Apr 11   16
    	
 
    	
 
    	
 
    	
Tue Apr 12   16
    	
 
    	
Wed Apr 13   16
    
	
Tue Apr 12   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Apr 13   16
    	
 
    	
Thu Apr 14   16
    
	
Wed Apr 13   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Apr 14   16
    	
 
    	
Fri Apr 15   16
    
	
Thu Apr 14   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Apr 15   16
    	
 
    	
Mon Apr 18   16
    
	
Fri Apr 15   16
    	
 
    	
Sat Apr 16   16
    	
 
    	
 
    	
 
    	
Mon Apr 18   16
    	
 
    	
Tue Apr 19   16
    
	
Sun Apr 17   16
    	
 
    	
Mon Apr 18   16
    	
 
    	
 
    	
 
    	
Tue Apr 19   16
    	
 
    	
Wed Apr 20   16
    
	
Tue Apr 19   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Apr 20   16
    	
 
    	
Thu Apr 21   16
    
	
Wed Apr 20   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Apr 21   16
    	
 
    	
Fri Apr 22   16
    
	
Thu Apr 21   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Apr 22   16
    	
 
    	
Mon Apr 25   16
    
	
Fri Apr 22   16
    	
 
    	
Sat Apr 23   16
    	
 
    	
 
    	
 
    	
Mon Apr 25   16
    	
 
    	
Tue Apr 26   16
    
	
Sun Apr 24   16
    	
 
    	
Mon Apr 25   16
    	
 
    	
 
    	
 
    	
Tue Apr 26   16
    	
 
    	
Wed Apr 27   16
    
	
Tue Apr 26   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Apr 27   16
    	
 
    	
Thu Apr 28   16
    
	
Wed Apr 27   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Apr 28   16
    	
 
    	
Fri Apr 29   16
    
	
Thu Apr 28   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Apr 29   16
    	
 
    	
Mon May 02   16
    
	
Fri Apr 29   16
    	
 
    	
Sat Apr 30   16
    	
 
    	
 
    	
 
    	
Mon   May 02 16
    	
 
    	
Tue   May 03 16
    
	
Sun   May 01 16
    	
 
    	
Mon   May 02 16
    	
 
    	
 
    	
 
    	
Tue   May 03 16
    	
 
    	
Wed   May 04 16
    
	
Tue   May 03 16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed   May 04 16
    	
 
    	
Thu   May 05 16
    
	
Wed   May 04 16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu   May 05 16
    	
 
    	
Fri   May 06 16
    
	
Thu   May 05 16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri May 06   16
    	
 
    	
Mon   May 09 16
    
	
Fri   May 06 16
    	
 
    	
Sat   May 07 16
    	
 
    	
 
    	
 
    	
Mon   May 09 16
    	
 
    	
Tue   May 10 16
    
	
Sun   May 08 16
    	
 
    	
Mon   May 09 16
    	
 
    	
 
    	
 
    	
Tue   May 10 16
    	
 
    	
Wed   May 11 16
    
	
Tue   May 10 16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed   May 11 16
    	
 
    	
Thu   May 12 16
    
	
Wed   May 11 16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu   May 12 16
    	
 
    	
Fri   May 13 16
    
	
Thu   May 12 16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri   May 13 16
    	
 
    	
Mon   May 16 16
    
	
Fri   May 13 16
    	
 
    	
Sat   May 14 16
    	
 
    	
 
    	
 
    	
Mon   May 16 16
    	
 
    	
Tue   May 17 16
    
	
Sun   May 15 16
    	
 
    	
Mon   May 16 16
    	
 
    	
 
    	
 
    	
Tue   May 17 16
    	
 
    	
Wed   May 18 16
    
	
Tue   May 17 16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed   May 18 16
    	
 
    	
Thu   May 19 16
    
	
Wed   May 18 16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu   May 19 16
    	
 
    	
Fri   May 20 16
    
	
Thu   May 19 16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri   May 20 16
    	
 
    	
Mon   May 23 16
    
	
Fri   May 20 16
    	
 
    	
Sat   May 21 16
    	
 
    	
 
    	
 
    	
Mon   May 23 16
    	
 
    	
Tue   May 24 16
    
	
Sun   May 22 16
    	
 
    	
Mon   May 23 16
    	
 
    	
 
    	
 
    	
Tue   May 24 16
    	
 
    	
Wed   May 25 16
    
	
Tue   May 24 16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed   May 25 16
    	
 
    	
Thu   May 26 16
    
	
Wed   May 25 16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu   May 26 16
    	
 
    	
Fri   May 27 16
    
	
Thu   May 26 16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri   May 27 16
    	
 
    	
Tue   May 31 16
    
	
Fri   May 27 16
    	
 
    	
Sat   May 28 16
    	
 
    	
 
    	
 
    	
Tue   May 31 16
    	
 
    	
Wed Jun 01   16
    
	
Sun   May 29 16
    	
 
    	
Mon   May 30 16
    	
 
    	
Tue   May 31 16
    	
 
    	
Wed Jun 01   16
    	
 
    	
Thu Jun 02   16
    
	
Wed Jun 01   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jun 02   16
    	
 
    	
Fri Jun 03   16
    
	
Thu Jun 02   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jun 03   16
    	
 
    	
Mon Jun 06   16
    
	
Fri Jun 03   16
    	
 
    	
Sat Jun 04   16
    	
 
    	
 
    	
 
    	
Mon Jun 06   16
    	
 
    	
Tue Jun 07   16
    
	
Sun Jun 05   16
    	
 
    	
Mon Jun 06   16
    	
 
    	
 
    	
 
    	
Tue Jun 07   16
    	
 
    	
Wed Jun 08   16
    
	
Tue Jun 07   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jun 08   16
    	
 
    	
Thu Jun 09   16
    
	
Wed Jun 08   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jun 09   16
    	
 
    	
Fri Jun 10   16
    
	
Thu Jun 09   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jun 10   16
    	
 
    	
Mon Jun 13   16
    
	
Fri Jun 10   16
    	
 
    	
Sat Jun 11   16
    	
 
    	
 
    	
 
    	
Mon Jun 13   16
    	
 
    	
Tue Jun 14   16
    
	
Sun Jun 12   16
    	
 
    	
Mon Jun 13   16
    	
 
    	
 
    	
 
    	
Tue Jun 14   16
    	
 
    	
Wed Jun 15   16
    
	
Tue Jun 14   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jun 15   16
    	
 
    	
Thu Jun 16   16
    
	
Wed Jun 15   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jun 16   16
    	
 
    	
Fri Jun 17   16
    
	
Thu Jun 16   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jun 17   16
    	
 
    	
Mon Jun 20   16
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

9











 

	
Fri Jun 17   16
    	
 
    	
Sat Jun 18   16
    	
 
    	
 
    	
 
    	
Mon Jun 20   16
    	
 
    	
Tue Jun 21   16
    
	
Sun Jun 19   16
    	
 
    	
Mon Jun 20   16
    	
 
    	
 
    	
 
    	
Tue Jun 21   16
    	
 
    	
Wed Jun 22   16
    
	
Tue Jun 21   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jun 22   16
    	
 
    	
Thu Jun 23   16
    
	
Wed Jun 22   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jun 23   16
    	
 
    	
Fri Jun 24   16
    
	
Thu Jun 23   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jun 24   16
    	
 
    	
Mon Jun 27   16
    
	
Fri Jun 24   16
    	
 
    	
Sat Jun 25   16
    	
 
    	
 
    	
 
    	
Mon Jun 27   16
    	
 
    	
Tue Jun 28   16
    
	
Sun Jun 26   16
    	
 
    	
Mon Jun 27   16
    	
 
    	
 
    	
 
    	
Tue Jun 28   16
    	
 
    	
Wed Jun 29   16
    
	
Tue Jun 28   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jun 29   16
    	
 
    	
Thu Jun 30   16
    
	
Wed Jun 29   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jun 30   16
    	
 
    	
Fri Jul 01   16
    
	
Thu Jun 30   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jul 01   16
    	
 
    	
Tue Jul 05   16
    
	
Fri Jul 01   16
    	
 
    	
Sat Jul 02   16
    	
 
    	
 
    	
 
    	
Tue Jul 05   16
    	
 
    	
Wed Jul 06   16
    
	
Sun Jul 03   16
    	
 
    	
Mon Jul 04   16
    	
 
    	
Tue Jul 05   16
    	
 
    	
Wed Jul 06   16
    	
 
    	
Thu Jul 07   16
    
	
Wed Jul 06   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jul 07   16
    	
 
    	
Fri Jul 08   16
    
	
Thu Jul 07   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jul 08   16
    	
 
    	
Mon Jul 11   16
    
	
Fri Jul 08   16
    	
 
    	
Sat Jul 09   16
    	
 
    	
 
    	
 
    	
Mon Jul 11   16
    	
 
    	
Tue Jul 12   16
    
	
Sun Jul 10   16
    	
 
    	
Mon Jul 11   16
    	
 
    	
 
    	
 
    	
Tue Jul 12   16
    	
 
    	
Wed Jul 13   16
    
	
Tue Jul 12   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jul 13   16
    	
 
    	
Thu Jul 14   16
    
	
Wed Jul 13   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jul 14   16
    	
 
    	
Fri Jul 15   16
    
	
Thu Jul 14   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jul 15   16
    	
 
    	
Mon Jul 18   16
    
	
Fri Jul 15   16
    	
 
    	
Sat Jul 16   16
    	
 
    	
 
    	
 
    	
Mon Jul 18   16
    	
 
    	
Tue Jul 19   16
    
	
Sun Jul 17   16
    	
 
    	
Mon Jul 18   16
    	
 
    	
 
    	
 
    	
Tue Jul 19   16
    	
 
    	
Wed Jul 20   16
    
	
Tue Jul 19   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jul 20   16
    	
 
    	
Thu Jul 21   16
    
	
Wed Jul 20   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jul 21   16
    	
 
    	
Fri Jul 22   16
    
	
Thu Jul 21   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jul 22   16
    	
 
    	
Mon Jul 25   16
    
	
Fri Jul 22   16
    	
 
    	
Sat Jul 23   16
    	
 
    	
 
    	
 
    	
Mon Jul 25   16
    	
 
    	
Tue Jul 26   16
    
	
Sun Jul 24   16
    	
 
    	
Mon Jul 25   16
    	
 
    	
 
    	
 
    	
Tue Jul 26   16
    	
 
    	
Wed Jul 27   16
    
	
Tue Jul 26   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jul 27   16
    	
 
    	
Thu Jul 28   16
    
	
Wed Jul 27   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jul 28   16
    	
 
    	
Fri Jul 29   16
    
	
Thu Jul 28   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jul 29   16
    	
 
    	
Mon Aug 01   16
    
	
Fri Jul 29   16
    	
 
    	
Sat Jul 30   16
    	
 
    	
 
    	
 
    	
Mon Aug 01   16
    	
 
    	
Tue Aug 02   16
    
	
Sun Jul 31   16
    	
 
    	
Mon Aug 01   16
    	
 
    	
 
    	
 
    	
Tue Aug 02   16
    	
 
    	
Wed Aug 03   16
    
	
Tue Aug 02   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Aug 03   16
    	
 
    	
Thu Aug 04   16
    
	
Wed Aug 03   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Aug 04   16
    	
 
    	
Fri Aug 05   16
    
	
Thu Aug 04   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Aug 05   16
    	
 
    	
Mon Aug 08   16
    
	
Fri Aug 05   16
    	
 
    	
Sat Aug 06   16
    	
 
    	
 
    	
 
    	
Mon Aug 08   16
    	
 
    	
Tue Aug 09   16
    
	
Sun Aug 07   16
    	
 
    	
Mon Aug 08   16
    	
 
    	
 
    	
 
    	
Tue Aug 09   16
    	
 
    	
Wed Aug 10   16
    
	
Tue Aug 09   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Aug 10   16
    	
 
    	
Thu Aug 11   16
    
	
Wed Aug 10   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Aug 11   16
    	
 
    	
Fri Aug 12   16
    
	
Thu Aug 11   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Aug 12   16
    	
 
    	
Mon Aug 15   16
    
	
Fri Aug 12   16
    	
 
    	
Sat Aug 13   16
    	
 
    	
 
    	
 
    	
Mon Aug 15   16
    	
 
    	
Tue Aug 16   16
    
	
Sun Aug 14   16
    	
 
    	
Mon Aug 15   16
    	
 
    	
 
    	
 
    	
Tue Aug 16   16
    	
 
    	
Wed Aug 17   16
    
	
Tue Aug 16   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Aug 17   16
    	
 
    	
Thu Aug 18   16
    
	
Wed Aug 17   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Aug 18   16
    	
 
    	
Fri Aug 19   16
    
	
Thu Aug 18   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Aug 19   16
    	
 
    	
Mon Aug 22   16
    
	
Fri Aug 19   16
    	
 
    	
Sat Aug 20   16
    	
 
    	
 
    	
 
    	
Mon Aug 22   16
    	
 
    	
Tue Aug 23   16
    
	
Sun Aug 21   16
    	
 
    	
Mon Aug 22   16
    	
 
    	
 
    	
 
    	
Tue Aug 23   16
    	
 
    	
Wed Aug 24   16
    
	
Tue Aug 23   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Aug 24   16
    	
 
    	
Thu Aug 25   16
    
	
Wed Aug 24   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Aug 25   16
    	
 
    	
Fri Aug 26   16
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

10









 

	
Thu Aug 25   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Aug 26   16
    	
 
    	
Mon Aug 29   16
    
	
Fri Aug 26   16
    	
 
    	
Sat Aug 27   16
    	
 
    	
 
    	
 
    	
Mon Aug 29   16
    	
 
    	
Tue Aug 30   16
    
	
Sun Aug 28   16
    	
 
    	
Mon Aug 29   16
    	
 
    	
 
    	
 
    	
Tue Aug 30   16
    	
 
    	
Wed Aug 31   16
    
	
Tue Aug 30   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Aug 31   16
    	
 
    	
Thu Sep 01   16
    
	
Wed Aug 31   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Sep 01   16
    	
 
    	
Fri Sep 02   16
    
	
Thu Sep 01   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Sep 02   16
    	
 
    	
Tue Sep 06   16
    
	
Fri Sep 02   16
    	
 
    	
Sat Sep 03   16
    	
 
    	
 
    	
 
    	
Tue Sep 06   16
    	
 
    	
Wed Sep 07   16
    
	
Sun Sep 04   16
    	
 
    	
Mon Sep 05   16
    	
 
    	
Tue Sep 06   16
    	
 
    	
Wed Sep 07   16
    	
 
    	
Thu Sep 08   16
    
	
Wed Sep 07   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Sep 08   16
    	
 
    	
Fri Sep 09   16
    
	
Thu Sep 08   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Sep 09   16
    	
 
    	
Mon Sep 12   16
    
	
Fri Sep 09   16
    	
 
    	
Sat Sep 10   16
    	
 
    	
 
    	
 
    	
Mon Sep 12   16
    	
 
    	
Tue Sep 13   16
    
	
Sun Sep 11   16
    	
 
    	
