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Index to Financial Statements

As filed with the Securities and Exchange Commission on July 22, 2013

Registration No. 333-189350

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Amendment No. 1

to

FORM S-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

OCI Partners LP

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   2800   90-0936556
(State or other jurisdiction of
incorporation or organization)
  (Primary Standard Industrial
Classification Code Number)
  (I.R.S. Employer
Identification Number)

 

  Mailing Address:   Physical Address:  
 

P.O. Box 1647

Nederland, Texas 77627

 

5470 N. Twin City Highway

Nederland, Texas 77627

 
(409) 723-1900

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

 

Frank Bakker

President and Chief Executive Officer

 

  Mailing Address:   Physical Address:  
 

P.O. Box 1647

Nederland, Texas 77627

 

5470 N. Twin City Highway

Nederland, Texas 77627

 
(409) 723-1900

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

With a copy to:

 

Brett E. Braden
Divakar Gupta
Latham & Watkins LLP
811 Main Street, Suite 3700
Houston, Texas 77002
(713) 546-5400
 

G. Michael O’Leary

Stephanie C. Beauvais

Andrews Kurth LLP

600 Travis, Suite 4200

Houston, Texas 77002

(713) 220-4200

 

 

Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box.     ¨

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer   ¨    Accelerated filer   ¨
Non-accelerated filer   x   (Do not check if a smaller reporting company)    Smaller reporting company   ¨

 

 

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

 

 

 


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Index to Financial Statements

The information in this preliminary prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.

 

Subject to Completion

Preliminary Prospectus dated July 22, 2013

PROSPECTUS

 

LOGO

                    Common Units

Representing Limited Partner Interests

OCI Partners LP

 

 

This is the initial public offering of common units representing limited partner interests of OCI Partners LP. We are offering              common units in this offering.

Prior to this offering, there has been no public market for our common units. We currently expect the initial public offering price will be between $             and $             per common unit. We intend to apply to list our common units on the New York Stock Exchange under the symbol “OCIP.”

We qualify as an “emerging growth company” as defined in Section 2(a)(19) of the Securities Act of 1933 and, as such, are allowed to provide in this prospectus more limited disclosures than an issuer that would not so qualify. Furthermore, as long as we remain an emerging growth company, we will qualify for certain limited exceptions from investor protection laws such as the Sarbanes-Oxley Act of 2002 and the Investor Protection and Securities Reform Act of 2010. Please read “Prospectus Summary—Our Emerging Growth Company Status.”

 

 

 

Investing in our common units involves a high degree of risk. Before purchasing any of our common units, you should carefully read the discussion of material risks of investing in our common units in “ Risk Factors ” beginning on page 21. These risks include the following:

 

 

We may not have sufficient cash available for distribution to pay any quarterly distribution on our common units.

 

 

The amount of our quarterly cash distributions, if any, will vary significantly both quarterly and annually and will be directly dependent on the performance of our business. Unlike most publicly traded partnerships, we will not have a minimum quarterly distribution or employ structures intended to maintain or increase quarterly cash distributions over time.

 

 

For each of the year ended December 31, 2012 and the twelve months ended March 31, 2013, on a pro forma basis, we would not have generated sufficient cash available for distribution to have paid the per unit quarterly distribution that we project that we will be able to pay for the twelve months ending September 30, 2014.

 

 

We have a limited operating history. As a result, you may have difficulty evaluating our ability to pay quarterly cash distributions to our unitholders or our ability to be successful in implementing our business strategy.

 

 

Our profitability is vulnerable to fluctuations in the prices at which we sell methanol and ammonia and the cost of natural gas, our primary feedstock.

 

 

Our facility faces operating hazards and interruptions, including unscheduled maintenance or downtime. We could face significant reductions in revenues and increases in expenses to the extent these hazards or interruptions cause a material decline in production and are not fully covered by our existing insurance coverage.

 

 

Our general partner and its affiliates, including our sponsor, have conflicts of interest with us and limited duties to us and our unitholders, and they may favor their own interests to our detriment and that of our unitholders.

 

 

There is no existing market for our common units, and we do not know if one will develop to provide you with adequate liquidity. If our unit price fluctuates after this offering, you could lose a significant part of your investment.

 

 

Our tax treatment depends on our status as a partnership for U.S. federal income tax purposes. If the IRS were to treat us as a corporation for U.S. federal income tax purposes, which would subject us to additional amounts of entity-level taxation, then our cash available for distribution to our unitholders would be substantially reduced.

 

 

Our unitholders’ share of our income will be taxable to them for U.S. federal income tax purposes even if they do not receive any cash distributions from us.

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.

 

    

Per Common Unit

    

Total

 

Public offering price

   $         $     

Underwriting discount (1)

   $         $     

Proceeds, before expenses, to OCI Partners LP (2)

   $         $     
  (1) Excludes an aggregate structuring fee equal to            % of the gross proceeds from this offering payable to Merrill Lynch, Pierce, Fenner & Smith Incorporated. Please read “Underwriting.”
  (2) We intend to use a substantial portion of the net proceeds from this offering to repay outstanding indebtedness. For a detailed explanation of our intended use of the net proceeds from this offering, please read “Use of Proceeds” beginning on page 49.

We have granted the underwriters an option to purchase up to an additional            common units from us at the initial public offering price, less the underwriting discount, within 30 days from the date of this prospectus.

The underwriters expect to deliver the common units to purchasers on or about            , 2013 through the book-entry facilities of the Depository Trust Company.

 

 

 

BofA Merrill Lynch   Barclays                   Citigroup

 

 

The date of this prospectus is                     , 2013.


Table of Contents
Index to Financial Statements

 

LOGO

 

LOGO


Table of Contents
Index to Financial Statements

TABLE OF CONTENTS

 

    

Page

 

PROSPECTUS SUMMARY

     1   

Overview

     1   

Our Competitive Strengths

     3   

Our Business Strategies

     4   

Our Sponsor

     6   

Our Facility

     6   

Our Debottlenecking Project

     7   

Feedstock Supply

     7   

Customers and Contracts

     7   

Our Emerging Growth Company Status

     8   

Risk Factors

     8   

The Transactions

     9   

Organizational Structure After the Transactions

     11   

Management of OCI Partners LP

     12   

Principal Executive Offices and Internet Address

     12   

Summary of Conflicts of Interest and Duties

     12   

The Offering

     13   

Summary Historical and Pro Forma Financial and Operating Data

     18   

RISK FACTORS

     21   

Risks Related to Our Business

     21   

Risks Inherent in an Investment in Us

     40   

Tax Risks

     45   

USE OF PROCEEDS

     49   

CAPITALIZATION

     51   

DILUTION

     53   

OUR CASH DISTRIBUTION POLICY AND RESTRICTIONS ON DISTRIBUTIONS

     55   

General

     55   

Unaudited Pro Forma Cash Available for Distribution

     57   

Unaudited Forecasted Cash Available for Distribution

     59   

Assumptions and Considerations

     62   

HOW WE MAKE CASH DISTRIBUTIONS

     68   

General

     68   

Common Units Eligible for Distributions

     68   

Method of Distributions

     68   

General Partner Interest

     68   

SELECTED HISTORICAL AND PRO FORMA FINANCIAL AND OPERATING DATA

     69   

MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

     72   

Overview

     72   

Key Industry Factors

     73   

Key Operational Factors

     74   

How We Evaluate Our Operations

     75   

Factors Affecting Comparability of Financial Information

     75   

Results of Operations

     77   

Liquidity and Capital Resources

     82   

Cash Flows

     85   

Contractual Obligations

     87   

Off-Balance Sheet Arrangements

     87   

Critical Accounting Policies

     87   

Recent Accounting Pronouncements

     89   

Quantitative and Qualitative Disclosures About Market Risk

     90   

 

