Exhibit 10.3





Exhibit 10.3




Execution Version




MASTER SUPPLY AND OFFTAKE AGREEMENT




dated as of April 29, 2011




among




J. ARON & COMPANY,




LION OIL COMPANY




and




LION OIL TRADING & TRANSPORTATION, INC.




 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 1 DEFINITIONS AND CONSTRUCTION
	 	 	1	 
	ARTICLE 2 CONDITIONS TO COMMENCEMENT
	 	 	21	 
	ARTICLE 3 TERM OF AGREEMENT
	 	 	25	 
	ARTICLE 4 COMMENCEMENT DATE TRANSFER
	 	 	25	 
	ARTICLE 5 PURCHASE AND SALE OF CRUDE OIL
	 	 	26	 
	ARTICLE 6 PURCHASE PRICE FOR CRUDE OIL
	 	 	34	 
	ARTICLE 7 TARGET INVENTORY LEVELS AND WORKING CAPITAL ADJUSTMENT
	 	 	34	 
	ARTICLE 8 PURCHASE AND DELIVERY OF PRODUCTS
	 	 	34	 
	ARTICLE 9 ANCILLARY COSTS; MONTH END INVENTORY; CERTAIN DISPOSITIONS; TANK MAINTENANCE
	 	 	34	 
	ARTICLE 10 PAYMENT PROVISIONS
	 	 	34	 
	ARTICLE 11 INDEPENDENT INSPECTORS; STANDARDS OF MEASUREMENT
	 	 	41	 
	ARTICLE 12 FINANCIAL INFORMATION; CREDIT SUPPORT; AND ADEQUATE ASSURANCES
	 	 	42	 
	ARTICLE 13 REFINERY TURNAROUND, MAINTENANCE AND CLOSURE
	 	 	44	 
	ARTICLE 14 TAXES
	 	 	45	 
	ARTICLE 15 INSURANCE
	 	 	46	 
	ARTICLE 16 FORCE MAJEURE
	 	 	47	 
	ARTICLE 17 REPRESENTATIONS, WARRANTIES AND COVENANTS
	 	 	48	 
	ARTICLE 18 DEFAULT AND TERMINATION
	 	 	54	 
	ARTICLE 19 SETTLEMENT AT TERMINATION
	 	 	59	 





 


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TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 

	ARTICLE 20 INDEMNIFICATION
	 	 	63	 
	ARTICLE 21 LIMITATION ON DAMAGES
	 	 	64	 
	ARTICLE 22 AUDIT AND INSPECTION
	 	 	64	 
	ARTICLE 23 CONFIDENTIALITY
	 	 	64	 
	ARTICLE 24 GOVERNING LAW
	 	 	65	 
	ARTICLE 25 ASSIGNMENT
	 	 	66	 
	ARTICLE 26 NOTICES
	 	 	66	 
	ARTICLE 27 NO WAIVER, CUMULATIVE REMEDIES
	 	 	66	 
	ARTICLE 28 NATURE OF THE TRANSACTION AND RELATIONSHIP OF PARTIES
	 	 	67	 
	ARTICLE 29 MISCELLANEOUS
	 	 	67	 





 


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Schedules




	 	 	 
	Schedule	 	Description
	 
	 	 
	Schedule A

	 	Products and Product Specifications
	 
	 	 
	Schedule B

	 	Pricing Benchmarks
	 
	 	 
	Schedule C

	 	Monthly True-up Amounts
	 
	 	 
	Schedule D

	 	Operational Volume Range
	 
	 	 
	Schedule E

	 	Tank List
	 
	 	 
	Schedule F

	 	Insurance
	 
	 	 
	Schedule G

	 	Daily Settlement Schedule
	 
	 	 
	Schedule H

	 	Form of Inventory Reports
	 
	 	 
	Schedule I

	 	Initial Inventory Targets
	 
	 	 
	Schedule J

	 	Scheduling and Communications Protocol
	 
	 	 
	Schedule K

	 	Monthly Excluded Transaction Fee Determination
	 
	 	 
	Schedule L

	 	Monthly Working Capital Adjustment
	 
	 	 
	Schedule M

	 	Notices
	 
	 	 
	Schedule N

	 	FIFO Balance Final Settlements
	 
	 	 
	Schedule O

	 	MTD Performance Report
	 
	 	 
	Schedule P

	 	Pricing Group
	 
	 	 
	Schedule Q

	 	Form of Trade Sheet and Nomination Template
	 
	 	 
	Schedule R

	 	Form of Step-Out Inventory Sales Agreement
	 
	 	 
	Schedule S

	 	Shipping Dock Report
	 
	 	 
	Schedule T

	 	Excluded Transaction Trade Sheet
	 
	 	 
	Schedule U

	 	Available Storage and Transportation Arrangements
	 
	 	 
	Schedule V

	 	Aron Crude Receipts Pipelines
	 
	 	 





 


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	Schedule	 	Description
	 
	 	 
	Schedule W

	 	Product Pipeline Systems/Included Terminals
	 
	 	 
	Schedule X

	 	Marketing and Sales Agreement
	 
	 	 
	Schedule Y

	 	LOTT Inventory Sales Agreement
	 
	 	 
	Schedule Z

	 	Lion Oil Inventory Sales Agreement
	 
	 	 
	Schedule AA

	 	Storage Facilities Agreement
	 
	 	 
	Schedule BB

	 	Designated Cargo Contract
	 
	 	 
	Schedule CC

	 	Excess LC Amount and Excess LC Rate
	 
	 	 
	Schedule DD

	 	Existing Financing Agreements
	 
	 	 
	Schedule EE

	 	Form of Letter of Credit
	 
	 	 
	Schedule FF

	 	Illustration of Calculation of Interim Payments
	 
	 	 






 


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MASTER SUPPLY AND OFFTAKE AGREEMENT




This Supply and Offtake Agreement (this “Agreement”) is made as of April 29, 2011 (the
“Effective Date”), among J. Aron & Company (“Aron”), a general partnership
organized under the laws of New York and located at 200 West Street, New York, New York 10282-2198,
Lion Oil Company (the “Company”), a corporation organized under the laws of Arkansas
located at 7102 Commerce Way, Brentwood, Tennessee 37027, and Lion Oil Trading & Transportation,
Inc. (“LOTT”), a corporation organized under the laws of Arkansas located at 7102 Commerce
Way, Brentwood, Tennessee 37027 (each referred to individually as a “Party” or collectively
as the “Parties”).



WHEREAS, the Company owns and operates a crude oil refinery located in El Dorado, Arkansas (the
“Refinery”) for the processing and refining of crude oil and other feedstocks and the
recovery therefrom of refined products;



WHEREAS, LOTT is in the business of buying, selling and transporting of crude oil and other
petroleum feedstocks in connection with the processing and refining operations of the Company;



WHEREAS, Aron wishes to deliver crude oil and other petroleum feedstocks to the Company for use at
the Refinery and purchase all refined products produced by the Refinery (other than certain
excluded products);



WHEREAS, the Company wishes to purchase such crude oil and other petroleum feedstocks from Aron for
use at the Refinery and to sell such refined products to Aron, all in accordance with the terms and
conditions hereinafter set forth;



WHEREAS, the Parties have agreed that, for the Term of the Agreement, the Company will provide
professional consulting, liason, and other related services to assist Aron in the marketing and
sale of the refined products acquired by Aron hereunder in accordance with the terms and conditions
of the Marketing and Sales Agreement (as defined below); and



WHEREAS, it is contemplated that upon the scheduled termination of this Agreement, Aron will sell
and the Company will purchase all of Aron’s crude oil, feedstocks and products inventory held at
the Included Locations as set forth and in accordance with the terms and conditions of the Step-Out
Inventory Sales Agreement (as defined below).



NOW, THEREFORE, in consideration of the premises and respective promises, conditions, terms and
agreements contained herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the Parties do hereby agree as follows:



ARTICLE 1




DEFINITIONS AND CONSTRUCTION




1.1 Definitions.



For purposes of this Agreement, including the foregoing recitals, the following terms shall
have the meanings indicated below:



“Acceptable Financial Institution” means a U.S. commercial bank or a foreign bank with
a U.S. branch office, with the respective rating then assigned to its unsecured and senior
long-term debt or deposit obligations (not supported by third party credit enhancement) by S&P or
Moody’s of at least “A” by S&P or “A2” by Moody’s.


 


 









 





“Actual Month End Crude Volume”
 has the meaning specified in Section   .



“Actual Month End Product Volume”
has the meaning specified in Section   .




“Actual Monthly Crude Run” has the meaning specified in Section 6.4(c).



“Actual Net Crude Consumption” means, for any Delivery Month, the actual number of
Crude Oil Barrels run by the Refinery for such Delivery Month minus the number of Other Barrels
actually delivered into the Crude Storage Tanks during such Delivery Month.




“Additional Financing Agreement” has the meaning specified in Section 17.2(i).




“Adequate Assurance” has the meaning specified in Section 12.5.




“Affected Obligations” has the meaning specified in Section 16.3.




“Affected Party” has the meaning specified in Section 16.1.



“Affiliate” means, in relation to any Person, any entity controlled, directly or
indirectly, by such Person, any entity that controls, directly or indirectly, such Person, or any
entity directly or indirectly under common control with such Person. For this purpose, “control”
of any entity or Person means ownership of a majority of the issued shares or voting power or
control in fact of the entity or Person.



“Aggregate Disposed Asphalt Quantity” means, as of any date, the aggregate quantity of
Asphalt previously disposed of under the Ergon Asphalt Sales Agreement for which Ergon A&E has
received final and complete payment pursuant to the Ergon Asphalt Sales Agreement, but only if such
final and complete payment has been demonstrated to Aron’s reasonable satisfaction by written
evidence provided by the Company.




“Ancillary Contract” has the meaning specified in Section 19.1(c).



“Ancillary Costs” means all freight, pipeline, transportation, storage, tariffs and
other costs and expenses incurred by Aron as a result of the purchase, movement and storage of
Crude Oil or Products undertaken in connection with or required for purposes of this Agreement
(whether or not arising under Procurement Contracts), including, ocean-going freight and other
costs associated with waterborne movements, inspection costs and fees, wharfage, port and dock
fees, vessel demurrage, lightering costs, ship’s agent fees, import charges, waterborne insurance
premiums, fees and expenses, broker’s and agent’s fees, load port charges and fees, pipeline
transportation costs, pipeline transfer and pumpover fees, pipeline throughput and scheduling
charges (including any fees and charges


 


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 resulting from changes in nominations undertaken to satisfy delivery requirements under this Agreement), pipeline and other common carrier
tariffs, blending, tankage, linefill and throughput charges, pipeline demurrage, superfund and
other comparable fees, processing fees (including fees for water or sediment removal or feedstock
decontamination), merchandise processing costs and fees, importation costs, any charges imposed by
any Governmental Authority (including Transfer Taxes (but not taxes on the net income of Aron) and
U.S. Customs and other duties), user fees, fees and costs for any credit support provided to any
pipelines with respect to any transactions contemplated by this Agreement and any pipeline
compensation or reimbursement payments that are not timely paid by the pipeline to Aron.
Notwithstanding the foregoing, (i) Aron’s hedging costs in connection with this Agreement or the
transactions contemplated hereby shall not be considered Ancillary Costs (but such exclusion shall
not change or be deemed to change the manner in which losses, costs and damages in connection with
hedges and related trading positions are addressed under Articles 18 and 19 below),
(ii) any Product shipping costs of Aron, to the extent incurred after Aron has removed such Product
from the Product Storage Facilities for its own account, shall not be considered Ancillary Costs
and (iii) any costs and expenses of Supplier’s Inspector shall not be considered Ancillary Costs.




“Annual Fee” means the amount set forth as the “Annual Fee” in the Fee Letter.



“Applicable Law” means (i) any law, statute, regulation, code, ordinance, license,
decision, order, writ, injunction, decision, directive, judgment, policy, decree and any judicial
or administrative interpretations thereof, (ii) any agreement, concession or arrangement with any
Governmental Authority and (iii) any license, permit or compliance requirement, including
Environmental Law, in each case as may be applicable to either Party or the subject matter of this
Agreement.



“Asphalt Transfer Completion Date” means the date as of which Ergon A&E has received
final and complete payment of all amounts due to it under the Ergon Asphalt Sales Agreement, but
only if such final and complete payment has been demonstrated to Aron’s reasonable satisfaction by
written evidence provided by the Company.



“Available Storage and Transportation Facilities” has the meaning specified in
Section 17.2(g).



“Bank Holiday” means any day (other than a Saturday or Sunday) on which banks are
authorized or required to close in the State of New York.



“Bankrupt” means a Person that (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 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 all or


 


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substantially all of
its assets, (vii) has a secured party take possession of all or substantially all of its assets,
or has a distress, execution, attachment, sequestration or other legal process levied, enforced or
sued on or against all or substantially all of its assets, (viii) files an answer or other pleading
admitting or failing to contest the allegations of a petition filed against it in any proceeding of
the foregoing nature, (ix) causes or is subject to any event with respect to it which, under
Applicable Law, has an analogous effect to any of the foregoing events, (x) has instituted against
it a proceeding seeking a judgment of insolvency or bankruptcy under any bankruptcy or insolvency
law or other similar law affecting creditors’ rights and such proceeding is not dismissed within
fifteen (15) days or (xi) takes any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the foregoing events.




“Bankruptcy Code” means chapter 11 of Title 11, U.S. Code.




“Barrel” means forty-two (42) net U.S. gallons, measured at 60° F.



“Base Agreement” means any agreement between the Company or LOTT and a third party
pursuant to which the Company or LOTT has acquired rights to use any of the Included Third Party
Storage Tanks, the Included Crude Pipelines or the Included Product Pipelines.




“BS&W” means basic sediment and water.




“Business Day” means any day that is not a Saturday, Sunday, or Bank Holiday.



“Change of Control” means the failure of Guarantor to (a) hold and own, directly or
indirectly, Equity Interests representing at least 51%, on a fully diluted basis, of the aggregate
ordinary voting power of the Company and LOTT or (b) control the Company and LOTT. For this
purpose, “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 ability to exercise
voting power, by contract or otherwise. “Controlling”, “Controlled” and “under common Control
with” have meanings correlative thereto




“Commencement Date” has the meaning specified in Section 2.3(a).



“Commencement Date Crude Oil Volumes” means the total quantity of Crude Oil in the
Crude Storage Tanks, Included Third Party Crude Storage Tanks and the Included Crude Pipelines
purchased by Aron on the Commencement Date, pursuant to the Inventory Sales Agreements.



“Commencement Date Products Volumes” means the total quantities of the Products in the
Product Storage Facilities purchased by Aron on the Commencement Date, pursuant to the Inventory
Sales Agreements.



“Commencement Date Purchase Value” means, with respect to the Commencement Date
Volumes, initially the Estimated Commencement Date Value until the Definitive Commencement Date
Value has been determined and thereafter the Definitive Commencement Date Value.


 


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“Commencement Date Volumes” means, collectively, the Commencement Date Crude Oil
Volumes and the Commencement Date Products Volumes.




“Company Party” has the meaning specified in Section 17.2(a).



“Company Purchase Agreement” has the meaning specified in the Marketing and Sales
Agreement.



“Contract Cutoff Date” means, with respect to any Procurement Contract, the date and
time by which Aron is required to provide its nominations to the Third Party Supplier thereunder
for the next monthly delivery period for which nominations are then due.




“Contract Nominations” has the meaning specified in Section 5.4(b).




“CPT” means the prevailing time in the Central time zone.




“Crude Delivery Point” means the outlet flange of the Onsite Crude Storage Tanks.



“Crude Intake Point” means the inlet flange of the Crude Storage Tanks and the
Included Crude Pipelines owned by the Company or LOTT.



“Crude Oil” means all crude oil that Aron purchases and sells to the Company or for
which Aron assumes the payment obligation pursuant to any Procurement Contract.



“Crude Oil Linefill” means, at any time, the aggregate volume of Crude Oil linefill on
the Included Crude Pipelines for which Aron is treated as the exclusive owner by the Included Crude
Pipelines; provided that such volume shall be determined by using the volumes reported on the most
recently available statements from the Included Crude Pipelines.



“Crude Purchase Fee” has the meaning specified in Section   .



“Crude Storage Facilities” means, collectively, the Crude Storage Tanks and the
Included Crude Pipelines.



“Crude Storage Tanks” means any of the Onsite Crude Storage Tanks or Offsite Crude
Storage Tanks.



“Cumulative Estimated Daily Net Settlement Amount” means, as of any day, the sum of
the Daily Settlement Amounts for such date and all prior dates during the then current month and
any prior month for which the Monthly True-up Payment has not been satisfied.



“Cumulative Interim Paid Amount” means, as of any day, the sum of (i) the most recent
Interim Reset Amount and (ii) the sum of the Interim Payments actually received by Aron for all
days from (and including) the most recent prior Monthly True-Up Date (or, if no Monthly True-Up
Date has yet occurred, the Initial Delivery Date) to (but excluding) such day.


 


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“Daily Prices” means, with respect to a particular grade of Crude Oil or type of
Product, the pricing index, formula or benchmark indicated on Schedule B as the relevant daily
price.



“Daily Product Sales” means, for any day and Product Group, Aron’s estimate of the
aggregate sales volume of such Product sold during such day, pursuant to (a) Included Transactions
and Excluded Transactions (each as defined in the Marketing and Sales Agreement) or (b) any Company
Purchase Agreements.



“Deemed Ergon Asphalt Quantity” means, as of any date, a quantity equal to the
Starting Ergon Asphalt Quantity minus the Aggregate Disposed Asphalt Quantity as of such date.



“Default” means any event that, with notice or the passage of time, would constitute
an Event of Default.



“Default Interest Rate” means the lesser of (i) the per annum rate of interest
calculated on a daily basis using the prime rate published in the Wall Street Journal for the
applicable day (with the rate for any day for which such rate is not published being the rate most
recently published) plus two hundred (200) basis points and (ii) the maximum rate of interest
permitted by Applicable Law.




“Defaulting Party” has the meaning specified in Section 18.2.



“Deferred Portion” has the meaning specified in the Lion Oil Inventory Sales
Agreement.



“Deferred Interim Payment Amount” means, as of any time, $********, except that, until
the date that is 120 days after the Commencement Date, the Deferred Interim Payment Amount shall be
$******** at any time that all of the Specified Cargo Procurement Conditions are satisfied.



“Definitive Commencement Date Value” means the sum of the Lion Oil Definitive
Commencement Date Value and the LOTT Definitive Commencement Date Value.




“Delivery Date” means any applicable 24-hour period.



“Delivery Month” means the month in which Crude Oil is to be delivered to the
Refinery.



“Delivery Point” means a Crude Delivery Point or a Products Delivery Point, as
applicable.




“Designated Affiliate” means, in the case of Aron, Goldman, Sachs & Co.




“Designated Cargo Contract” means the contract listed on Schedule BB.



“Designated Company-Sourced Barrels” means, for any month, the aggregate number of
Barrels of Crude Oil delivered by the Company to Aron with transfer of title occurring at the
relevant Offsite Crude Storage Tanks, Included Third Party Storage Tanks or other upstream point,
regardless of whether such delivery is via a pipeline that is not an Included Crude Pipeline or is
pursuant to a Procurement Contract with delivery via an Included Crude Pipeline.


 


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“Disposed Quantity” has the meaning specified in Section   .



“Disposition Amount” has the meaning specified in Section   .




“Early Termination Date” has the meaning specified in Section 3.2.



“Effective Date” has the meaning specified in the introductory paragraph of this
Agreement.



“Environmental Law” means any existing or past Applicable Law, policy, judicial or
administrative interpretation thereof or any legally binding requirement that governs or purports
to govern the protection of persons, natural resources or the environment (including the protection
of ambient air, surface water, groundwater, land surface or subsurface strata, endangered species
or wetlands), occupational health and safety and the manufacture, processing, distribution, use,
generation, handling, treatment, storage, disposal, transportation, release or management of solid
waste, industrial waste or hazardous substances or materials.



“Equity Interests” 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, but excluding debt securities convertible or exchangeable into such
equity.



“Ergon Asphalt Sales Agreement” means that certain Asphalt Sales Agreement entered
into as of April 29, 2011, between the Company and Ergon Asphalt & Emulsions, Inc. (“Ergon
A&E”).



“Estimated Commencement Date Value” means the sum of the Lion Oil Estimated
Commencement Date Value and the LOTT Estimated Commencement Date Value.