Mon Sep 12   16
    	
 
    	
 
    	
 
    	
Tue Sep 13   16
    	
 
    	
Wed Sep 14   16
    
	
Tue Sep 13   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Sep 14   16
    	
 
    	
Thu Sep 15   16
    
	
Wed Sep 14   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Sep 15   16
    	
 
    	
Fri Sep 16   16
    
	
Thu Sep 15   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Sep 16   16
    	
 
    	
Mon Sep 19   16
    
	
Fri Sep 16   16
    	
 
    	
Sat Sep 17   16
    	
 
    	
 
    	
 
    	
Mon Sep 19   16
    	
 
    	
Tue Sep 20   16
    
	
Sun Sep 18   16
    	
 
    	
Mon Sep 19   16
    	
 
    	
 
    	
 
    	
Tue Sep 20   16
    	
 
    	
Wed Sep 21   16
    
	
Tue Sep 20   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Sep 21   16
    	
 
    	
Thu Sep 22   16
    
	
Wed Sep 21   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Sep 22   16
    	
 
    	
Fri Sep 23   16
    
	
Thu Sep 22   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Sep 23   16
    	
 
    	
Mon Sep 26   16
    
	
Fri Sep 23   16
    	
 
    	
Sat Sep 24   16
    	
 
    	
 
    	
 
    	
Mon Sep 26   16
    	
 
    	
Tue Sep 27   16
    
	
Sun Sep 25   16
    	
 
    	
Mon Sep 26   16
    	
 
    	
 
    	
 
    	
Tue Sep 27   16
    	
 
    	
Wed Sep 28   16
    
	
Tue Sep 27   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Sep 28   16
    	
 
    	
Thu Sep 29   16
    
	
Wed Sep 28   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Sep 29   16
    	
 
    	
Fri Sep 30   16
    
	
Thu Sep 29   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Sep 30   16
    	
 
    	
Mon Oct 03   16
    
	
Fri Sep 30   16
    	
 
    	
Sat Oct 01   16
    	
 
    	
 
    	
 
    	
Mon Oct 03   16
    	
 
    	
Tue Oct 04   16
    
	
Sun Oct 02   16
    	
 
    	
Mon Oct 03   16
    	
 
    	
 
    	
 
    	
Tue Oct 04   16
    	
 
    	
Wed Oct 05   16
    
	
Tue Oct 04   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Oct 05   16
    	
 
    	
Thu Oct 06   16
    
	
Wed Oct 05   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Oct 06   16
    	
 
    	
Fri Oct 07   16
    
	
Thu Oct 06   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Oct 07   16
    	
 
    	
Tue Oct 11   16
    
	
Fri Oct 07   16
    	
 
    	
Sat Oct 08   16
    	
 
    	
Sun Oct 09   16
    	
 
    	
Tue Oct 11   16
    	
 
    	
Wed Oct 12   16
    
	
Mon Oct 10   16
    	
 
    	
Tue Oct 11   16
    	
 
    	
 
    	
 
    	
Wed Oct 12   16
    	
 
    	
Thu Oct 13   16
    
	
Wed Oct 12   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Oct 13   16
    	
 
    	
Fri Oct 14   16
    
	
Thu Oct 13   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Oct 14   16
    	
 
    	
Mon Oct 17   16
    
	
Fri Oct 14   16
    	
 
    	
Sat Oct 15   16
    	
 
    	
 
    	
 
    	
Mon Oct 17   16
    	
 
    	
Tue Oct 18   16
    
	
Sun Oct 16   16
    	
 
    	
Mon Oct 17   16
    	
 
    	
 
    	
 
    	
Tue Oct 18   16
    	
 
    	
Wed Oct 19   16
    
	
Tue Oct 18   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Oct 19   16
    	
 
    	
Thu Oct 20   16
    
	
Wed Oct 19   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Oct 20   16
    	
 
    	
Fri Oct 21   16
    
	
Thu Oct 20   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Oct 21   16
    	
 
    	
Mon Oct 24   16
    
	
Fri Oct 21   16
    	
 
    	
Sat Oct 22   16
    	
 
    	
 
    	
 
    	
Mon Oct 24   16
    	
 
    	
Tue Oct 25   16
    
	
Sun Oct 23   16
    	
 
    	
Mon Oct 24   16
    	
 
    	
 
    	
 
    	
Tue Oct 25   16
    	
 
    	
Wed Oct 26   16
    
	
Tue Oct 25   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Oct 26   16
    	
 
    	
Thu Oct 27   16
    
	
Wed Oct 26   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Oct 27   16
    	
 
    	
Fri Oct 28   16
    
	
Thu Oct 27   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Oct 28   16
    	
 
    	
Mon Oct 31   16
    
	
Fri Oct 28   16
    	
 
    	
Sat Oct 29   16
    	
 
    	
 
    	
 
    	
Mon Oct 31   16
    	
 
    	
Tue Nov 01   16
    
	
Sun Oct 30   16
    	
 
    	
Mon Oct 31   16
    	
 
    	
 
    	
 
    	
Tue Nov 01   16
    	
 
    	
Wed Nov 02   16
    
	
Tue Nov 01   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Nov 02   16
    	
 
    	
Thu Nov 03   16
    
	
Wed Nov 02   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Nov 03   16
    	
 
    	
Fri Nov 04   16
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

11











 

	
Thu Nov 03   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Nov 04   16
    	
 
    	
Mon Nov 07   16
    
	
Fri Nov 04   16
    	
 
    	
Sat Nov 05   16
    	
 
    	
 
    	
 
    	
Mon Nov 07   16
    	
 
    	
Tue Nov 08   16
    
	
Sun Nov 06   16
    	
 
    	
Mon Nov 07   16
    	
 
    	
 
    	
 
    	
Tue Nov 08   16
    	
 
    	
Wed Nov 09   16
    
	
Tue Nov 08   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Nov 09   16
    	
 
    	
Thu Nov 10   16
    
	
Wed Nov 09   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Nov 10   16
    	
 
    	
Mon Nov 14   16
    
	
Thu Nov 10   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Nov 11   16
    	
 
    	
Mon Nov 14   16
    
	
Fri Nov 11   16
    	
 
    	
Sat Nov 12   16
    	
 
    	
 
    	
 
    	
Mon Nov 14   16
    	
 
    	
Tue Nov 15   16
    
	
Sun Nov 13   16
    	
 
    	
Mon Nov 14   16
    	
 
    	
 
    	
 
    	
Tue Nov 15   16
    	
 
    	
Wed Nov 16   16
    
	
Tue Nov 15   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Nov 16   16
    	
 
    	
Thu Nov 17   16
    
	
Wed Nov 16   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Nov 17   16
    	
 
    	
Fri Nov 18   16
    
	
Thu Nov 17   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Nov 18   16
    	
 
    	
Mon Nov 21   16
    
	
Fri Nov 18   16
    	
 
    	
Sat Nov 19   16
    	
 
    	
 
    	
 
    	
Mon Nov 21   16
    	
 
    	
Tue Nov 22   16
    
	
Sun Nov 20   16
    	
 
    	
Mon Nov 21   16
    	
 
    	
 
    	
 
    	
Tue Nov 22   16
    	
 
    	
Wed Nov 23   16
    
	
Tue Nov 22   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Nov 23   16
    	
 
    	
Fri Nov 25   16
    
	
Wed Nov 23   16
    	
 
    	
Thu Nov 24   16
    	
 
    	
Fri Nov 25   16
    	
 
    	
Mon Nov 28   16
    	
 
    	
Tue Nov 29   16
    
	
Sat Nov 26   16
    	
 
    	
Sun Nov 27   16
    	
 
    	
Mon Nov 28   16
    	
 
    	
Tue Nov 29   16
    	
 
    	
Wed Nov 30   16
    
	
Tue Nov 29   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Nov 30   16
    	
 
    	
Thu Dec 01   16
    
	
Wed Nov 30   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Dec 01   16
    	
 
    	
Fri Dec 02   16
    
	
Thu Dec 01   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Dec 02   16
    	
 
    	
Mon Dec 05   16
    
	
Fri Dec 02   16
    	
 
    	
Sat Dec 03   16
    	
 
    	
 
    	
 
    	
Mon Dec 05   16
    	
 
    	
Tue Dec 06   16
    
	
Sun Dec 04   16
    	
 
    	
Mon Dec 05   16
    	
 
    	
 
    	
 
    	
Tue Dec 06   16
    	
 
    	
Wed Dec 07   16
    
	
Tue Dec 06   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Dec 07   16
    	
 
    	
Thu Dec 08   16
    
	
Wed Dec 07   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Dec 08   16
    	
 
    	
Fri Dec 09   16
    
	
Thu Dec 08   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Dec 09   16
    	
 
    	
Mon Dec 12   16
    
	
Fri Dec 09   16
    	
 
    	
Sat Dec 10   16
    	
 
    	
 
    	
 
    	
Mon Dec 12   16
    	
 
    	
Tue Dec 13   16
    
	
Sun Dec 11   16
    	
 
    	
Mon Dec 12   16
    	
 
    	
 
    	
 
    	
Tue Dec 13   16
    	
 
    	
Wed Dec 14   16
    
	
Tue Dec 13   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Dec 14   16
    	
 
    	
Thu Dec 15   16
    
	
Wed Dec 14   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Dec 15   16
    	
 
    	
Fri Dec 16   16
    
	
Thu Dec 15   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Dec 16   16
    	
 
    	
Mon Dec 19   16
    
	
Fri Dec 16   16
    	
 
    	
Sat Dec 17   16
    	
 
    	
 
    	
 
    	
Mon Dec 19   16
    	
 
    	
Tue Dec 20   16
    
	
Sun Dec 18   16
    	
 
    	
Mon Dec 19   16
    	
 
    	
 
    	
 
    	
Tue Dec 20   16
    	
 
    	
Wed Dec 21   16
    
	
Tue Dec 20   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Dec 21   16
    	
 
    	
Thu Dec 22   16
    
	
Wed Dec 21   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Dec 22   16
    	
 
    	
Fri Dec 23   16
    
	
Thu Dec 22   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Dec 23   16
    	
 
    	
Tue Dec 27   16
    
	
Fri Dec 23   16
    	
 
    	
Sat Dec 24   16
    	
 
    	
Sun Dec 25   16
    	
 
    	
Tue Dec 27   16
    	
 
    	
Wed Dec 28   16
    
	
Mon Dec 26   16
    	
 
    	
Tue Dec 27   16
    	
 
    	
 
    	
 
    	
Wed Dec 28   16
    	
 
    	
Thu Dec 29   16
    
	
Wed Dec 28   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Dec 29   16
    	
 
    	
Fri Dec 30   16
    
	
Thu Dec 29   16
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Dec 30   16
    	
 
    	
Tue Jan 03   17
    
	
Fri Dec 30   16
    	
 
    	
Sat Dec 31   16
    	
 
    	
Sun Jan 01   17
    	
 
    	
Tue Jan 03   17
    	
 
    	
Wed Jan 04   17
    
	
Mon Jan 02   17
    	
 
    	
Tue Jan 03   17
    	
 
    	
 
    	
 
    	
Wed Jan 04   17
    	
 
    	
Thu Jan 05   17
    
	
Wed Jan 04   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jan 05   17
    	
 
    	
Fri Jan 06   17
    
	
Thu Jan 05   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jan 06   17
    	
 
    	
Mon Jan 09   17
    
	
Fri Jan 06   17
    	
 
    	
Sat Jan 07   17
    	
 
    	
 
    	
 
    	
Mon Jan 09   17
    	
 
    	
Tue Jan 10   17
    
	
Sun Jan 08   17
    	
 
    	
Mon Jan 09   17
    	
 
    	
 
    	
 
    	
Tue Jan 10   17
    	
 
    	
Wed Jan 11   17
    
	
Tue Jan 10   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jan 11   17
    	
 
    	
Thu Jan 12   17
    
	
Wed Jan 11   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jan 12   17
    	
 
    	
Fri Jan 13   17
    
	
Thu Jan 12   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jan 13   17
    	
 
    	
Tue Jan 17   17
    
	
Fri Jan 13   17
    	
 
    	
Sat Jan 14   17
    	
 
    	
 
    	
 
    	
Tue Jan 17   17
    	
 
    	
Wed Jan 18   17
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

12











 

	
Sun Jan 15   17
    	
 
    	
Mon Jan 16   17
    	
 
    	
Tue Jan 17   17
    	
 
    	
Wed Jan 18   17
    	
 
    	
Thu Jan 19   17
    
	
Wed Jan 18   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jan 19   17
    	
 
    	
Fri Jan 20   17
    
	
Thu Jan 19   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jan 20   17
    	
 
    	
Mon Jan 23   17
    
	
Fri Jan 20   17
    	
 
    	
Sat Jan 21   17
    	
 
    	
 
    	
 
    	
Mon Jan 23   17
    	
 
    	
Tue Jan 24   17
    
	
Sun Jan 22   17
    	
 
    	
Mon Jan 23   17
    	
 
    	
 
    	
 
    	
Tue Jan 24   17
    	
 
    	
Wed Jan 25   17
    
	
Tue Jan 24   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jan 25   17
    	
 
    	
Thu Jan 26   17
    
	
Wed Jan 25   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jan 26   17
    	
 
    	
Fri Jan 27   17
    
	
Thu Jan 26   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jan 27   17
    	
 
    	
Mon Jan 30   17
    
	
Fri Jan 27   17
    	
 
    	
Sat Jan 28   17
    	
 
    	
 
    	
 
    	
Mon Jan 30   17
    	
 
    	
Tue Jan 31   17
    
	
Sun Jan 29   17
    	
 
    	
Mon Jan 30   17
    	
 
    	
 
    	
 
    	
Tue Jan 31   17
    	
 
    	
Wed Feb 01   17
    
	
Tue Jan 31   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Feb 01   17
    	
 
    	
Thu Feb 02   17
    
	
Wed Feb 01   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Feb 02   17
    	
 
    	
Fri Feb 03   17
    
	
Thu Feb 02   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Feb 03   17
    	
 
    	
Mon Feb 06   17
    
	
Fri Feb 03   17
    	
 
    	
Sat Feb 04   17
    	
 
    	
 
    	
 
    	
Mon Feb 06   17
    	
 
    	
Tue Feb 07   17
    
	
Sun Feb 05   17
    	
 
    	
Mon Feb 06   17
    	
 
    	
 
    	
 
    	
Tue Feb 07   17
    	
 
    	
Wed Feb 08   17
    
	
Tue Feb 07   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Feb 08   17
    	
 
    	
Thu Feb 09   17
    
	
Wed Feb 08   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Feb 09   17
    	
 
    	
Fri Feb 10   17
    
	
Thu Feb 09   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Feb 10   17
    	
 
    	
Mon Feb 13   17
    
	
Fri Feb 10   17
    	
 
    	
Sat Feb 11   17
    	
 
    	
 
    	
 
    	
Mon Feb 13   17
    	
 
    	
Tue Feb 14   17
    
	
Sun Feb 12   17
    	
 
    	
Mon Feb 13 17
    	
 
    	