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Page

 

INDUSTRY OVERVIEW

     91   

Overview

     91   

Natural Gas Feedstock

     92   

Methanol

     96   

Ammonia

     101   

BUSINESS

     105   

Overview

     105   

Our Competitive Strengths

     106   

Our Business Strategies

     108   

Our Sponsor

     109   

Our Facility

     110   

Our Growth Projects

     113   

Feedstock Supply

     114   

Our Production Process

     115   

Customers and Contracts

     116   

Competition

     117   

Seasonality and Volatility

     117   

Environmental Matters

     118   

Safety, Health and Security Matters

     123   

Employees

     123   

Properties

     123   

Insurance

     123   

Legal Proceedings

     124   

MANAGEMENT

     125   

Management of OCI Partners LP

     125   

Director Independence

     125   

Committees of the Board of Directors

     126   

Directors and Executive Officers of OCI GP LLC

     126   

Board Leadership Structure

     128   

Board Role in Risk Oversight

     128   

Reimbursement of Expenses

     128   

Executive Compensation

     128   

2013 Long-Term Incentive Plan

     130   

Compensation of Our Directors

     132   

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

     133   

CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS

     135   

Distributions and Payments to OCI and Its Affiliates

     135   

Our Agreements with OCI

     135   

Other Transactions with Related Parties

     137   

Indemnification Agreements

     138   

Procedures for Review, Approval and Ratification of Related Person Transactions

     138   

CONFLICTS OF INTEREST AND DUTIES

     139   

Conflicts of Interest

     139   

Duties of the General Partner

     144   

DESCRIPTION OF OUR COMMON UNITS

     148   

Our Common Units

     148   

Transfer Agent and Registrar

     148   

Transfer of Common Units

     148   

Listing

     149   

THE PARTNERSHIP AGREEMENT

     150   

Organization and Duration

     150   

Purpose

     150   

Capital Contributions

     150   

 

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Page

 

Voting Rights

     150   

Limited Liability

     152   

Issuance of Additional Securities

     153   

Amendment of Our Partnership Agreement

     153   

Merger, Consolidation, Conversion, Sale or other Disposition of Assets

     155   

Termination and Dissolution

     156   

Liquidation and Distribution of Proceeds

     156   

Withdrawal or Removal of Our General Partner

     156   

Transfer of General Partner Interest

     157   

Transfer of Ownership Interests in Our General Partner

     158   

Change of Management Provisions

     158   

Limited Call Right

     158   

Non-Citizen Assignees; Redemption

     159   

Non-Taxpaying Assignees; Redemption

     159   

Meetings; Voting

     159   

Status as Limited Partner

     160   

Indemnification

     160   

Reimbursement of Expenses

     161   

Books and Reports

     161   

Right to Inspect Our Books and Records

     161   

Registration Rights

     162   

Exclusive Forum

     162   

COMMON UNITS ELIGIBLE FOR FUTURE SALE

     163   

Rule 144

     163   

Our Partnership Agreement and Registration Rights

     163   

Lock-Up Agreements

     164   

MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES

     165   

Partnership Status

     166   

Limited Partner Status

     167   

Tax Consequences of Common Unit Ownership

     167   

Tax Treatment of Operations

     173   

Disposition of Common Units

     175   

Uniformity of Common Units

     177   

Tax-Exempt Organizations and Other Investors

     178   

Administrative Matters

     179   

Recent Legislative Developments

     182   

State, Local, Foreign and Other Tax Considerations

     182   

INVESTMENT IN OCI PARTNERS LP BY EMPLOYEE BENEFIT PLANS

     184   

UNDERWRITING

     186   

Commissions and Discounts

     186   

Option to Purchase Additional Common Units

     187   

No Sales of Similar Securities

     187   

New York Stock Exchange Listing

     188   

Price Stabilization, Short Positions and Penalty Bids

     188   

Electronic Distribution

     189   

Conflicts of Interest

     189   

Other Relationships

     189   

Directed Unit Program

     190   

Selling Restrictions

     190   

LEGAL MATTERS

     193   

EXPERTS

     193   

WHERE YOU CAN FIND ADDITIONAL INFORMATION

     193   

FORWARD-LOOKING STATEMENTS

     194   

 

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Page

 

INDEX TO FINANCIAL STATEMENTS

     F-1   

APPENDIX A: FORM OF FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF OCI PARTNERS LP

     A-1   

APPENDIX B: GLOSSARY OF SELECTED TERMS

     B-1   

 

 

You should rely only on the information contained in this prospectus or in any free writing prospectus that we authorize to be delivered to you. We have not, and the underwriters have not, authorized any other person to provide you with additional, different or inconsistent information from that contained in this prospectus and any free writing prospectus. If anyone provides you with additional, different or inconsistent information, you should not rely on it. We are not, and the underwriters are not, making an offer to sell these securities in any jurisdiction where an offer or sale is not permitted. You should not assume that the information contained in this prospectus or in any free writing prospectus is accurate as of any date other than the date on the front cover of this prospectus or the date of such free writing prospectus. Our business, financial condition, results of operations and prospects may have changed since such date.

For investors outside the United States: We have not, and the underwriters have not, done anything that would permit this offering, or possession or distribution of this prospectus, in any jurisdiction where action for that purpose is required, other than in the United States. Persons outside the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of the common units and the distribution of this prospectus outside of the United States.

 

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Industry and Market Data

When we make statements in this prospectus about our position in the methanol industry, the ammonia industry, any sector of those industries or about our market share, we are making those statements based on our belief as to their accuracy. This belief is based on data regarding the methanol industry and the ammonia industry, including trends in such markets and our position and the position of our competitors within those industries, derived from a variety of sources, including independent industry publications, government publications and other published independent sources, information obtained from customers, distributors, suppliers, trade and business organizations and publicly available information (including the reports and other information our competitors file with the U.S. Securities and Exchange Commission (“SEC”), which we did not participate in preparing and as to which we make no representation), as well as our good faith estimates, which have been derived from management’s knowledge and experience in the areas in which our business operates. Estimates of market size and relative positions in a market are difficult to develop and inherently uncertain. Accordingly, investors should not place undue weight on the industry and market share data presented in this prospectus.