“Estimated Gathering Tank Injections” means, for any day, the aggregate quantity of
Barrels of oil injected into the Gathering Tanks, calculated as, the inventory at the end of the
day as referred to on Schedule H hereto from the Local Tank Gauge Report minus the ending inventory
for Tank 192, 2002, 125, and 170, minus the inventory at the beginning of the day from the Local
Tank Gauge Report, minus the beginning inventory for Tank 192, 2002, 125, and 170 plus the
aggregate daily flow through meters H, M and Big Heart #3, and any additional meters as mutually
agreed upon by the Company and Aron.




“Estimated Termination Amount” has the meaning specified in Section 19.2(b).



“Estimated Yield” has the meaning specified in Section   .


 


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“Event of Default” means an occurrence of the events or circumstances described in
Section 18.1.



“Excess Cumulative Amount” means, for any period starting on a Monthly True-Up Date
(or, if no Monthly True-up Date has occurred, on the Initial Delivery Date) to (but excluding) the
next Monthly True-Up Date, the excess, if any of Cumulative Interim Paid Amount as of the day prior
to the start of such period minus the Gross Monthly Payment Amount for the month to which such
first Monthly True-Up Date relates or, if there is no such excess, then zero.




“Excess LC Amount” means the amount described on Schedule CC.



“Excess LC Fee” means, for any month, the product of (i) Excess LC Amount for such
month, (ii) the Excess LC Rate and (iii) a fraction with a numerator equal to the number of days in
such month and a denominator equal to 365.




“Excess LC Rate” means, for any month, the rate described on Schedule CC.



“Excluded Materials” means any refined petroleum products other than those that are
Products.



“Excluded Transactions” has the meaning specified in the Marketing and Sales
Agreement.




“Existing Financing Agreements” mean the Financing Agreements listed on Schedule DD.




“Expiration Date” has the meaning specified in Section 3.1.



“Fed Funds Rate” means, for any Notification Date, the rate set forth in H.15(519) or
in H.15 Daily Update for the most recently preceding Business Day under the caption “Federal funds
(effective)”; provided that if no such rate is so published for any of the immediately three
preceding Business Days, then such rate shall be the arithmetic mean of the rates for the last
transaction in overnight Federal funds arranged by each of three leading brokers of U.S. dollar
Federal funds transactions prior to 9:00 a.m., CPT, on that day, which brokers shall be selected by
Aron in a commercially reasonable manner. For purposes hereof, “H.15(519)” means the weekly
statistical release designated as such, or any successor publication, published by the Board of
Governors of the Federal Reserve System, available through the worldwide website of the Board of
Governors of the Federal Reserve System at http://www.federalreserve.gov/releases/h15/, or any
successor site or publication and “H.15 Daily Update” means the daily update of H.15(519),
available through the worldwide website of the Board of Governors of the Federal Reserve System at
http://www.federalreserve.gov/releases/h15/update/, or any successor site or publication.



“Fee Letter” means the letter executed by the Guarantor and Aron prior to the
Commencement Date specifying the amounts of the Annual Fee, the Level One Fee, the Level Two Fee
and the Second Level Two Fee.


 


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“Financing Agreement” means any credit agreement, indenture or other financing
agreement under which the Guarantor or any of its subsidiaries (including the Company and LOTT) may
incur or become liable for indebtedness for borrowed money (including capitalized lease obligations
and reimbursement obligations with respect to letters of credit) but only if the covenants
thereunder limit or otherwise apply to any of the business, assets or operations of the Company or
LOTT.



“Force Majeure” means any cause or event reasonably beyond the control of a Party,
including fires, earthquakes, lightning, floods, explosions, storms, adverse weather, landslides
and other acts of natural calamity or acts of God; navigational accidents or maritime peril; vessel
damage or loss; strikes, grievances, actions by or among workers or lock-outs (whether or not such
labor difficulty could be settled by acceding to any demands of any such labor group of individuals
and whether or not involving employees of the Company or Aron); accidents at, closing of, or
restrictions upon the use of mooring facilities, docks, ports, pipelines, harbors, railroads or
other navigational or transportation mechanisms; disruption or breakdown of, explosions or
accidents to wells, storage plants, refineries, terminals, machinery or other facilities; acts of
war, hostilities (whether declared or undeclared), civil commotion, embargoes, blockades,
terrorism, sabotage or acts of the public enemy; any act or omission of any Governmental Authority;
good faith compliance with any order, request or directive of any Governmental Authority;
curtailment, interference, failure or cessation of supplies reasonably beyond the control of a
Party; or any other cause reasonably beyond the control of a Party, whether similar or dissimilar
to those above and whether foreseeable or unforeseeable, which, by the exercise of due diligence,
such Party could not have been able to avoid or overcome. Solely for purposes of this definition,
the failure of any Third Party Supplier to deliver Crude Oil pursuant to any Procurement Contract,
whether as a result of Force Majeure as defined above, “force majeure” as defined in such
Procurement Contract, breach of contract by such Third Party Supplier or any other reason, shall
constitute an event of Force Majeure for Aron under this Agreement with respect to the quantity of
Crude Oil subject to that Procurement Contract.




“GAAP” means generally accepted accounting principles in the United States.



“Gathering Tanks” means any of the gathering tanks identified and described on
Schedule E.



“Governmental Authority” means any federal, state, regional, local, or municipal
governmental body, agency, instrumentality, authority or entity established or controlled by a
government or subdivision thereof, including any legislative, administrative or judicial body, or
any person purporting to act therefor.



“Gross Monthly Payment Amount” means, for any month, an amount equal to the Monthly
True-up Amount for that month minus the amount under clause (a)(i) of Section 10.2 included in such
Monthly True-up Amount.



“Guarantee” means the Guaranty, dated as of the Commencement Date, from the Guarantor
provided to Aron in connection with this Agreement and the transactions contemplated hereby, in a
form and in substance satisfactory to Aron.


 


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“Guarantor” means Delek US Holdings, Inc.



“Included Crude Pipelines” means, the pipelines or sections thereof as further
described on Schedule V, as such schedule may, from time to time, be amended by the Parties.



“Included Locations” means, collectively, the Crude Storage Tanks, Included Crude
Pipelines, Product Storage Tanks, Included Product Pipelines and Included Third Party Storage
Tanks.



“Included Product Pipelines” means the pipelines or sections thereof as further
described on Schedule W, as such schedule may, from time to time, be amended by the Parties.



“Included Third Party Crude Storage Tanks” means any of the storage tanks identified
and described on Schedule E.



“Included Third Party Product Storage Tanks” means any of the tanks, salt wells or
pipelines identified and described on Schedule E.



“Included Third Party Storage Tanks” means the Included Third Party Crude Storage
Tanks and Included Third Party Product Storage Tanks.



“Included Transactions” has the meaning specified in the Marketing and Sales
Agreement.




“Independent Inspection Company” has the meaning specified in Section 11.3.




“Initial Delivery Date” means the Delivery Date occurring on May 1, 2011.



“Initial Estimated Yield” has the meaning specified in Section   .




“Interim Payment” has the meaning specified in Section 10.1.



“Interim Reset Amount” means (i) zero, for the period from the Initial Delivery Date
to and including the initial Monthly True-Up Date and (ii) the applicable Excess Cumulative Amount
for the period from the first day following a Monthly True-Up Date to (but excluding) the next
Monthly True-Up Date.



“Inventory Sales Agreements” means the Lion Oil Inventory Sales Agreement and the LOTT
Inventory Sales Agreement




“Latest Commencement Date” has the meaning specified in Section 2.3(a).



“LC Available Amount” means, as of any time, the then current aggregate available
amount under all Qualified LCs then held by Aron pursuant to Section 12.4(b) below;
provided that if and for so long as a Letter of Credit ceases to be a Qualified LC, the available
amount thereof shall not be included in the LC Available Amount.


 


10









 





“LC Default” means, with respect to a Letter of Credit, the occurrence of any of the
following events at any time: (a) the issuer of such Letter of Credit ceases to be an Acceptable
Financial Institution; (b) the issuer of the Letter of Credit shall fail to comply with or
perform its obligations under such Letter of Credit; (c) the issuer of such Letter of Credit shall
disaffirm, disclaim, repudiate or reject, in whole or in part, or challenge the validity of, such
Letter of Credit; (d) such Letter of Credit is to expire within twenty (20) Business Days or (e)
the issuer of such Letter of Credit becomes Bankrupt.




“LC Threshold Amount” means, as of any time, the then current LC Available Amount.



“Letter of Credit” means an irrevocable, transferable standby letter of credit issued
by an Acceptable Financial Institution in favor of Aron and provided by the Company to Aron
pursuant to and otherwise satisfying the requirements of Section 12.4(b) below, in a form and in
substance satisfactory to Aron.




“Level One Fee” means the amount set forth as the “Level One Fee” in the Fee Letter.




“Level Two Fee” means the amount set forth as the “Level Two Fee” in the Fee Letter.



“Liabilities” means any losses, liabilities, charges, damages, deficiencies,
assessments, interests, fines, penalties, costs and expenses (collectively, “Costs”) of any
kind (including reasonable attorneys’ fees and other fees, court costs and other disbursements),
including any Costs directly or indirectly arising out of or related to any suit, proceeding,
judgment, settlement or judicial or administrative order and any Costs arising from compliance or
non-compliance with Environmental Law.



“Lion Oil Definitive Commencement Date Value” has the meaning specified in the Lion
Oil Inventory Sales Agreement.



“Lion Oil Estimated Commencement Date Value” has the meaning specified in the Lion Oil
Inventory Sales Agreement.



“Lion Oil Inventory Sales Agreement” means the inventory sales agreement, dated as of
the Commencement Date, between the Company and Aron, pursuant to which the Company is selling and
transferring to Aron a specified portion of the Commencement Date Volumes for a specified
percentage of the Commencement Date Purchase Value, free and clear of all liens, claims and
encumbrances of any kind other than Permitted Liens.




“Liquidated Amount” has the meaning specified in Section 18.2(f).




“Long Product FIFO Price” means the price so listed on Schedule B.



“LOTT Definitive Commencement Date Value” has the meaning specified in the LOTT
Inventory Sales Agreement.



“LOTT Estimated Commencement Date Value” has the meaning specified in the LOTT
Inventory Sales Agreement.


 


11









 





“LOTT Inventory Sales Agreement” means the inventory sales agreement, dated as of the
Commencement Date, between LOTT and Aron, pursuant to which LOTT is selling and
transferring to Aron a specified portion of the Commencement Date Volumes for a specified
percentage of the Commencement Date Purchase Value, free and clear of all liens, claims and
encumbrances of any kind other than Permitted Liens.



“Marketing and Sales Agreement” means the products marketing and sales agreement,
dated as of the Commencement Date, between the Company and Aron, pursuant to which the Product
purchased by Aron hereunder shall from time to time be marketed and sold by the Company for Aron’s
account.



“Material Adverse Change” means a material adverse effect on and/or material adverse
change with respect to (i) the business, operations, properties, assets or financial condition of
the Guarantor, the Company and its Subsidiaries taken as a whole; (ii) the ability of the Company
to fully and timely perform its obligations; (iii) the legality, validity, binding effect or
enforceability against the Company of any of the Transaction Documents; or (iv) the rights and
remedies available to, or conferred upon, Aron hereunder; provided that none of the following
changes or effects shall constitute a “Material Adverse Effect”: (1) changes, or effects arising
from or relating to changes, of Laws, that are not specific to the business or markets in which the
Company operates; (2) changes arising from or relating to, or effects of, the transactions
contemplated by this Agreement or the taking of any action in accordance with this Agreement; (3)
changes, or effects arising from or relating to changes, in economic, political or regulatory
conditions generally affecting the U.S. economy as a whole, except to the extent such change or
effect has a disproportionate effect on the Company relative to other industry participants; (4)
changes, or effects arising from or relating to changes, in financial, banking, or securities
markets generally affecting the U.S. economy as a whole, (including (a) any disruption of any of
the foregoing markets, (b) any change in currency exchange rates, (c) any decline in the price of
any security or any market index and (d) any increased cost of capital or pricing related to any
financing), except to the extent such change or effect has a disproportionate effect on the Company
relative to other industry participants; and (5) changes arising from or relating to, or effects
of, any seasonal fluctuations in the business, except to the extent such change or effect has a
disproportionate effect on the Company relative to other industry participants.



“Measured Crude Quantity” means, for any Delivery Date, the total quantity of Crude
Oil that, during such Delivery Date, was withdrawn and lifted by and delivered to the Company at
the Crude Delivery Point, as evidenced by meter readings and/or meter tickets for that Delivery
Date and tank gaugings conducted at the beginning and end of such Delivery Date.



“Measured Product Quantity” means, for any Delivery Date, the total quantity of a
particular Product that, during such Delivery Date, was delivered by the Company to Aron at the
Products Delivery Point, as evidenced by meter readings and/or meter tickets for that Delivery Date
and tank gaugings conducted at the beginning and end of such Delivery Date.



“Monthly Cover Costs” has the meaning specified in Section   .





“Monthly Crude Forecast” has the meaning specified in Section 5.2(a).


 


12









 





“Monthly Crude Oil True-Up Amount” has the meaning as provided for on Schedule C.



“Monthly Crude Payment” has the meaning specified in Section   .



“Monthly Crude Price” means, with respect to the Net Crude Sales Volume for any month,
the volume weighted average price per barrel specified in the related Procurement Contracts under
which Aron acquired such barrels in such Month.



“Monthly Crude Receipts” means, for any month, the aggregate quantity of Barrels of
Crude Oil for which Aron is invoiced by counterparties (whether Third Party Suppliers, the Company
or Affiliates of the Company) under Procurement Contracts with respect to Crude Oil quantities
delivered during such month.



“Monthly Excluded Transaction Fee” has the meaning specified in Section   .



“Monthly Product Price” means, for each Pricing Group, the price payable by Aron to
the Company equal to the applicable Pricing Benchmark for such Pricing Group for the applicable
month.



“Monthly Product Sale Adjustment” has the meaning specified in Section   .



“Monthly Product Sales” means, for any month and Product Group, the aggregate sales
volume of such Product sold during such month, pursuant to (a) Included Transactions and Excluded
Transactions (each as defined in the Marketing and Sales Agreement) or (b) any Company Purchase
Agreements.




“Monthly True-up Amount” has the meaning specified in Section 10.2(a).



“Monthly True-Up Date” means, for any month, the Business Day on which the Monthly
True up Amount for the immediately preceding month is due.



“Monthly Working Capital Adjustment” is an amount to be determined pursuant to
Schedule L.



“Moody’s” means Moody’s Investors Service, Inc., including any official successor to
Moody’s.



“MTD Performance Report” has the meaning specified in Section   .



“Net Crude Sales Volume” has the meaning specified in Section   .



“Nomination Month” means the month that occurs two (2) months prior to the Delivery
Month.


 


13









 





“Non-Affected Party” has the meaning specified in Section 16.1.




“Non-Defaulting Party” has the meaning specified in Section 18.2(a).



“NSV” means, with respect to any measurement of volume, the total liquid volume,
excluding basic sediment and water and free water, corrected for the observed temperature to 60° F.




“Obligations” has the meaning specified in Section 17.2.



“Offsite Crude Storage Tanks” means the tanks owned by the Company or LOTT located
outside the Refinery that store Crude Oil, as further described on Schedule E.



“Offsite Product Storage Tanks” means any of the tanks, salt wells or pipelines owned
by the Company or LOTT located outside the Refinery, that store or transport Products, as further
described on Schedule E.



“Onsite Crude Storage Tanks” means any of the tanks at the Refinery that store Crude
Oil, listed on Schedule E.



“Onsite Product Storage Tanks” means the tanks, salt wells or pipelines located at the
Refinery that store or transport Products, listed on Schedule E.



“Operational Volume Range” means the range of operational volumes for any given set of
associated Crude Storage Tanks for each type of Crude Oil and for any given set of associated
Product Storage Facilities for each group of Products, between the minimum volume and the maximum
volume, as set forth on Schedule D.



“Other Barrels” means, with respect to any Delivery Month, any Crude Oil purchased by
the Company or LOTT that is not being sold to Aron under a Procurement Contract, but is expected to
be delivered and transferred to Aron at a Crude Intake Point during such Delivery Month.



“Party” or “Parties” has the meaning specified in the preamble to this
Agreement.



“Per Barrel Adjustment” means the amounts described in Section 7.8 and set
forth on Schedule K.



“Permitted Lien(s)” means (a) (i) liens on real estate for real estate taxes,
assessments, sewer and water charges and/or other governmental charges and levies not yet
delinquent and (ii) liens for taxes, assessments, judgments, governmental charges or levies, or
claims not yet delinquent or the non-payment of which is being diligently contested in good faith
by appropriate proceedings and for which adequate reserves have been set aside; (b) liens of
mechanics, laborers, suppliers, workers and materialmen incurred in the ordinary course of business
for sums not yet due or being diligently contested in good faith, if such reserve or appropriate
provision, if any, as shall be required by GAAP shall have been made therefore; (c) liens incurred
in the ordinary course of business in connection with worker’s compensation and unemployment
insurance or other types of social security benefits; and (d) liens securing rental, storage,
throughput, handling or other fees or charges owing from time to time to eligible carriers, solely
to the extent of such fees or charges.


 


14









 





“Person” means an individual, corporation, partnership, limited liability company,
joint venture, trust or unincorporated organization, joint stock company or any other private
entity or organization, Governmental Authority, court or any other legal entity, whether acting in
an individual, fiduciary or other capacity.



“Pipeline Cutoff Date” means, with respect to any Included Crude Pipeline or Included
Product Pipeline, the date and time by which a shipper on such Included Crude Pipeline or Included
Product Pipeline, as applicable, is required to provide its nominations to the entity that
schedules and tracks Crude Oil and Products in such Included Crude Pipeline or Included Product
Pipeline, as applicable for the next shipment period for which nominations are then due.




“Pipeline System” means the Included Crude Pipelines and Included Product Pipelines.



“Pricing Benchmark” means, with respect to a particular grade of Crude Oil or type of
Product, the pricing index, formula or benchmark indicated on Schedule B.



“Pricing Group” means any of the refined petroleum product groups listed as a pricing
group on Schedule P.



“Procurement Contract” means any procurement contract entered into by Aron for the
purchase of Crude Oil to be processed at the Refinery, which may be either a contract with any
seller of Crude Oil (other than the Company or any Affiliate of the Company) or a contract with the
Company (or such other contract as the Parties may deem to be a Procurement Contract for purposes
hereof); provided that a Procurement Contract involving an exchange of one grade or location of
Crude Oil for another grade and/or location of Crude Oil shall consist of two related contracts,
one of which shall provide for the purchase of Crude Oil by Aron from a seller (which may be a
third party, the Company or an Affiliate of the Company) and the other of which shall provide for
the exchange by Aron with a party (which may or may not be the seller under the first contract) for
Crude Oil of a different grade and/or at a different location, and which may or may not be of an
equal quantity of Crude Oil (collectively, an “Exchange Procurement Contract”).



“Procurement Contract Assignment” means an instrument, in form and substance
reasonably satisfactory to Aron, by which LOTT assigns to Aron all rights and obligations under a
contract between a third party seller and LOTT and Aron assumes such rights and obligations
thereunder, subject to terms satisfactory to Aron providing for the automatic reassignment thereof
to LOTT in connection with the termination of this Agreement, with the result that such contract
becomes a Procurement Contract hereunder.



“Product” means any of the refined petroleum products listed on Schedule A, as from
time to time amended by mutual agreement of the Parties.



“Product Cost” has the meaning specified in Section   .


 


15









 





“Product Group” means a group of Products as specified on Schedule P.



“Product Linefill” means, at any time and for any grade of Product, the aggregate
volume of linefill of that Product on the Included Product Pipelines for which Aron is treated as
the exclusive owner by the Included Product Pipelines; provided that such volume shall be
determined by using the volumes reported on the monthly or daily statements, as applicable, from
the Included Product Pipelines.



“Product Purchase Agreements” has the meaning specified in the Marketing and Sales
Agreement.



“Product Storage Facilities” means, collectively, the Product Storage Tanks, the
Included Product Pipelines and the Included Third Party Product Storage Tanks.



“Product Storage Tanks” means any of the Onsite Product Storage Tanks or Offsite
Product Storage Tanks.




“Products Delivery Point” means the inlet flange of the Onsite Product Storage Tanks.



“Products Offtake Point” means the delivery point at which Aron transfers title to
Products in accordance with sales transactions executed pursuant to the Marketing and Sales
Agreement.



“Projected Monthly Run Volume” has the meaning specified in Section   .



“Projected Net Crude Consumption” means, for any Delivery Month, the Projected Monthly
Run Volume for such Delivery Month minus the number of Other Barrels that the Company indicated it
expected to deliver into the Crude Storage Tanks during such Delivery Month.



“Qualified LC” means a Letter of Credit as to which no LC Default has occurred and is
continuing.



“Reduced Fee Barrels” has the meaning specified in Section   .