 
    	
 
    	
Tue Feb 14   17
    	
 
    	
Wed Feb 15   17
    
	
Tue Feb 14   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Feb 15   17
    	
 
    	
Thu Feb 16   17
    
	
Wed Feb 15   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Feb 16   17
    	
 
    	
Fri Feb 17   17
    
	
Thu Feb 16   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Feb 17   17
    	
 
    	
Tue Feb 21   17
    
	
Fri Feb 17   17
    	
 
    	
Sat Feb 18   17
    	
 
    	
 
    	
 
    	
Tue Feb 21   17
    	
 
    	
Wed Feb 22   17
    
	
Sun Feb 19 17
    	
 
    	
Mon Feb 20   17
    	
 
    	
Tue Feb 21   17
    	
 
    	
Wed Feb 22   17
    	
 
    	
Thu Feb 23   17
    
	
Wed Feb 22   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Feb 23   17
    	
 
    	
Fri Feb 24   17
    
	
Thu Feb 23   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Feb 24   17
    	
 
    	
Mon Feb 27   17
    
	
Fri Feb 24   17
    	
 
    	
Sat Feb 25   17
    	
 
    	
 
    	
 
    	
Mon Feb 27   17
    	
 
    	
Tue Feb 28   17
    
	
Sun Feb 26   17
    	
 
    	
Mon Feb 27   17
    	
 
    	
 
    	
 
    	
Tue Feb 28   17
    	
 
    	
Wed Mar 01   17
    
	
Tue Feb 28   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Mar 01   17
    	
 
    	
Thu Mar 02   17
    
	
Wed Mar 01   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Mar 02   17
    	
 
    	
Fri Mar 03   17
    
	
Thu Mar 02   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Mar 03   17
    	
 
    	
Mon Mar 06   17
    
	
Fri Mar 03   17
    	
 
    	
Sat Mar 04   17
    	
 
    	
 
    	
 
    	
Mon Mar 06   17
    	
 
    	
Tue Mar 07   17
    
	
Sun Mar 05   17
    	
 
    	
Mon Mar 06   17
    	
 
    	
 
    	
 
    	
Tue Mar 07   17
    	
 
    	
Wed Mar 08   17
    
	
Tue Mar 07   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Mar 08   17
    	
 
    	
Thu Mar 09   17
    
	
Wed Mar 08   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Mar 09   17
    	
 
    	
Fri Mar 10   17
    
	
Thu Mar 09   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Mar 10   17
    	
 
    	
Mon Mar 13   17
    
	
Fri Mar 10   17
    	
 
    	
Sat Mar 11   17
    	
 
    	
 
    	
 
    	
Mon Mar 13   17
    	
 
    	
Tue Mar 14   17
    
	
Sun Mar 12   17
    	
 
    	
Mon Mar 13   17
    	
 
    	
 
    	
 
    	
Tue Mar 14   17
    	
 
    	
Wed Mar 15   17
    
	
Tue Mar 14   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Mar 15   17
    	
 
    	
Thu Mar 16   17
    
	
Wed Mar 15   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Mar 16   17
    	
 
    	
Fri Mar 17   17
    
	
Thu Mar 16   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Mar 17   17
    	
 
    	
Mon Mar 20   17
    
	
Fri Mar 17   17
    	
 
    	
Sat Mar 18   17
    	
 
    	
 
    	
 
    	
Mon Mar 20   17
    	
 
    	
Tue Mar 21   17
    
	
Sun Mar 19   17
    	
 
    	
Mon Mar 20   17
    	
 
    	
 
    	
 
    	
Tue Mar 21   17
    	
 
    	
Wed Mar 22   17
    
	
Tue Mar 21   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Mar 22   17
    	
 
    	
Thu Mar 23   17
    
	
Wed Mar 22   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Mar 23   17
    	
 
    	
Fri Mar 24   17
    
	
Thu Mar 23   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Mar 24   17
    	
 
    	
Mon Mar 27   17
    
	
Fri Mar 24   17
    	
 
    	
Sat Mar 25   17
    	
 
    	
 
    	
 
    	
Mon Mar 27   17
    	
 
    	
Tue Mar 28   17
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

13











 

	
Sun Mar 26   17
    	
 
    	
Mon Mar 27   17
    	
 
    	
 
    	
 
    	
Tue Mar 28   17
    	
 
    	
Wed Mar 29   17
    
	
Tue Mar 28   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Mar 29   17
    	
 
    	
Thu Mar 30   17
    
	
Wed Mar 29   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Mar 30   17
    	
 
    	
Fri Mar 31   17
    
	
Thu Mar 30   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Mar 31   17
    	
 
    	
Mon Apr 03   17
    
	
Fri Mar 31   17
    	
 
    	
Sat Apr 01   17
    	
 
    	
 
    	
 
    	
Mon Apr 03   17
    	
 
    	
Tue Apr 04   17
    
	
Sun Apr 02   17
    	
 
    	
Mon Apr 03   17
    	
 
    	
 
    	
 
    	
Tue Apr 04   17
    	
 
    	
Wed Apr 05   17
    
	
Tue Apr 04   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Apr 05   17
    	
 
    	
Thu Apr 06   17
    
	
Wed Apr 05   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Apr 06   17
    	
 
    	
Fri Apr 07   17
    
	
Thu Apr 06   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Apr 07   17
    	
 
    	
Mon Apr 10   17
    
	
Fri Apr 07   17
    	
 
    	
Sat Apr 08   17
    	
 
    	
 
    	
 
    	
Mon Apr 10   17
    	
 
    	
Tue Apr 11   17
    
	
Sun Apr 09   17
    	
 
    	
Mon Apr 10   17
    	
 
    	
 
    	
 
    	
Tue Apr 11   17
    	
 
    	
Wed Apr 12   17
    
	
Tue Apr 11   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Apr 12   17
    	
 
    	
Thu Apr 13   17
    
	
Wed Apr 12   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Apr 13   17
    	
 
    	
Mon Apr 17   17
    
	
Thu Apr 13   17
    	
 
    	
Fri Apr 14   17
    	
 
    	
Sat Apr 15   17
    	
 
    	
Mon Apr 17   17
    	
 
    	
Tue Apr 18   17
    
	
Sun Apr 16   17
    	
 
    	
Mon Apr 17   17
    	
 
    	
 
    	
 
    	
Tue Apr 18   17
    	
 
    	
Wed Apr 19   17
    
	
Tue Apr 18   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Apr 19   17
    	
 
    	
Thu Apr 20   17
    
	
Wed Apr 19   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Apr 20   17
    	
 
    	
Fri Apr 21   17
    
	
Thu Apr 20   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Apr 21   17
    	
 
    	
Mon Apr 24   17
    
	
Fri Apr 21   17
    	
 
    	
Sat Apr 22   17
    	
 
    	
 
    	
 
    	
Mon Apr 24   17
    	
 
    	
Tue Apr 25   17
    
	
Sun Apr 23   17
    	
 
    	
Mon Apr 24   17
    	
 
    	
 
    	
 
    	
Tue Apr 25   17
    	
 
    	
Wed Apr 26   17
    
	
Tue Apr 25   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Apr 26   17
    	
 
    	
Thu Apr 27   17
    
	
Wed Apr 26   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Apr 27   17
    	
 
    	
Fri Apr 28   17
    
	
Thu Apr 27   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Apr 28   17
    	
 
    	
Mon May 01   17
    
	
Fri Apr 28   17
    	
 
    	
Sat Apr 29   17
    	
 
    	
 
    	
 
    	
Mon   May 01 17
    	
 
    	
Tue   May 02 17
    
	
Sun Apr 30   17
    	
 
    	
Mon   May 01 17
    	
 
    	
 
    	
 
    	
Tue   May 02 17
    	
 
    	
Wed   May 03 17
    
	
Tue   May 02 17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed   May 03 17
    	
 
    	
Thu   May 04 17
    
	
Wed   May 03 17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu   May 04 17
    	
 
    	
Fri   May 05 17
    
	
Thu   May 04 17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri May 05   17
    	
 
    	
Mon   May 08 17
    
	
Fri   May 05 17
    	
 
    	
Sat   May 06 17
    	
 
    	
 
    	
 
    	
Mon   May 08 17
    	
 
    	
Tue   May 09 17
    
	
Sun   May 07 17
    	
 
    	
Mon   May 08 17
    	
 
    	
 
    	
 
    	
Tue   May 09 17
    	
 
    	
Wed   May 10 17
    
	
Tue   May 09 17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed   May 10 17
    	
 
    	
Thu   May 11 17
    
	
Wed   May 10 17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu   May 11 17
    	
 
    	
Fri   May 12 17
    
	
Thu   May 11 17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri   May 12 17
    	
 
    	
Mon   May 15 17
    
	
Fri   May 12 17
    	
 
    	
Sat   May 13 17
    	
 
    	
 
    	
 
    	
Mon   May 15 17
    	
 
    	
Tue   May 16 17
    
	
Sun   May 14 17
    	
 
    	
Mon   May 15 17
    	
 
    	
 
    	
 
    	
Tue   May 16 17
    	
 
    	
Wed   May 17 17
    
	
Tue   May 16 17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed   May 17 17
    	
 
    	
Thu   May 18 17
    
	
Wed   May 17 17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu   May 18 17
    	
 
    	
Fri   May 19 17
    
	
Thu   May 18 17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri   May 19 17
    	
 
    	
Mon   May 22 17
    
	
Fri   May 19 17
    	
 
    	
Sat   May 20 17
    	
 
    	
 
    	
 
    	
Mon   May 22 17
    	
 
    	
Tue   May 23 17
    
	
Sun   May 21 17
    	
 
    	
Mon   May 22 17
    	
 
    	
 
    	
 
    	
Tue   May 23 17
    	
 
    	
Wed   May 24 17
    
	
Tue   May 23 17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed   May 24 17
    	
 
    	
Thu   May 25 17
    
	
Wed   May 24 17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu   May 25 17
    	
 
    	
Fri   May 26 17
    
	
Thu   May 25 17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri   May 26 17
    	
 
    	
Tue   May 30 17
    
	
Fri   May 26 17
    	
 
    	
Sat   May 27 17
    	
 
    	
 
    	
 
    	
Tue   May 30 17
    	
 
    	
Wed   May 31 17
    
	
Sun   May 28 17
    	
 
    	
Mon   May 29 17
    	
 
    	
Tue   May 30 17
    	
 
    	
Wed   May 31 17
    	
 
    	
Thu Jun 01   17
    
	
Wed   May 31 17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jun 01   17
    	
 
    	
Fri Jun 02   17
    
	
Thu Jun 01   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jun 02   17
    	
 
    	
Mon Jun 05   17
    
	
Fri Jun 02   17
    	
 
    	
Sat Jun 03   17
    	
 
    	
 
    	
 
    	
Mon Jun 05   17
    	
 
    	
Tue Jun 06   17
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

14











 

	
Sun Jun 04   17
    	
 
    	
Mon Jun 05   17
    	
 
    	
 
    	
 
    	
Tue Jun 06   17
    	
 
    	
Wed Jun 07   17
    
	
Tue Jun 06   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jun 07   17
    	
 
    	
Thu Jun 08   17
    
	
Wed Jun 07   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jun 08   17
    	
 
    	
Fri Jun 09   17
    
	
Thu Jun 08   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jun 09   17
    	
 
    	
Mon Jun 12   17
    
	
Fri Jun 09   17
    	
 
    	
Sat Jun 10   17
    	
 
    	
 
    	
 
    	
Mon Jun 12   17
    	
 
    	
Tue Jun 13   17
    
	
Sun Jun 11   17
    	
 
    	
Mon Jun 12   17
    	
 
    	
 
    	
 
    	
Tue Jun 13   17
    	
 
    	
Wed Jun 14   17
    
	
Tue Jun 13   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jun 14   17
    	
 
    	
Thu Jun 15   17
    
	
Wed Jun 14   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jun 15   17
    	
 
    	
Fri Jun 16   17
    
	
Thu Jun 15   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jun 16   17
    	
 
    	
Mon Jun 19   17
    
	
Fri Jun 16   17
    	
 
    	
Sat Jun 17   17
    	
 
    	
 
    	
 
    	
Mon Jun 19   17
    	
 
    	
Tue Jun 20   17
    
	
Sun Jun 18   17
    	
 
    	
Mon Jun 19   17
    	
 
    	
 
    	
 
    	
Tue Jun 20   17
    	
 
    	
Wed Jun 21   17
    
	
Tue Jun 20   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jun 21   17
    	
 
    	
Thu Jun 22   17
    
	
Wed Jun 21   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jun 22   17
    	
 
    	
Fri Jun 23   17
    
	
Thu Jun 22   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jun 23   17
    	
 
    	
Mon Jun 26   17
    
	
Fri Jun 23   17
    	
 
    	
Sat Jun 24   17
    	
 
    	
 
    	
 
    	
Mon Jun 26   17
    	
 
    	
Tue Jun 27   17
    
	
Sun Jun 25   17
    	
 
    	
Mon Jun 26   17
    	
 
    	
 
    	
 
    	
Tue Jun 27   17
    	
 
    	
Wed Jun 28   17
    
	
Tue Jun 27   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jun 28   17
    	
 
    	
Thu Jun 29   17
    
	
Wed Jun 28   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jun 29   17
    	
 
    	
Fri Jun 30   17
    
	
Thu Jun 29   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jun 30   17
    	
 
    	
Mon Jul 03   17
    
	
Fri Jun 30   17
    	
 
    	
Sat Jul 01   17
    	
 
    	
 
    	
 
    	
Mon Jul 03   17
    	
 
    	
Wed Jul 05   17
    
	
Sun Jul 02   17
    	
 
    	
Mon Jul 03   17
    	
 
    	
 
    	
 
    	
Wed Jul 05   17
    	
 
    	
Thu Jul 06   17
    
	
Tue Jul 04   17
    	
 
    	
Wed Jul 05   17
    	
 
    	
 
    	
 
    	
Thu Jul 06   17
    	
 
    	
Fri Jul 07   17
    
	
Thu Jul 06   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jul 07   17
    	
 
    	
Mon Jul 10   17
    
	
Fri Jul 07   17
    	
 
    	
Sat Jul 08   17
    	
 
    	
 
    	
 
    	
Mon Jul 10   17
    	
 
    	
Tue Jul 11   17
    
	
Sun Jul 09   17
    	
 
    	
Mon Jul 10   17
    	
 
    	
 
    	
 
    	
Tue Jul 11   17
    	
 
    	
Wed Jul 12   17
    
	
Tue Jul 11   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jul 12   17
    	
 
    	
Thu Jul 13   17
    
	
Wed Jul 12   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jul 13   17
    	
 
    	
Fri Jul 14   17
    
	
Thu Jul 13   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jul 14   17
    	
 
    	
Mon Jul 17   17
    
	
Fri Jul 14   17
    	
 
    	
Sat Jul 15   17
    	
 
    	
 
    	
 
    	
Mon Jul 17   17
    	
 
    	
Tue Jul 18   17
    
	
Sun Jul 16   17
    	
 
    	