In this prospectus, we rely on and refer to information regarding the methanol industry and the ammonia industry and future methanol and ammonia production and consumption from Jim Jordan and Associates, LP (“Jim Jordan”), with respect to the methanol industry, and Blue, Johnson & Associates, Inc. (“Blue Johnson”), with respect to the ammonia industry. Unless otherwise indicated, the information set forth in this prospectus regarding (i) the methanol industry, is derived from information provided by Jim Jordan as of May 30, 2013, and (ii) the ammonia industry, is derived from information provided by Blue Johnson as of June 11, 2013, and is included in this prospectus in reliance upon the authority of Jim Jordan and Blue Johnson as experts on the methanol industry and the ammonia industry, respectively. Neither Jim Jordan nor Blue Johnson is affiliated with us. Each of Jim Jordan and Blue Johnson has consented to being named in this prospectus.

We do not have any knowledge that the market and industry data and forecasts provided to us from third party sources are inaccurate in any material respect. However, we have been advised that certain information provided to us from third party sources is derived from estimates or subjective judgments, and while such third party sources have assured us that they have taken reasonable care in the compilation of such information and believe it to be accurate and correct, data compilation is subject to limited audit and validation procedures. We believe that, notwithstanding such qualification by such third party sources, the market and industry data provided in this prospectus is accurate in all material respects.

Our estimates, in particular as they relate to market share and our general expectations, involve risks and uncertainties and are subject to change based on various factors, including those discussed under the section entitled “Risk Factors.”

 

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PROSPECTUS SUMMARY

This summary highlights selected information contained elsewhere in this prospectus. You should carefully read the entire prospectus, including “Risk Factors” and the historical and unaudited pro forma condensed financial statements and related notes included elsewhere in this prospectus, before making a decision to invest in our common units. Unless otherwise indicated, the information in this prospectus assumes (1) an initial public offering price of $            per common unit (the midpoint of the price range set forth on the cover page of this prospectus) and (2) that the underwriters do not exercise their option to purchase additional common units, and, accordingly, that the             common units that could be purchased by the underwriters pursuant to such option will instead be issued to OCI USA Inc. at the expiration of the option period.

Unless the context otherwise requires, references in this prospectus to “our partnership,” “we,” “our,” “us” and similar terms, when used in a historical context, refer to the business and operations of OCI Beaumont LLC, a Texas limited liability company (“OCIB”) that OCI USA Inc. will contribute to OCI Partners LP in connection with this offering. When used in the present tense or future tense, those terms and “OCI Partners LP” refer to OCI Partners LP, a Delaware limited partnership, and its subsidiaries, including OCIB. References to “our general partner” refer to OCI GP LLC, a Delaware limited liability company and a wholly owned subsidiary of OCI USA Inc. References to “OCI” refer to OCI N.V., a Dutch public limited liability company, and its consolidated subsidiaries other than us, our subsidiaries and our general partner. References to “OCI USA” refer to OCI USA Inc., a Delaware corporation, which is an indirect wholly owned subsidiary of OCI. References to “OCI Fertilizer” refer to OCI Fertilizer International B.V., a Dutch private limited liability company, which is an indirect wholly owned subsidiary of OCI. The transactions being entered into in connection with this offering that are described beginning on page 9 of this prospectus are referred to herein as the “Transactions.” You should also read the “Glossary of Selected Terms” contained in Appendix B for definitions of some of the terms we use to describe our business and industry and other terms used in this prospectus.

OCI Partners LP

Overview

We are a Delaware limited partnership formed in February 2013 to own and operate a recently upgraded, integrated methanol and ammonia production facility that is strategically located on the Texas Gulf Coast near Beaumont. We are currently the largest merchant methanol producer in the United States with an annual methanol production capacity of approximately 730,000 metric tons and an annual ammonia production capacity of approximately 265,000 metric tons, and we are in the early stages of a debottlenecking project that will increase our annual methanol production capacity by 25% to approximately 912,500 metric tons and our annual ammonia production capacity by 15% to approximately 305,000 metric tons. Given our advantageous access and connectivity to customers and attractively priced natural gas feedstock supplies, we believe that we are one of the lowest-cost producers of methanol and ammonia in our markets and intend to capitalize on our competitive position to maximize our cash flow. We believe that the prospects for our methanol and ammonia business will remain positive for the foreseeable future because of growing U.S. and global demand for methanol and ammonia, our continued access to attractively priced natural gas feedstock, the United States’ current position as a net importer of both methanol and ammonia and our competitive position in our markets.

Both methanol and ammonia are global commodities that are essential building blocks for numerous end-use products. Methanol is a liquid petrochemical that is used in a variety of industrial and energy-related applications. Methanol is used in industrial applications to produce adhesives used in manufacturing wood products, such as plywood, particle board and laminates, resins to treat paper and plastic products, paint and varnish removers, solvents for the textile industry and polyester fibers for clothing and carpeting. Methanol is also used outside of the United States as a direct fuel for automobile engines, as a fuel blended with gasoline and

 

 

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as an octane booster in reformulated gasoline. In the United States, ammonia is primarily used as a feedstock to produce nitrogen fertilizers, such as urea and ammonium sulfate, and is also directly applied to soil as a fertilizer. In addition, ammonia is widely used in industrial applications, particularly in the Texas Gulf Coast market, including in the production of plastics, synthetic fibers, resins and numerous other chemical compounds.

Natural gas, methanol and ammonia commodity market dynamics have contributed favorably to our profitability in four ways. First, increased natural gas production from shale formations in the United States has increased domestic supplies of natural gas, resulting in a relatively low natural gas price environment. Second, robust and increasing domestic and global demand for both methanol and ammonia has led to historically high prices for those commodities. Third, domestic methanol and ammonia production capacity is currently constrained, as the higher domestic natural gas price environment during the period from 1998 through 2007 prompted U.S. producers to shut down or relocate U.S. production facilities, which has resulted in significantly more domestic demand for methanol and ammonia than can be satisfied with domestic production and substantial reliance on foreign imports to meet domestic demand for methanol and ammonia. Consequently, approximately 82% of U.S. methanol demand and approximately 39% of U.S. ammonia demand during 2012 was met by imports according to Jim Jordan and Blue Johnson, respectively. Fourth, we and other domestic methanol and ammonia producers have been able to satisfy a growing portion of domestic demand as foreign natural gas-based producers, particularly in Trinidad, are experiencing declining methanol and ammonia production due to decreased natural gas production and declining natural gas reserves. The favorable pricing environment for our products driven by robust demand, together with attractive natural gas feedstock prices, has enabled us to realize significant profit margins since our facility began operating at full capacity in the fourth quarter of 2012.