“Refinery” means the petroleum refinery located in El Dorado, Arkansas owned and
operated by the Company.



“Refinery Facilities” means all the facilities owned and operated by the Company
located at the Refinery, and any associated or adjacent facility that is used by the Company to
carry out the terms of this Agreement, excluding, however, the Crude Oil receiving and Products
delivery facilities, pipelines, tanks and associated facilities owned and operated by the Company
which constitute the Storage Facilities.


 


16









 





“Remaining Annual Fee” means an amount equal to the aggregate Annual Fee that would
have become due for the period commencing on the date on which this Agreement is terminated under
Section 18.2 below and ending on the Expiration Date.



“Required Storage and Transportation Arrangements” mean such designations and other
binding contractual arrangements, in form and substance satisfactory to Aron, pursuant to which the
Company or LOTT, as applicable, shall have provided Aron with full and unimpaired right to the
Company’s or LOTT’s (or their Affiliates’), as applicable, rights to use the Included Crude
Pipelines, Included Product Pipelines, Crude Storage Tanks, Product Storage Tanks and Included
Third Party Storage Tanks.



“Revised Estimated Yield” has the meaning specified in Section   .



“S&P” means Standard & Poor’s Rating Services Group, a division of The McGraw-Hill
Companies, Inc., including any official successor to S&P.



“Second Level Two Fee” means the amount set forth as the “Second Level Two Fee” in the
Fee Letter.




“Settlement Amount” has the meaning specified in Section 18.2(b).




“Specified Cargo Procurement Conditions” mean the following conditions:




(i) LOTT has used its commercially reasonable efforts to arrange for title to the Crude
Oil procured by LOTT under the Designated Cargo Contract to be transferred to Aron at the
intake flange of the LOOP system and, having made such efforts, LOTT has been unable to
implement such title transfer arrangement;




(ii) LOTT has retained title to all Crude Oil procured by LOTT under the Designated
Cargo Contract at all times and at all points after such Crude Oil was delivered to LOTT
under the Designated Cargo Contract until such title is transferred to Aron at a point
downstream of the intake flange of the LOOP System and during such period such Crude Oil
shall be subject to Aron’s liens under Section 17.2(o) below; and




(iii) LOTT has continued to be required to maintain, or a cause to be maintained,
letters of credit in favor the seller under the Designated Cargo Contract.



“Specified Indebtedness” means any obligation (whether present or future, contingent
or otherwise, as principal or surety or otherwise) of the Company in respect of borrowed money.



“Specified Transaction” means (a) any transaction (including an agreement with respect
thereto) now existing or hereafter entered into between Aron and the Company (i) which is a rate
swap transaction, swap option, basis swap, forward rate transaction, commodity swap, commodity
option, commodity spot transaction, 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, weather swap, weather derivative, weather option, credit protection


 


17









 






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, or 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 (ii) which is a type of transaction that is similar to any transaction referred to
in clause (i) that is currently, or in the future becomes, recurrently entered into the financial
markets (including terms and conditions incorporated by reference in such agreement) and that 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, (b) any combination of these transactions
and (c) any other transaction identified as a Specified Transaction in this agreement or the
relevant confirmation.



“Starting Ergon Asphalt Quantity” means the quantity of Asphalt equal to the “Asphalt
Inventory” as defined in the Stock Purchase Agreement.



“Step-Out Inventory Sales Agreement” means the purchase and sale agreement,
substantially in the form of Schedule R hereto, to be dated as of the Termination Date, pursuant to
which the Company shall buy Crude Oil and Products from Aron subject to the provisions of this
Agreement and any other terms agreed to by the parties thereto.



“Stock Purchase Agreement” means the stock purchase agreement, among Ergon, Inc., the
Company and the Guarantor, dated as of March 17, 2011, as from time to time amended, pursuant to
which the Guarantor acquired 4,450,000 shares of the Company’s common stock from Ergon, Inc.



“Storage Facilities” mean the storage, loading and offloading facilities owned,
operated, leased or used pursuant to a contractual right of use by the Company, LOTT or any other
subsidiary of the Company including the Crude Storage Tanks, the Product Storage Tanks, any
pipelines owned or operated by the Company or its subsidiaries, and the land, piping, marine
facilities, truck facilities and other facilities related thereto, together with existing or future
modifications or additions, which are excluded from the definition of Refinery or Refinery
Facilities. In addition, the term “Storage Facilities” includes any location where a storage
facility is used by the Company or LOTT to store or throughput Crude Oil or Products except those
storage, loading and offloading facilities owned, operated, leased or used pursuant to a
contractual right of use by the Company or LOTT which are used exclusively to store Excluded
Materials.



“Storage Facilities Agreement” means the storage facilities agreement, dated as of the
Commencement Date, among the Company, LOTT, El Dorado Pipeline Company, Magnolia Pipeline Company
and Aron, pursuant to which the Company, LOTT, El Dorado Pipeline Company and Magnolia Pipeline
Company shall grant to Aron an exclusive right to use the Storage Facilities in connection with
this Agreement.



“Supplier’s Inspector” means any Person selected by Aron in a commercially reasonable
manner at Aron’s own cost and expense that is acting as an agent for Aron or that (1) is a licensed
Person who performs sampling, quality analysis and quantity determination of the Crude Oil and
Products purchased and sold hereunder, (2) is not an Affiliate of any Party and (3) in the
reasonable judgment of Aron, is qualified and reputed to perform its services in
accordance with applicable law and industry practice, to perform any and all inspections
required by Aron.


 


18









 





“Tank Maintenance” has the meaning specified in Section   .



“Target Month End Crude Volume” has the meaning specified in Section   .



“Target Month End Product Volume” has the meaning specified in Section   .




“Tax” or “Taxes” has the meaning specified in Section 14.1.




“Term” has the meaning specified in Section 3.1.



“Termination Amount” means, without duplication, the total net amount owed by one
Party to the other Party upon termination of this Agreement under Section 19.2(a).




“Termination Date” has the meaning specified in Section 19.1.



“Termination Date Purchase Value” means, with respect to the Termination Date Volumes,
initially the Estimated Termination Date Value until the Definitive Termination Date Value has been
determined and thereafter the Definitive Termination Date Value (as such terms are defined in the
form of the Step-Out Inventory Sales Agreement attached hereto as Schedule R).




“Termination Date Volumes” has the meaning specified in Section 19.1(d).




“Termination Holdback Amount” has the meaning specified in Section 19.2(b).



“Third Party Supplier” means any seller of Crude Oil under a Procurement Contract
including any counterparty to any exchange agreement that is a component of a Procurement Contract
(other than LOTT, the Company or any other Affiliate of the Company).



“Transaction Document” means any of this Agreement, the Marketing and Sales Agreement,
the Inventory Sales Agreements, the Storage Facilities Agreement, the Step-Out Inventory Sales
Agreements, the Required Storage and Transportation Arrangements and any other agreement or
instrument contemplated hereby or executed in connection herewith.



“Volume Cap for Reduced Crude Fee” means, for any month, fifteen thousand (15,000)
Barrels per day multiplied by the number of calendar days in such month.



“Volume Cap for Waived Crude Fee” means, for any month, fifteen thousand (15,000)
Barrels per day multiplied by the number of calendar days in such month.


 


19









 





“Volume Determination Procedures” mean the Company’s ordinary month-end procedures for
determining the NSV of Crude Oil in the Crude Storage Tanks or Products in the
Product Storage Tanks, which for each quarter-end shall be based on manual gauge readings of
each Crude Storage Tank or Product Storage Tank as at the end of such quarter.



“Waived Fee Barrels” has the meaning specified in Section   .




1.2 Construction of Agreement.




(a) Unless otherwise specified, reference to, and the definition of any document
(including this Agreement) shall be deemed a reference to such document as may be, amended,
supplemented, revised or modified from time to time.




(b) Unless otherwise specified, all references to an “Article,” “Section,” or Schedule”
are to an Article or Section hereof or a Schedule attached hereto.




(c) All headings herein are intended solely for convenience of reference and shall not
affect the meaning or interpretation of the provisions of this Agreement.




(d) Unless expressly provided otherwise, the word “including” as used herein does not
limit the preceding words or terms and shall be read to be followed by the words “without
limitation” or words having similar import.




(e) Unless expressly provided otherwise, all references to days, weeks, months and
quarters mean calendar days, weeks, months and quarters, respectively.




(f) Unless expressly provided otherwise, references herein to “consent” mean the prior
written consent of the Party at issue, which shall not be unreasonably withheld, delayed or
conditioned.




(g) A reference to any Party to this Agreement or another agreement or document
includes the Party’s permitted successors and assigns.




(h) Unless the contrary clearly appears from the context, for purposes of this
Agreement, the singular number includes the plural number and vice versa; and each gender
includes the other gender.




(i) Except where specifically stated otherwise, any reference to any Applicable Law or
agreement shall be a reference to the same as amended, supplemented or re-enacted from time
to time.




(j) Unless otherwise expressly stated herein, any reference to “volume” shall be deemed
to refer to actual NSV, unless such volume has not been yet been determined, in which case,
volume shall be an estimated net volume determined in accordance with the terms hereof.


 


20









 






(k) The words “hereof,” “herein” and “hereunder” and words of similar import when used
in this Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement.



1.3 The Parties acknowledge that they and their counsel have reviewed and revised this
Agreement and that no presumption of contract interpretation or construction shall apply to the
advantage or disadvantage of the drafter of this Agreement.



ARTICLE 2




CONDITIONS TO COMMENCEMENT




2.1 Conditions to Obligations of Aron. The obligations of Aron contemplated by this
Agreement shall be subject to satisfaction by the Company of the following conditions precedent on
and as of the Commencement Date:




(a) The Inventory Sales Agreements shall have been duly executed and delivered by the
Company and LOTT, as applicable, and, pursuant thereto, the Company and LOTT shall have
transferred to Aron on the Commencement Date, all their respective right, title and interest
in and to the Commencement Date Volumes, free and clear of all liens, other than Permitted
Liens;




(b) The Parties shall have agreed to the form and substance of the Step-Out Inventory
Sales Agreement (which form is attached hereto as Schedule R);




(c) The Guarantee shall have been duly executed and delivered to Aron in a form and in
substance satisfactory to Aron;




(d) The Stock Purchase Agreement shall have been duly executed and the “Closing”
contemplated thereunder shall have occurred;




(e) The Guarantor shall have duly executed the Fee Letter;




(f) Aron shall have confirmed to its satisfaction that, as of the Commencement Date,
each of the Existing Financing Agreements contains provisions that (i) recognize the
respective rights and obligations of the Parties under this Agreement and the other
Transaction Documents, (ii) confirm that this Agreement, the other Transaction Documents and
the transactions contemplated hereby and thereby do not and will not conflict with or
violate any terms and conditions of such Existing Financing Agreement and (iii) recognize
that Aron is the owner of Crude Oil and Products to the extent contemplated hereby and by
the other Transaction Documents, free and clear of any liens of any lender or other creditor
that is party to such Existing Financing Agreement, other than Permitted Liens;




(g) Aron shall have received final approvals from relevant internal committees;


 


21









 






(h) To the extent deemed necessary or appropriate by Aron, acknowledgements and/or
releases (including without limitation, amendments or termination of UCC financing
statements), in form and substance satisfactory to Aron, shall have been duly executed by
lenders or other creditors that are party to Existing Financing Agreements, confirming the
release of any lien in favor of such lender or other
creditor that might apply to or be deemed to apply to any Crude Oil and/or Products of
which Aron is the owner as contemplated by this Agreement and the other Transaction
Documents and agreeing to provide Aron with such further documentation as it may reasonably
request in order to confirm the foregoing;




(i) The Company shall have duly executed and delivered the Storage Facilities
Agreement, as set forth on Schedule AA hereto, and provided Aron satisfactory documentation
that it or its Affiliate has secured, for the benefit of Aron, full, unencumbered storage
and usage rights of the Crude Storage Tanks and the Product Storage Tanks;




(j) The Required Storage and Transportation Arrangements shall have been duly executed
by the Company (and its Affiliates, if appropriate) and all third parties thereto;




(k) The Company shall have duly executed and delivered the Marketing and Sales
Agreement, as set forth on Schedule X hereto;




(l) The Company shall have delivered to Aron a certificate signed by the principal
executive officer of the Company certifying as to incumbency, board approval and
resolutions, other matters;




(m) The Company shall have delivered to Aron an opinion of counsel, in form and
substance satisfactory to Aron, covering such matters as Aron shall reasonably request,
including: good standing; existence and due qualification; power and authority; due
authorization and execution; enforceability of the Transaction Documents and the Guarantee;
no conflicts including with respect to the Existing Financing Agreements and the Stock
Purchase Agreement;




(n) No action or proceeding shall have been instituted nor shall any action by a
Governmental Authority be threatened, nor shall any order, judgment or decree have been
issued or proposed to be issued by any Governmental Authority as of the Commencement Date to
set aside, restrain, enjoin or prevent the transactions and performance of the obligations
contemplated by this Agreement;




(o) There must not have been any event or series of events which has had or would
reasonably be expected to have a Material Adverse Effect (as defined under the Stock
Purchase Agreement);




(p) The Company shall have delivered to Aron insurance certificates evidencing the
effectiveness of the insurance policies set forth on Schedule F or, in the alternative,
provided Aron with reasonable evidence that it has otherwise complied with Article
15 below, together with a further undertaking to deliver such insurance certificates to
Aron promptly after the Commencement Date;


 


22









 






(q) The Company shall have complied in all material respects with all covenants and
agreements hereunder that it is required to comply with on or before the Commencement Date;




(r) All representations and warranties of the Company and its Affiliates contained in
the Transaction Documents shall be true and correct in all material respects on and as of
the Commencement Date; and




(s) The Company shall have delivered to Aron such other certificates, documents and
instruments as may be reasonably necessary to consummate the transactions contemplated
herein, including UCC-1 financing statements reflecting Aron as owner of all Crude Oil in
the Crude Storage Tanks and all Products in the Product Storage Tanks on and as of the
Commencement Date.



2.2 Conditions to Obligations of the Company. The obligations of the Company
contemplated by this Agreement shall be subject to satisfaction by Aron of the following conditions
precedent on and as of the Commencement Date:




(a) Aron shall have duly executed and delivered the Inventory Sales Agreements, as set
forth on Schedules Y and Z, and Aron shall have paid the respective portions of the
Commencement Date Purchase Value to the Company and LOTT that are due on the Commencement
Date;




(b) Aron shall have duly executed and delivered the Storage Facilities Agreement, as
set forth on Schedule AA;




(c) Aron shall have duly executed and delivered the Marketing and Sales Agreement, as
set forth on Schedule X;




(d) The Parties shall have agreed to the pricing method to be used and the form and
substance of the Step-Out Inventory Sales Agreement (which form is attached hereto as
Schedule R);




(e) Aron shall have duly executed the Fee Letter;




(f) All representations and warranties of Aron contained in the Transaction Documents
shall be true and correct in all material respects on and as of the Commencement Date;




(g) Aron shall have complied in all material respects with all covenants and agreements
hereunder that it is required to comply with on or before the Commencement Date; and


 


23









 






(h) Aron shall have delivered to the Company such other certificates, documents and
instruments as may be reasonably necessary to consummate the transactions contemplated
herein;




(i) The Stock Purchase Agreement shall have been duly executed and the “Closing”
contemplated thereunder shall have occurred, and the transactions (other than the
transactions contemplated hereby) necessary for the financing of the consummation by the
Company and its Affiliates of the transactions contemplated by the Stock Purchase Agreement
shall have been consummated; and




(j) Aron shall have delivered satisfactory evidence of its federal form 637 license and
any applicable reseller sales tax exemption certificate(s).




2.3 Commencement Date.




(a) Subject to the satisfaction of the conditions set forth in Sections 2.1 and
2.2, the “Commencement Date” shall be April 29, 2011 or, if the Parties agree to a
later date, then such later date (the “Latest Commencement Date”).




(b) If the Commencement Date has not occurred on or before the Latest Commencement
Date, this Agreement shall terminate on the first Business Day following the Latest
Commencement Date. In such case, all obligations of the Parties hereunder shall terminate,
except for the obligations set forth in Article 2, Article 20, Article
21 and Article 23 and any obligation under the last sentence of this Section
2.3(b); provided, however, that nothing herein shall relieve any Party from liability
for the breach of any of its representations, warranties, covenants or agreements set forth
in this Agreement. Without limiting the foregoing, if the Fee Letter has been executed by
Guarantor and Aron on or before the Latest Commencement Date and if the failure of the
Commencement Date to occur on or before the Latest Commencement Date is due to (i) any
breach by the Company of its obligations hereunder, including its obligations under clause
(c) below or (ii) the failure of any of the conditions contained in Section 2.1 to
be satisfied on or before the Latest Commencement Date for any reason whatsoever, then the
Company shall be obligated to reimburse Aron for any losses, costs and damages incurred or
realized by Aron as a result of the termination of this Agreement, including any such
losses, costs or damages incurred or realized as a result of Aron’s terminating,
liquidating, maintaining, obtaining or reestablishing any hedge or related trading positions
in connection with such termination.




(c) From and after the Effective Date, the Company shall use commercially reasonable
efforts to cause each of the conditions referred to in Section 2.1 to be satisfied
on or prior to the Latest Commencement Date and Aron shall use commercially reasonable
efforts to cause each of the conditions referred to in Section 2.2 to be satisfied
on or prior to the Latest Commencement Date.


 


24









 






(d) The Parties acknowledge and agree that some of the Schedules contemplated hereby
are (i) not attached to this Agreement as of the Effective Date or (ii) are attached in
draft form. Between the Effective Date and the Commencement Date, the Parties shall
cooperate, in good faith, to prepare and finalize the form and content of such Schedules, to
the extent possible and, on the Commencement Date, will execute such amendment or other
instrument as each Party deems reasonably necessary to cause each such Schedule be
incorporated as an attachment to this Agreement as contemplated by the terms hereof. For
any Schedules outstanding as of the Commencement Date, the Parties shall cooperate, in good
faith, to prepare and finalize the form and content of such outstanding Schedules and will
endeavor in good faith to execute an amendment no later than sixty (60) days after the
Commencement Date and, after such date, the Parties agree to cooperate to update and amend
the Schedules and this Agreement to accommodate
changes in the assets and configurations of the Refinery Storage Facility, the Crude
Delivery Point, the Products Delivery Point or any other similar term hereunder.




(e) The Company Parties agree that, by executing this Agreement, they are accepting and
agreeing to, and shall be bound by, the terms of the Fee Letter as if they were parties
thereto.



ARTICLE 3




TERM OF AGREEMENT




3.1 Term. This Agreement shall become effective on the Effective Date and, subject to
Section 2.3(b) and Section 3.2, shall continue for a period starting at 00:00:01
a.m., CPT on the Commencement Date and ending at 11:59:59 p.m., CPT on April 30, 2014 (the
“Term”; the last day of such Term being herein referred to as the “Expiration
Date.”



3.2 Early Termination. The Parties may mutually agree in writing to terminate this
Agreement prior to the Expiration Date (but are under no obligation to do so). If any early
termination is agreed to by the Parties, the effective date of such termination shall be the
“Early Termination Date.”




3.3 [Reserved.]



3.4 Obligations upon Termination. In connection with the termination of the Agreement
on the Expiration Date or the Early Termination Date, the Parties shall perform their obligations
relating to termination pursuant to Article 19.



ARTICLE 4




COMMENCEMENT DATE TRANSFER




4.1 Transfer and Payment on the Commencement Date. The Commencement Date Volumes
shall be sold and transferred and payment of the Estimated Commencement Date Value made as provided
in the Inventory Sales Agreements.



4.2 Post-Commencement Date Reconciliation and True-up. Determination and payment of
the Definitive Commencement Date Value shall be made as provided in the Inventory Sales Agreements.


 


25









 





ARTICLE 5




PURCHASE AND SALE OF CRUDE OIL




5.1 Sale of Crude Oil. On and after the Initial Delivery Date through the end of the
Term, and subject to (a) Aron’s ability to procure Crude Oil in accordance with the terms hereof,
(b) its receipt of Crude Oil under Procurement Contracts and (c) the Company’s maintenance of the
Base Agreements and Required Storage and Transportation Arrangements and compliance with the terms
and conditions hereof, Aron will endeavor, in a commercially reasonable manner,
to enter into Procurement Contracts that will accommodate, in the aggregate, monthly
deliveries of Crude Oil up to ********** Barrels per day and the Company agrees to purchase and
receive from Aron all such Crude Oil as provided herein and subject to the terms and conditions
hereof. Aron shall, in accordance with the terms and conditions hereof, be the exclusive owner of
Crude Oil in the Crude Storage Tanks.