Mon Jul 17   17
    	
 
    	
 
    	
 
    	
Tue Jul 18   17
    	
 
    	
Wed Jul 19   17
    
	
Tue Jul 18   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jul 19   17
    	
 
    	
Thu Jul 20   17
    
	
Wed Jul 19   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jul 20   17
    	
 
    	
Fri Jul 21   17
    
	
Thu Jul 20   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jul 21   17
    	
 
    	
Mon Jul 24   17
    
	
Fri Jul 21   17
    	
 
    	
Sat Jul 22   17
    	
 
    	
 
    	
 
    	
Mon Jul 24   17
    	
 
    	
Tue Jul 25   17
    
	
Sun Jul 23   17
    	
 
    	
Mon Jul 24   17
    	
 
    	
 
    	
 
    	
Tue Jul 25   17
    	
 
    	
Wed Jul 26   17
    
	
Tue Jul 25   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Jul 26   17
    	
 
    	
Thu Jul 27   17
    
	
Wed Jul 26   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Jul 27   17
    	
 
    	
Fri Jul 28   17
    
	
Thu Jul 27   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Jul 28   17
    	
 
    	
Mon Jul 31   17
    
	
Fri Jul 28   17
    	
 
    	
Sat Jul 29   17
    	
 
    	
 
    	
 
    	
Mon Jul 31   17
    	
 
    	
Tue Aug 01   17
    
	
Sun Jul 30   17
    	
 
    	
Mon Jul 31   17
    	
 
    	
 
    	
 
    	
Tue Aug 01   17
    	
 
    	
Wed Aug 02   17
    
	
Tue Aug 01   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Aug 02   17
    	
 
    	
Thu Aug 03   17
    
	
Wed Aug 02   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Aug 03   17
    	
 
    	
Fri Aug 04   17
    
	
Thu Aug 03   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Aug 04   17
    	
 
    	
Mon Aug 07   17
    
	
Fri Aug 04   17
    	
 
    	
Sat Aug 05   17
    	
 
    	
 
    	
 
    	
Mon Aug 07   17
    	
 
    	
Tue Aug 08   17
    
	
Sun Aug 06   17
    	
 
    	
Mon Aug 07   17
    	
 
    	
 
    	
 
    	
Tue Aug 08   17
    	
 
    	
Wed Aug 09   17
    
	
Tue Aug 08   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Aug 09   17
    	
 
    	
Thu Aug 10   17
    
	
Wed Aug 09   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Aug 10   17
    	
 
    	
Fri Aug 11   17
    
	
Thu Aug 10   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Aug 11   17
    	
 
    	
Mon Aug 14   17
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

15









 

	
Fri Aug 11 17
    	
 
    	
Sat Aug 12 17
    	
 
    	
 
    	
 
    	
Mon Aug 14 17
    	
 
    	
Tue Aug 15 17
    
	
Sun Aug 13   17
    	
 
    	
Mon Aug 14   17
    	
 
    	
 
    	
 
    	
Tue Aug 15   17
    	
 
    	
Wed Aug 16   17
    
	
Tue Aug 15   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Aug 16   17
    	
 
    	
Thu Aug 17   17
    
	
Wed Aug 16   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Aug 17   17
    	
 
    	
Fri Aug 18   17
    
	
Thu Aug 17   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Aug 18   17
    	
 
    	
Mon Aug 21   17
    
	
Fri Aug 18   17
    	
 
    	
Sat Aug 19   17
    	
 
    	
 
    	
 
    	
Mon Aug 21   17
    	
 
    	
Tue Aug 22   17
    
	
Sun Aug 20   17
    	
 
    	
Mon Aug 21   17
    	
 
    	
 
    	
 
    	
Tue Aug 22   17
    	
 
    	
Wed Aug 23   17
    
	
Tue Aug 22   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Aug 23   17
    	
 
    	
Thu Aug 24   17
    
	
Wed Aug 23   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Aug 24   17
    	
 
    	
Fri Aug 25   17
    
	
Thu Aug 24   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Aug 25   17
    	
 
    	
Mon Aug 28   17
    
	
Fri Aug 25   17
    	
 
    	
Sat Aug 26   17
    	
 
    	
 
    	
 
    	
Mon Aug 28   17
    	
 
    	
Tue Aug 29   17
    
	
Sun Aug 27   17
    	
 
    	
Mon Aug 28   17
    	
 
    	
 
    	
 
    	
Tue Aug 29   17
    	
 
    	
Wed Aug 30   17
    
	
Tue Aug 29   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Aug 30   17
    	
 
    	
Thu Aug 31   17
    
	
Wed Aug 30   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Aug 31   17
    	
 
    	
Fri Sep 01   17
    
	
Thu Aug 31   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Sep 01   17
    	
 
    	
Tue Sep 05   17
    
	
Fri Sep 01   17
    	
 
    	
Sat Sep 02   17
    	
 
    	
 
    	
 
    	
Tue Sep 05   17
    	
 
    	
Wed Sep 06   17
    
	
Sun Sep 03   17
    	
 
    	
Mon Sep 04   17
    	
 
    	
 
    	
 
    	
Wed Sep 06   17
    	
 
    	
Wed Sep 06   17
    
	
Tue Sep 05   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Sep 06   17
    	
 
    	
Thu Sep 07   17
    
	
Wed Sep 06   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Sep 07   17
    	
 
    	
Fri Sep 08   17
    
	
Thu Sep 07   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Sep 08   17
    	
 
    	
Mon Sep 11   17
    
	
Fri Sep 08   17
    	
 
    	
Sat Sep 09   17
    	
 
    	
 
    	
 
    	
Mon Sep 11   17
    	
 
    	
Tue Sep 12   17
    
	
Sun Sep 10   17
    	
 
    	
Mon Sep 11   17
    	
 
    	
 
    	
 
    	
Tue Sep 12   17
    	
 
    	
Wed Sep 13   17
    
	
Tue Sep 12   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Sep 13   17
    	
 
    	
Thu Sep 14   17
    
	
Wed Sep 13   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Sep 14   17
    	
 
    	
Fri Sep 15   17
    
	
Thu Sep 14   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Sep 15   17
    	
 
    	
Mon Sep 18   17
    
	
Fri Sep 15   17
    	
 
    	
Sat Sep 16   17
    	
 
    	
 
    	
 
    	
Mon Sep 18   17
    	
 
    	
Tue Sep 19   17
    
	
Sun Sep 17   17
    	
 
    	
Mon Sep 18   17
    	
 
    	
 
    	
 
    	
Tue Sep 19   17
    	
 
    	
Wed Sep 20   17
    
	
Tue Sep 19   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Sep 20   17
    	
 
    	
Thu Sep 21   17
    
	
Wed Sep 20   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Sep 21   17
    	
 
    	
Fri Sep 22   17
    
	
Thu Sep 21   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Sep 22   17
    	
 
    	
Mon Sep 25   17
    
	
Fri Sep 22   17
    	
 
    	
Sat Sep 23   17
    	
 
    	
 
    	
 
    	
Mon Sep 25   17
    	
 
    	
Tue Sep 26   17
    
	
Sun Sep 24   17
    	
 
    	
Mon Sep 25   17
    	
 
    	
 
    	
 
    	
Tue Sep 26   17
    	
 
    	
Wed Sep 27   17
    
	
Tue Sep 26   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Sep 27   17
    	
 
    	
Thu Sep 28   17
    
	
Wed Sep 27   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Sep 28   17
    	
 
    	
Fri Sep 29   17
    
	
Thu Sep 28   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Fri Sep 29   17
    	
 
    	
Mon Oct 02   17
    
	
Fri Sep 29   17
    	
 
    	
Sat Sep 30   17
    	
 
    	
 
    	
 
    	
Mon Oct 02   17
    	
 
    	
Tue Oct 03   17
    
	
Sun Oct 01   17
    	
 
    	
Mon Oct 02   17
    	
 
    	
 
    	
 
    	
Tue Oct 03   17
    	
 
    	
Wed Oct 04   17
    
	
Tue Oct 03   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Wed Oct 04   17
    	
 
    	
Thu Oct 05   17
    
	
Wed Oct 04   17
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Thu Oct 05   17
    	
 
    	
Fri Oct 06   17
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

16











 

SCHEDULE 1.01(s)

 

WORKING CAPITAL AMOUNT EXAMPLE

 

[**]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

17











 

SCHEDULE 1.01(t)

 

PESRM INFRASTRUCTURE

 

	
Refinery (GP)
   Tank
    	
 
    	
Refinery (PB)
   Tank
    	
 
    	
Refinery (SR)
   Tank
    	
 
    	
Refinery Line Fill
    
	
GP1038
    	
 
    	
PB121
    	
 
    	
SR006
    	
 
    	
GPNTF_CSO
    
	
GP1064
    	
 
    	
PB126
    	
 
    	
SR007
    	
 
    	
GPNTF_Gasoil
    
	
GP1065
    	
 
    	
PB128
    	
 
    	
SR008
    	
 
    	
GPNTF_LCO
    
	
GP1066
    	
 
    	
PB129
    	
 
    	
SR014
    	
 
    	
GPNTF_Naphtha
    
	
GP1067
    	
 
    	
PB144
    	
 
    	
SR015
    	
 
    	
GPNTF_tofrom1733
    
	
GP1068
    	
 
    	
PB145
    	
 
    	
SR016
    	
 
    	
PBNY_CSO
    
	
GP1069
    	
 
    	
PB151
    	
 
    	
SR018
    	
 
    	
PBSY_Gasoil
    
	
GP1116
    	
 
    	
PB172
    	
 
    	
SR019
    	
 
    	
PBSY_GCOM
    
	
GP1211
    	
 
    	
PB178
    	
 
    	
SR020
    	
 
    	
PBSY_LCO
    
	
GP1213
    	
 
    	
PB179
    	
 
    	
SR022
    	
 
    	
SRTF_CSO
    
	
GP1214
    	
 
    	
PB253
    	
 
    	
SR023
    	
 
    	
SRTF_GCOM
    
	
GP1215
    	
 
    	
PB27
    	
 
    	
SR025
    	
 
    	
SRTF_ULSD2
    
	
GP1216
    	
 
    	
PB28
    	
 
    	
SR030
    	
 
    	
 
    
	
GP1217
    	
 
    	
PB29
    	
 
    	
SR033
    	
 
    	
 
    
	
GP1218
    	
 
    	
PB33
    	
 
    	
SR034
    	
 
    	
 
    
	
GP1219
    	
 
    	
PB34
    	
 
    	
SR035
    	
 
    	
 
    
	
GP1220
    	
 
    	
PB35
    	
 
    	
SR036
    	
 
    	
 
    
	
GP217
    	
 
    	
PB37
    	
 
    	
SR038
    	
 
    	
 
    
	
GP225
    	
 
    	
PB38
    	
 
    	
SR039
    	
 
    	
 
    
	
GP227
    	
 
    	
PB39
    	
 
    	
SR040
    	
 
    	
 
    
	
GP250
    	
 
    	
PB40
    	
 
    	
SR041
    	
 
    	
 
    
	
GP276
    	
 
    	
PB42
    	
 
    	
SR042
    	
 
    	
 
    
	
GP281
    	
 
    	
PB43
    	
 
    	
SR043
    	
 
    	
 
    
	
GP282
    	
 
    	
PB663
    	
 
    	
SR052
    	
 
    	
 
    
	
GP284
    	
 
    	
PB666
    	
 
    	
SR056
    	
 
    	
 
    
	
GP285
    	
 
    	
PB668
    	
 
    	
SR059
    	
 
    	
 
    
	
GP286
    	
 
    	
PB672
    	
 
    	
SR060
    	
 
    	
 
    
	
GP494
    	
 
    	
PB821
    	
 
    	
SR061
    	
 
    	
 
    
	
GP790
    	
 
    	
PB822
    	
 
    	
SR062
    	
 
    	
 
    
	
GP791
    	
 
    	
PB823
    	
 
    	
SR063
    	
 
    	
 
    
	
GP792
    	
 
    	
PB824
    	
 
    	
SR065
    	
 
    	
 
    
	
GP793
    	
 
    	
PB825
    	
 
    	
SR066
    	
 
    	
 
    
	
GP798
    	
 
    	
PB83
    	
 
    	
SR073
    	
 
    	
 
    
	
GP799
    	
 
    	
PB833
    	
 
    	
SR074
    	
 
    	
 
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

18











 

	
 
    	
 
    	
PB835
    	
 
    	
SR075
    	
 
    	
 
    
	
 
    	
 
    	
PB84
    	
 
    	
SR076
    	
 
    	
 
    
	
 
    	
 
    	
PB85
    	
 
    	
SR077
    	
 
    	
 
    
	
 
    	
 
    	
PB881
    	
 
    	
SR078
    	
 
    	
 
    
	
 
    	
 
    	
PB882
    	
 
    	
SR090
    	
 
    	
 
    
	
 
    	
 
    	
PB883
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
PB884
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
PB885
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
PB886
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
PBRM39
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
PBRM40
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
PBRM41
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
PBRM79
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
PBRM80
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
PBRM90
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
PBRM91
    	
 
    	
 
    	
 
    	
 
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

19











 

SCHEDULE 1.01(u)

 

SUNOCO PMT INFRASTRUCTURE

 

	
SPMT Fort Mifflin Terminal
    	
 
    	
#4 Hog Island Road
    	
 
    	
Philadelphia
    	
 
    	
PA
    	
 
    	
19153
    	
 
    	
All Crude Tanks
    	
 
    	
 
    
	
SPMT Darby Creek Tank Farm
    	
 
    	
1201 Calcon-Hook Rd
    	
 
    	
Sharon Hil
    	
 
    	
PA
    	
 
    	
19079
    	
 
    	
All Crude Tanks
    	
 
    	
 
    
	
SPMT Hog Island Wharf
    	
 
    	
4 Atlantic Avenue
    	
 
    	
Essington
    	
 
    	
PA
    	
 
    	
19029
    	
 
    	
No Tanks - Dock only
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Eagle Point 402
    	
 
    	
15MV2
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Eagle Point 403
    	
 
    	
15MV2
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Eagle Point 404
    	
 
    	
15MV2
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Eagle Point 19
    	
 
    	
HO Comp
    
	
SPMT, Eagle Point
    	
 
    	
1000 Crown Point Rd.
    	
 
    	
Westville
    	
 
    	
NJ
    	
 
    	
08093-1317
    	
 
    	
Eagle Point 20
    	
 
    	
HO Comp
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Eagle Point 30
    	
 
    	
HO Comp
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Eagle Point 118
    	
 
    	
VGO
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Eagle Point 2
    	
 
    	
CSO
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Eagle Point 4
    	
 
    	
VTB
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
Eagle Point 10
    	
 
    	
Crude Oil
    
	
SPMT Marcus Hook
    	
 
    	
100 Green Street
    	
 
    	
Marcus Hook
    	
 
    	
PA
    	
 
    	
19013
    	
 
    	
Caverns #1, #2, & #3
    	
 
    	
Butane
    
	
Belmont   Truck Rack
    	
 
    	