We expect the current commodity market dynamics for our products and natural gas feedstock to continue for the foreseeable future. In addition, according to Jim Jordan, annual U.S. demand for methanol is forecasted to increase from approximately 6.0 million metric tons in 2012 to approximately 7.1 million metric tons by 2016, representing a compound annual growth rate of approximately 4.2%, while annual domestic production of methanol is expected to increase from approximately 1.1 million metric tons to approximately 5.1 million metric tons over this same period. Moreover, according to Blue Johnson, annual U.S. demand for ammonia is forecasted to increase from approximately 16.5 million metric tons in 2012 to approximately 17.5 million metric tons in 2016, representing a compound annual growth rate of approximately 1.5%, while annual domestic production of ammonia is expected to increase from approximately 10.1 million metric tons to approximately 11.7 million metric tons over this same period, which is expected to result in an annual production deficit of approximately 5.8 million metric tons in 2016. In addition, recent increases in domestic natural gas production levels from shale formations have resulted in a significant increase in the supply of natural gas, leading to a lower natural gas price environment in the United States compared to other regions. We expect this trend of relatively low natural gas prices in the United States to continue for the foreseeable future as a result of ongoing investment in the development of shale formations and related midstream infrastructure.

We acquired our facility (which had been idled by the previous owners since 2004) in May 2011, commenced an upgrade that was completed in July 2012 and began operating our facility at full capacity in the fourth quarter of 2012. Our newly renovated facility began ammonia production in December 2011 and began methanol production in July 2012 (with no significant methanol production until August 2012), with revenues first generated from ammonia sales in the first quarter of 2012 and from methanol sales in the third quarter of 2012. For the three months ended March 31, 2013, our net income and EBITDA, on a pro forma basis, were approximately $53.7 million and $62.5 million, respectively. Subject to certain assumptions, we expect our net income and EBITDA to be approximately $150.2 million and $185.0 million, respectively, for the twelve months ending September 30, 2014. For a reconciliation of EBITDA to net income and the assumptions used in our forecast of our net income and EBITDA for the twelve months ending September 30, 2014, please read “Selected Historical and Pro Forma Financial and Operating Data” and “Our Cash Distribution Policy and Restrictions on Distribution—Unaudited Forecasted Cash Available for Distribution.”

 

 

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Our Competitive Strengths

Attractively Priced Natural Gas for Methanol and Ammonia Production . Given our ready access to abundant domestic natural gas supplies and our relatively low natural gas feedstock costs compared to our overseas competitors, including Trinidadian producers, we believe that we are one of the lowest-cost producers of methanol and ammonia in our markets. For the three months ended March 31, 2013, natural gas feedstock represented approximately 55.5% of our total cost of goods sold (exclusive of depreciation) (or approximately 77.8% of our variable cost of goods sold (exclusive of depreciation)). The emergence of a U.S. “shale gas advantage” has led to an increase in the domestic production of natural gas, resulting in attractive domestic natural gas feedstock prices. Please read “Industry Overview—Natural Gas Feedstock.” In addition, continued robust demand for methanol and ammonia globally has resulted in a favorable pricing environment for our products. Since our facility began operating at full capacity in the fourth quarter of 2012, we have been able to compete effectively with higher-cost foreign producers and realize significant profit margins.

Favorable Market Fundamentals with Growing Demand for Our Products. Due to growing demand and constrained domestic production capacity for our products, we expect the fundamentals for the production and sale of methanol and ammonia in the United States to remain favorable for the foreseeable future.

 

   

According to Jim Jordan, annual global demand for methanol is forecasted to increase from 62.6 million metric tons in 2012 to 81.2 million metric tons in 2016, representing a compound annual growth rate of approximately 6.7%. Annual U.S. demand for methanol is forecasted to increase from 6.0 million metric tons to 7.1 million metric tons over this same period, representing a compound annual growth rate of approximately 4.2%. Over this same period, the United States is expected to remain a net importer of methanol, as Jim Jordan forecasts that annual domestic methanol production will increase to only 5.1 million metric tons by the end of 2016. We expect prices for methanol to remain favorable for the foreseeable future as global prices for methanol are highly correlated to the prices set by higher-cost, coal-based methanol producers in China.

 

   

According to Blue Johnson, annual global demand for ammonia is forecasted to increase from 166.0 million metric tons in 2012 to 182.0 million metric tons in 2016, representing a compound annual growth rate of approximately 2.3%. Annual U.S. demand for ammonia is forecasted to increase from 16.5 million metric tons to 17.5 million metric tons over this same period, representing a compound annual growth rate of approximately 1.5%. Over this same period, the United States is expected to remain a net importer of ammonia, as Blue Johnson forecasts that imports will comprise approximately 6.4 million metric tons of U.S. consumption in 2016. In addition, Blue Johnson forecasts that ammonia prices in the United States will remain elevated for the foreseeable future as a result of growing agricultural demand and continued strong industrial demand, particularly in the Texas Gulf Coast region.

As a result of growing demand and constrained production capacity in the United States, we expect that domestic producers of methanol and ammonia will continue to displace a portion of imported supplies for the foreseeable future because of the higher feedstock and transportation costs associated with foreign supplies.

Strategic Location on the Texas Gulf Coast with Access to Port and Pipeline Facilities. We are strategically located on the Texas Gulf Coast, which provides us advantageous access and connectivity to our existing and prospective customers and attractively priced natural gas feedstock supplies. Our facility is connected to established infrastructure and transportation facilities, including pipeline connections to adjacent customers and port access with dedicated methanol and ammonia export barge docks. We also have the flexibility to add rail and truck loading facilities to improve delivery options for our customers. We have connections to one major interstate and three major intrastate natural gas pipelines that provide us access to significantly more natural gas supply than our facility requires and flexibility in sourcing our natural gas feedstock. Our facility is located in close proximity to many of our major customers, which allows us to deliver

 

 

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our products to those customers at competitive prices and realize greater margins than overseas suppliers that are subject to significant costs associated with transporting product to our markets. In addition, we have direct pipeline connections to certain of our methanol and ammonia customers, which provides us a competitive advantage in supplying their methanol and ammonia requirements.

Recently Upgraded Production Facility that Operates Efficiently and Maximizes Returns . We completed an upgrade on the methanol and ammonia production units at our facility in 2012. From January 1, 2013 through June 30, 2013, our methanol production unit and our ammonia production unit each operated at over a 98% utilization rate relative to their respective nameplate capacities. As a means of further optimizing our production efficiencies, we are in the early stages of a debottlenecking project on our production facility that is expected to be completed in the second half of 2014 and increase our annual methanol production capacity by approximately 25% and our annual ammonia production capacity by approximately 15%. For information on our debottlenecking project, please read “—Our Debottlenecking Project.”

Advantageous Relationship with Our Sponsor, OCI. We expect to benefit from OCI’s commercial, operational and technical expertise. OCI is a global nitrogen-based fertilizer producer and engineering and construction contractor based in the Netherlands, with projects and investments across Europe, the United States, South America, the Middle East, North Africa and Central Asia. We expect to benefit from OCI’s expertise in strategic development, as OCI’s management team has successfully executed over $25 billion in acquisitions, divestments and greenfield projects in 15 countries in the past eight years. In June 2013, we entered into a procurement and construction contract with Orascom E&C USA Inc., an indirect wholly owned construction subsidiary of OCI, for our debottlenecking project. OCI Construction Group’s technical expertise and experience with large-scale infrastructure and industrial projects were critical to the recent upgrade of our facility that was completed in 2012 and will be essential to the cost-effective implementation of our debottlenecking project.