5.2 Monthly Forecasts and Projections.




(a) Before the Contract Cutoff Date in any Nomination Month, the Company shall provide
Aron with a written forecast of the Refinery’s anticipated Crude Oil requirements for the
related Delivery Month (each, a “Monthly Crude Forecast”).




(b) [Reserved.]




(c) The Company shall promptly notify Aron in writing upon learning of any material
change in any Monthly Crude Forecast or if it is necessary to delay any previously scheduled
pipeline nominations.




(d) The Parties acknowledge that the Company is solely responsible for providing the
Monthly Crude Forecast and for making any adjustments thereto, and the Company agrees that
all such forecasts and projections shall be prepared in good faith, with due regard to all
available and reliable historical information and the Company’s then-current business
prospects, and in accordance with such standards of care as are generally applicable in the
U.S. oil refining industry. The Company acknowledges and agrees that (i) Aron shall be
entitled to rely and act upon all such forecasts and projections and shall not be deemed in
breach hereof to the extent any such breach or alleged breach is attributable to its having
acted or relied thereon, and (ii) Aron shall not have any responsibility to make any
investigation into the facts or matters stated in such forecasts or projections.




 


26









 





5.3 Procurement of Crude Oil.




(a) As of the Commencement Date, Procurement Contracts shall consist of (i) such
Procurement Contracts as LOTT and Aron may have entered into and (ii) such Procurement
Contracts with certain Third Party Suppliers as shall have been novated from LOTT to Aron,
in each case providing for the purchase of Crude Oil to be processed at the Refinery for
April or May 2011. In connection with such novated Procurement Contracts, the parties
acknowledge that, concurrently with the effectiveness of such novations, Aron and LOTT
entered into transactions identical to the novated Procurement

Contracts (the “Back-to-Back
Contracts”), except with Aron as seller thereunder and certain other modifications as
specified in a letter agreement between Aron and LOTT, dated April 27, 2011. The parties
further acknowledge and agree that, as a result of such novated Procurement Contracts, the
Back-to-Back Contracts and the terms of the LOTT Inventory Sales Agreement, (i) from and
after the effectiveness of such novations to the Inventory Measurement Time under the LOTT
Inventory Sales Agreement, all Crude Oil delivered under the novated Procurement Contracts
and the Back-to-Back Contracts shall have been or shall be transferred from the relevant
Third Party Supplier to
Aron and then from Aron to LOTT and (ii) from and after the Inventory Transfer Time
under the LOTT Inventory Sales Agreement to the Inventory Measurement Time under the LOTT
Inventory Sales Agreement, all such Crude Oil that is held or received at any of the
Inventory Transfer Locations shall be transferred by LOTT to Aron under and in accordance
with the terms of the LOTT Inventory Sales Agreement.




(b) From time to time during the Term of this Agreement (and subject to Section
5.3(g) below), the Company may propose that an additional Procurement Contract be
entered into, including any such additional Procurement Contract as may be entered into in
connection with the expiration of an outstanding Procurement Contract. If the Parties
mutually agree to seek additional Procurement Contracts, then the Company shall endeavor to
identify quantities of Crude Oil that may be acquired on a spot or term basis from one or
more Third Party Suppliers. The Company may negotiate with any such Third Party Supplier
regarding the price and other terms of such potential additional Procurement Contract. The
Company shall have no authority to bind Aron to, or enter into on Aron’s behalf, any
additional Procurement Contract or Procurement Contract Assignment, and the Company shall
not represent to any third party that it has such authority. If the Company has negotiated
an offer from a Third Party Supplier for an additional Procurement Contract (and if
relevant, Procurement Contract Assignment) that the Company wishes to be executed, the
Company shall apprise Aron in writing (which may be via email) of the terms of such offer,
Aron shall promptly determine and advise the Company as to whether Aron consent to accept
such offer. If Aron indicates its consent to accept such offer, then Aron shall promptly
endeavor to formally communicate its acceptance of such offer to the Company and such Third
Party Supplier so that the Third Party Supplier and Aron may enter into a binding additional
Procurement Contract (and if relevant, Procurement Contract Assignment) provided that any
additional Procurement Contract (and, if relevant, related Procurement Contract Assignment)
shall require Aron’s express agreement and Aron shall not have any liability under or in
connection with this Agreement if for any reason it, acting in good faith, does not agree to
any proposed additional Procurement Contract or related Procurement Contract Assignment.




(c) If the Company determines, in its reasonable judgment, that it is commercially
beneficial for the Refinery to run a particular grade and/or volume of Crude Oil that is
available from a Third Party Supplier that is not a counterparty with which Aron is then
prepared to enter into a contract, then the Company may execute a contract to acquire such
Crude Oil for the Company’s account.


 


27









 






(d) Title for each quantity of Crude Oil delivered into a Crude Storage Tank shall pass
to Aron, (i) if delivered under a Procurement Contract with a Third Party Supplier, from
such Third Party Supplier as provided in the relevant Procurement Contract, (ii) if
delivered under a Procurement Contract with the Company or LOTT, from the Company or LOTT as
provided in the relevant Procurement Contract and (iii) if not delivered under a Procurement
Contract (and whether such delivery is via an Included Crude Pipeline or another crude
pipeline), from the Company as the crude oil passes the Crude Intake Point. The Parties
acknowledge that the consideration due from Aron to the Company for any crude oil that is
not delivered under a Procurement Contract will be
reflected in the Monthly True-up Amounts determined following delivery and in
accordance with Schedule C.




(e) [Reserved.]




(f) So long as the Specified Cargo Procurement Conditions are fully satisfied and no
Default or Event of Default has occurred and is continuing with respect to the Company or
LOTT, LOTT shall, with respect to any payment due from Aron to LOTT for any Crude Oil
originally sourced under the Designated Cargo Contract and acquired by Aron from LOTT under
Section 5.3(g) below, instruct Aron to pay to the seller under such Designated Cargo
Contract, for LOTT’s account, such payment (or a portion thereof up to the amount due to
seller) in settlement of the amount due from LOTT to seller for such Crude Oil. Such
payments can be directed with respect to any portion of an original cargo quantity to the
extent that Aron has verified receipt thereof at the delivery point specified in Section
5.3(g).




(g) On or before the date that is 120 days after the Commencement Date and so long as
the Specified Cargo Procurement Conditions are fully satisfied and no Default or Event of
Default has occurred and is continuing with respect to the Company or LOTT, and regardless
of whether a relevant Procurement Contract has been entered into, Aron will purchase from
LOTT any Crude Oil acquired by LOTT under the Designated Cargo Contract at the time such
Crude Oil passes the intake flange of the Magnolia Pipeline and at a price per barrel equal
to the price per barrel paid by LOTT for such Crude Oil under the Designated Cargo Contract,
with payment by Aron to be made on the later of 2 Business Days after verification of
receipt at such delivery point or on such date as corresponds to LOTT’s payment for such
Crude Oil under the Designated Cargo Contract and, unless no cargoes remain to be delivered
under the Designated Cargo Contract, in accordance with LOTT’s instructions provided
pursuant to Section 5.3(f) above.




(h) Unless otherwise agreed by Aron (in its discretion), the Company and LOTT covenant
and agree that (i) they will use commercially reasonable efforts to enter into Exchange
Procurement Contract during any month so as to eliminate any volume imbalance and (ii) the
sole purpose and intent of any such Exchange Procurement Contract shall be to, directly or
indirectly, procure Crude Oil to be processed at the Refinery.


 


28









 






(i) With respect to all Crude Oil, LOTT covenants and agrees to be the party
responsible for making entry of goods into the U.S., meeting the reporting requirements and
payment obligations of U.S. Customs for the importation of goods, compliance with all free
trade zone bonding, reporting and duty payments, and serving as importer of record in
connection herewith.




5.4 Nominations under Procurement Contracts and for Pipelines.




(a) On the Business Day following receipt of the Monthly Crude Forecast and prior to
the delivery of the Projected Monthly Run Volume, Aron shall provide to the
Company Aron’s preliminary Target Month End Crude Volume and Target Month End Product
Volume for the related Delivery Month if different from the Target Month End Crude Volume
and Target Month End Product Volume for the related Delivery Month previously provided in
Section   . By no later than two (2) Business Days
prior to the earliest Contract Cutoff Date occurring in such Nomination Month, the Company
shall provide to Aron the Projected Monthly Run Volume for the Delivery Month for which
deliveries must be nominated prior to such Contract Cutoff Dates. As part of such Projected
Monthly Run Volume, the Company may specify the grade of such Projected Monthly Run Volume,
provided that such grades and their respective quantities specified by the Company shall
fall within the grades and quantities then available to be nominated by Aron under the
outstanding Procurement Contracts.




(b) Provided that the Company provides Aron with the Projected Monthly Run Volume as
required under Section 5.4(a), Aron shall make all scheduling and other selections
and nominations (collectively, “Contract Nominations”) that are to be made under the
Procurement Contracts on or before the Contract Cutoff Dates for the Procurement Contracts
and such Contract Nominations shall reflect the quantity of each grade specified by the
Company in such Projected Monthly Run Volume. Should any Contract Nomination not be accepted
by any Third Party Supplier under a Procurement Contract, Aron shall promptly advise the
Company and use commercially reasonable efforts with the Company and such Third Party
Supplier to revise the Contract Nomination subject to the terms of any such Procurement
Contract. Aron shall provide the Company with confirmation that such Contract Nominations
have been made.




(c) Insofar as any pipeline nominations are required to be made by Aron for any Crude
Oil prior to any applicable Pipeline Cutoff Date for any month, Aron shall be responsible
for making such pipeline and terminal nominations for that month; provided that, Aron’s
obligation to make such nominations shall be conditioned on its receiving from the Company
scheduling instructions for that month a sufficient number of days prior to such Pipeline
Cutoff Date so that Aron can make such nominations within the lead times required by such
pipelines and terminals. Aron shall not be responsible if a Pipeline System is unable to
accept Aron’s nomination or if the Pipeline System must allocate Crude Oil among its
shippers.


 


29









 






(d) The Parties agree that the Company may, from time to time, request that Aron make
adjustments or modifications to Contract Nominations it has previously made under the
Procurement Contracts. Promptly following receipt of any such request, Aron will use its
commercially reasonable efforts to make such adjustment or modification, subject to any
limitations or restrictions under the relevant Procurement Contracts. Any additional cost
or expenses incurred as a result of such an adjustment or modification shall constitute an
Ancillary Cost hereunder.




(e) Aron shall not nominate or to its knowledge otherwise acquire any Crude Oil with
characteristics that are not previously approved by the Company for use at the Refinery,
such approval to be in the Company’s discretion.




(f) In addition to the nomination process, Aron and the Company shall follow the
mutually agreed communications protocol as set forth on Schedule J hereto, with respect to
ongoing daily coordination with feedstock suppliers, including purchases or sales of Crude
Oil outside of the normal nomination procedures.




(g) Each of the Company and Aron agrees to use commercially reasonable efforts in
preparing the forecasts, projections and nominations required by this Agreement in a manner
intended to maintain Crude Oil and Product operational volumes within the Operational Volume
Range.




(h) Prior to entering into any Ancillary Contract that does not by its terms expire or
terminate on or before the Expiration Date, Aron will, subject to any confidentiality
restrictions, afford the Company an opportunity to review and comment on such Ancillary
Contract or the terms thereof and to confer with the Company regarding such Ancillary
Contract and terms, and if Aron enters into any such Ancillary Contract without the
Company’s consent, the Company shall not be obligated to assume such Ancillary Contract
pursuant to Section 19.1(c) below.




5.5 Transportation, Storage and Delivery of Crude Oil.




(a) Aron shall have the exclusive right to inject, store and withdraw (except for such
injections or withdrawals by the Company otherwise contemplated hereby) Crude Oil in the
Crude Storage Tanks as provided in the Storage Facilities Agreement.




(b) Pursuant to the Required Storage and Transportation Arrangements, Aron shall have
the right to inject (except for such injections by the Company otherwise contemplated
hereby), store, transport and withdraw Crude Oil in and on the Included Crude Pipeline to
the same extent as the Company’s rights to do so prior to the implementation of the Required
Storage and Transportation Arrangements. With respect to any activities involving Crude Oil
covered by the Storage Facilities Agreement or any Required Storage and Transportation
Arrangement, Aron may from time to time appoint the Company or LOTT as Aron’s agent
thereunder for such activities as Aron may specify.


 


30









 






(c) Provided no Default or Event of Default by the Company or LOTT has occurred and is
continuing, the Company shall be permitted to withdraw from the Crude Storage Tanks and take
delivery of Crude Oil on any day and at any time. The withdrawal and receipt of any Crude
Oil by the Company at the Crude Delivery Point shall be on an “ex works” basis. The Company
shall bear sole responsibility for arranging the withdrawal of Crude Oil from the Crude
Storage Tanks. The Company shall take all commercially reasonable actions necessary to
maintain a connection with the Crude Storage Tanks to enable withdrawal and delivery of
Crude Oil to be made as contemplated hereby.



5.6 Title, Risk of Loss and Custody.




(a) Title to and risk of loss of the Crude Oil shall pass from Aron to the Company at
the Crude Delivery Point. The Company shall assume custody of the Crude Oil as it passes
the Crude Delivery Point.




(b) During the time any Crude Oil or Products is held in any Storage Facilities, the
Company or LOTT, in its capacity as operator of the Storage Facilities and pursuant to the
Storage Facilities Agreement, shall be solely responsible for compliance with all Applicable
Laws, including all Environmental Laws, pertaining to the possession, handling, use and
processing of such Crude Oil or Products and shall indemnify and hold harmless Aron, its
Affiliates and their agents, representatives, contractors, employees, directors and
officers, for all Liabilities directly or indirectly arising from failure by the Company or
LOTT to so comply, except to the extent such Liabilities are caused by or attributable to
any of the matters for which Aron is indemnifying the Company pursuant to Article
20.




(c) At and after transfer of any Crude Oil at the Crude Delivery Point from Aron to the
Company pursuant to Section 5.6(a) above, the Company shall be solely responsible for
compliance with all Applicable Laws, including all Environmental Laws pertaining to the
possession, handling, use and processing of such Crude Oil and shall indemnify and hold
harmless Aron, its Affiliates and their agents, representatives, contractors, employees,
directors and officers, for all Liabilities directly or indirectly arising from failure by
the Company to so comply.




(d) Notwithstanding anything to the contrary herein, Aron and the Company and LOTT
agree that the Company and LOTT shall have an insurable interest in Crude Oil that is
subject to a Procurement Contract or as otherwise subject to this Agreement, and that the
Company or LOTT may, at its election and with prior notice to Aron, endeavor to insure the
Crude Oil. If pursuant to the terms of this Agreement, the Company or LOTT has fully
compensated Aron therefor as required hereunder, then (subject to any other setoff or
netting rights Aron may have hereunder) any insurance payment to Aron made to cover the same
shall be promptly paid over by Aron to the Company or LOTT.




5.7 Contract Documentation, Confirmations and Conditions.




(a) Aron’s obligations to deliver Crude Oil under this Agreement shall be subject to
(i) the Company’s identifying and negotiating potential Procurement Contracts, in accordance
with Section 5.3, that are acceptable to both the Company and Aron relating to a
sufficient quantity of Crude Oil to meet the Refinery’s requirements, (ii) the Company’s
performing its obligations hereunder with respect to providing Aron with timely nominations,
forecasts and projections (including Projected Monthly Run Volumes, as contemplated in
Section 5.4(a)) so that Aron may make timely nominations under the Procurement
Contracts, (iii) all of the terms and conditions of the Procurement Contracts, (iv) any
other condition set forth in Section 5.1 above and (v) no Event of Default having
occurred and continuing with respect to the Company.


 


31









 






(b) In documenting each Procurement Contract, Aron will endeavor and cooperate with the
Company, in good faith and in a commercially reasonable manner, to obtain the Third Party
Supplier’s agreement that a copy of such Procurement Contract may be provided to the
Company; provided that this Section 5.7(b) in no way limits the Company’s rights to
consent to all Procurement Contracts as contemplated by Section 5.3. In addition,
to the extent it is permitted to do so, Aron will endeavor to keep the Company apprised of,
and consult with the Company regarding, the terms and conditions being incorporated into any
Procurement Contract under negotiation with a Third Party Supplier. Notwithstanding the
foregoing, Aron and the Company may pre-agree on one or more standard sets of general terms
and conditions and modifications thereto upon which Procurement Contracts may be executed
without any further obligation of Aron to apprise the Company of such terms and conditions
incorporated into such Procurement Contract.




(c) The Company acknowledges and agrees that, subject to the terms and conditions of
this Agreement, it is obligated to purchase and take delivery of all Crude Oil acquired by
Aron under Procurement Contracts executed in connection herewith and subject to the terms
and conditions specified in Section 5.4 above. In the event of a dispute, Aron will
provide, to the extent legally and contractually permissible, to the Company, a copy of the
Procurement Contract in question.



5.8 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE WARRANTY OF TITLE WITH RESPECT TO CRUDE
OIL DELIVERED HEREUNDER, NEITHER PARTY MAKES ANY WARRANTY, CONDITION OR OTHER REPRESENTATION,
WRITTEN OR ORAL, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS OR SUITABILITY OF THE CRUDE OIL
FOR ANY PARTICULAR PURPOSE OR OTHERWISE. FURTHER, NEITHER PARTY MAKES ANY WARRANTY OR
REPRESENTATION THAT THE CRUDE OIL CONFORMS TO THE SPECIFICATIONS IDENTIFIED IN ANY CONTRACT WITH
ANY THIRD PARTY SUPPLIER.




5.9 Quality Claims and Claims Handling.




(a) The failure of any Crude Oil that Aron hereunder sells to the Company to meet the
specifications or other quality requirements applicable thereto as stated in Aron’s
Procurement Contract for that Crude Oil shall be for the sole account of the Company and
shall not entitle the Company to any reduction in the amounts due by it to Aron hereunder;
provided, however, that any claims made by Aron with respect to such non-conforming Crude
Oil shall be for the Company’s account and resolved in accordance with Section
5.9(d).


 


32









 






(b) The Parties shall consult with each other and coordinate how to handle and resolve
any claims arising in the ordinary course of business (including claims related to Crude
Oil, pipeline or ocean transportation, and any dispute, claim, or controversy arising
hereunder between Aron and any of its vendors who supply goods or services in conjunction
with Aron’s performance of its obligations under this Agreement) made by or against Aron.
In all instances wherein claims are made by a third party against Aron which will be for the
account of the Company, the Company shall have the right, subject
to Section 5.9(c), to either direct Aron to take commercially reasonable
actions in the handling of such claims or assume the handling of such claims in the name of
Aron, all at the Company’s cost and expense. To the extent that the Company believes that
any claim should be made by Aron for the account of the Company against any third party
(whether a Third Party Supplier, terminal facility, pipeline, storage facility or
otherwise), and subject to Section 5.9(c), Aron will take any commercially
reasonable actions requested by the Company either directly, or by allowing the Company to
do so, to prosecute such claim, all at the Company’s cost and expense and all recoveries
resulting from the prosecution of such claim shall be for the account of the Company.




(c) Aron shall, in a commercially reasonable manner, cooperate with the Company in
prosecuting any such claim. If the Company requests that Aron assist in prosecuting any
such claim, Aron shall be entitled to assist in the prosecution of such claim at the
Company’s expense. Aron shall also be entitled to assist at its own expense in prosecuting
any such claim other than by the request of the Company.




(d) Notwithstanding anything in Section 5.9(b) to the contrary but subject to
Section 5.9(e), Aron may notify the Company that Aron is retaining control over the
resolution of any claim referred to in Section 5.9(b) if Aron, in its reasonable
judgment, has determined that it has commercially reasonable business considerations for
doing so based on any relationships that Aron or any of its Affiliates had, has or may have
with the third party involved in such claim; provided that, subject to such considerations,
Aron shall use commercially reasonable efforts to resolve such claim, at the Company’s
expense and for the Company’s account. In addition, any claim that is or becomes subject to
Article 19 shall be handled and resolved in accordance with the provisions of
Article 19.




(e) If any claim contemplated in this Section 5.9 involves a counterparty that
is an Affiliate of Aron and the management and operation of such counterparty is under the
actual and effective control of Aron, then the Company shall control the dispute and
resolution of such claim.




5.10 Communications.




(a) Each Party shall promptly provide to the other copies of any and all written
communications and documents between it and any third party which in any way relate to
Ancillary Costs, including but not limited to written communications and documents with
Pipeline Systems, provided that Aron has received such communications and documents in
respect of the Pipeline System and/or any communications and documents related to the
nominating, scheduling and/or chartering of vessels; provided that neither Party shall be
obligated to provide to the other any such materials that contain proprietary or
confidential information and, in providing any such materials, such Party may redact or
delete any such proprietary or confidential information.