2700   Passyunk Ave. 
    	
 
    	
Philadelphia
    	
 
    	
PA
    	
 
    	
19145
    	
 
    	
 
    	
 
    	
 
    
	
Westville   Rack
    	
 
    	
1000   Crown Point Rd.
    	
 
    	
Westville
    	
 
    	
NJ
    	
 
    	
08093
    	
 
    	
 
    	
 
    	
 
    
	
Kingston   Rack
    	
 
    	
60   S. Wyoming Ave.
    	
 
    	
Edwardsville
    	
 
    	
PA
    	
 
    	
18704
    	
 
    	
 
    	
 
    	
 
    
	
Fullerton   Rack
    	
 
    	
2480   Main Street
    	
 
    	
Whitehall
    	
 
    	
PA
    	
 
    	
18052
    	
 
    	
 
    	
 
    	
 
    
	
Tonawanda   Rack
    	
 
    	
3733   River Road
    	
 
    	
Tonawanda
    	
 
    	
NY
    	
 
    	
14150
    	
 
    	
 
    	
 
    	
 
    
	
Rochester   Rack
    	
 
    	
1840   Lyell Ave.
    	
 
    	
Rochester
    	
 
    	
NY
    	
 
    	
14606
    	
 
    	
 
    	
 
    	
 
    
	
Van   Buren Rack
    	
 
    	
2951   Energy Drive
    	
 
    	
Warners
    	
 
    	
NY
    	
 
    	
13164
    	
 
    	
 
    	
 
    	
 
    
	
Exton   Terminal
    	
 
    	
601   Lincoln Highway
    	
 
    	
Exton
    	
 
    	
PA
    	
 
    	
19341
    	
 
    	
 
    	
 
    	
 
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

1











 

SCHEDULE 1.01(v)

 

SUNOCO PIPELINE INFRASTRUCTURE

 

	
Refinery Line Fill
    	
 
    	
DCTF to 137
    	
 
    	
KEYSTONE
    
	
 
    	
 
    	
GPNSL
    	
 
    	
PB12 PBPS
    
	
 
    	
 
    	
GPSSL
    	
 
    	
PB30DFM
    
	
 
    	
 
    	
HI SRTF
    	
 
    	
PB8 PBPS
    
	
 
    	
 
    	
IRPL 3N
    	
 
    	
PBFM1
    
	
 
    	
 
    	
IRPL 4N
    	
 
    	
PBFM4
    
	
 
    	
 
    	
IRPL 5N
    	
 
    	
PBFMGULF
    
	
 
    	
 
    	
 
    	
 
    	
SRTFFM2
    


 

	
Sunoco   Pipeline
    	
1818   Market St
    	
Philadelphia
    	
PA
    	
19103
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 1.01(w)

 

OTHER THIRD PARTY INFRASTRUCTURE

 

	
KMI, Carteret, NJ
    	
 
    	
78 Lafayette Street
    	
 
    	
Carteret
    	
 
    	
NJ
    	
 
    	
07008
    	
 
    	
ULSD2 - tanks 1, 2, 14
    
	
NuStar,   Linden NJ
    	
 
    	
3700   South Wood Ave
    	
 
    	
Linden
    	
 
    	
NJ
    	
 
    	
07036
    	
 
    	
Tanks   15020 and 15022 - gasoline
    
	
Colonial   Pipeline
    	
 
    	
P.O. Box   101789
    	
 
    	
Atlanta
    	
 
    	
GA
    	
 
    	
30392
    	
 
    	
 
    
	
Buckeye   Pipeline
    	
 
    	
One   Greenway Plaza
    	
 
    	
Houston
    	
 
    	
TX
    	
 
    	
77046
    	
 
    	
 
    
	
Transflo
    	
 
    	
3600   Moore Street
    	
 
    	
Philadelphia
    	
 
    	
PA
    	
 
    	
19145
    	
 
    	
 
    
	
Sinking   Spring Rack
    	
 
    	
901   Mountain Home Road
    	
 
    	
Sinking   Spring
    	
 
    	
PA
    	
 
    	
19608
    	
 
    	
 
    
	
HIghspire   Terminal
    	
 
    	
900   Eisenhower Blvd.
    	
 
    	
Middletown
    	
 
    	
PA
    	
 
    	
17057
    	
 
    	
 
    
	
Mechanicsburg   Terminal
    	
 
    	
127   Texaco Roard
    	
 
    	
Mechanicsburg
    	
 
    	
PA
    	
 
    	
17050
    	
 
    	
 
    
	
Altoona   Rack
    	
 
    	
1100   Burns Ave.
    	
 
    	
Altoona
    	
 
    	
PA
    	
 
    	
16602
    	
 
    	
 
    
	
Northumberland   Rack
    	
 
    	
P.O. Box   300, Route 11 North
    	
 
    	
Northumberland
    	
 
    	
PA
    	
 
    	
17857
    	
 
    	
 
    
	
Allentown   Rack
    	
 
    	
1134   N. Quebec St.
    	
 
    	
Allentown
    	
 
    	
PA
    	
 
    	
18109
    	
 
    	
 
    
	
Coraopolis   South Rack
    	
 
    	
9   Thom Street
    	
 
    	
Coraopolis
    	
 
    	
PA
    	
 
    	
15108
    	
 
    	
 
    
	
Dupont   Rack
    	
 
    	
RD   675 Suscon Road
    	
 
    	
Pittston
    	
 
    	
PA
    	
 
    	
18640
    	
 
    	
 
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 1.01(x)

 

BUTANE RAIL FACILITY

 

Located in the Girard Point’s South Yard in the most southern portion of the Refinery, the Butane Rail Facility was constructed in 2014.  Originally a lubes manufacturing and process for Gulf Oil, the site had been mostly unutilized since the mid 1980’s, with the exception of a benzene railcar unloading, which continues today.  Consisting of 14 rail sidings with 36 unloading/loading stations and storage for 116 railcars, the site covers 13.5 acres and includes 2.5 miles of rail track, 1,300 feet of platforms, a 52’ x 56’ elevated equipment pad, a 90,000-gallon storage vessel, a control room, and associated electrical and instrumentation equipment.  Additionally, the site includes 2.5 acres of land leased from PECO to accommodate an access road and security fencing near the rail entrance point, as well as a 0.78 acre lease from Conrail for the lead track and security fencing.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 2.02(d)

 

FORM OF SOLVENCY CERTIFICATE

 

I, the undersigned, the chief financial officer of Philadelphia Energy Solutions Refining and Marketing LLC, a Delaware limited liability company (“PESRM”), DO HEREBY CERTIFY, to the best of my knowledge, on behalf of PESRM, and not in my individual capacity, that:

 

I.             This Certificate is furnished pursuant to Section 2.02(d) of that certain Amended and Restated Supply and Offtake Agreement, dated as of October 7, 2014 (as in effect as of the date hereof, the “A&R Supply and Offtake Agreement”), among PESRM, the Guarantors (as defined therein) party thereto (together with PESRM, the “Transaction Parties,” and each, a “Transaction Party”) and Merrill Lynch Commodities, Inc. (“MLC”).  Capitalized terms used but not defined herein have the meanings ascribed to them in the A&R Supply and Offtake Agreement.

 

II.            I am familiar with the historical and current financial condition of the Transaction Parties on a consolidated basis as an authorized officer of PESRM.  In preparing this certificate, I have made such investigations and inquiries as I deem necessary and prudent in connection with the matters set forth herein and have reviewed the terms of the A&R Supply and Offtake Agreement and the other PESRM Transaction Documents.

 

III.          Based upon the foregoing, I have reached the conclusions that as of the date hereof, after giving effect to the A&R Supply and Offtake Agreement and other PESRM Transaction Documents (including any transactions contemplated thereunder) to be consummated on the date of this certificate:

 

a.             The sum of the present fair saleable value of the assets owned by the Transaction Parties on a consolidated basis, on a going concern basis, is greater than the total amount of liabilities (including contingent and unliquidated) of the Transaction Parties on a consolidated basis as they become absolute and matured.  The amount of contingent or unliquidated liabilities having been computed at an amount that, in light of all of the facts and circumstances existing at the Effective Date, represents the amount that can reasonably be expected to become an actual or matured liability.

 

b.             The Transaction Parties do not, on a consolidated basis, have unreasonably small capital in relation to their business.

 

c.             The Transaction Parties, on a consolidated basis, have not incurred, do not intend to incur, and do not believe they will incur, debts beyond their ability to pay such debts as such debts mature in the ordinary course of business.

 

[Remainder of Page Intentionally Left Blank]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

IN WITNESS WHEREOF, the undersigned has hereunto set his hand this        day of October, 2014.

 

 

	
 
    	
By:
    	
 
    
	
 
    	
Name:   James T. Rens
    
	
 
    	
Title:   Chief Financial Officer
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 









 

SCHEDULE 2.02(a)

 

POST-CLOSING THIRD PARTY CONSENT AGREEMENTS

 

None.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 2.02(k)

 

MATERIAL APPROVALS

 

None.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 3.01(b)

 

CO DELIVERY POINTS

 

Delivery Points for Current Assets are listed below.

 

	
Delivery Point
    	
 
    	
Meaning
    
	
BOM - P/L, B, Gauge
    	
 
    	
Bureau   of Mines Calculation, based on pipeline tickets, barge tickets, and   production estimates from tank gauge changes
    
	
BOM   - Rail/Gauge
    	
 
    	
Bureau   of Mines Calculation, based on rail tickets, and production estimates from   tank gauge changes
    
	
BOM   - B, Gauge
    	
 
    	
Bureau   of Mines Calculation, based on barge tickets, and production estimates from   tank gauge changes
    
	
BOM   - Mostly Gauge
    	
 
    	
Bureau   of Mines Calculation, based production estimates from mostly tank gauge   changes, although tickets from pipeline and barge are possible
    
	
BOM - P/L, R, Gauge
    	
 
    	
Bureau   of Mines Calculation, based on pipeline tickets, rail tickets, and production   estimates from tank gauge changes
    
	
BOM   - P/L, Gauge
    	
 
    	
Bureau   of Mines Calculation, based on pipeline tickets, and production estimates   from tank gauge changes
    
	
Pipeline   In Transit
    	
 
    	
Pipeline   tickets for volume in transit
    
	
BOM   - B, Gauge
    	
 
    	
Bureau   of Mines Calculation, based on barge tickets, and production estimates from   tank gauge changes
    
	
BOM   - Gauge
    	
 
    	
Bureau   of Mines Calculation, based production estimates from mostly tank gauge   changes; tickets from pipeline and barge are rare
    


 

	
Infrastructure 
   Description
    	
 
    	
Infrastructure ID
    	
 
    	
Delivery Point
    
	
Crude   Oil
    	
 
    	
 
    	
 
    	
 
    
	
Refinery   (DC) Tank
    	
 
    	
DC003
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
DC004
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
DC005
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
DC006
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
DC007
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
DC010
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
DC011
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
DC012
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
DC013
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
DC014
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
DC015
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
DC016
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
DC017
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
DC018
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
DC019
    	
 
    	
BOM   - B, Gauge
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

	
 
    	
 
    	
DC020
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
DC021
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
DC022
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
DC023
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
DC024
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
DC027
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
DC028
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
DC031
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
DC034
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
DC035
    	
 
    	
BOM   - B, Gauge
    
	
Refinery   (PB) Tank
    	
 
    	
PB826
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
PB840
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
PB841
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
PB843
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
PB847
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
PB851
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
PB852
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
PB854
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
PB855
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
PB856
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
PB881
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
PB882
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
PB883
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
PB884
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
PB885
    	
 
    	
BOM   - B, Gauge
    
	
 
    	
 
    	
PB886
    	
 
    	
BOM   - B, Gauge
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 3.05(a)

 

FORM OF DAILY ACTUAL PRODUCTION BOOK

 

[**]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

Schedule 3.06(a)

 

FORM OF FINANCIAL REPORT

 

[**]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 3.08(b)(i)

 

FORM OF DAILY TRADES DONE TO DATE REPORT

 

[**]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 3.08(b)(ii)

 

FORM OF DAILY RAW INVOICE REPORT

 

[**]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 3.08(b)(iii)

 

FORM OF DAILY SALES REPORT

 

[**]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 3.08(b)(iv)

 

FORM OF PROVISIONAL FIFO QUEUE REPORT

 

[**]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 









 

SCHEDULE 3.08(c)

 

FORM OF MONTHLY CO FIFO REPORT

 

[**]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 3.09(b)

 

FORM OF PESRM BUY REQUEST / PESRM SALES REQUEST

 

[**]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 3.09(c)

 

FORM OF MLC CO TRADE CONFIRMATION

 

[**]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 









 

SCHEDULE 3.19

 

FIRST PURCHASER JURISDICTIONS

 

North Dakota

 

Colorado

 

Louisiana

 

Oklahoma

 

Texas

 

Montana

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 4.01

 

RP DELIVERY POINTS

 

All RP Tanks at Girard Point, Point Breeze, and Schuylkill River

 

Downstream Rack Terminals

 

The metering point for Product at the rack located within the Downstream Rack Terminals, prior to the point at which such Product is blended or otherwise commingled with ethanol or any other additives

 

	
Eagle Point Tank Inventory
    	
 
    	
EP019
    
	
 
    	
 
    	
EP020
    
	
 
    	
 
    	
EP030
    
	
 
    	
 
    	
EP118
    
	
 
    	
 
    	
EP002
    
	
 
    	
 
    	
EP004
    
	
 
    	
 
    	
EP402
    
	
 
    	
 
    	
EP403
    
	
 
    	
 
    	
EP404
    
	
Kinder Morgan Tank
    	
 
    	
KMC1
    
	
 
    	
 
    	
KMC14
    
	
 
    	
 
    	
KMC2
    
	
Paulsboro Tank Inventory
    	
 
    	
PaulTank
    
	
Nustar Tank
    	
 
    	
NS 15020
    
	
Nustar Tank
    	
 
    	
NS 15022
    


 

	
Delivery Points for Barge   Movements
    
	
 
    
	
New York
    
	
Massachusetts
    
	
Connecticut
    
	
New Jersey
    
	
Delaware
    
	
Pennsylvania
    
	
 
    
	
Injection/Delivery Points   for Pipeline Movements
    
	
 
    
	
Buckeye Pipeline Injection and Receipt Points
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

	
PA, NY, NJ
    
	
 
    
	
Colonial Pipeline Injection and Receipt   Points
    
	
TX, LA, MS, AL, SC, NC, VA, PA, NJ, GA, TN
    
	
Note: Excluding all locations in the state of   Maryland
    
	
 
    
	
Sun Pipeline Injection and Delivery Points
    
	
PA, NY, NJ
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 4.04(a)(i)

 

FORM OF PPC DAILY RACK SALES REPORT

 

[**]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 4.04(a)(ii)

 

FORM OF SXL DAILY RACK SALES REPORT

 

[**]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

1











 

SCHEDULE 4.04(a)(iii)

 

FORM OF SXL REPORT

 

[**]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

1











 

SCHEDULE 4.09

 

PRODUCT PURCHASER DELIVERY POINTS

 