Experienced Management and Operational Team. We are managed by an experienced and dedicated team of executives with a long history in the chemical industry. Our senior operational team has an average of 30 years of experience in the chemical industry and significant experience operating facilities such as ours. In fact, a majority of our operating management team ran our facility for many years under prior ownership. Our management team was responsible for developing and executing the recent upgrade of our facility and will be integral in the execution of our debottlenecking project and any future expansion projects. After the completion of this offering, we expect that Mr. Frank Bakker, our President and Chief Executive Officer, and each member of our senior operational team will devote 100% of their time to managing and operating our business. We expect that Mr. Fady Kiama, our Vice President and Chief Financial Officer, will devote approximately 75% of his time to managing our financial affairs.

Our Business Strategies

Distribute 100% of Our Cash Available for Distribution each Quarter. Upon the completion of this offering, the board of directors of our general partner will adopt a policy to distribute 100% of the cash available for distribution that we generate each quarter to unitholders of record on a pro rata basis. We do not intend to maintain excess distribution coverage or retain funds in order to maintain stable quarterly distributions or fund future distributions. Unlike many publicly traded partnerships, our general partner will have a non-economic general partner interest and will have no incentive distribution rights. Therefore, all of our cash distributions will be made to our unitholders, in contrast to other publicly traded partnerships, some of which distribute up to 50% of their quarterly cash distributions in excess of specified levels to their general partner. Our structure is designed to maximize distributions to our unitholders and to align OCI’s interests with those of our other unitholders. We expect our distribution yield to be             % (calculated by dividing our forecasted distribution for the twelve months ending September 30, 2014 of $            per common unit by $            (the midpoint of the price range set forth on the cover page of this prospectus)). Please read “Our Cash Distribution Policy and Restrictions on Distributions—Unaudited Forecasted Cash Available for Distribution.”

 

 

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Pursue Organic Growth Opportunities and Strategic Acquisitions. We will continue to evaluate methods of expanding our production capabilities and product offerings. We are in the early stages of a debottlenecking project that is designed to increase our annual methanol production capacity by approximately 182,500 metric tons, or approximately 25%, and increase our annual ammonia production capacity by approximately 40,000 metric tons, or approximately 15%. As part of the debottlenecking project, we additionally plan to complete a maintenance turnaround as well as various other upgrades to our facility. We expect that the debottlenecking project will be completed in the second half of 2014 and currently estimate the total cost of the project will be approximately $150 million (including costs associated with a maintenance turnaround and various other upgrades). We intend to fund a portion of the costs of our debottlenecking project and other budgeted capital projects incurred after the completion of this offering with a portion of the net proceeds from this offering. Please read “—Our Debottlenecking Project.”

We also intend to pursue strategic acquisitions that offer attractive synergies and maximize distributions to our unitholders, such as increasing our logistical capabilities by purchasing infrastructure at the industrial park in which our production facility is located. In addition, we intend to evaluate and pursue acquisition and development opportunities that will enhance our operating platform and increase our cash available for distribution.

Maintain High Utilization Rates . From January 1, 2013 through June 30, 2013, we operated at over a 98% utilization rate relative to the respective nameplate capacities of our methanol and ammonia production units, and we intend to maintain consistent and reliable operations at our facility, which are critical to our financial performance and results of operations. Efficient production of methanol and ammonia requires reliable and stable operations at our facility due to the high costs associated with planned and unplanned downtime. In addition, strict production schedules are essential in order to maximize utilization and productivity and to ensure a competitive cost position. We intend to continue implementing our rigorous maintenance program, which is executed by a skilled, experienced and well-trained workforce, at regular intervals. To continue to maintain our high utilization rates and minimize downtime at our facility, we plan to perform maintenance capital projects that require downtime during scheduled turnarounds. We believe that our diligent adherence to proactive maintenance programs and the experience of our workforce will minimize unplanned downtime and maintain our facility’s longevity and high utilization rates.

Continue Commitment to Health, Safety and the Environment . We are committed to maintaining a culture that makes health, safety and the environment a high priority. We have made significant investments in safety analysis and reporting technology and have established a track record of safe operations, with a total case incident rate (the average number of work-related injuries incurred by 100 workers during a one-year period) for both our employees and contractors of 0.13 for 2012 and 0.0 from January 1, 2013 through June 30, 2013. We also view personnel training as essential for accident prevention and successful operation of our facility and intend to continue our efforts in these areas. In addition, we are participating in Occupational Safety and Health Act (“OSHA”) Voluntary Protection Programs to become an OSHA Star site. Companies in OSHA’s Star Program have achieved injury and illness rates at or below the national average of their respective industries. We believe that our commitment to health, safety and the environment is critical to the success of our business.

Maintain a Conservative and Flexible Capital Structure. We are committed to maintaining a conservative capital structure with prudent leverage that affords us the financial flexibility to execute our business strategy. As of March 31, 2013, on a pro forma basis, after giving effect to the Transactions (including this offering), we would have had approximately $235.0 million of total indebtedness (excluding unamortized debt discount of $2.4 million) and approximately $             million of cash and cash equivalents, resulting in net leverage of $             million (or approximately $235.0 million of total indebtedness (excluding unamortized debt discount of $2.4 million) and approximately $            million of cash and cash equivalents, resulting in net leverage of $            million, if the underwriters exercise their option to purchase additional common units in

 

 

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full). We will retain a portion of net proceeds from this offering to pre-fund growth capital expenditures, including the anticipated remaining costs of our debottlenecking project (including a maintenance turnaround and various other upgrades).

Our Sponsor

OCI is a global nitrogen-based fertilizer producer and engineering and construction contractor based in the Netherlands, with projects and investments across Europe, the United States, South America, the Middle East, North Africa and Central Asia. The OCI Fertilizer Group owns and operates nitrogen fertilizer plants in the Netherlands, the United States, Egypt and Algeria and has an international distribution platform spanning from the Americas to Asia. The OCI Fertilizer Group ranks among the world’s largest nitrogen fertilizer producers by production capacity with annual production capacity of nearly 7.0 million metric tons.

The OCI Fertilizer Group’s latest greenfield project, the Iowa Fertilizer Company located near the Mississippi River in Wever, Iowa, is a $1.8 billion plant that is the first world scale natural gas-based fertilizer plant to be built in the United States in nearly 25 years. The plant is being constructed by Orascom E&C USA Inc., an indirect wholly owned subsidiary of OCI, and is expected to produce approximately 2.0 million metric tons of nitrogen fertilizer annually following completion of construction in late 2015. In connection with financing the project, Iowa Fertilizer Company issued approximately $1.2 billion of tax-exempt bonds, representing one of the largest non-investment grade transactions ever sold in the U.S. tax-exempt bond market.