 


33









 






(b) With respect to any proprietary or confidential information referred to in
Section 5.10(a), Aron shall promptly notify the Company of the nature or type of
such
information and use its commercially reasonable efforts to obtain such consents or
releases as necessary to permit such information to be made available to the Company.




(c) The Parties shall coordinate all nominations and deliveries according to the
scheduling and communications protocol on Schedule J hereto.



ARTICLE 6




PURCHASE PRICE FOR CRUDE OIL





[Redacted]



ARTICLE 7




TARGET INVENTORY LEVELS AND WORKING CAPITAL ADJUSTMENT





[Redacted]



ARTICLE 8




PURCHASE AND DELIVERY OF PRODUCTS





[Redacted]



ARTICLE 9




ANCILLARY COSTS; MONTH END INVENTORY; CERTAIN DISPOSITIONS; TANK MAINTENANCE





[Redacted]



ARTICLE 10




PAYMENT PROVISIONS





10.1 Interim Payments.




(a) For each day, Aron will calculate a provisional payment (each an “Interim
Payment”) which:




(i) if such day is not a Monthly True-Up Date, shall equal (i) the greater of
(A) zero and (B) the Cumulative Estimated Net Daily Settlement Amount as of such
date minus the LC Threshold Amount as of such date, minus (ii) the Cumulative
Interim Paid Amount as of such date; and


 


34









 






(ii) if such day is a Monthly True-Up Date, shall be determined as follows:




(1) Upon the payment of any Monthly True-up Amount due on such day,
Aron shall determine the Interim Reset Amount as of such Monthly True-Up
Date;




(2) Aron shall calculate the Cumulative Estimated Net Daily Settlement
Amount as of such date and the Cumulative Interim Paid Amount as of such
date after giving effect to the payment of such Monthly True-up Amount and
such Interim Reset Amount; and




(3) the Interim Payment for such Monthly True-up Date shall equal (i)
the greater of (A) zero and (B) the Cumulative Estimated Net Daily
Settlement Amount as of such date minus the LC Threshold Amount as of such
date, minus (ii) the Cumulative Interim Paid Amount as of such date




(iii) For illustrative purposes only, Schedule FF sets forth an example of the
computations contemplated by this Section 10.1(a). Such example is not, and is not
intended to be, an indication or prediction of the actual results of the
computations under this Section 10.1(a), but merely provides an illustration of the
manner in which computations are to be made.




(b) For purposes of calculating Interim Payments, Aron shall determine, for each day, a
daily settlement amount (“Daily Settlement Amount”) by applying the applicable Daily Prices
per Schedule B to the Estimated Daily Net Product Sales for that day and the Estimated Daily
Net Crude Sales, as defined below, plus an estimate of Ancillary Costs for such day to the
extent not directly invoiced to the Company, in the manner illustrated on Schedule G and
subject to the following terms and conditions:




(i) if inventory data needed for the applicable invoice date per Schedule G has
not been reported Aron will reasonably use the inventory data for the day occurring
during the thirty (30) day period preceding such calendar day that results in the
largest Estimated Daily Net Crude Sales or the smallest Estimated Daily Net Product
Sales (as the case may be);



provided that, if Aron determines a Daily Settlement Amount using any inventory data covered by the
clause above or determines that any inventory data it has used in such determination was
inaccurate, then Aron may, at its option, adjust future Daily Settlement Amounts (no more often
than once per calendar week) to take account of any corrected inventory data or any inventory data
that, if available, would have complied with clause (i) above.


 


35









 






(c) With respect to the Estimated Daily Net Crude Sales and Estimated Daily Net Product
Sales,




(i) The Company shall, as of the end of each day, provide to Aron inventory
reports in the form set forth on Schedule V, showing the quantity of Crude Oil held
in Crude Storage Tanks and the quantities of Products held in Product Storage Tanks.




(d) For the purposes hereof,




(i) “Estimated Gathering Crude Value” for any day shall be the
Estimated Gathering Tank Injections times (the closing settlement price on the NYMEX
for the first nearby Light Sweet Crude Oil Futures Contracts minus $****/bbl);




(ii) “Estimated Daily Net Crude Sales” for any day shall be the
aggregate daily crude flow through meters R1, R2 and R3 times the applicable Daily
Price per Schedule B minus the Estimated Gathering Crude Value; and




(iii) “Estimated Daily Net Product Sales” for any day and Product shall
be the estimate for that day of the Product volume that equals (x) the aggregate
volume of such Product held in the Product Storage Tanks at the end of such day,
plus the aggregate volume of such Product held in the Included Third Party Storage
Tanks at the end of such day, plus the Product Linefill at the end of such day, plus
(y) the Daily Product Sales of such Product for such day, minus (z) the aggregate
volume of such Product held in the Product Storage Tanks at the beginning of such
day, plus the aggregate volume of such Product held in the Included Third Party
Storage Tanks at the beginning of such day, plus the Product Linefill at the
beginning of such day.




(e) For each day, Aron shall reasonably determine the Estimated Daily Net Crude Sales
and Estimated Daily Net Product Sales, in a commercially reasonable manner based on the
inventory data and otherwise in the manner contemplated by this Section 10.1 and
Schedule G, and to the extent it deems appropriate taking into account such other data as
may be relevant to the determination of such estimates.




(f) If Aron advises the Company of an Interim Payment on any Business Day, then the
Company shall be obligated to pay such Interim Payment to Aron on the following Business
Day.




(g) For any Business Day, the Interim Payment to be determined and advised by Aron
shall be the Interim Payment for that day, provided that if such Business Day is followed by
one or more non-Business Days (whether weekends or Bank Holidays), then Aron shall
reasonably determine and advise to the Company the Interim Payment for that Business Day as
well as the Interim Payment each of such following non-Business Days and all such Interim
Payments shall be due on that Business Day.


 


36









 






(h) Notwithstanding anything herein to the contrary, with respect to the Daily
Settlement Amounts for May and June 2011, the Parties agree as follows:




(i) Aron shall calculate the Daily Settlement Amounts for such month based on
the Estimated Daily Net Crude Sales for each day during such month, minus (a) for
May 2011 Daily Settlement Amounts, the sum of the May Target Month End Product
Volumes (for all Products combined) minus the sum of the initial Target Month End
Product Volumes as of the Commencement Date as set forth on Schedule I (for all
Products combined) divided by the number of days in
such month and (b) for June 2011 Daily Settlement Amounts, the sum of the June
Target Month End Product Volumes (for all Products combined) minus the sum of the
May Target Month End Product Volumes (for all Products combined) divided by the
number of days in such month, valued for purposes of each of clauses (a) and (b) on
the same basis as barrels included in such Estimated Daily Net Crude Sales. For
each day from May 1, 2011 to and including June 30, 2011, Daily Product Sales will
be deemed to be zero. Estimated ancillary costs shall be incorporated into such
calculation of such Interim Payments in the same manner as contemplated under
Section 10.1(b) above;




(ii) For each day from May 1, 2011 to and including June 30, 2011, the Daily
Price for Crude Oil will be equal to the closing price on the most recent prior
trading day for the prompt NYMEX WTI futures contract, adjusted for the weighted
average differentials under the Procurement Contracts;




(i) With respect to the Deferred Interim Payment Amount, the parties agree that:




(i) commencing with the Interim Payment due for the Initial Delivery Date and
until such point as the aggregate amount of Interim Payments equals the Deferred
Interim Payment Amount, such aggregate amount of Interim Payments shall be deferred
so that:




(1) the first ************* of such payments so deferred shall not be
required to be paid under Section 10.1, and shall be excluded from the
Monthly True-up Amount calculation under Section 10.2, it being acknowledged
that the amount referred to in this clause (1) shall not be due from the
Company to Aron until the Termination Date hereunder, at which time such
amount shall be due and payable in full (unless payment of such amount is
accelerated under Article 18); and




(2) the second ************* of such payments so deferred shall not be
required to be paid until the earlier of 120 days after the Commencement
Date or 2 Business Days after verification by Aron of its receipt at the
delivery point specified in Section 5.3(g) of Crude Oil representing the
final cargo delivered under the Designated Cargo Contract, it being
acknowledged that the amount referred to in this clause (2) shall become due
from the Company to Aron upon the earlier of such dates and shall then
included in the next Interim Payment or Monthly True-up Amount that is
payable.


 


37









 






(ii) So long as any portion of the Deferred Interim Payment Amount is being
deferred pursuant to clause (i) above, it shall be counted as having been paid for
purposes of determining any Interim Payments or Monthly True-up Amounts calculated
hereunder (but without prejudice to such amounts being due as contemplated under
clause (i)(1) and (2) above.




10.2 Monthly True-up Amount.




(a) Aron will use commercially reasonable efforts to provide to the Company, within
fifteen (15) Business Days after the end of any month, a calculation and appropriate
documentation to support such calculation for such month for a monthly true-up payment (the
“Monthly True-up Amount”). The Monthly True-up Amount for any month shall be equal
to:




(i) the Cumulative Interim Paid Amount as of the then current Monthly True-up
Date, minus




(ii) the Gross Monthly Crude Value (as defined on Schedule C); minus




(iii) the sum of the Gross Monthly Product Values (as defined on Schedule C),
minus




(iv) the Ancillary Costs for such month, plus




(v) the Monthly Excluded Transaction Fee, plus




(vi) the Monthly Product Sales Adjustment, minus




(vii) the Monthly Cover Costs, plus




(viii) the Monthly Working Capital Adjustment, plus




(ix) any other amount then due from Aron to the Company under this Agreement or
any other Transaction Document, minus




(x) any Excess LC Fee for such month, minus




(xi) any other amount then due from the Company to Aron under this Agreement or
any other Transaction Document.


If the Monthly True-up Amount is a positive number, such amount shall be reflected in the Interim
Reset Amount, each as fixed as of the then current Monthly True Up Date pursuant to Section 10.1(a)
above. If the Monthly True-up Amount is a negative number, then the absolute value thereof shall
be due from the Company to Aron. The Company shall pay any Monthly True-up Amount due to Aron
within two (2) Business Days after the Company’s receipt of the monthly invoice and all related
documentation supporting the invoiced amount.




 


38









 








(b) For purposes of determining the amounts due under clauses (i) and (ii) of
Section 10.2(a), the definitions and formulas set forth on Schedule C shall apply
and for purposes of determining the amount due under clause (v) of Section 10.2(a),
the definitions and formula set forth on Schedule L shall apply.




(c) For purposes of determining the Monthly Crude Oil True-up Amount for the first
month of the Term hereof, and notwithstanding anything to the contrary on Schedule C:




(i) the “Short Crude FIFO Position” as of the end of the prior month
(i.e., April 2011) shall equal the lesser of (x) zero and (y) the Commencement Date
Crude Oil Volume minus the Target Month End Crude Volume as of the Commencement
Date;




(ii) the “Long Crude FIFO Position” as of the end of the prior month
shall equal the greater of (x) zero and (y) the Commencement Date Crude Oil Volume
minus the Target Month End Crude Volume as of the Commencement Date; and




(iii) the “FIFO Sale Price from Prior Month” shall equal the
“Step-in Price” for Crude Oil as determined pursuant to Schedule B.




(d) For the purposes of determining each Monthly Product True-up Amount for the first
month of the Term hereof, and notwithstanding anything to the contrary on Schedule C:




(i) the “Short Product FIFO Position” as of the end of the prior month
(i.e., April 2011) for a particular Product Group shall equal the lesser of (x) zero
and (y) the Commencement Date Product Volume for that Product Group minus the Target
Month End Product Volume as of the Commencement Date for that Product Group;




(ii) the “Long Product FIFO Position” as of the end of the prior month
shall equal the greater of (x) zero and (y) the Commencement Date Product Volume for
that Product Group minus the Target Month End Product Volume as of the Commencement
Date for that Product Group; and




(iii) the “Product FIFO Purchase Price from Prior Month” shall equal
the “Step-in Price” for such Product Group as determined pursuant to
Schedule B.




(e) In connection with determining the Monthly True-up Amount for any month, the
Pricing Benchmarks with respect to the Asphalt Group are to be applied so as to implement
the following further terms and conditions:




(i) For each month, an amount equal to 25 % of the Gross Monthly Product Value
(as defined in Schedule C) for Asphalt for such month shall be determined, which
amount may be positive or negative;


 


39









 






(ii) The amount determined under clause (i) above for any month shall be added
to the amounts determined for all prior months under clause (i) above (commencing
with May 2011); and




(iii) If the sum of the amounts determined under clause (ii) above is positive,
such positive sum shall constitute a contingent payable due from Aron to the Company




(iv) If the sum of the amounts determined under clause (ii) above is negative,
the absolute value of that sum shall constitute a contingent payable due from the
Company to Aron;




(v) Any such contingent payable shall become due from one party to the other
only upon termination of this Agreement, in which case such payable shall be settled
together with all other amounts due to between the parties in connection with such
termination; provided that in the case of termination pursuant to Article 19 hereof,
such contingent payable shall be settled as contemplated by Article 19.



10.3 Annual Fee. As additional consideration for the arrangements contemplated
hereby, the Company agrees to pay to Aron a fee equal to the Annual Fee for each twelve (12) month
period during the Term, to be paid in equal quarterly installments, in arrears, on February 1, May
1, August 1 and November 1 of each year with the initial installment due on August 1, 2011, and the
Termination Date. The Annual Fee shall be prorated for any periods of more or less than three
months.




10.4 Invoices.




(a) Invoices shall be prepared and submitted in accordance to Schedule G.




(b) If the Company in good faith disputes the amount of any invoice issued by Aron
relating to any amount payable hereunder (including Interim Payments, Monthly True-up
Amounts or Ancillary Costs), it nonetheless shall pay Aron the full amount of such invoice
by the due date and inform Aron in writing of the portion of the invoice with which it
disagrees and why; provided that, to the extent that the Company promptly informs Aron of a
calculation error that is obvious on its face, the Company shall pay Aron the undisputed
amounts and may retain such disputed amount pending resolution of such dispute. The Parties
shall cooperate in resolving the dispute expeditiously. If the Parties agree that the
Company does not owe some or all of the disputed amount or as may be determined by a court
pursuant to Article 23, Aron shall return such amount to the Company, together with
interest at the Fed Funds Rate from the date such amount was paid, within two (2) Business
Days from, as appropriate, the date of their agreement or the date of the final,
non-appealable decision of such court. Following resolution of any such disputed amount,
Aron will issue a corrected invoice and any residual payment that would be required thereby
will be made by the appropriate Party within two (2) Business Days. To the extent that the
Existing Procurement Contract permits disputed amounts to be retained pending resolution of
disputes, the Parties agree to permit disputed amounts to be retained hereunder on the same
terms, notwithstanding anything hereunder to the contrary.


 


40









 





10.5 Other Feedstocks. If Aron procures any catfeed or other non-Crude Oil feedstocks
for the Company to run at the Refinery, the parties shall agree in connection with such procurement
upon terms for incorporating the purchase of such feedstocks into the daily and monthly settlements
contemplated by Sections 10.1 and 10.2 above.



10.6 Interest. Interest shall accrue on late payments under this Agreement at the
Default Interest Rate from the date that payment is due until the date that payment is actually
received by the party entitled to such payment.



10.7 Payment in Full in Same Day Funds. All payments to be made under this Agreement
shall be made by telegraphic transfer of same day funds in U.S. Dollars to such bank account at
such bank as the payee shall designate in writing to the payor from time to time. Except as
expressly provided in this Agreement, all payments shall be made in full without discount, offset,
withholding, counterclaim or deduction whatsoever for any claims which a Party may now have or
hereafter acquire against the other Party, whether pursuant to the terms of this Agreement or
otherwise.



ARTICLE 11




INDEPENDENT INSPECTORS; STANDARDS OF MEASUREMENT




11.1 Aron shall be entitled at Aron’s own cost and expense to have Supplier’s Inspector
present at any time the Volume Determination Procedures are to be applied in accordance with the
terms of this Agreement and to observe the conduct of Volume Determination Procedures.



11.2 In addition to its rights under Section 11.1, Aron may, from time to time during
the Term of this Agreement, upon reasonable prior notice to the Company and at Aron’s own cost and
expense, have Supplier’s Inspector conduct surveys and inspections of any of the Storage Facilities
or observe any Crude Oil or Product transmission, handling, metering or other activities being
conducted at such Storage Facilities or the Delivery Points; provided that such surveys,
inspections and observations shall not materially interfere with the ordinary course of business
being conducted at such Storage Facilities or the Refinery.



11.3 In the event that recalibration of meters, gauges or other measurement equipment is
requested by Aron, such as “strapping,” the Parties shall select a mutually agreeable certified and
licensed independent petroleum inspection company (the “Independent Inspection Company”) to
conduct such recalibration. The cost of the Independent Inspection Company is to be shared equally
by the Company and Aron.



11.4 Standards of Measurement. All quantity determinations herein will be corrected
to sixty (60) degrees Fahrenheit based on a U.S. gallon of two hundred thirty one (231) cubic
inches and forty two (42) gallons to the Barrel, in accordance with the latest supplement or
amendment to ASTM-IP petroleum measurement tables (Table 6A of ASTM-IP for Feedstocks and Table 6B
of ASTM-IP for Products).


 


41









 





11.5 To the extent that the Company or LOTT receives any inventory reports relating to a
survey of the quantity and quality of the physical inventory pursuant to the Stock Purchase
Agreement or generated by any third party, Aron shall promptly receive the survey report
generated thereunder, which report shall be addressed to Aron.



11.6 Each Party agrees to provide the other Parties with reasonable access to any reports and
other information provided to it by third party service providers (including storage facilities and
pipelines) with respect to volumes of Crude Oil and Products that are subject to this Agreement and
held and/or transported by such third party service providers.



ARTICLE 12




FINANCIAL INFORMATION; CREDIT SUPPORT; AND ADEQUATE ASSURANCES




12.1 Provision of Financial Information. The Company shall provide Aron (i) within
ninety (90) days following the end of each of its fiscal years, (a) a copy of the Annual Report on
Form 10-K, containing audited consolidated financial statements of Delek US Holdings and its
consolidated subsidiaries for such fiscal year certified by independent certified public
accountants and (b) the balance sheet, statement of income and statement of cash flow of the
Company for such fiscal year, as reviewed by the Company’s independent certified public
accountants, and (ii) within sixty (60) days after the end of its first three fiscal quarters of
each fiscal year, a copy of the quarterly report, containing unaudited consolidated financial
statements Delek US Holdings and its consolidated subsidiaries for such fiscal quarter; provided
that so long as Delek US Holdings is required to make public filings of its quarterly and annual
financial results pursuant to the Exchange Act, such filings are available on the SEC’s EDGAR
database and such filings are made in a timely manner, then the Company will not be required to
provide such annual or quarterly financial reports of Delek US Holdings to Aron. In all cases the
statements shall be for the most recent accounting period and prepared in accordance with GAAP or
such other principles then in effect.



12.2 Additional Information. Upon reasonable notice, the Company shall provide to
Aron such additional information as Aron may reasonably request to enable it to ascertain the
current financial condition of the Company, including product reports in the form of Schedule S.



12.3 Notification of Certain Events. The Company shall notify Aron within one (1)
Business Day after learning of any of the following events:




(a) The Company’s or any of its Affiliates’ binding agreement to sell, lease, sublease,
transfer or otherwise dispose of, or grant any Person (including an Affiliate) an option to
acquire, in one transaction or a series of related transactions, all or a material portion
of the Refinery assets; or




(b) The Company’s or any of its Affiliates’ binding agreement to consolidate or
amalgamate with, merge with or into, or transfer all or substantially all of its assets to,
another entity (including an Affiliate).




(c) An early termination of or any notice of “event of default” under any Base
Agreement.


 


42









 






(d) An early termination of or any notice of “event of default” under the Guarantee.




(e) An amendment to any Existing Financing Agreement or any other Financing Agreement.




(f) The execution of any agreement or other instrument or the announcement of any
transaction or proposed transaction by the Guarantor or any of its Affiliates relating to a
Change of Control of the Guarantor.




12.4 Credit Support.




(a) Guarantee. As a condition to Aron’s entering into this Agreement, the
Company has agreed to provide the Guarantee to Aron, as credit support for the prompt and
complete performance and payment of all of the Company’s obligations hereunder, and all
costs and expenses (including but not limited to the reasonable costs, expenses, and
external attorneys’ fees of Aron) of amending and maintaining the Guarantee shall be borne
by the Company.




(b) Letters of Credit.




(i) The Company may, from time to time, provide to Aron one or more Letters of
Credit as additional credit support and margin for or to secure prompt and complete
payment and performance of all of the Company’s and LOTT’s obligations hereunder;
provided that all costs and expenses (including but not limited to the reasonable
costs, expenses, and external attorneys’ fees of Aron) of establishing, renewing,
substituting, canceling, increasing, and reducing the amount of (as the case may be)
the Letters of Credit shall be borne by the Company.