	
Infrastructure Description
    	
 
    	
Transfer Point
    
	
 
    	
 
    	
 
    
	
Colonial Pipeline In Transit
    	
 
    	
Pipeline Meter at origin and destination
    
	
 
    	
 
    	
 
    
	
Buckeye Pipeline In Transit
    	
 
    	
Pipeline Meter at origin and destination
    
	
 
    	
 
    	
 
    
	
Sunoco Pipeline In Transit
    	
 
    	
Pipeline Meter at origin and destination
    
	
 
    	
 
    	
 
    
	
Eagle Point Tanks
    	
 
    	
Pipeline Meter for Sun Pipeline and Colonial;   Dock flange, Tank to Tank Transfer
    
	
 
    	
 
    	
 
    
	
Kinder Morgan Tanks
    	
 
    	
Pipeline Meter; Dock flange
    
	
 
    	
 
    	
 
    
	
Paulsboro Tank Inventory
    	
 
    	
Pipeline Meter for 3N/Inter-refinery Pipeline   [IRPL], inlet flange on pump-over from tank farms with access to the   Paulsboro Tanks
    
	
 
    	
 
    	
 
    
	
Refinery (Girard Point [GP], Point Breeze [PB],   Schuylkill River [SR]) Tanks
    	
 
    	
Dock flanges (GP and PB docks), Processing   Unit Battery Limits, Propane/Propylene & Propane Rack Flange,   Pipeline Meters for Atlantic Pipeline [APL4 and APL5 lines], Pipeline Meter   for Harbor Pipeline, Pipeline Meter for Colonial Pipeline, Pipeline Meter for   Laurel Pipeline
    
	
 
    	
 
    	
 
    
	
Downstream Rack Terminals
    	
 
    	
The metering point for Product at the rack   located within the Downstream Rack Terminals, prior to the point at which   such Product is blended or otherwise commingled with ethanol or any other   additives
    
	
 
    	
 
    	
 
    
	
NuStar Tanks
    	
 
    	
Pipeline Meter for Sun Pipeline and Colonial;   Dock flange, Tank to Tank Transfer
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

2











 

SCHEDULE 4.09(a)

 

FORM OF OIL FLOW REPORT

 

[**]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 4.09(c)

 

FORM OF MLC RP TRADE CONFIRMATION

 

[**]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 









 

SCHEDULE 5(a)

 

CALCULATION OF CRUDE OIL PRICE AMOUNT

 

[**]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 5(b)

 

CALCULATION OF REFINED PRODUCT PRICE AMOUNT

 

[**]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 5(c)

 

MARKET STRUCTURE

 

[**]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 









 

SCHEDULE 6.17

 

FORM OF MLC GUARANTY

 

GUARANTY OF BANK OF AMERICA CORPORATION

 

For value received, the receipt of which is hereby acknowledged, Bank of America Corporation, a corporation duly organized and existing under the laws of the State of Delaware (“Bank of America”), hereby unconditionally guarantees to Philadelphia Energy Solutions Refining and Marketing LLC (the “Company”) the prompt payment of any and all obligations and liabilities of Merrill Lynch Commodities, Inc., a corporation organized under the laws of the State of Delaware (the “Affiliate”), any successors and permitted assigns, to the extent such successors or permitted assigns are direct or indirect wholly-owned subsidiaries of Bank of America, under the terms of (i) that certain Amended and Restated Supply and Offtake Agreement between the Company and the Affiliate, dated as of October 7, 2014 (as amended, supplemented or otherwise modified from time to time, the “SOA”), (ii) that certain ISDA 2002 Master Agreement, together with the Schedule, Exhibits and Annexes thereto, between the Company and the Affiliate, dated as of October 7, 2014 (as amended, supplemented or otherwise modified from time to time, the “Secured Prepay ISDA”), and (iii) that certain ISDA 2002 Master Agreement, together with the Schedule, Exhibits and Annexes thereto, between the Company and the Affiliate, dated as of October 7, 2014 (as amended, supplemented or otherwise modified from time to time, the “Derivatives ISDA”, each of the SOA, the Secured Prepay ISDA and the Derivatives ISDA, an “Agreement” and, collectively, the “Agreements”), including, in case of default, interest on any amount due, when and as the same shall become due and payable, whether on the scheduled payment dates, at maturity, upon declaration of termination or otherwise, after giving effect to any applicable notice requirement or grace period and, at all times, in accordance with the terms of the applicable Agreement.  In the event that the Affiliate fails to make any payment under any Agreement when due after giving effect to any applicable notice requirement and grace period, Bank of America hereby agrees to make such payment, or cause any such payment to be made, promptly upon receipt of written demand from the Company to Bank of America; provided, however, that delay by the Company in giving such demand shall in no event affect Bank of America’s obligations under this Guaranty.  This Guaranty shall remain in full force and effect or shall be reinstated (as the case may be) if at any time any payment guaranteed hereunder, in whole or in part, is rescinded or must otherwise be returned by the Company upon the insolvency, bankruptcy or reorganization of the Affiliate or otherwise, all as though such payment had not been made.

 

This Guaranty shall be one of payment and not of collection and shall be irrevocable in respect of any payment obligations incurred by the Affiliate under any Agreement prior to the termination of this Guaranty as further provided below.  Bank of America hereby agrees that its obligations hereunder shall be unconditional, irrespective of (i) the validity, regularity or enforceability (except as may result from any applicable statute of limitations) of any Agreement, (ii) the absence of any action to enforce the same, (iii) any waiver or consent by the Company concerning any provisions thereof, (iv) the rendering of any judgment against the Affiliate or any action to enforce the same or (v) any other circumstances that might otherwise constitute a legal or equitable discharge of a guarantor or a defense of a guarantor, other than defense of payment.  Bank of America covenants that this Guaranty shall not be discharged in

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

1











 

relation to any Agreement except by complete payment of the amounts payable under such Agreement.  This Guaranty shall continue to be effective if the Affiliate merges or consolidates with or into another entity, loses its separate legal identity or ceases to exist.

 

Bank of America hereby waives diligence, presentment, protest, notice of protest, acceleration, and dishonor, filing of claims with any court in the event of insolvency or bankruptcy of the Affiliate, all demands whatsoever, except as noted in the first paragraph hereof, and any right to require a proceeding first against the Affiliate.

 

Neither Bank of America nor the Company may assign its rights, interests or obligations hereunder to any other person (except by operation of law) without the prior written consent of the other party.

 

Bank of America shall not exercise any right that it may acquire by way of subrogation under this Guaranty, by payment made hereunder or otherwise, until all amounts then due and payable by the Affiliate under each Agreement shall have been paid in full. Subject to the foregoing, upon payment of all such obligations of the Affiliate, Bank of America shall be subrogated to the rights of the Company against the Affiliate, and the Company agrees to take at Bank of America’s expense such steps as Bank of America may reasonably request to implement such subrogation.

 

Bank of America shall reimburse the Company for any reasonable fees and expenses incurred by the Company in the enforcement of the Company’s rights under this Guaranty (including the reasonable fees and expenses of outside counsel) if Bank of America shall be found liable for any non-payment hereunder in a final, non-appealable judicial determination of a court of competent jurisdiction.  Bank of America shall not be required to pay, or otherwise be liable to, the Company for any consequential, indirect or punitive damages (including, but not limited to, opportunity costs or lost profits). The liability of Bank of America under this Guaranty and Company’s right of recovery under this Guaranty is limited to an aggregate amount of US $100,000,000 (One Hundred Million).

 

Bank of America hereby represents and warrants that this Guaranty constitutes the valid and binding obligation of Bank of America and does not violate or conflict with any applicable law.

 

This Guaranty may be terminated at any time by written notice to the Company by Bank of America, effective ninety (90) calendar days following receipt of such written notice by the Company or at such later date as may be specified in such written notice; provided, however, that this Guaranty shall continue in full force and effect with respect to any obligation of the Affiliate under any Agreement entered into prior to the effectiveness of such written notice of termination.

 

This Guarantee becomes effective in relation to each Agreement concurrent with the effectiveness of such Agreement, according to its terms.

 

This Guaranty shall be governed by and construed in accordance with the internal laws of the State of New York as applicable to contracts or instruments made and to be performed therein.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

2











 

[The remainder of this page is left intentionally blank.]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

3











 

IN WITNESS WHEREOF, BANK OF AMERICA has caused this Guaranty to be executed in its corporate name by its duly authorized representative.

 

 

	
 
    	
BANK OF   AMERICA CORPORATION
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    
	
 
    	
 
    	
Date:
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

4











 

SCHEDULE 8.03(a)

 

NO CONFLICTS

 

None.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

1











 

SCHEDULE 8.03(b)

 

MATERIAL CONTRACTS

 

None.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 8.07

 

SUBSIDIARIES

 

PES Administrative Services, LLC

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 8.08(a)

 

LITIGATION

 

None.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 8.08(c)

 

MATERIAL PERMITS

 

None.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 8.18

 

ENVIRONMENTAL MATTERS

 

None.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 




 






 

SCHEDULE 8.19

 

EFFECTIVE DATE INSURANCE

 

*Subject to the terms and conditions as more fully outlined in the policies referenced in this summary*

 

Worker’s Compensation (WC)/Employer’s Liability (EL):

 

Statutory WC/ $ 2 million EL/ $ 2 million Maritime Employer’s Liability (MEL); WC policy to be endorsed to include MEL and USL&H (Longshore Harbor Worker’s Compensation).

 

Automobile Liability (ex Physical Damage)

 

$2 million each accident; including heavy units/trucking operations, with MCS-90 endorsement.

 

Commercial General Liability

 

$5 million per occurrence Self Insured Retention.

 

Umbrella/Excess Liability

 

$525 million each occurrence/ annual aggregate; First $190 million is placed on occurrence form with additional excess layers placed on occurrence as reported and/or claims made basis. The umbrella policy has same or broader coverage terms as primary policies (Employers Liability, Auto, and MTOL policies) and does cover pollution and clean-up costs of up to $525 million limit each occurrence/annual aggregate.

 

Premises Pollution Liability

 

$50 million per “Pollution Condition”/ $50 million aggregate limit “Pollution Conditions” excess of a $1,000,000 “Per Pollution Condition” Retention.

 

Marine Terminal Operators Liability (MTOL)

 

$50 million combined Warfingers/Stevedores Limits; With Wharfingers/ Stevedores scheduled into the Umbrella/Excess Liability above the $50 million layer; Policy includes pollution/environmental clean-up costs.

 

Charterers Legal Liability Coverage

 

Coverage includes $500 million primary coverage for liability insurance for practically all maritime legal liability risks associated with the chartering of a vessel.  Which includes, but not limited to: Charterers Legal Liability, Damage to Hull, and Cargo Owners Legal Liability.  The cover also includes a number of extensions, including Freight Demurrage & Defense (FDD), which is subject to sublimits.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

1











 

Business Interruption

 

Business Interruption coverage is included in the $1 billion combined Property Damage and Business Interruption limit.  Business Interruption amount with an Indemnity Period of 24 months. Business Interruption is covered in excess of 60 working days up to a combined single limit of USD 1bn per occurrence Property Damage and Business Interruption combined.

 

Property Damage (PD)

 

Property Damage is covered on the basis of All Risk coverage with a number of exclusions excess of USD 10 million deductible per occurrence up to a combined single limit Property Damage and Business Interruption combined of USD 1bn per occurrence. Within this loss limit several sublimits apply. There is an aggregated USD 479 million in coverage for flood, USD 398 million for high hazard flood (Zones A&V), and USD 467 million in coverage for Windstorm.

 

Terrorism Primary

 

USD 250mm Property Damage and Business Interruption excess of $250,000 PD and 45 days BI deductible

 

Terrorism Excess

 

USD 250mm excess of the primary limit of 250MM

 

All Risk Cargo Insurance Includes the below 2 Policies:

 

Ocean Marine Cargo Insurance

 

Attaching for 100% percent interest, but not exceeding $25,000,000 Dollars for the primary coverage level and $95,000,000 for the excess coverage level (for a total of $120,000,000), by any one vessel

 

Cargo Storage Coverage (Marine Cargo)

 

USD 40mm any one loss any one location/tank in excess of the USD 1mm deductible

 

Other requirements

 

Reputable Insurance companies rated not less than A-, VIII by A.M. Best or otherwise reasonably satisfactory to MLC

 

MLC named as additional insured on all liability policies other than Worker’s Compensation and Employers Liability

 

Cancellation provision (30 days notice to MLC prior to cancellation)

 

Waiver of subrogation against MLC

 

All insurance maintained on a primary, non-contributory basis

 

Insurance certificates provided to MLC

 

MLC named as loss payee on all property policies:

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

2











 

Lenders Loss Payable Clause

 

a)             Loss or damage, if any, under this Policy, shall be paid to any lender designated by the Insured and in possession of a written contract, hereinafter referred to as “the Lender”, as their interests may appear, its successors and assigns in whatever form or capacity its interests may appear and whether said interest be vested in said Lender in its individual or in its disclosed or undisclosed fiduciary or representative capacity, or otherwise, or vested in a nominee or trustee of said Lender.

b)             The insurance under this Policy, or any rider or endorsement attached thereto, as to the interest only of the Lender, its successors and assigns, shall not be invalidated nor suspended: (a) by any error, omission, or chance respecting the ownership, description, possession, or location of the subject of the insurance or the interest therein, or the title thereto; (b) by the commencement of foreclosure proceedings or the giving of notice of sale of any of the property covered by this Policy by virtue of any mortgage or trust deed; (c) by any breach of warranty, act, omission, neglect or non-compliance with any of the provisions of this Policy, including any and all riders now or hereafter attached thereto, by the Named Insured, the borrower, mortgagor, trustor, vendee, owner, tenant, warehouseman, custodian, occupant, or by the agents of either or any of them or by the happening of any event permitted by them or either of them, or their agents, or which they failed to prevent, whether occurring before or after the attachment of this clause, or whether before or after a loss, which under the provisions of this Policy of insurance or of any rider or endorsement attached thereto would invalidate or suspend the insurance as to the Named Insured, excluding herefrom, however, any acts or omissions of the Lender while exercising active control and management of the property.

c)              In the event of failure of the Insured to pay any premium or additional premium which shall be or become due under the terms of this Policy or on account of any change in occupancy or increase in hazard not permitted by this Policy, this Insurer agrees to give written notice to the Lender of such non-payment of premium after thirty (30) days from and within one hundred twenty (120) days after due date of such premium and it is a condition of the continuance of the rights of the Lender hereunder that the Lender when so notified in writing by this Insurer of the failure of the Insured to pay such premium shall pay or cause to be paid the premium due within ten (10) days following receipt of the Insurer’s demand in writing therefor.  If the Lender shall decline to pay said premium or additional premium, the rights of the Lender under this Lender’s Loss Payable Clause shall not be terminated before ten (10) days after receipt of said written notice by the Lender.

d)             Whenever this Insurer shall pay to the Lender any sum for loss or damage under this Policy and shall claim that as to the Insured no liability therefor exists, this Insurer, at its option, may pay the Lender the whole principle sum and interest and other indebtedness due or to become due from the Insured, whether secured or unsecured, (with refund of all interest not accrued), and this Insurer, to the extent of such payment, shall thereupon receive a full assignment and transfer, without recourse, of the debt and all rights and securities held as collateral thereto.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

3











 

e)              If there be any other insurance upon the within described property, this Insurer shall be liable under this Policy as to the Lender for the proportion of such loss or damage that the sum hereby insured bears to the entire insurance of similar character on said property under policies held by, payable to and expressly consented to the Lender.  Any Contribution Clause included in any Fallen Building Clause Waiver or any Extended Coverage Endorsement attached to this contract of insurance is hereby nullified, and also any Contribution Clause in any other endorsement or rider attached to this contract of insurance is hereby nullified except Contribution Clauses for the compliance with which the Insured has received reduction in the rate charged or has received extension of the coverage to include hazards other than fire and compliance with such Contribution Clause is made a part of the consideration for insuring such other hazards.  The Lender upon the payment to it of the full amount of its claim, will subrogate this Insurer (pro rata with all other insurers contributing to said payment) to all of the Lender’s rights of contribution under said other insurance.

f)               This Insurer reserves the right to cancel this Policy at any time, as provided by its terms, but in such case this Policy shall continue in force for the benefit of the Lender for ninety (90) days after a written notice of such cancellation is received by the Lender and shall then cease.

g)              This Policy shall remain in full force and effect as to the interest of the Lender for a period of ten (10) days after its expiration unless an acceptable Policy in renewal thereof with loss thereunder payable to the Lender in accordance with the terms of this Lender’s Loss Payable Clause shall have been issued by some insurance Insurer and accepted by the Lender.

h)             Should legal title to and beneficial ownership of any of the property covered under this Policy become vested in the Lender or its agents, insurance under this Policy shall continue for the term thereof for the benefit of the Lender but, in such event, any privileges granted by this Lender’s Loss Payable Clause which are not also granted the Insured under the terms and conditions of this Policy and/or under other riders or endorsements attached thereto shall not apply to the insurance hereunder as respects such property.