The OCI Construction Group provides international engineering and construction services primarily on infrastructure, industrial and high-end commercial projects in the United States, Europe, the Middle East, North Africa and Central Asia for public and private clients. According to the Engineering News Record, the OCI Construction Group consistently ranks among the world’s top global contractors.

OCI employs more than 75,000 people in 35 countries and is listed on the NYSE Euronext in Amsterdam under the symbol “OCI.” OCI’s market capitalization, as reported by Bloomberg, was approximately $6.0 billion as of July 17, 2013.

Our Facility

Our integrated methanol and ammonia production facility is located on a 28-acre site south of Beaumont, Texas on the Neches River. We acquired our facility (which had been idled by the previous owners since 2004) in May 2011, commenced an upgrade that was completed in July 2012 and began operating our facility at full capacity in the fourth quarter of 2012. Our newly renovated facility began ammonia production in December 2011 and began methanol production in July 2012 (with no significant methanol production until August 2012), with revenues first generated from ammonia sales in the first quarter of 2012 and from methanol sales in the third quarter of 2012.

The following table sets forth our facility’s production capacity and storage capacity:

 

Product

   Current Production Capacity      Production
during the
Three Months
Ended
March 31,
2013
     Expected Production  Capacity
after Completion of
Debottlenecking Project
     Product Storage
Capacity

(Metric Tons)
 
     Metric
Tons/Day
     Metric
Tons/Year (1)
     Metric Tons      Metric
Tons/Day
     Metric
Tons/Year (1)
    

Methanol

     2,000         730,000         175,523         2,500         912,500         42,000 (2 tanks)   

Ammonia

     726         264,990         64,491         835         304,739         18,000 (1 tank)   

 

(1)  

Assumes facility operates 365 days per year.

 

 

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Our Debottlenecking Project

As a means of further optimizing our production efficiencies, we are in the early stages of a debottlenecking project on our production facility, including a maintenance turnaround and environmental upgrades, which we collectively refer to as our “debottlenecking project.” This project is expected to increase our annual methanol production capacity by approximately 182,500 metric tons, or approximately 25%, and increase our annual ammonia production capacity by approximately 40,000 metric tons, or approximately 15%. We expect the debottlenecking project to be completed in the second half of 2014 and currently estimate the total cost of the project to be approximately $150 million (including costs associated with a maintenance turnaround and environmental upgrades). We expect to shut down our facility for approximately 30 to 40 days in the second half of 2014 in order to complete our debottlenecking project. As of June 30, 2013, OCIB had incurred approximately $5.8 million in expenditures related to our debottlenecking project, including costs associated with engineering fees and down payments on equipment, and will fund any costs incurred through the completion of this offering. We intend to fund a portion of the costs of our debottlenecking project and other budgeted capital projects incurred after the completion of this offering with a portion of the net proceeds from this offering. Please read “Business—Our Growth Projects—Our Debottlenecking Project.”

Feedstock Supply

The primary feedstock that we use to produce methanol and ammonia is natural gas. Operating at full capacity, our methanol and ammonia production units together require approximately 84,000 MMBtu per day of natural gas. For the three months ended March 31, 2013, natural gas feedstock costs represented approximately 55.5% of our total cost of goods sold (exclusive of depreciation) (or approximately 77.8% of our variable cost of goods sold (exclusive of depreciation)). Accordingly, our profitability depends in large part on the price of our natural gas feedstock.

We have connections to one major interstate and three major intrastate natural gas pipelines that provide us flexibility in sourcing our natural gas supplies. We currently source natural gas from a subsidiary of DCP Midstream Partners, LP (“DCP Midstream”) and a subsidiary of Kinder Morgan Energy Partners, L.P. (“Kinder Morgan”). In addition, we have recently connected our facility to a natural gas pipeline owned by Florida Gas Transmission Company, LLC (“Florida Gas Transmission”) and a natural gas pipeline owned by Houston Pipe Line Company LP (“Houston Pipe Line Company”). We believe that we have ready access to an abundant supply of natural gas for the foreseeable future due to our location and connectivity to major natural gas pipelines.

Customers and Contracts

We generate our revenues from the sale of methanol and ammonia manufactured at our facility. We sell our products, primarily under contract, to industrial users and commercial traders for further processing or distribution. For the three months ended March 31, 2013 and the year ended December 31, 2012, we derived approximately 72% and 74%, respectively, of our revenues from the sale of our products to commercial traders for further processing or distribution and derived approximately 28% and 26%, respectively, of our revenues from the sale of our products to industrial users. In addition, we derive a portion of our revenues from uncontracted sales of methanol and ammonia. For the three months ended March 31, 2013 and the year ended December 31, 2012, we derived approximately 0% and 1%, respectively, of our revenues from uncontracted sales of our products. We are party to methanol sales contracts with a subsidiary of Methanex Corporation (“Methanex”), a subsidiary of Koch Industries, Inc. (“Koch”), a subsidiary of Exxon Mobil Corporation (“ExxonMobil”), Arkema Inc. (“Arkema”) and a subsidiary of Lucite International, Inc. (“Lucite”). Consistent with industry practice, these contracts set our pricing terms to reflect a specified discount to a published monthly benchmark methanol price (Jim Jordan or Southern Chemical), and our methanol is sold on a free on board (“FOB”) basis when delivered by barge. Currently, we deliver approximately 55% of our methanol sales by barge and approximately 45% of our methanol sales by pipeline.

 

 

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We generally sell ammonia under monthly contracts with a subsidiary of Transammonia, Inc. (“Transammonia”), a subsidiary of Koch and a subsidiary of Rentech Nitrogen Partners, L.P. (“Rentech”). Consistent with industry practice, these contracts set our pricing terms to reflect a specified discount to a published monthly benchmark ammonia price (CFR Tampa). Although we have ammonia pipeline connections with certain of our customers, currently all of our ammonia is sold on an FOB basis and is transported by barge.

Our Emerging Growth Company Status

As a company with less than $1.0 billion in revenue during its last fiscal year, we qualify as an “emerging growth company,” as defined in the Jumpstart Our Business Startups Act of 2012 (“JOBS Act”). As an emerging growth company, we may, for up to five years, take advantage of specified exemptions from reporting and other regulatory requirements that are otherwise applicable generally to public companies. These exemptions include:

 

   

the presentation of only two years of audited financial statements and only two years of related Management’s Discussion and Analysis of Financial Condition and Results of Operations;

 

   

exemption from the auditor attestation requirement on the effectiveness of our system of internal control over financial reporting;

 

   

exemption from the adoption of new or revised financial accounting standards until they would apply to private companies;

 

   

exemption from compliance with any new requirements adopted by the Public Company Accounting Oversight Board requiring mandatory audit firm rotation or a supplement to the auditor’s report in which the auditor would be required to provide additional information about the audit and the financial statements of the issuer; and

 

   

reduced disclosure about executive compensation arrangements.