(ii) A Letter of Credit shall provide that Aron may draw upon the Letter of
Credit in an amount (up to the face amount for which the Letter of Credit has been
issued) that is equal to all amounts that are due and owing from the Company or LOTT
but have not been paid to Aron within the time allowed for such payments under this
Agreement or any other Transaction Document (including any related notice or grace
period or both). A Letter of Credit shall provide that a drawing shall be made on
the Letter of Credit upon submission to the bank issuing the Letter of Credit of one
or more certificates specifying the amounts due and owing to Aron in accordance with
the specific requirements of the Letter of Credit.



 


43









 





(iii) If the Company shall fail to renew, extend or replace a Letter of Credit
more than twenty (20) Business Days prior to its expiry date, then Aron may draw on
the entire, undrawn portion of such outstanding Letter of Credit upon submission to
the bank issuing such Letter of Credit of one or more certificates specifying the
amounts due and owing to Aron in accordance with the specific requirements of the
Letter of Credit. Any proceeds received as a result of such drawing may, in Aron’s
discretion, be applied in payment of any amount

due to Aron hereunder or under the other Transactions Documents (including any
amount being due under Section 10.1(g)(iv) above) or retained as additional cash
collateral and margin to secure the prompt and complete the payment and performance
of, all of the Company’s and LOTT’s obligations hereunder. The Company shall remain
liable for any amounts due and owing to Aron and remaining unpaid after the
application of the amounts so drawn by Aron.




(c) Nothing in this Section 12.4 shall limit any rights of Aron under any other
provision of this Agreement, including under Article 18 below.



12.5 Adequate Assurances. If, during the Term of this Agreement, a Material Adverse
Change has occurred with respect to the Company and is continuing, then Aron may notify the Company
thereof and demand in writing that the Company provide to Aron adequate assurance of the Company’s
ability to perform its obligations hereunder. Such adequate assurance (the “Adequate
Assurance”) may take the form of a prepayment from the Company to Aron in such amount as Aron
reasonably deems sufficient, a provision of additional credit support in the form of letters of
credit, third party guaranties and/or collateral security in such forms and amount and provided by
such parties as Aron reasonably deems sufficient or such other form of assurance as Aron reasonably
deems sufficient, in each case taking into account such Material Adverse Change. If such adequate
assurance is not received within ten (10) Business Days after such demand by Aron, then such
failure shall constitute an Event of Default by the Company under clause (g) of Section
18.1.



ARTICLE 13




REFINERY TURNAROUND, MAINTENANCE AND CLOSURE




13.1 The Company shall promptly notify Aron in writing of the date for which any maintenance
or turnaround at the Refinery has been scheduled, or any revision to previously scheduled
maintenance or turnaround, which may impair receipts of Crude Oil at the Refinery or the Storage
Facilities, the processing of Crude Oil in the Refinery or the delivery of Products to Aron or by
Aron to the Company or any third parties; provided that, (i) promptly after the Company completes
its annual business plan with respect to any year, it shall notify Aron of any such maintenance or
turnaround contemplated with respect to such year and (ii) the Company shall give Aron at least two
(2) months’ prior written notice of any such scheduled maintenance or turnaround.



13.2 The Company shall promptly notify Aron orally (followed by prompt written notice) of any
previously unscheduled material downtime, maintenance or turnaround and its expected duration.



13.3 In the event of a scheduled shutdown of the Refinery, the Company shall, to the extent
feasible, complete processing of all Crude Oil being charged to, processed at or consumed in the
Refinery at that time.


 


44









 





ARTICLE 14




TAXES




14.1 The Company shall pay and indemnify and hold Aron harmless against, the amount of all
sales, use, gross receipts, value added, severance, ad valorem, excise, property, spill,
environmental, transaction-based, or similar taxes, duties and fees, howsoever designated (each, a
“Tax” and collectively, “Taxes”) regardless of the taxing authority, and all
penalties and interest thereon, paid, owing, asserted against, or incurred by Aron directly or
indirectly with respect to the Crude Oil procured and sold, and the Products purchased and resold,
and other transactions contemplated hereunder to the greatest extent permitted by applicable law;
in the event that the Company is not permitted to pay such Taxes, the amount due hereunder shall be
adjusted such that the Company shall bear the economic burden of the Taxes. The Company shall pay
when due such Taxes unless there is an applicable exemption from such Tax, with written
confirmation of such Tax exemption to be contemporaneously provided to Aron. To the extent Aron is
required by law to collect such Taxes, one hundred percent (100%) of such Taxes shall be added to
invoices as separately stated charges and paid in full by the Company in accordance with this
Agreement, unless the Company is exempt from such Taxes and furnishes Aron with a certificate of
exemption. Aron shall be responsible for all taxes imposed on Aron’s net income.



14.2 If the Company disagrees with Aron’s determination that any Tax is due with respect to
transactions under this Agreement, the Company shall have the right to seek an administrative
determination from the applicable taxing authority, or, alternatively, the Company shall have the
right to contest any asserted claim for such Taxes in its own name, subject to its agreeing to
indemnify Aron for the entire amount of such contested Tax (including any associated interest
and/or late penalties) should such Tax be deemed applicable. Aron agrees to reasonably cooperate
with the Company, at the Company’s cost and expense, in the event the Company determines to contest
any such Taxes.



14.3 The Company and Aron shall promptly inform each other in writing of any assertion by a
taxing authority of additional liability for Taxes in respect of said transactions. Any legal
proceedings or any other action against Aron with respect to such asserted liability shall be under
Aron’s direction, but the Company shall be consulted. Any legal proceedings or any other action
against the Company with respect to such asserted liability shall be under the Company’s direction,
but Aron shall be consulted. In any event, the Company and Aron shall fully cooperate with each
other as to the asserted liability. Each Party shall bear all the reasonable costs of any action
undertaken by the other at the Party’s request.



14.4 Any other provision of this Agreement to the contrary notwithstanding, this Article
14 shall survive until ninety (90) days after the expiration of the statute of limitations for
the assessment, collection, and levy of any Tax.


 


45









 





ARTICLE 15




INSURANCE




15.1 Insurance Coverages. The Company shall procure and maintain in full force and
effect throughout the Term of this Agreement insurance coverages of the following types and amounts
and with insurance companies rated not less than A- by A.M. Best, or otherwise equivalent in
respect of the Company’s properties and operations:




(a) Property damage coverage on an “all risk” basis in an amount sufficient to cover
the market value or potential full replacement cost of all Crude Oil and Products owned by
Aron or the Company Parties in inventory at any location hereunder. In the event that the
market value or potential full replacement cost of all Crude Oil and Products exceeds the
insurance limits available or the insurance limits available at commercially reasonable
rates in the insurance marketplace, the Company will maintain the highest insurance limit
available at commercially reasonable rates; provided, however, that the Company will
promptly notify Aron of the Company’s inability to fully insure any Crude Oil and Products
and provide full details of such inability. Such policies shall be endorsed to name Aron as
a loss payee with respect to any of Aron’s Crude Oil or Product in the care, custody or
control of the Company. Notwithstanding anything to the contrary herein, Aron, may, at its
option and its sole expense, endeavor to procure and provide such property damage coverage
for the Crude Oil and Products; provided that, to the extent any such insurance is
duplicative with insurance procured by the Company, the insurance procured by the Company
shall in all cases represent, and be written to be, the primary coverage.




(b) Comprehensive or commercial general liability coverage and umbrella or excess
liability coverage, which includes bodily injury, broad form property damage and contractual
liability, products and completed operations liability and “sudden and accidental pollution”
liability coverage in the minimum amounts indicated on Schedule F. Such policies shall
include Aron as an additional insured with respect to any of Aron’s Crude Oil or Products in
the care, custody or control of the Company.




15.2 Additional Insurance Requirements.




(a) The foregoing policies shall include an endorsement that the underwriters waive all
rights of subrogation against Aron.




(b) The Company shall cause its insurance carriers to furnish Aron with insurance
certificates, in ACORD form or equivalent, evidencing the existence of the coverages and the
endorsements required above. The Company shall provide thirty (30) days’ written notice
prior to cancellation of insurance becoming effective. The Company also shall provide
renewal certificates within thirty (30) days before expiration of the policy.




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


 


46









 






(d) The Company shall comply with all notice and reporting requirements in the
foregoing policies and timely pay all premiums.



ARTICLE 16




FORCE MAJEURE




16.1 If a Party is rendered unable by an event of Force Majeure to perform in whole or in part
any obligation or condition of this Agreement (the “Affected Party”), it shall not be
liable to the other Party to perform such obligation or condition (except for payment and
indemnification obligations) for so long as the event of Force Majeure exists and to the extent
that performance is prevented or materially hindered by such event of Force Majeure; provided,
however, that the Affected Party shall use any commercially reasonable efforts to mitigate, avoid
or remove the event of Force Majeure. During the period that performance by the Affected Party of
a part or whole of its obligations has been suspended by reason of an event of Force Majeure, the
other Party (the “Non-Affected Party”) likewise may suspend the performance of all or a
part of its obligations to the extent that such suspension is commercially reasonable, except for
any payment and indemnification obligations. The Parties acknowledge that if, as a result of a
Force Majeure, the Company were to suspend its receipt and/or processing of Crude Oil, then Aron
would be entitled to suspend, to a comparable extent, its purchasing of Products. To the extent
that Aron is unable to perform hereunder as a result of any event of Force Majeure as described in
the last sentence of the definition of such term set forth above, such event shall constitute a
material hindrance for purposes of this Section 16.



16.2 The Affected Party shall give prompt notice to the Non-Affected Party of its declaration
of an event of Force Majeure, to be followed by written notice within twenty-four (24) hours after
receiving notice of the occurrence of a Force Majeure event, including, to the extent feasible, the
details and the expected duration of the Force Majeure event and the volume of Crude Oil or
Products affected. The Affected Party also shall promptly notify the Non-Affected Party when the
event of Force Majeure is terminated. However, the failure or inability of the Affected Party to
provide such notice within the time periods specified above shall not preclude it from declaring an
event of Force Majeure.



16.3 In the event the Affected Party’s performance is suspended due to an event of Force
Majeure in excess of ninety (90) consecutive days after the date that notice of such event is
given, and so long as such event is continuing, the Non-Affected Party, in its sole discretion, may
terminate or curtail its obligations under this Agreement affected by such event of Force Majeure
(the “Affected Obligations”) by giving notice of such termination or curtailment to the
Affected Party, and neither Party shall have any further liability to the other in respect of such
Affected Obligations to the extent terminated or curtailed, except for the rights and remedies
previously accrued under this Agreement, any payment and indemnification obligations by either
Party under this Agreement and the obligations set forth in Article 19.



16.4 If any Affected Obligation is not terminated pursuant to this Article 16 or any
other provision of this Agreement, performance shall resume to the extent made possible by the end
or amelioration of the event of Force Majeure in accordance with the terms of this Agreement;
provided, however, that the term of this Agreement shall not be extended.


 


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16.5 The Parties acknowledge and agree that the right of Aron to declare a Force Majeure based
upon any failure by a Third Party Supplier to deliver Crude Oil under a Procurement Contract is
solely for purposes of determining the respective rights and obligations as between Aron and the
Company with respect to any Crude Oil delivery affected thereby, and any such declaration shall not
excuse the default of such Third Party Supplier under one or more Procurement Contracts. Any
claims that Aron may have as a result of such Third Party Supplier’s failure shall be subject to
Section 5.9 and any other applicable provisions of this Agreement relating to claims
against third parties.



16.6 If at anytime during the Term any of the Required Storage and Transportation Arrangements
cease to be in effect (in whole or in part) or any of the Included Crude Pipeline, Included Product
Pipeline or Included Third Party Storage Tanks cease, in whole or in part, to be available to Aron
pursuant to the Required Storage and Transportation Arrangements, and the foregoing is a result of
or attributable to any owner or operator of the Included Crude Pipeline, Included Product Pipeline
or Included Third Party Storage Tanks becoming Bankrupt or breaching or defaulting in any of its
obligations relating to the Required Storage and Transportation Arrangements, then:




(a) The Company shall promptly use commercially reasonable efforts to establish for
Aron’s benefit alternative and/or replacement storage and transportation arrangements no
less favorable to Aron (in Aron’s reasonable judgment) than those that have ceased to be
available;




(b) Until such alternative and/or replacement arrangements complying with clause (a)
above have been established, each Party shall be deemed to have been affected by an event of
Force Majeure and its obligations under this Agreement shall be curtailed to the extent such
performance is prevented or materially hindered by such lack of effectiveness of any
Required Storage and Transportation Arrangements or the availability of any pipeline or
storage facility related thereto; and




(c) Without limiting the generality of the foregoing, in no event shall Aron have any
obligation under or in connection with this Agreement to store Crude Oil or Product in any
pipeline or store Crude Oil or Product in any storage facility at any time from and after
the owner or operator thereof becoming Bankrupt.



ARTICLE 17




REPRESENTATIONS, WARRANTIES AND COVENANTS




17.1 Mutual Representations. Each Party represents and warrants to the other Party as
of the Commencement Date and each sale of Crude Oil hereunder, that:




(a) It is an “Eligible Contract Participant” as defined in Section 1a(12) of the
Commodity Exchange Act, as amended.




(b) It is a “forward contract merchant” in respect of this Agreement and this Agreement
and each sale of Crude Oil or Products hereunder constitutes a “forward contract,” as such
term is used in Section 556 of the Bankruptcy Code.


 


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(c) It is duly organized and validly existing under the laws of the jurisdiction of its
organization or incorporation and in good standing under such laws.




(d) It has the corporate, governmental or other legal capacity, authority and power to
execute and deliver the Transaction Documents and to perform its obligations under this
Agreement, and has taken all necessary action to authorize the foregoing.




(e) The execution, delivery and performance of the Transaction Documents and the
performance of its obligations thereunder and the consummation of the transactions
contemplated thereby do not violate or conflict with any Applicable Law, any provision of
its constitutional documents, any order or judgment of any court or Governmental Authority
applicable to it or any of its assets or any contractual restriction binding on or affecting
it or any of its assets.




(f) All governmental and other authorizations, approvals, consents, notices and filings
that are required to have been obtained or submitted by it with respect to the Transaction
Documents have been obtained or submitted are in full force and effect, and all conditions
of any such authorizations, approvals, consents, notices and filings have been complied
with.




(g) Its obligations under the Transaction Documents constitute its legal, valid and
binding obligations, enforceable in accordance with its terms (subject to applicable
bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’
rights generally and subject, as to enforceability, to equitable principles of general
application regardless of whether enforcement is sought in a proceeding in equity or at
law).




(h) No Event of Default or Default has occurred and is continuing, and no such event or
circumstance would occur as a result of its entering into or performing its obligations
under the Transaction Documents.




(i) There is not pending or, to its knowledge, threatened against it or any of its
Affiliates any action, suit or proceeding at law or in equity or before any court, tribunal,
Governmental Authority, official or any arbitrator that is likely to affect the legality,
validity or enforceability against it of this Agreement or its ability to perform its
obligations under the Transaction Documents.




(j) It is not relying upon any representations of the other Party other than those
expressly set forth in this Agreement.




(k) It has entered into this Agreement as principal (and not as advisor, agent, broker
or in any other capacity, fiduciary or otherwise), with a full understanding of the material
terms and risks of the same, and is capable of assuming those risks.




(l) It has made its trading and investment decisions (including their suitability)
based upon its own judgment and any advice from its advisors as it has deemed necessary and
not in reliance upon any view expressed by the other Party.


 


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(m) The other Party (i) is acting solely in the capacity of an arm’s-length contractual
counterparty with respect to this Agreement, (ii) is not acting as a financial advisor or
fiduciary or in any similar capacity with respect to this Agreement and (iii) has not given
to it any assurance or guarantee as to the expected performance or result of this Agreement.




(n) It is not bound by any agreement that would preclude or hinder its execution,
delivery, or performance of this Agreement.




(o) Neither it nor any of its Affiliates has been contacted by or negotiated with any
finder, broker or other intermediary in connection with the sale of Crude Oil or Products
hereunder who is entitled to any compensation with respect thereto.


None of its directors, officers, employees or agents or those of its Affiliates has received or
will receive any commission, fee, rebate, gift or entertainment of significant value in connection
with this Agreement.




17.2 Company’s and LOTT’s Representations and Covenants. The Company Parties
represent and warrant to and agree with Aron as follows:




(a) The Company and LOTT (each, a “Company Party,” and collectively, the “Company
Parties”) have delivered true and complete copies of the Base Agreements and Required
Storage and Transportation Arrangements and all amendments thereto to Aron.




(b) Each Company Party shall in all material respects continue to perform its
obligations under and comply with the terms of the Base Agreements and Required Storage and
Transportation Arrangements.




(c) Each Company Party shall maintain and pursue diligently all its material rights
under the Base Agreements and Required Storage and Transportation Arrangements and take all
reasonable steps to enforce any rights granted to the applicable Company Party thereunder.




(d) Neither Company Party shall modify, amend or waive rights arising under the Base
Agreements or Required Storage and Transportation Arrangements without the prior written
consent of Aron; provided, however, that if a Company Party provides Aron with notice, the
Company Party may make such modifications or amendments, including extensions or elections
under any of the foregoing, that do not adversely affect Aron’s rights thereunder or
otherwise interfere with Aron’s rights to use the Pipeline Systems and Included Third Party
Storage Tanks subject thereto without the prior written consent of Aron.




(e) Neither Company Party shall cause or permit any of the Crude Oil or Products held
at the Included Locations to become subject to any liens or encumbrances, other than
Permitted Liens.




(f) The Company has delivered true and complete copies of the Existing Financing
Agreements and all amendments thereto to Aron.


 


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(g) The Company shall not modify or amend (including any extensions of or elections
under), or waive any rights arising under, any Existing Financing Agreement without the
prior written consent of Aron, if doing so would (i) adversely affect in any respect any of
Aron’s rights or remedies under this Agreement or the other Transaction Documents or (ii)
cause such Existing Financing Agreement to no longer satisfy the conditions set forth in
Section 2.1(f) and Section 2.1(g) above, including, without limitation, the
recognition that Aron is the owner of Crude Oil and Products to the extent contemplated
hereby and by the other Transaction Documents, free and clear of any liens of any lender or
other creditor that is party to such Financing Agreement, other than Permitted Liens.




(h) The Company Parties represent and warrant that to their knowledge, none of its
Affiliates are party to any credit agreement, indenture or other financing agreement under
which the Company Parties or any of their subsidiaries may incur or become liable for
indebtedness for borrowed money (including capitalized lease obligations and reimbursement
obligations with respect to letters of credit) but only if the covenants thereunder limit or
otherwise apply to any of the business, assets or operations of the Company or LOTT.




(i) The Company Parties represent and warrant that, to their knowledge, Schedule U
hereto contains a complete list of all storage, loading and offloading facilities owned,
operated, leased or used pursuant to a contractual right of use by the Company or LOTT (the
“Available Storage and Transportation Facilities”).




(j) Neither Company Party shall, from and after the Effective Date, enter into any
Financing Agreement (an “Additional Financing Agreement”) unless such Additional Financing
Agreement, at the time it is entered into, (i) contains provisions that recognize the
respective rights and obligations of the Parties under this Agreement and the other
Transaction Documents, (ii) does not adversely affect in any respect any of Aron’s rights or
remedies under this Agreement or the other Transaction Documents and (iii) satisfies the
conditions in Section 2.1(f) and Section 2.1(g) to the same extent as if
such Additional Financing Agreement were an Existing Financing Agreement, including, without
limitation, the recognition that Aron is the owner of Crude Oil and Products to the extent
contemplated hereby and by the other Transaction Documents, free and clear of any liens of
any lender or other creditor that is party to such Financing Agreement, other than Permitted
Liens. Neither Company Party shall modify or amend (including any extensions of or
elections under), or waive any rights arising under, any Additional Financing Agreement
without the prior written consent of Aron, if doing so would (i) adversely affect in any
respect any of Aron’s rights or remedies under this Agreement or the other Transaction
Documents or (ii) cause such Additional Financing Agreement to no longer satisfy the
conditions set forth in Section 2.1(f) and Section 2.1(g) above to the same
extent as if such Additional Financing Agreement were an Existing Financing Agreement,
including, without limitation, the recognition that Aron is the owner of Crude Oil and
Products to the extent contemplated hereby and by the other Transaction Documents, free and
clear of any liens of any lender or other creditor that is party to such Financing
Agreement, other than Permitted Liens.