 

All notices herein provided to be given by the Insurer to the Lender in connection with this Policy and this Lender’s Loss Payable Clause shall be mailed to or delivered to the Lender at its office or branch described on the first page of the Policy.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

4











 

SCHEDULE 8.22

 

LOCATION OF MATERIAL COLLATERAL

 

** Not refinery

** Not SXL crude

 

	
SPMT, Belmont
    	
 
    	
2700 W. Passyunk Ave.
    	
 
    	
Philadelphia
    	
 
    	
PA
    	
 
    	
19145-5205
    
	
SPMT, Westville
    	
 
    	
1000 Crown Point Rd.
    	
 
    	
Westville
    	
 
    	
NJ
    	
 
    	
08093-1317
    
	
PPC Sinking Spring
    	
 
    	
901 Mountain Home Rd.
    	
 
    	
Sinking Spring
    	
 
    	
PA
    	
 
    	
19608
    
	
PPC Highspire
    	
 
    	
900 S. Eisenhower Blvd.
    	
 
    	
Middletown
    	
 
    	
PA
    	
 
    	
17057-5503
    
	
PPC Mechanicsburg
    	
 
    	
127 Texaco Rd.
    	
 
    	
Mechanicsburg
    	
 
    	
PA
    	
 
    	
17050-2626
    
	
PPC Altoona
    	
 
    	
1100 Burns Ave.
    	
 
    	
Altoona
    	
 
    	
PA
    	
 
    	
16602
    
	
PPC Northumberland
    	
 
    	
PO Box 300
    	
 
    	
Northumberland
    	
 
    	
PA
    	
 
    	
17857-0300
    
	
PPC Kingston
    	
 
    	
60 S. Wyoming Ave.
    	
 
    	
Edwardsville
    	
 
    	
PA
    	
 
    	
18704-3102
    
	
PPC Allentown
    	
 
    	
1134 N. Quebec St.
    	
 
    	
Allentown
    	
 
    	
PA
    	
 
    	
18109-1609
    
	
SPMT Fullerton
    	
 
    	
2480 Main Street
    	
 
    	
Whitehall
    	
 
    	
PA
    	
 
    	
18052-4607
    
	
SPMT Tonawanda
    	
 
    	
3733 River Road
    	
 
    	
Tonawanda
    	
 
    	
NY
    	
 
    	
14150
    
	
SPMT Rochester
    	
 
    	
1840 Lyell Avenue
    	
 
    	
Rochester
    	
 
    	
NY
    	
 
    	
14606
    
	
PPC Coraopolis South (PPC)
    	
 
    	
9 Thorn Street
    	
 
    	
Coraopolis
    	
 
    	
PA
    	
 
    	
15108
    
	
PPC Dupont
    	
 
    	
675 Suscon Road
    	
 
    	
Pittston
    	
 
    	
PA
    	
 
    	
18640
    
	
SPMT Van Buren
    	
 
    	
2951 Energy Drive
    	
 
    	
Warners
    	
 
    	
NY
    	
 
    	
13164
    
	
SPMT, Eagle Point
    	
 
    	
1000 Crown Point Rd.
    	
 
    	
Westville
    	
 
    	
NJ
    	
 
    	
08093-1317
    
	
KMI, Carteret, NJ
    	
 
    	
78 Lafayette Street
    	
 
    	
Carteret
    	
 
    	
NJ
    	
 
    	
07008
    
	
NuStar, Linden NJ
    	
 
    	
3700 South Wood Ave
    	
 
    	
Linden
    	
 
    	
NJ
    	
 
    	
07036
    
	
SPMT Paulsboro NJ
    	
 
    	
825 Clonmell Rd.
    	
 
    	
Paulsboro
    	
 
    	
NJ
    	
 
    	
08066
    
	
Transflo
    	
 
    	
3600 Moore Street
    	
 
    	
Philadelphia
    	
 
    	
PA
    	
 
    	
19145
    
	
SPMT Marcus Hook
    	
 
    	
100 Green Street
    	
 
    	
Marcus Hook
    	
 
    	
PA
    	
 
    	
19103
    
	
SPMT, Exton
    	
 
    	
601 East Lincoln Highway
    	
 
    	
Exton
    	
 
    	
PA
    	
 
    	
19341
    
	
SPMT, Fort Mifflin
    	
 
    	
#4 Hog Island Road
    	
 
    	
Philadelphia
    	
 
    	
PA
    	
 
    	
19153
    
	
SPMT, Darby Creek Tank Farm
    	
 
    	
1201 Calcon-Hook Road
    	
 
    	
Sharon Hill
    	
 
    	
PA
    	
 
    	
19079
    
	
Sunoco Pipeline L.P.
    	
 
    	
525 Fritztown Road
    	
 
    	
Sinking Spring
    	
 
    	
PA
    	
 
    	
19608
    
	
Buckeye Partners
    	
 
    	
One Greenway Plaza, Suite 600
    	
 
    	
Houston
    	
 
    	
TX
    	
 
    	
77046
    
	
Colonial Pipeline Company
    	
 
    	
P.O. Box 101789
    	
 
    	
Atlanta
    	
 
    	
GA
    	
 
    	
30392
    
	
Schuylkill River Tank Farm
    	
 
    	
3270 South 70th Street
    	
 
    	
Philadelphia
    	
 
    	
PA
    	
 
    	
19153
    
	
Girard Point Refinery
    	
 
    	
3001 Penrose Ave.
    	
 
    	
Philadelphia
    	
 
    	
PA
    	
 
    	
19145
    
	
Point Breeze Refinery
    	
 
    	
3144 W. Passyunk Ave.
    	
 
    	
Philadelphia
    	
 
    	
PA
    	
 
    	
19145
    


 

Material in transit or stored on vessels from time to time.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

1











 

SCHEDULE 9.03

 

NO CONFLICTS

 

None.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

1











 

SCHEDULE 9.04

 

LITIGATION

 

None.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

1











 

SCHEDULE 10.04

 

INSURANCE REQUIREMENTS

 

Worker’s Compensation (WC)/Employer’s Liability (EL):

 

Statutory WC/ $1 million EL/ $1 million Maritime Employer’s Liability (MEL); WC policy to be endorsed to include MEL and USL&H (Longshore Harbor Worker’s Compensation)

 

Automobile Liability (ex Physical Damage)

 

$1 million each accident; higher limits for heavy units/trucking operations, as appropriate, with MCS-90 endorsement

 

Commercial General Liability

 

$5,000,000 per occurrence Self Insured Retention

 

Umbrella/Excess Liability

 

$400 million each occurrence/ annual aggregate; First $100 million must be placed on occurrence form with additional excess layers placed on occurrence as reported and/or claims made basis

 

The umbrella policy must have same or broader coverage terms as primary policies (CGL, Auto, and MTOL policies) and must cover known  Sudden and Accidental clean-up costs of up to $400,000,000 limit each occurrence/annual aggregate

 

Premises Pollution Liability

 

$25 million per “Pollution Condition”/ $50 million aggregate limit “Pollution Conditions” excess of a $1,000,000 “Per Pollution Condition” Retention.

 

Marine Terminal Operators Liability (MTOL)

 

$25 million combined MTOL; With MTOL scheduled into the Umbrella/Excess Liability above $25 million; Must include pollution/environmental clean-up costs, if applicable.

 

Charterers Legal Liability

 

Coverage includes $500 million primary coverage for liability insurance for practically all maritime legal liability risks associated with the chartering of a vessel.  Which includes, but not limited to: Charterers Legal Liability, Damage to Hull, and Cargo Owners Legal Liability.  The cover also includes a number of extensions, including Freight Demurrage & Defense (FDD), which is subject to sublimits.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

1











 

Business Interruption

 

In an amount reasonably satisfactory to  MLC

 

Property Damage (PD)

 

$750 million* combined single limit each occurrence, subject to annual (lower) aggregate limits for certain perils (e.g., floods, earth movement, etc.), of $200 million to $300 million*.  Must provide all risk protection for direct physical loss or damage to the assets as result from fire, flood, earth movement, etc.   Also must include direct coverage for machinery and equipment.

 

Terrorism

 

$500 million* each occurrence / annual aggregate, covering all assets on a replacement cost basis

 

All risk Cargo Insurance includes the below 2 Policies:

 

Ocean Marine Cargo Insurance

 

Coverage should include full market value for product in transit and in storage.

 

Cargo Storage Coverage (Marine Cargo)

 

Coverage should include full market value for product in transit and in storage.

 




*Please note that these limits are based upon estimates from MLC’s experience with other refineries; MLC reserves the right to require higher limits for these coverages in the event that the EML (estimated maximum loss) analysis shows higher exposures.

 

Other requirements

 

Reputable Insurance companies rated not less than A-, VIII by A.M. Best or otherwise reasonably satisfactory to MLC

 

MLC named as additional insured on all liability policies other than Worker’s Compensation and Employers Liability

 

MLC named as loss payee on all property policies

 

Cancellation provision (30 days notice to MLC prior to cancellation)

 

Waiver of subrogation against MLC

 

All insurance maintained on a primary, non-contributory basis

 

Insurance certificates provided to MLC

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

2




 






 

SCHEDULE 10.18

 

FORM OF THIRD PARTY CONSENT AGREEMENT

 

THIS THIRD PARTY CONSENT AND ACCESS AGREEMENT (this “Agreement”) is made and entered into as of [·], [·] by and among [                          ] (“Owner”), [Merrill Lynch Commodities, Inc.] (“MLC”), in its capacity as collateral agent for the benefit of the SOA Secured Parties (as defined herein) (in such capacity, the “SOA Collateral Agent”), and Philadelphia Energy Solutions Refining and Marketing LLC (“PESRM”).

 

RECITALS

 

WHEREAS, Owner is the owner and operator of certain [·] facilities and equipment appurtenant thereto described in Schedule A attached hereto or otherwise used under or in connection with any amendment, restatement, supplement to, or modification of, the Infrastructure Agreement (as defined below) to which the SOA Collateral Agent shall have consented (the “Infrastructure”);

 

WHEREAS, PESRM has the right to use the Infrastructure pursuant to that certain [                          ] Agreement, dated as of [·], [·], by and between Owner and PESRM, an executed copy of which, together with all amendments thereto in effect as of the date hereof, are attached hereto as Exhibit A (as amended, restated, supplemented or otherwise modified from time to time, the “Infrastructure Agreement”);

 

WHEREAS, PESRM desires that all hydrocarbons that it owns and which are stored in the Infrastructure shall be considered Collateral Liquids (as defined below);

 

WHEREAS, PESRM has entered into that certain Amended and Restated Supply and Offtake Agreement, dated as of October 7, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the “Supply and Offtake Agreement”), by and among PESRM, the guarantors party thereto from time to time, and MLC;

 

WHEREAS, in connection with the Supply and Offtake Agreement, pursuant to that certain Second Amended and Restated Pledge and Security Agreement dated as of October 7, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the “SOA Security Agreement”) by and among PESRM, the grantors party thereto from time to time and the SOA Collateral Agent, as collateral agent for, among others, certain secured parties (such secured parties, the “SOA Secured Parties”), in order to secure PESRM’s obligations under the Supply and Offtake Agreement and certain other agreements, PESRM granted in favor of the SOA Collateral Agent, for the benefit of itself and the SOA Secured Parties, a lien on and security interest in PESRM’s right, title and interest in, the collateral described therein, including, without limitation, all hydrocarbons (including, without limitation, all crude oil, refined products and butane) accepted by Owner at the Infrastructure for the account of PESRM (the “Collateral Liquids”); and

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

WHEREAS, in connection with the Supply and Offtake Agreement and the SOA Security Agreement, PESRM is required to execute and deliver, and to cause Owner to execute and deliver, this Agreement.

 

AGREEMENT

 

NOW, THEREFORE, for and in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

 

A.                                    Acknowledgments, Waivers, Disclaimers and Representations.

 

1.             Acknowledgment of SOA Security Agreement: Owner hereby acknowledges the SOA Security Agreement by and between, inter alia, PESRM and the SOA Collateral Agent, and the liens and security interests in favor of the SOA Collateral Agent, for the benefit of itself and the SOA Secured Parties, created thereunder in the Collateral Liquids (collectively, the “Security Interests”).

 

2.             Supply and Offtake Secured Party as Third Party Beneficiary: Owner acknowledges and agrees that, notwithstanding anything in the Infrastructure Agreement to the contrary, the SOA Collateral Agent shall be a permitted third party beneficiary of the Infrastructure Agreement to the extent required to enforce its rights hereunder.