We may take advantage of these provisions until we are no longer an emerging growth company, which will occur on the earliest of (i) the last day of the fiscal year following the fifth anniversary of this offering, (ii) the last day of the fiscal year in which we have more than $1.0 billion in annual revenue, (iii) the date on which we issue more than $1.0 billion of non-convertible debt over a three-year period and (iv) the date on which we are deemed to be a “large accelerated filer,” as defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

We have elected to take advantage of all of the applicable JOBS Act provisions, except that we will elect to opt out of the exemption that allows emerging growth companies to extend the transition period for complying with new or revised financial accounting standards (this election is irrevocable). Accordingly, the information that we provide you may be different than what you may receive from other public companies in which you hold equity interests.

Risk Factors

An investment in our common units involves risks associated with our business, our partnership structure and the tax characteristics of our common units. You should carefully consider the following risk factors, the risks described in “Risk Factors” and the other information in this prospectus before investing in our common units. Please also read “Forward-Looking Statements.”

 

   

We may not have sufficient cash available for distribution to pay any quarterly distribution on our common units.

 

 

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The amount of our quarterly cash distributions, if any, will vary significantly both quarterly and annually and will be directly dependent on the performance of our business. Unlike most publicly traded partnerships, we will not have a minimum quarterly distribution or employ structures intended to maintain or increase quarterly cash distributions over time.

 

   

For each of the year ended December 31, 2012 and the twelve months ended March 31, 2013, on a pro forma basis, we would not have generated sufficient cash available for distribution to have paid the per unit quarterly distribution that we project that we will be able to pay for the twelve months ending September 30, 2014.

 

   

We have a limited operating history. As a result, you may have difficulty evaluating our ability to pay quarterly cash distributions to our unitholders or our ability to be successful in implementing our business strategy.

 

   

Our profitability is vulnerable to fluctuations in the prices at which we sell methanol and ammonia and the cost of natural gas, our primary feedstock.

 

   

Our facility faces operating hazards and interruptions, including unscheduled maintenance or downtime. We could face significant reductions in revenues and increases in expenses to the extent these hazards or interruptions cause a material decline in production and are not fully covered by our existing insurance coverage.

 

   

Our general partner and its affiliates, including our sponsor, have conflicts of interest with us and limited duties to us and our unitholders, and they may favor their own interests to our detriment and that of our unitholders.

 

   

There is no existing market for our common units, and we do not know if one will develop to provide you with adequate liquidity. If our unit price fluctuates after this offering, you could lose a significant part of your investment.

 

   

Our tax treatment depends on our status as a partnership for U.S. federal income tax purposes. If the IRS were to treat us as a corporation for U.S. federal income tax purposes, which would subject us to additional amounts of entity-level taxation, then our cash available for distribution to our unitholders would be substantially reduced.

 

   

Our unitholders’ share of our income will be taxable to them for U.S. federal income tax purposes even if they do not receive any cash distributions from us.

The Transactions

OCI Partners LP was formed on February 7, 2013 by OCI USA to own, operate and grow our methanol and ammonia business. In connection with this offering, OCI USA, an indirect wholly owned subsidiary of OCI, will contribute all of its ownership interest in OCIB to OCI Partners LP. In this prospectus, we refer to the following transactions that have taken place or will take place in connection with this offering, collectively, as the “Transactions.”

The following transactions have already occurred prior to this offering:

 

   

On May 21, 2013, OCIB entered into a $360.0 million senior secured term loan credit facility with a group of lenders and Bank of America, N.A., as administrative agent. The term loan facility is comprised of two term loans in the amounts of $125.0 million (the “Term B-1 Loan”) and $235.0 million (the “Term B-2 Loan”), respectively;

 

   

OCIB used all $125.0 million of proceeds under the Term B-1 Loan to repay outstanding borrowings under its previous third-party credit facility;

 

 

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OCIB used approximately $230.0 million of the proceeds from the Term B-2 Loan to finance a distribution to OCI USA and approximately $2.8 million of the proceeds from the Term B-2 Loan to pay for bank fees, accrued interest and legal fees associated with the term loan facility. The remaining proceeds from the Term B-2 Loan of approximately $2.2 million were recorded to cash; and

 

   

OCIB transferred an office lease to OCI USA.

Additionally, at or prior to the completion of this offering, the following transactions will occur:

 

   

OCIB will enter into a new $235.0 million senior secured term loan credit facility (the “Term Loan B”) with a syndicate of institutional lenders and investors, which Bank of America, N.A. will serve as administrative agent, to repay borrowings under the Term B-2 Loan;

 

   

OCIB will transfer all of its employees to OCI GP LLC;

 

   

OCIB will distribute to OCI USA all of OCIB’s cash, restricted cash and accounts receivable;

 

   

OCI USA will contribute the member interests it owns in OCIB to OCI Partners LP in exchange for                     common units;

 

   

OCI Partners LP will (i) pay offering expenses, estimated at approximately $             million, excluding the underwriting discount, (ii) pay a structuring fee of approximately $             million to Merrill Lynch, Pierce, Fenner & Smith Incorporated for the evaluation, analysis and structuring of OCI Partners LP in connection with this offering and (iii) make a capital contribution to OCIB of the remaining net proceeds from this offering, estimated to be approximately $             million (based on an assumed initial public offering price of $             per common unit, the midpoint of the price range set forth on the cover page of this prospectus);

 

   

OCIB will use the capital contribution from OCI Partners LP of the net proceeds from this offering referred to in the immediately preceding bullet as described in “Use of Proceeds;”

 

   

OCIB will enter into a new $40.0 million, seven-year intercompany revolving credit facility with OCI Fertilizer as the lender;

 

   

OCI Partners LP’s partnership agreement and the limited liability company agreement of OCI GP LLC will be amended and restated to the extent necessary to reflect the transactions in the contribution agreement; and

 

   

OCI Partners LP will redeem the limited partner interest issued to OCI USA in connection with OCI Partners LP’s formation and will retire such limited partner interest in exchange for a payment of $1,000 to OCI USA.

The number of common units to be issued to OCI USA includes              common units that will be issued at the expiration of the underwriters’ option to purchase additional common units, assuming that the underwriters do not exercise the option. Any exercise of the underwriters’ option to purchase additional common units would reduce the common units shown as issued to OCI USA by the number to be purchased by the underwriters in connection with such exercise. If and to the extent the underwriters exercise their option to purchase additional common units, the number of common units purchased by the underwriters pursuant to any exercise will be sold to the public, and any remaining common units not purchased by the underwriters pursuant to any exercise of the option will be issued to OCI USA at the expiration of the option period for no additional consideration. We will use any net proceeds from the exercise of the underwriters’ option to purchase additional common units from us for general partnership purposes.

 

 

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Organizational Structure After the Transactions

After giving effect to the Transactions described above and assuming the underwriters’ option to purchase additional common units from us is not exercised, our common units will be held as follows:

 

Public common units (1)

             

OCI common units (1)

             
  

 

 

 

Total

     100
  

 

 

 

 

(1)  

If the underwriters exercise in full their option to purchase an additional              common units from us, then the public will hold approximately         % of our common units and OCI USA, an indirect wholly owned subsidiary of OCI, will hold approximately         % of our common units.