 


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(k) To the extent deemed necessary or appropriate by Aron, the Company shall cause
acknowledgements and/or releases (including without limitation, amendments or termination of
UCC financing statements), in form and substance satisfactory to Aron, to be duly executed
by lenders or other creditors that are party to Existing Financing Agreements, confirming
the release of any lien in favor of such lender or other creditor that might apply to or be
deemed to apply to any Crude Oil and/or Products of which Aron is the owner as contemplated
by this Agreement and the other Transaction Documents and agreeing to provide Aron with such
further documentation as it may reasonably request in order to confirm the foregoing;




(l) The Company Parties represent and warrant that the Storage Facilities have been
maintained, repaired, inspected and serviced such that they are in good working order and
repair. The Company hereby represents, warrants and covenants that it will take commercially
reasonable actions to maintain, repair, inspect and service the Storage Facilities in
accordance with industry standards.




(m) In the case of any Bankruptcy with respect to a Company Party, and to the extent
permitted by applicable law, the Company Party intends that (i) Aron’s right to liquidate,
collect, net and set off rights and obligations 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) Aron 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 transactions contemplated hereby shall constitute “margin payments” as defined in
section 101(38) of the Bankruptcy Code and all payments for, under or in connection with the
transactions contemplated hereby, shall constitute “settlement payments” as defined in
section 101(51A) of the Bankruptcy Code.




(n) The Company Parties agree that they shall have no interest in or the right to
dispose of, and shall not permit the creation of, or suffer to exist, any security interest,
lien, encumbrance, charge or other claim of any nature, other than Permitted Liens, with
respect to any quantities of Crude Oil prior to the delivery thereof by Aron to the Company
at the Crude Delivery Point or any quantities of Products after delivery thereof to Aron at
the Products Delivery Point (collectively, “Aron’s Property”). The Company Parties
authorize Aron to file at any time and from time to time any Uniform Commercial Code
financing statements describing the quantities of Aron’s Property subject to this Agreement
and Aron’s ownership thereof and title thereto, and the Company Parties hereby authorizes
Aron to file (with or without the Company’s signature), at any time and from time to time,
all amendments to financing statements, assignments, continuation financing statements,
termination statements, and other documents and instruments, in form reasonably satisfactory
to Aron, as Aron may reasonably request, to provide public notice of Aron’s ownership of and
title to the quantities of Aron’s Property subject to this Agreement and to otherwise
protect Aron’s interest therein.


 


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(o) As additional security for the prompt and complete payment and performance of all
obligations of the Company Parties arising hereunder or under the other Transaction
Documents and under all transactions contemplated thereby (collectively, the “Obligations”),
the Company Parties hereby grant to Aron a present and continuing security interest in all
of such Company Parties’ right, title and interest in, to and under all crude oil, refined
petroleum products and other hydrocarbons inventory from time to time owned by either
Company Party, wherever located and whether now existing or owned or hereafter acquired or
arising (collectively, the “Inventory Collateral”). Each Company Party hereby authorizes
Aron to file at any time and from time to time any financing statements describing the
Inventory Collateral, and each Company Party hereby authorizes Aron to file (with or without
such Company Party’s signature), at any time and from time to time, all amendments to
financing statements, continuation financing statements, termination statements, notices and
all other documents and instruments, in form satisfactory to Aron, as Aron may reasonably
request, to maintain the priority and perfection or provide notice of Aron’s security
interest in the Inventory Collateral and to accomplish the purposes of this Agreement. With
respect to the Inventory Collateral, each Company Party (i) represents and warrants that (A)
its chief executive office and principal place of business (as of the date of this
Agreement) is located at the address set forth in the introductory paragraph of this
Agreement, and all other locations (as of the date of this Agreement) where such Company
Party conducts business or Inventory Collateral is kept are set forth in the introductory
paragraph of this Agreement, and (B) this Section 17.2(o) creates an enforceable security
interest in the Inventory Collateral in favor of Aron and, upon filing the initial financing
statements contemplated above, Aron shall have a perfected, first priority lien on and
security interest in the Inventory Collateral and (ii) covenants and agrees that, so long as
this Agreement or any Transaction Documents remain in effect or any Obligations remain
unsatisfied, it will not create, agree or consent to any Liens on the Inventory Collateral
(other than the lien granted to Aron hereunder) other than Permitted Liens. Upon the
occurrence and during the continuance of any Event of Default with respect to a Company
Party, Aron shall have, in addition to all other rights and remedies granted to it in this
Agreement or any other Transaction Document, all the rights and remedies of a secured party
under the UCC and other applicable laws.



17.3 Acknowledgment. The Company Parties acknowledge and agree that (1) Aron is a
merchant of Crude Oil and Products and may, from time to time, be dealing with prospective
counterparties, or pursuing trading or hedging strategies, in connection with aspects of Aron’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 either Company Party, (2) Aron
may, in its sole discretion, determine whether to advise the Company Party of any potential
transaction with a Third Party Supplier and prior to advising the Company Party of any such
potential transaction Aron may, in its discretion, determine not to pursue such transaction or to
pursue such transaction in connection with another aspect of Aron’s business and Aron shall have no
liability of any nature to either Company Party as a result of any such determination, (3) Aron has
no fiduciary or trust obligations of any nature with respect to the Refinery or either Company
Party or any of its Affiliates, (4) Aron may enter into transactions and purchase Crude Oil or
Products for its own account or the account of others at prices more favorable than those being
paid by either Company Party hereunder and (5) nothing herein shall be construed to prevent
Aron, or any of its partners, officers, employees or Affiliates, in any way from purchasing,
selling or otherwise trading in Crude Oil, Products 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.


 


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ARTICLE 18




DEFAULT AND TERMINATION




18.1 Events of Default. Notwithstanding any other provision of this Agreement, the
occurrence of any of the following shall constitute an “Event of Default”:




(a) Any Party fails to make payment when due (i) under Article 10, Article
19 or any Company Purchase Agreement within one (1) Business Day after a written demand
therefor or (ii) under any other provision hereof or any other Transaction Document within
five (5) Business Days; or




(b) Other than a default described in Sections 18.1(a) and 18.1(c), any Party
fails to perform any material obligation or covenant to the other under this Agreement or
any other Transaction Document, which is not cured to the reasonable satisfaction of any
other Party (in its sole discretion) within ten (10) Business Days after the date that such
Party receives written notice that such obligation or covenant has not been performed; or




(c) Any Party breaches any material representation or material warranty made or
repeated or deemed to have been made or repeated by the Party, or any warranty or
representation proves to have been incorrect or misleading in any material respect when made
or repeated or deemed to have been made or repeated under any Transaction Document;
provided, however, that if such breach is curable, such breach is not cured to the
reasonable satisfaction of the other Party within ten (10) Business Days after the date that
such Party receives notice that corrective action is needed; or




(d) Any Party becomes Bankrupt; or




(e) Any Party or any of its Designated Affiliates (1) defaults under a Specified
Transaction and, after giving effect to any applicable notice requirement or grace period,
there occurs a liquidation of, an acceleration of obligations under, or any early
termination of, that Specified Transaction, (2) 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, a
Specified Transaction (or such default continues for at least three (3) Business Days if
there is no applicable notice requirement or grace period) or (3) disaffirms, disclaims,
repudiates or rejects, in whole or in part, a Specified Transaction (or such action is taken
by any person or entity appointed or empowered to operate it or act on its behalf); or




(f) (i) Either Company Party fails in a material respect to perform its obligations
under, comply with, or maintain a Base Agreement or the Required Storage and Transportation
Arrangements; or (ii) either Company Party breaches in a material
respect its obligations under Section    or
Section 17.2(e);


 


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(g) A Company Party or any of its Affiliates sells, leases, subleases, transfers or
otherwise disposes of, in one transaction or a series of related transactions, all or a
material portion of the assets of the Refinery; or




(h) The Company or LOTT (i) consolidates or amalgamates with, merges with or into, or
transfers all or substantially all of its assets to, another entity (including an Affiliate)
or any such consolidation, amalgamation, merger or transfer is consummated, and (ii)(A) the
successor entity resulting from any such consolidation, amalgamation or merger or the Person
that otherwise acquires all or substantially all of the assets of the Company or LOTT does
not assume, in a manner satisfactory to Aron, all of the Company’s obligations hereunder and
under the other Transaction Documents, or (B) in the reasonable judgment of Aron, the
creditworthiness of the resulting, surviving or transferee entity, taking into account any
guaranties, is materially weaker than the Company immediately prior to the consolidation,
amalgamation, merger or transfer; or




(i) The Company fails to provide Adequate Assurance in accordance with Section
11.3; or




(j) There shall occur either (A) a default, event of default or other similar condition
or event (however described) in respect of either Company Party or any of its Affiliates
under one or more agreements or instruments relating to Specified Indebtedness in an
aggregate amount of not less than ************* which has resulted in such Specified
Indebtedness becoming due and payable under such agreements and instruments before it would
have otherwise been due and payable or (B) a default by either Company Party (individually
or collectively) in making one or more payments on the due date thereof in an aggregate
amount of not less than ************* under such agreements or instruments (after giving
effect to any applicable notice requirement or grace period); or




(k) An “Event of Default” has occurred under any of the Existing Financing Agreements
or any other Financing Agreements; or




(l) Any of the parties under any of the Existing Financing Agreements or any other
Financing Agreements shall disaffirm, disclaim, repudiate or reject, in whole or in part, or
challenge the validity of this Agreement; or




(m) Any of the following: (i) the Guarantor fails to perform or otherwise defaults in
any obligation under the Guarantee, (ii) the Guarantor becomes Bankrupt, (iii) the Guarantee
expires or terminates or ceases to be in full force and effect prior to the satisfaction of
all obligations of the Company, LOTT or any other subsidiary of the Company to Aron under
this Agreement and the other Transaction Documents, (iv) the Guarantor disaffirms,
disclaims, repudiates or rejects, in whole or in part, or challenges the validity of, the
Guarantee or (v) a Change of Control occurs.


 


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The Company shall be the Defaulting Party upon the occurrence of any of the events described in
clauses (f)-(m) (inclusive) above. If any of the events described in clauses (a) — (e) occurs
with respect to or is caused by LOTT or any other subsidiary of the Company, the Company shall be
the Defaulting Party upon the occurrence of such event.





18.2 Remedies Upon Event of Default.




(a) Notwithstanding any other provision of this Agreement, if any Event of Default with
respect to a Company, on the one hand, or Aron, on the other hand (such defaulting Party,
the “Defaulting Party”) has occurred and is continuing, Aron (where the Company is
the Defaulting Party) or the Company (where Aron is the Defaulting Party) (such
non-defaulting Party or Parties, the “Non-Defaulting Party”) may, without notice,
(i) declare all of the Defaulting Party’s obligations under this Agreement to be forthwith
due and payable, all without presentment, demand, protest or further notice of any kind, all
of which are expressly waived by the Defaulting Party and/or (ii) subject to Section
18.2(c), exercise any rights and remedies provided or available to the Non-Defaulting
Party under this Agreement or at law or equity, including all remedies provided under the
Uniform Commercial Code and as provided under this Section 18.2.




(b) Notwithstanding any other provision of this Agreement, if an Event of Default has
occurred and is continuing with respect to the Defaulting Party, the Non-Defaulting Party
shall have the right, immediately and at any time(s) thereafter, to terminate this Agreement
(and any other contract or agreement that may then be outstanding among the Parties that
relates specifically to this Agreement, including any Transaction Document) and, subject to
Section 18.2(c), to liquidate and terminate any or all rights and obligations under
this Agreement. The Settlement Amount (as defined below) shall be calculated in a
commercially reasonable manner based on such liquidated and terminated rights and
obligations and shall be payable by one Party to the others. The “Settlement
Amount” shall mean the amount, expressed in U.S. Dollars, of losses and costs that are
or would be incurred by the Non-Defaulting Party (expressed as a positive number) or gains
that are or would be realized by the Non-Defaulting Party (expressed as a negative number)
as a result of the liquidation and termination of all rights and obligations under this
Agreement. The determination of the Settlement Amount shall include (without duplication):
(w) all reasonable losses and costs (or gains) incurred or realized by the Non-Defaulting
Party, as a result of the Non-Defaulting Party’s terminating, liquidating, maintaining,
obtaining or reestablishing any hedge or related trading positions in connection with such
termination, (x) the losses and costs (or gains) incurred or realized by the Non-Defaulting
Party in terminating, transferring, redeploying or otherwise modifying any outstanding
Procurement Contracts, (y) the losses and costs (or gains) incurred or realized by the
Non-Defaulting Party to the extent it elects to dispose of any Crude Oil or Product
inventories maintained for purposes of this Agreement and (z) if Aron is the Non-Defaulting
Party, an amount equal to the Remaining Annual Fee. If the Settlement Amount is a positive
number it shall be due to the Non-Defaulting Party and if it is a negative number, the
absolute value thereof shall be due to the Defaulting Party.


 


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(c) The Settlement Amount shall be determined by the Non-Defaulting Party, acting in
good faith, in a commercially reasonable manner. The Non-Defaulting Party shall determine
the Settlement Amount commencing as of the date on which such termination occurs by
reference to such futures, forward, swap and options markets as it shall select in its
commercially reasonable judgment; provided that the Non-Defaulting Party is not required to
effect such terminations and/or determine the Settlement Amount on a single day, but rather
may effect such terminations and determine the Settlement Amount over a commercially
reasonable period of time (the last day of which period shall be the “Default
Termination Date”). In calculating the Settlement Amount, the Non-Defaulting Party
shall discount to present value (in any commercially reasonable manner based on London
interbank rates for the applicable period and currency) any amount which would be due at a
later date and shall add interest (at a rate determined in the same manner) to any amount
due prior to the date of the calculation.




(d) Without limiting any other rights or remedies hereunder, if an Event of Default has
occurred and is continuing and Aron is the Non-Defaulting Party, Aron may, in its
discretion, (i) withhold or suspend its obligations, including any of its delivery or
payment obligations, under this Agreement, (ii) withdraw from storage any and all of the
Crude Oil and/or Products then in the Storage Facilities, (iii) otherwise arrange for the
disposition of any Crude Oil and/or Products subject to outstanding Procurement Contracts
and/or the modification, settlement or termination of such outstanding Procurement Contracts
in such manner as it elects and (iv) liquidate in a commercially reasonable manner any
credit support, margin or collateral, to the extent not already in the form of cash
(including making a demand under the Guarantee or any credit support, margin or collateral
arrangements) and apply and set off such payment under the Guarantee or any credit support,
margin or collateral or the proceeds thereof against any obligation owing by the Company to
Aron. Aron shall be under no obligation to prioritize the order with respect to which it
exercises any one or more rights and remedies available hereunder. The Company shall in all
events remain liable to Aron for any amount payable by the Company in respect of any of its
obligations remaining unpaid after any such liquidation, application and set off.




(e) Without limiting any other rights or remedies hereunder, if an Event of Default has
occurred and is continuing and the Company is the Non-Defaulting Party, the Company may, in
its discretion, (i) withhold or suspend its obligations, including any of its delivery or
payment obligations, under this Agreement and/or (ii) otherwise arrange for the settlement
or termination of the parties’ outstanding commitments hereunder, the sale in a commercially
reasonable manner of Crude Oil and/or Product for Aron’s account, and the replacement of the
supply and offtake arrangement contemplated hereby with such alternative arrangements as it
may procure, including, without limitation, notwithstanding anything herein to the contrary,
with respect to such replacement, the purchase of Crude Oil by the Company on its own
account and the storage of Product and Crude Oil owned by the Company in the Included
Locations.


 


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(f) The Non-Defaulting Party shall set off (i) the Settlement Amount (if due to the
Defaulting Party), plus any performance security (including the Guarantee or any credit
support, margin or collateral arrangements) then held by the Non-Defaulting Party
pursuant to the Transaction Documents, plus (at the Non-Defaulting Party’s election)
any or all other amounts due to the Defaulting Party hereunder (including under Article
10), against (ii) the Settlement Amount (if due to the Non-Defaulting Party), plus any
performance security (including the Guarantee or any credit support, margin or collateral
arrangements) then held by the Defaulting Party, plus (at the Non-Defaulting Party’s
election) any or all other amounts due to the Non-Defaulting Party hereunder (including
under Article 10), so that all such amounts shall be netted to a single liquidated
amount payable by one Party to the other (the “Liquidated Amount”). The Party with
the payment obligation shall pay the Liquidated Amount to the applicable other Parties
within one (1) Business Day after such amount has been determined.




(g) No delay or failure on the part of the Non-Defaulting Party in exercising any right
or remedy to which it may be entitled on account of any Event of Default shall constitute an
abandonment of any such right, and the Non-Defaulting Party shall be entitled to exercise
such right or remedy at any time during the continuance of an Event of Default.




(h) The Non-Defaulting Party’s rights under this Section 18.2 shall be in
addition to, and not in limitation or exclusion of, any other rights which the
Non-Defaulting Party may have (whether by agreement, operation of law or otherwise),
including any rights of recoupment, setoff, combination of accounts or other rights under
any credit support that may from time to time be provided in connection with this Agreement.
The Defaulting Party shall indemnify and hold the Non-Defaulting Party harmless from all
reasonable costs and expenses, including reasonable attorney fees, incurred in the exercise
of any remedies hereunder.




(i) If an Event of Default has occurred and is continuing, the Non-Defaulting Party and
any Affiliate thereof may, without limitation on its rights under this Section 18.2,
set off amounts which the Defaulting Party owes to it or any such Affiliate against any
amounts which it or such Affiliate owes to the Defaulting Party (whether hereunder, under
any other contract or agreement or otherwise and whether or not then due).




(j) The Parties acknowledge and agree that this Agreement is intended to be a “master
netting agreement” as such term is defined in section 101(38A) of the Bankruptcy Code.


 


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ARTICLE 19




SETTLEMENT AT TERMINATION




19.1 Upon expiration or termination of this Agreement for any reason other than as a result of
an Event of Default (in which case, the Expiration Date, the Early Termination Date or such other
date as the Parties may agree shall be the “Termination Date”), the Parties covenant and
agree to proceed as provided in this Article 19; provided that (x) this Agreement shall
continue in effect following the Termination Date until all obligations are finally settled as
contemplated by this Article 19 and (y) the provisions of this Article 19 shall in
no way limit the
rights and remedies that the Non-Defaulting Party may have as a result of an Event of Default,
whether pursuant to Article 18 above or otherwise:




(a) If any Procurement Contract does not either (i) by its terms automatically become
assigned to the Company on and as of the Termination Date in a manner that releases Aron
from all obligations thereunder for all periods following the Termination Date or (ii) by
its terms, expire or terminate on and as of the Termination Date, then the Parties shall
promptly negotiate and enter into, with each of the then existing Third Party Suppliers,
assignments, assumptions and/or such other documentation, in form and substance reasonably
satisfactory to the Parties, pursuant to which, as of the Termination Date, (i) such
Procurement Contract shall be assigned to the Company or shall be terminated, (ii) all
rights and obligations of Aron under each of the then outstanding Procurement Contracts
shall be assigned to the Company, (iii) the Company shall assume all of such obligations to
be paid or performed following such termination, and (iv) Aron shall be released by such
Third Party Suppliers and the Company from any further obligations thereunder. In
connection with the assignment or reassignment of any Procurement Contract, the Parties
shall endeavor, in a commercially reasonable manner, to facilitate the transitioning of the
supply and payment arrangements, including any change in payment terms, under the relevant
Procurement Contracts so as to prevent any material disruption in the supply of Crude Oil
thereunder.




(b) If, pursuant to the Marketing and Sales Agreement, any sales commitments are
outstanding that, by their terms, extend beyond the Termination Date, then the Parties shall
promptly negotiate and enter into, with each of the purchasers thereunder, assignments,
assumptions and/or such other documentation, in form and substance reasonably satisfactory
to the Parties, pursuant to which, as of the Termination Date, (i) such sales commitment
shall be assigned (or reassigned) to the Company or shall be terminated, (ii) all rights and
obligations of Aron with respect to each then outstanding sales commitment shall be assigned
to the Company, (iii) the Company shall assume all of such obligations to be paid or
performed following such termination, and (iv) Aron shall be released by the purchasers
thereunder and the Company from any further obligations with respect to such sales
commitments. In connection with the assignment or reassignment of any Procurement Contract,
the Parties shall endeavor, in a commercially reasonable manner, to facilitate the
transitioning of the Product marketing and sales arrangements so as to prevent any material
disruption in the distribution of Products from the Refinery.