 

3.             PESRM as Responsible Party Under the Infrastructure Agreement: PESRM agrees and acknowledges that notwithstanding the rights granted to the SOA Collateral Agent, PESRM will continue to be liable to Owner for all obligations under the Infrastructure Agreement.  This Agreement does not limit any rights Owner may have under the Infrastructure Agreement as it relates to the Collateral Liquids; provided that, neither the SOA Collateral Agent nor the SOA Secured Parties shall be liable to Owner for any costs, fees or monetary obligations arising under the Infrastructure Agreement other than (i) any Cure Payment and (ii)  any Removal Period Fees as set forth in Section B.2.c.; and provided further that, any and all liens on the Collateral Liquids, whether now existing or hereafter held by or on behalf of, or created for the benefit of, Owner or any agent or trustee therefor regardless of how or when acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all liens and security interests of the SOA Collateral Agent in and on the Collateral Liquids pursuant to the SOA Security Agreement, and that any and all liens on the Collateral Liquids in favor of Owner shall be automatically, unconditionally and simultaneously released upon any disposition of Collateral Liquids by the SOA Collateral Agent, without any action on the part of Owner or any agent or trustee therefor; provided that, in the event that all obligations of PESRM to the SOA Collateral Agent and the SOA Secured Parties are paid in full in cash (in accordance with the terms of the Supply and Offtake Agreement and the SOA Security Agreement) by the proceeds of any such disposition of Collateral Liquids, and if and to the extent that there are thereafter any remaining proceeds of such disposition, then and only then shall Owner (or any agent or trustee therefor, if applicable) be entitled to such liens in respect of such remaining proceeds as may arise under the Infrastructure Agreement.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

4











 

4.             Limitation on Damages: NO PARTY TO THIS AGREEMENT SHALL BE LIABLE, RESPONSIBLE OR ACCOUNTABLE IN DAMAGES OR OTHERWISE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES IN TORT, CONTRACT OR OTHERWISE, UNDER OR ON ACCOUNT OF THIS AGREEMENT.

 

B.                                    Covenants of Owner as to Access.

 

1.             Directions from SOA Collateral Agent: PESRM hereby directs, and Owner hereby covenants and agrees that, throughout the term of the Infrastructure Agreement and for the Removal Period (as defined below), Owner shall take and comply with lawful directions or instructions from the SOA Collateral Agent (in each case, given in accordance with the terms of the Infrastructure Agreement) related to the Collateral Liquids but from (and only from) persons named on a written list provided to it by, and from time to time revised by, the SOA Collateral Agent.  PESRM acknowledges that in the event that Owner receives conflicting directions or instructions from PESRM and the SOA Collateral Agent, Owner shall be under no duty to follow the directions or instructions of PESRM.

 

2.             Removal of Collateral Liquids: The term “Removal Period” means a period of 30 days after the expiration or termination of the Infrastructure Agreement, during which the SOA Collateral Agent may remove the Collateral Liquids from the Infrastructure; provided that, such 30 day period will be tolled during any period of force majeure under the Infrastructure Agreement during which the SOA Collateral Agent is restricted from removing the Collateral Liquids and during any period in which the SOA Collateral Agent has been stayed from taking action to remove the Collateral Liquids by any court of competent jurisdiction or other governmental authority.

 

a.             Owner irrevocably grants the SOA Collateral Agent the right (without any obligation to do so) to remove the Collateral Liquids from the Infrastructure at any time or from time to time during the Removal Period, subject to the terms and conditions hereof.

 

b.             During the Removal Period, Owner covenants and agrees that it will perform such [storage, terminaling and other services] as are required under the Infrastructure Agreement (as if the Infrastructure Agreement had not expired or been terminated) and as the SOA Collateral Agent may reasonably request and as may be reasonably required to remove the Collateral Liquids from the relevant Infrastructure, at the costs or rates established in the Infrastructure Agreement (as the same may be escalated from time to time in accordance with the terms of the Infrastructure Agreement, but excluding penalties and interest) (collectively, the “Removal Period Fees”).  The SOA Collateral Agent shall also be obligated to cure any default of PESRM for ordinary course storage and terminaling fees, at such costs or rates as are then applicable (excluding penalties and interest), accrued and unpaid through the day prior to the first day of the Removal Period and not, for the avoidance of doubt, for any other amounts owed by PESRM, whether by reason of termination, acceleration, as damages or otherwise, and Owner shall have no liens (statutory or otherwise) on Collateral Liquids in respect of any such amounts (the fees referred to in this sentence being collectively referred to as the “Cure Payment”).

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

5











 

3.                                    Applicability of Infrastructure Agreement Provisions: Owner’s obligations to provide services to the SOA Collateral Agent hereunder are limited by the terms and conditions under the Infrastructure Agreement.  At all times during the Term, the SOA Collateral Agent shall be subject to the operational provisions and procedures of the Infrastructure Agreement.  During the Removal Period, the SOA Collateral Agent shall also be subject to all other provisions of the Infrastructure Agreement as they relate to the Collateral Liquids, including provisions dealing with the payment of taxes and fees, making customs arrangements and insurance, in each case, solely to the extent such obligations correspond to the Removal Period.

 

4.                                    Notice of PESRM Failure to Pay or Perform: Owner hereby covenants and agrees that it will promptly deliver notice to the SOA Collateral Agent and PESRM (a “Default Notice”) of any failure by PESRM to perform any of its obligations (including payment obligations) under the Infrastructure Agreement and, in the event it delivers a termination notice to PESRM, will simultaneously provide the SOA Collateral Agent with a copy of such termination notice.

 

5.                                    Amendments to the Infrastructure Agreement: PESRM hereby agrees (and acknowledges to Owner) that it shall not agree to any material amendment of the Infrastructure Agreement without prior written notice to, and the prior written consent of, the SOA Collateral Agent.

 

C.                                    Covenants of Owner Regarding Operational Matters Related to Collateral Liquids.

 

Owner hereby covenants and agrees as follows:

 

1.                                    Transfers of Collateral Liquids: Except as expressly provided in the Infrastructure Agreement or pursuant to Section B, Owner will not move any Collateral Liquids to facilities or infrastructure other than the Infrastructure, except in the event of an emergency, and then subject to, as soon as practicable following such emergency condition being remedied, the prompt return of the transferred Collateral Liquids to the Infrastructure.

 

2.                                    Reports; Invoices: Owner shall, simultaneously with the delivery thereof to PESRM, deliver to the SOA Collateral Agent (a) such reports as Owner is required to provide to PESRM under the Infrastructure Agreement, and (b) each invoice or statement under the Infrastructure Agreement.

 

3.                                    Measurement; Metering:  Owner shall calibrate any tanks that make up a portion of the Infrastructure and verify the accuracy of the sampling and measurement equipment at the Infrastructure, as applicable, pursuant to the latest established API/ASTM standards.  Owner shall provide and maintain meters at the Infrastructure, as applicable.  The SOA Collateral Agent, at its sole cost and expense, may appoint an independent inspector, on a commercially reasonable basis and at reasonable times and upon reasonable notice, to:  (a) test the quality and measure the quantity of Collateral Liquids received into and delivered from the Infrastructure, (b) test the quality and measure the quantity of the Collateral Liquids in the Infrastructure at any given time, (c) gauge any tanks that make up a portion of the Infrastructure, and/or (d) witness tank gauging performed by PESRM or Owner.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

6











 

D.                                    Miscellaneous Provisions.

 

1.             Successors and Assigns; Refinancing: The terms and provisions of this Agreement shall inure to the benefit of, and be binding upon, the successors and assigns of Owner, the SOA Collateral Agent (and its designee(s) and assignee(s), the SOA Secured Parties, and their respective successors and assigns (including, without limitation, any lender, lessor, agent and/or other entity that purchases, refinances, replaces or supplements all or any portion of any existing credit arrangements, indebtedness or other obligations of PESRM).  Owner hereby acknowledges that PESRM (or an affiliate of PESRM) may, from time to time during the term of the Infrastructure Agreement, refinance the indebtedness and other obligations incurred in connection with the transactions contemplated by the Supply and Offtake Agreement pursuant to a bank financing, an institutional financing, a capital markets financing, a lease financing or any other combination thereof or other form of financing or otherwise enter into substitute arrangements relating to the transactions contemplated by the Supply and Offtake Agreement.  Owner hereby consents to the provisions of this Agreement continuing to apply to the Infrastructure Agreement in connection with any such refinancing; provided that, the assignee agrees that the terms and provisions of this Agreement shall apply with respect to such assignment.  In furtherance of the foregoing, in connection with any such refinancing or substitute arrangements, Owner agrees that (a) (i) references herein to “SOA Collateral Agent” shall be deemed to be references to the applicable successor, transferor or assignee of the SOA Collateral Agent providing such refinancing or substitute arrangements and (ii) references herein to the “Supply and Offtake Agreement” shall be deemed to be references to the corresponding agreements entered into in connection with such refinancing or substitute arrangements, and (b) if requested by PESRM (or its applicable affiliate), it shall enter into a new consent, substantially in the form of this Agreement, in favor of the parties providing such refinancing or substitute arrangements.  Owner shall disclose the terms and conditions of this Agreement to any purchaser, transferee or successor to Owner’s interest in the Infrastructure.

 

2.             Notices: All notices, requests, statements or payments required to be made under this Agreement shall be made as specified below. All notices are required to be in writing and shall be delivered by letter, facsimile, electronic mail or other documentary form. Notice by facsimile, electronic mail or hand delivery shall be deemed to have been received on the business day on which it was transmitted or delivered (unless transmitted or delivered after 5:00PM Eastern Time or on a day other than a business day, in which case it shall be deemed received on the next business day).  A Party may change its addresses by providing notice of same in accordance herewith.  Notices shall be sent as follows:

 

If to Owner, addressed to:

 

[Name of Owner]
 [Address]
 Attn: [                        ]
 Email: [                        ]

 

If to the SOA Collateral Agent, addressed to:

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

7











 

[Merrill Lynch Commodities, Inc.]
 [Address]
 Attn: [                        ]
 Email: [                        ]

 

With a copy to:

 

Skadden, Arps, Slate, Meagher & Flom LLP
 Four Times Square
 New York, NY 10036-652
 Attention: Tatiana Monastyrskaya, Esq.
 Fax Number: [                ]
 Email: tatiana.monastyrskaya@skadden.com

 

3.             Governing Law, Submission to Jurisdiction, and Waiver of Jury Trial: THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.  EACH PARTY HEREBY SUBMITS ITSELF TO THE EXCLUSIVE JURISDICTION OF ANY FEDERAL COURT OF COMPETENT JURISDICTION SITUATED IN THE BOROUGH OF MANHATTAN, STATE OF NEW YORK OR, IF ANY FEDERAL COURT DECLINES TO EXERCISE OR DOES NOT HAVE JURISDICTION, IN ANY NEW YORK STATE COURT IN THE BOROUGH OF MANHATTAN, STATE OF NEW YORK, AND TO SERVICE OF PROCESS BY CERTIFIED MAIL, DELIVERED TO THE PARTY AT ITS LAST DESIGNATED ADDRESS. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION TO THE JURISDICTION OF ANY SUCH COURT OR TO THE VENUE THEREIN OR ANY CLAIM OF INCONVENIENT FORUM OF SUCH COURT. EACH PARTY FURTHER WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING RELATING TO THIS AGREEMENT.

 

4.             Term: This Agreement expires on the first to occur of the following: (i) the date on which the Supply and Offtake Agreement shall have terminated and all obligations of PESRM to the SOA Collateral Agent and the SOA Secured Parties shall have been satisfied; and (ii) the later of the date of expiration of (A) the term of the Infrastructure Agreement and (B) the Removal Period (the “Term”).  The SOA Collateral Agent shall provide prompt written notice to Owner of the date the Supply and Offtake Agreement shall have terminated and all obligations of PESRM to the SOA Collateral Agent and the SOA Secured Parties shall have been satisfied.

 

5.             Severability: If at any time any court of competent jurisdiction declares that any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under any applicable law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the applicable law of any other jurisdiction will, in any way, be affected or impaired. The parties will negotiate in good faith with a view to reform this Agreement in order to give effect to the original intention of the parties and produce as nearly as is practicable in all the circumstances

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

8











 

the appropriate balance of the commercial interests of the parties. The failure to agree upon such provisions for any reason or no reason shall not be considered a breach of this Agreement.

 

6.             Waiver: No failure to exercise, nor any delay in exercising, any right, power or remedy under this Agreement or provided by applicable law shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies (provided by applicable law or otherwise). Any waiver of any breach of this Agreement shall not be deemed to be a waiver of any subsequent breach.

 

7.             Entire Agreement: This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties. There are no oral agreements among the parties.  In the event of any conflict between the terms of this Agreement and the terms of the Infrastructure Agreement, the terms of this Agreement shall prevail.

 

8.             Amendment: No amendment or waiver of any provision of this Agreement, and no consent to any departure by any party therefrom, shall in any event be effective unless the same  shall be in writing and signed by the parties, and then such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.

 

9.             Survival: Except where otherwise specified herein, the covenants, representations and warranties contained in this Agreement and any document, certificate or other instrument delivered by or on behalf of a party pursuant to this Agreement shall survive expiration or termination of this Agreement and shall continue in full force and effect for the benefit of the party to whom they are given. No expiration or termination of this Agreement, however effected, shall affect or extinguish any rights or obligations of the parties which accrued prior to the date of termination or affect or extinguish any remedies available to any party by contract, at law, in equity or otherwise.

 

10.          Further Assurances: Each party shall in good faith take all such further commercially reasonable actions requested by any other party and shall execute, acknowledge and deliver all such further documents as are reasonably requested by such other party to carry out the purposes of this Agreement.

 

11.          Counterparts: This Agreement may be executed by the parties in separate counterparts and initially delivered by facsimile transmission or otherwise, with original signature pages to follow, and all such counterparts shall together constitute one and the same instrument. Delivery of an electronic counterpart shall be effective as manual delivery thereof.

 

[SIGNATURE PAGE FOLLOWS]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

9











 

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed and delivered by their respective duly authorized officers as of the date first above written.

 

	
[OWNER]
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

 

	
PHILADELPHIA ENERGY SOLUTIONS REFINING AND   MARKETING LLC
    
	
 
    	
 
    
	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

 

	
[MERRILL LYNCH   COMMODITIES, INC.],
    	
 
    
	
as SOA Collateral Agent
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 11.01(z)

 

EXISTING INDEBTEDNESS

 

None.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 11.02(c)

 

EXISTING LIENS

 

None.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 




 






 

SCHEDULE 11.04(b)

 

EXISTING INVESTMENTS

 

None.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 11.08

 

EXISTING TRANSACTIONS

 

None.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

SCHEDULE 12

 

COVER TRANSACTION PRICING AND FEES

 

[**]

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 











 

ANNEX II

 

REFINERY MAP AND LEGEND

 

I. Maps — See next page.

 

II. Legend

 

	
 
    	
 
    	
Location
    	
 
    	
Identifier on Infrastructure
   ID
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Refinery (SR) Tank
    	
 
    	
Schuylkill River   Tank Farm
    	
 
    	
SR
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Refinery (GP) Tank
    	
 
    	
Girard Point North   and South Yards
    	
 
    	
GP
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Refinery (PB) Tank
    	
 
    	
Point Breeze North   and South Yards; Fort Mifflin
    	
 
    	
PB
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Refinery (DC) Tank
    	
 
    	
Darby Creek Tank   Farm
    	
 
    	
DC
    


 

Note: On the maps, dotted line tanks are demolished; some other tanks may be permanently or temporarily out of service.

 




** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

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