(c) In the event that Aron has become a party to any other third party service contract
in connection with this Agreement and the transactions contemplated hereby, including any
pipeline, terminalling, storage and shipping arrangement including but not limited to the
Required Storage and Transportation Arrangements (an “Ancillary Contract”) and such
Ancillary Contract does not by its terms expire or terminate on and as of the Termination
Date, then the Parties shall promptly negotiate and enter into with each service provider
thereunder such instruments or other documentation, in form and substance reasonably
satisfactory to the Parties, pursuant to which as of the Termination Date (i) such Ancillary
Contract shall be assigned to the Company or shall be terminated, (ii) all rights and
obligations of Aron with respect to each then outstanding Ancillary
Contract shall be assigned to the Company, (iii) the Company shall assume all of such
obligations to be paid or performed following such termination, and (iv) Aron shall be
released by the third party service providers thereunder and the Company from any further
obligations with respect to such Ancillary Contract.


 


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(d) The volume of Crude Oil and Products at the Included Locations shall be purchased
and transferred as contemplated in the Step-Out Inventory Sales Agreement. The Crude Oil
volumes measured by the Independent Inspector at the Termination Date and recorded in the
Independent Inspector’s final inventory report shall be the “Termination Date Crude Oil
Volumes” for the purposes of this Agreement and the Product volumes measured by the
Independent Inspector at the Termination Date and recorded in the Independent Inspector’s
final inventory report shall be the “Termination Date Product Volumes” for purposes
of this Agreement, and such Termination Date Crude Oil Volumes and Termination Date Product
Volumes shall collectively be referred to as the “Termination Date Volumes”.




(e) Aron shall promptly reconcile and calculate the Termination Amount pursuant to
Section 19.2 and the amount shall be determined pursuant to Section 19.2.
The Parties shall promptly exchange all information necessary to determine the estimates and
final calculations contemplated by Section 19.2.




(f) Aron shall have no further obligation to purchase and shall not purchase or pay for
Crude Oil or Products, or incur any such purchase obligations on and after the Termination
Date. Except as may be required for Aron to fulfill its obligations hereunder until the
Termination Date or during any obligatory notice period pursuant to any Procurement
Contract, Aron shall not be obligated to purchase, take title to or pay for, and the Company
shall not be obligated to purchase or sell, any Crude Oil or Products following the
Termination Date or such earlier date as the Parties may determine in connection with the
transitioning of such supply arrangements to the Company. Notwithstanding anything to the
contrary herein, no Delivery Date shall occur later than the calendar day immediately
preceding the Termination Date.




(g) Aron shall release and return to the Company the Guarantee promptly after all
obligations due to Aron under this Agreement and the other Transactions Documents have been
satisfied in full.




19.2 Termination Amount.




(a) The “Termination Amount” shall equal:




(i) the Termination Date Purchase Value, which is the aggregate amount payable
to Aron under the Step-Out Inventory Sales Agreement, plus




(ii) all unpaid amounts payable hereunder by the Company to Aron in respect of
Crude Oil delivered on or prior to the Termination Date (including Deferred Interim
Payment Amount), plus


 


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(iii) all Ancillary Costs incurred through the Termination Date that have not
yet been paid or reimbursed by the Company, plus




(iv) in the case of an early termination, the amount reasonably determined by
Aron as the losses, costs and damages (in each case that are commercially reasonable
and for which Aron is able to provide to the Company reasonable supporting evidence)
it incurred or realized as a result of Aron’s terminating, liquidating, maintaining,
obtaining or reestablishing any hedge or related trading positions in connection
with such early termination, plus




(v) the aggregate amount due under Section 10.2(a), calculated as of
the Termination Date with such date being the final day of the last monthly period
for which such calculations are to be made under this Agreement; provided that, if
such amount under Section 10.2(a) is due to Aron, then such amount will be
included in this Termination Amount as a positive number and if such amount under
Section 10.2(a) would be an Interim Reset Amount it shall be due to the
Company and included in this Termination Amount as a negative number, plus




(vi) any unpaid portion of the Annual Fee owed to Aron pursuant to Section
10.3, plus




(vii) any FIFO Balance Final Settlement that is determined to be due pursuant
to Schedule N; provided that, if such FIFO Balance Final Settlement is due to Aron,
then such amount will be included in this Termination Amount as a positive number
and if such amount under Section 10.2(a) would be due to the Company, then
such amount will be included in this Termination Amount as a negative number, minus




(viii) all unpaid amounts payable hereunder by Aron to the Company in respect
of Product delivered on or prior to the Termination Date, minus




(ix) all amounts due from Aron to the Company under the Marketing and Sales
Agreement for services provided up to the Termination Date, minus




(x) an amount equal to the Deferred Portion, and




(xi) with respect to any contingent payable due under Section 10.2(e), plus any
such amount that is due from the Company to Aron or minus any such amount that is
due from Aron to the Company.



All of the foregoing amounts shall be aggregated or netted to a single liquidated amount owing from
one Party to the other. If the Termination Amount is a positive number, it shall be due to Aron
and if it is a negative number, the absolute value thereof shall be due to the Company.


 


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(b) The Parties acknowledge that one or more of the components of the Termination
Amount will not be able to be definitively determined by the Termination Date and therefore
agree that Aron shall, in a commercially reasonable manner, estimate each of such components
and use such estimated components to determine an estimate of
the Termination Amount (the “Estimated Termination Amount”) plus such
additional amount which Aron shall reasonably determine (the “Termination Holdback
Amount”); provided that the Termination Holdback Amount shall not be greater than ten
percent (10%) of the Definitive Commencement Date Value. Without limiting the generality of
the foregoing, the Parties agree that the amount due under Section 19.2(a)(i) above
shall be estimated by Aron in the same manner and using the same methodology as it used in
preparing the Estimated Commencement Date Value, but applying the “Step-Out Prices” as
indicated on Schedule B and other price terms provided for herein with respect to the
purchase of the Termination Date Volumes. Aron shall use its commercially reasonable
efforts to prepare, and provide the Company with, an initial Estimated Termination Amount,
together with appropriate supporting documentation, at least five (5) Business Days prior to
the Termination Date. To the extent reasonably practicable, Aron shall endeavor to update
its calculation of the Estimated Termination Amount by no later than 12:00 noon CPT on the
Business Day prior to the Termination Date. If Aron is able to provide such updated amount,
that amount shall constitute the Estimated Termination Amount and shall be due and payable
by no later than 5:00 p.m., CPT on the Business Day preceding the Termination Date.
Otherwise, the initial Estimated Termination Amount shall be the amount payable on the
Termination Date. If the Estimated Termination Amount is a positive number, it shall be due
to Aron and if it is a negative number, the absolute value thereof shall be due to the
Company.




(c) Aron shall prepare, and provide the Company with, (i) a statement showing the
calculation, as of the Termination Date, of the Termination Amount, (ii) a statement (the
“Termination Reconciliation Statement”) reconciling the Termination Amount with the
sum of the Estimated Termination Amount pursuant to Section 19.2(b) and the
Termination Holdback Amount and indicating any amount remaining to be paid by one Party to
the other as a result of such reconciliation. Within one (1) Business Day after receiving
the Termination Reconciliation Statement and the related supporting documentation, the
Parties will make any and all payments required pursuant thereto. Promptly after receiving
such payment, Aron shall cause any filing or recording of any Uniform Commercial Code
financing forms to be terminated.



19.3 Transition Services. To the extent necessary to facilitate the transition to the
Purchasers of the storage and transportation rights and status contemplated hereby, each Party
shall take such additional actions, execute such further instruments and provide such additional
assistance as the other Party may from time to time reasonably request for such purposes.


 


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ARTICLE 20




INDEMNIFICATION




20.1 To the fullest extent permitted by Applicable Law and except as specified otherwise
elsewhere in the Transaction Documents, Aron shall defend, indemnify and hold harmless the Company,
its Affiliates, and their directors, officers, employees, representatives, agents and contractors
for and against any Liabilities directly or indirectly arising out of (i) any breach by Aron of any
covenant or agreement contained herein or made in connection herewith or any representation or
warranty of Aron made herein or in connection herewith proving to be

false or misleading, (ii) any failure by Aron to comply with or observe any Applicable Law,
(iii) Aron’s negligence or willful misconduct, or (iv) injury, disease, or death of any person or
damage to or loss of any property, fine or penalty, any of which is caused by Aron or its
employees, representatives, agents or contractors in exercising any rights or performing any
obligations hereunder or in connection herewith, except to the extent that such injury, disease,
death, or damage to or loss of property was caused by the negligence or willful misconduct on the
part of the Company, its Affiliates or any of their respective employees, representatives, agents
or contractors.




20.2 To the fullest extent permitted by Applicable Law and except as specified otherwise
elsewhere in this Agreement, the Company shall defend, indemnify and hold harmless Aron, its
Affiliates, and their directors, officers, employees, representatives, agents and contractors for
and against any Liabilities directly or indirectly arising out of (i) any breach by the Company of
any covenant or agreement contained herein or made in connection herewith or any representation or
warranty of the Company made herein or in connection herewith proving to be false or misleading,
including, without limitation the Company’s obligation for payment of taxes pursuant to Section
14.1, (ii) the Company’s transportation, handling, storage, refining or disposal of any Crude
Oil or the products thereof, including any conduct by the Company on behalf of or as the agent of
Aron under the Required Storage and Transportation Arrangements, (iii) the Company’s negligence or
willful misconduct, (iv) any failure by the Company to comply with or observe any Applicable Law,
or (v) injury, disease, or death of any person or damage to or loss of any property, fine or
penalty, any of which is caused by the Company or its employees, representatives, agents or
contractors in exercising any rights or performing any obligations hereunder or in connection
herewith, except to the extent that such injury, disease, death, or damage to or loss of property
was caused by the negligence or willful misconduct on the part of Aron, its Affiliates or any of
their respective employees, representatives, agents or contractors.



20.3 The Parties’ obligations to defend, indemnify, and hold each other harmless under the
terms of the Transaction Documents shall not vest any rights in any third party (whether a
Governmental Authority or private entity), nor shall they be considered an admission of liability
or responsibility for any purposes other than those enumerated in the Transaction Documents.



20.4 Each Party agrees to notify the other as soon as practicable after receiving notice of
any claim or suit brought against it within the indemnities of this Agreement, shall furnish to the
other the complete details within its knowledge and shall render all reasonable assistance
requested by the other in the defense; provided that, the failure to give such notice shall not
affect the indemnification provided hereunder, except to the extent that the indemnifying Party is
materially adversely affected by such failure. Each Party shall have the right but not the duty to
participate, at its own expense, with counsel of its own selection, in the defense and settlement
thereof without relieving the other of any obligations hereunder. Notwithstanding the foregoing,
an indemnifying Party shall not be entitled to assume responsibility for and control of any
judicial or administrative proceeding if such proceeding involves an Event of Default by the
indemnifying Party under this Agreement which shall have occurred and be continuing.


 


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ARTICLE 21




LIMITATION ON DAMAGES




UNLESS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE PARTIES’ LIABILITY FOR DAMAGES IS
LIMITED TO DIRECT, ACTUAL DAMAGES ONLY (WHICH INCLUDE ANY AMOUNTS DETERMINED UNDER ARTICLE
18) AND NEITHER PARTY SHALL BE LIABLE FOR SPECIFIC PERFORMANCE, LOST PROFITS OR OTHER BUSINESS
INTERRUPTION DAMAGES, OR SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT
DAMAGES, IN TORT, CONTRACT OR OTHERWISE, OF ANY KIND, ARISING OUT OF OR IN ANY WAY CONNECTED WITH
THE PERFORMANCE, THE SUSPENSION OF PERFORMANCE, THE FAILURE TO PERFORM, OR THE TERMINATION OF THIS
AGREEMENT; PROVIDED, HOWEVER, THAT, SUCH LIMITATION SHALL NOT APPLY WITH RESPECT TO (I) ANY THIRD
PARTY CLAIM FOR WHICH INDEMNIFICATION IS AVAILABLE UNDER THIS AGREEMENT OR (II) ANY BREACH OF
ARTICLE 23. EACH PARTY ACKNOWLEDGES THE DUTY TO MITIGATE DAMAGES HEREUNDER.



ARTICLE 22




AUDIT AND INSPECTION




During the Term of this Agreement each Party and its duly authorized representatives, upon
reasonable notice and during normal working hours, shall have access to the accounting records and
other documents maintained by the other Party, or any of the other Party’s contractors and agents,
which relate to this Agreement; provided that, neither this Section nor any other provision hereof
shall entitle the Company to have access to any records concerning any hedges or offsetting
transactions or other trading positions or pricing information that may have been entered into with
other parties or utilized in connection with any transactions contemplated hereby or by any other
Transaction Document. The right to inspect or audit such records shall survive termination of this
Agreement for a period of two (2) years following the Termination Date. Each Party shall preserve,
and shall cause all contractors or agents to preserve, all of the aforesaid documents for a period
of at least two (2) years from the Termination Date.



ARTICLE 23




CONFIDENTIALITY 




23.1 In addition to the Company’s confidentiality obligations under the Transaction Documents,
the Parties agree that the specific terms and conditions of this Agreement, including any list of
counterparties, the Transaction Documents and the drafts of this Agreement exchanged by the Parties
and any information exchanged between the Parties, including calculations of any fees or other
amounts paid by the Company to Aron under this Agreement and all information received by Aron from
the Company relating to the costs of operation, operating conditions, and other commercial
information of the Company not made available to the public, are confidential and shall not be
disclosed to any third party, except (i) as may be required by court order or Applicable Laws or as



 


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requested by a Governmental Authority, (ii) to such Party’s or its Affiliates’ employees, directors, shareholders, auditors, consultants,
banks, lenders, financial advisors and legal advisors, or (iii) to such Party’ insurance providers,
solely for the purpose of procuring insurance coverage or confirming the extent of existing
insurance coverage; provided that, prior to any disclosure permitted by this clause (iii), such
insurance providers shall have agreed in writing to keep confidential any information or document
subject to this Section 23.1. The confidentiality obligations under this Agreement shall
survive termination of this Agreement for a period of two (2) years following the Termination Date.
The Parties shall be entitled to all remedies available at law, or in equity, to enforce or seek
relief in connection with the confidentiality obligations contained herein.




23.2 In the case of disclosure covered by clause (i) of Section 23.1, to the extent
practicable and in conformance with the relevant court order, Applicable Law or request, the
disclosing Party shall notify the other Party in writing of any proceeding of which it is aware
which may result in disclosure.



23.3 Tax Disclosure. Notwithstanding anything herein to the contrary, the Parties
(and their respective employees, representatives or other agents) are authorized to disclose to any
person the U.S. federal and state income tax treatment and tax structure of the transaction and all
materials of any kind (including tax opinions and other tax analyses) that are provided to the
Parties relating to that treatment and structure, without the Parties imposing any limitation of
any kind. However, any information relating to the tax treatment and tax structure shall remain
confidential (and the foregoing sentence shall not apply) to the extent necessary to enable any
person to comply with securities laws. For this purpose, “tax structure” is limited to any facts
that may be relevant to that treatment.



ARTICLE 24




GOVERNING LAW 




24.1 THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED UNDER THE LAWS OF THE STATE
OF NEW YORK WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAWS PRINCIPLES THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF ANOTHER STATE.



24.2 EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY
FEDERAL OR STATE COURT OF COMPETENT JURISDICTION SITUATED IN THE CITY OF NEW YORK, AND TO SERVICE
OF PROCESS BY CERTIFIED MAIL, DELIVERED TO THE PARTY AT THE ADDRESS INDICATED IN ARTICLE
26. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY OBJECTION TO PERSONAL JURISDICTION, WHETHER ON GROUNDS OF VENUE, RESIDENCE OR DOMICILE.



24.3 Each Party waives, to the fullest extent permitted by applicable law, any right it may
have to a trial by jury in respect of any proceedings relating to this agreement.


 


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24.4 This Agreement is executed and delivered in connection with a closing of the transactions
referenced herein which is occurring in the state of New York, and all parties acknowledge and
agree that this Agreement is not valid, binding and enforceable until accepted and approved by Aron
in New York.



ARTICLE 25




ASSIGNMENT




25.1 This Agreement shall inure to the benefit of and be binding upon the Parties hereto,
their respective successors and permitted assigns.



25.2 The Company shall not assign this Agreement or its rights or interests hereunder in whole
or in part, or delegate its obligations hereunder in whole or in part, without the express written
consent of Aron. Aron may, without the Company’s consent, assign and delegate all of Aron’s rights
and obligations hereunder to (i) any Affiliate of Aron, provided that the obligations of such
Affiliate hereunder are guaranteed by The Goldman Sachs Group, Inc. or (ii) any non-Affiliate
Person that succeeds to all or substantially all of its assets and business and assumes Aron’s
obligations hereunder, whether by contract, operation of law or otherwise, provided that the
creditworthiness of such successor entity is equal or superior to the creditworthiness of Aron
(taking into account any credit support for Aron) immediately prior to such assignment. Any other
assignment by Aron shall require the Company’s consent.



25.3 Any attempted assignment in violation of this Article 25 shall be null and void
ab initio and the non-assigning Party shall have the right, without prejudice to any other rights
or remedies it may have hereunder or otherwise, to terminate this Agreement effective immediately
upon notice to the Party attempting such assignment.



ARTICLE 26




NOTICES




All invoices, notices, requests and other communications given pursuant to this Agreement shall be
in writing and sent by email or nationally recognized overnight courier (except that a notice or
other communication under Article 18 hereof may not be given by email or any other electronic
messaging system). A notice shall be deemed to have been received when transmitted by email to the
other Party’s email set forth in Schedule M, or on the following Business Day if sent by nationally
recognized overnight courier to the other Party’s address set forth in Schedule M and to the
attention of the person or department indicated. A Party may change its address or email address
by giving written notice in accordance with this Section, which is effective upon receipt.



ARTICLE 27




NO WAIVER, CUMULATIVE REMEDIES




27.1 The failure of a Party hereunder to assert a right or enforce an obligation of the other
Party shall not be deemed a waiver of such right or obligation. The waiver by any Party of a
breach of any provision of, or Event of Default under, this Agreement shall not operate or be
construed as a waiver of any other breach of that provision or as a waiver of any breach of
another provision of, Event of Default under, this Agreement, whether of a like kind or different
nature.


 


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27.2 Each and every right granted to the Parties under this Agreement or allowed it by law or
equity shall be cumulative and may be exercised from time to time in accordance with the terms
thereof and Applicable Law.



ARTICLE 28




NATURE OF THE TRANSACTION AND RELATIONSHIP OF PARTIES 




28.1 This Agreement shall not be construed as creating a partnership, association or joint
venture between the Parties. It is understood that each Party is an independent contractor with
complete charge of its employees and agents in the performance of its duties hereunder, and nothing
herein shall be construed to make such Party, or any employee or agent of the Company, an agent or
employee of the other Party.



28.2 Neither Party shall have the right or authority to negotiate, conclude or execute any
contract or legal document with any third person; to assume, create, or incur any liability of any
kind, express or implied, against or in the name of the other; or to otherwise act as the
representative of the other, unless expressly authorized in writing by the other.



ARTICLE 29




MISCELLANEOUS




29.1 If any Article, Section or provision of this Agreement shall be determined to be null and
void, voidable or invalid by a court of competent jurisdiction, then for such period that the same
is void or invalid, it shall be deemed to be deleted from this Agreement and the remaining portions
of this Agreement shall remain in full force and effect.



29.2 The terms of this Agreement, together with the Guarantee and the Transaction Documents,
constitute the entire agreement between the Parties with respect to the matters set forth in this
Agreement, and no representations or warranties shall be implied or provisions added in the absence
of a written agreement to such effect between the Parties. This Agreement shall not be modified or
changed except by written instrument executed by the Parties’ duly authorized representatives.



29.3 No promise, representation or inducement has been made by either Party that is not
embodied in this Agreement or the Transaction Documents, and neither Party shall be bound by or
liable for any alleged representation, promise or inducement not so set forth.



29.4 Time is of the essence with respect to all aspects of each Party’s performance of any
obligations under this Agreement.


 


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29.5 Nothing expressed or implied in this Agreement is intended to create any rights,
obligations or benefits under this Agreement in any person other than the Parties and their
successors and permitted assigns.



29.6 All audit rights, payment, confidentiality and indemnification obligations and
obligations under this Agreement shall survive for the time periods specified herein.



29.7 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.



29.8 All transactions hereunder are entered into in reliance on the fact that this Agreement
and all such transactions constitute a single, integrated agreement between the Parties, and the
Parties would not have otherwise entered into any other transactions hereunder.



[Remainder of Page Intentionally Left Blank]




 


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IN WITNESS WHEREOF, each Party hereto has caused this Agreement to be executed by its duly
authorized representative as of the date first above written.



	 	 	 	 	 
	 	J. ARON & COMPANY

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	LION OIL COMPANY

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	LION OIL TRADING & TRANSPORTATION, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Signature Page to Lion Oil Supply and Offtake Agreement





 


69