The following simplified diagram depicts our organizational structure after giving effect to the Transactions described above.

 

LOGO

 

 

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Management of OCI Partners LP

We are managed and operated by the board of directors and executive officers of OCI GP LLC, our general partner. OCI USA, an indirect wholly owned subsidiary of OCI, is the sole member of our general partner and has the right to appoint the entire board of directors of our general partner, including the independent directors appointed in accordance with the listing standards of the New York Stock Exchange (“NYSE”). Unlike shareholders in a publicly traded corporation, our unitholders will not be entitled to elect our general partner or the board of directors of our general partner. For more information about the directors and executive officers of our general partner, please read “Management.”

Principal Executive Offices and Internet Address

Our principal executive offices are located at 5470 N. Twin City Highway, Nederland, Texas 77627, our mailing address is P.O. Box 1647, Nederland, Texas 77627 and our telephone number is (409) 723-1900. Our website is located at www.                        .com . We expect to make our periodic reports and other information filed with or furnished to the SEC available, free of charge, through our website, as soon as reasonably practicable after those reports and other information are electronically filed with or furnished to the SEC. Information on our website or any other website is not incorporated by reference into this prospectus and does not constitute a part of this prospectus.

Summary of Conflicts of Interest and Duties

Under our partnership agreement, our general partner has a duty to manage us in a manner it believes is in the best interests of our partnership. However, because our general partner is an indirect, wholly owned subsidiary of OCI, the officers and directors of our general partner and the officers and directors of OCI have a duty to manage the business of our general partner in a manner that is in the best interests of OCI. As a result of these relationships, conflicts of interest may arise in the future between us and our unitholders, on the one hand, and our general partner and its affiliates, including OCI, on the other hand. For a more detailed description of the conflicts of interest and duties of our general partner, please read “Risk Factors—Risks Inherent in an Investment in Us” and “Conflicts of Interest and Duties.”

Delaware law provides that Delaware limited partnerships may, in their partnership agreements, expand, restrict or eliminate the fiduciary duties owed by the general partner to limited partners and the partnership. Our partnership agreement contains various provisions replacing the fiduciary duties that would otherwise be owed by our general partner with contractual standards governing the duties of the general partner and contractual methods of resolving conflicts of interest. The effect of these provisions is to restrict the remedies available to unitholders for actions that might otherwise constitute breaches of our general partner’s fiduciary duties. Our partnership agreement also provides that affiliates of our general partner, including OCI, are not restricted from competing with us, and neither our general partner nor its affiliates have any obligation to present business opportunities to us. By purchasing a common unit, the purchaser agrees to be bound by the terms of our partnership agreement, and pursuant to the terms of our partnership agreement each holder of common units consents to various actions and potential conflicts of interest contemplated in our partnership agreement that might otherwise be considered a breach of fiduciary or other duties under Delaware law. Please read “Conflicts of Interest and Duties—Duties of the General Partner” for a description of the fiduciary duties imposed on our general partner by Delaware law, the replacement of those duties with contractual standards under our partnership agreement and certain legal rights and remedies available to holders of our common units. For a description of our other relationships with our affiliates, please read “Certain Relationships and Related Party Transactions.”

 

 

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The Offering

 

Issuer

OCI Partners LP, a Delaware limited partnership.

 

Common Units Offered to the Public

            common units.

 

              common units if the underwriters exercise their option to purchase additional common units from us in full.

 

Common Units Outstanding after this Offering

            common units. If the underwriters do not exercise their option to purchase additional common units, in whole or in part, we will issue             additional common units to OCI USA at the expiration of the option period for no additional consideration. If and to the extent the underwriters exercise their option to purchase additional common units, the number of common units purchased by the underwriters pursuant to such exercise will be sold to the public, and any remaining common units not purchased by the underwriters pursuant to such exercise of the option will be issued to OCI USA at the expiration of the option period for no additional consideration. Accordingly, the exercise of the underwriters’ option will not affect the total number of common units outstanding.

 

  In addition, our general partner will own a non-economic general partner interest in us which will not entitle it to receive distributions.

 

Use of Proceeds

We estimate that the net proceeds to us from this offering, after deducting the estimated underwriting discount, structuring fees and the estimated offering expenses payable by us, will be approximately $            million (based on an assumed initial public offering price of $            per common unit, the midpoint of the price range set forth on the cover page of this prospectus). We intend to use the net proceeds from this offering as follows:

 

   

approximately $125.0 million to repay in full and terminate the Term B-1 Loan;

 

   

approximately $170.5 million to repay in full and terminate all of OCIB’s intercompany debt with OCI Fertilizer;

 

   

to pay a portion of the costs of our debottlenecking project and other budgeted capital projects incurred after the completion of this offering; and

 

   

the remainder, if any, for general partnership purposes, including working capital.

 

 

If the underwriters exercise their option to purchase up to             additional common units in full, the additional net proceeds would be approximately $            million, assuming an initial public offering price per common unit of $            (the midpoint of the price range set forth on the cover page of this prospectus). We will use the net

 

 

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proceeds from any exercise of the underwriters’ option to purchase additional common units for general partnership purposes.

 

  Affiliates of each of Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays Capital Inc. and Citigroup Global Markets Inc. are lenders under the Term B-1 Loan and, accordingly, may receive a portion of the distributions made to OCIB in connection with this offering. Please read “Underwriting—Other Relationships.”

 

Cash Distributions

Within 45 days after the end of each quarter, beginning with the first full quarter following the closing date of this offering, we expect to make distributions, as determined by the board of directors of our general partner, to unitholders of record on the applicable record date.

 

  Upon the completion of this offering, the board of directors of our general partner will adopt a policy to distribute 100% of the cash available for distribution that we generate each quarter. If we have cash available for distribution, our first distribution will take place following the first full quarter after the completion of this offering and will include cash available for distribution with respect to the period beginning on the closing date of this offering and ending on the last day of the first full quarter ending after the completion of this offering. Cash available for distribution for each quarter will be determined by the board of directors of our general partner following the end of such quarter. We expect that cash available for distribution for each quarter will generally equal the cash we generate during the quarter, less cash needed for maintenance capital expenditures, debt service and other contractual obligations and reserves for future operating or capital needs that the board of directors of our general partner deems necessary or appropriate. We do not intend to maintain excess distribution coverage for the purpose of maintaining stability or growth in our quarterly distribution or otherwise to reserve cash for distributions, nor do we intend to incur debt to pay quarterly distributions. Other than the expansion capital expenditures we intend to fund with the net proceeds from this offering, we expect to finance substantially all of our growth externally with commercial bank or intercompany borrowings or by issuances of debt or equity securities.

 

 

Because our policy will be to distribute 100% of the cash available for distribution that we generate each quarter, without reserving cash for future distributions or borrowing to pay distributions during periods of low cash flow from operations, our unitholders will have direct exposure to fluctuations in the amount of cash generated by our business. We expect that the amount of our quarterly distributions, if any, will vary based on our cash flow during such quarter. As a result, our cash distributions, if any, will not be stable and will vary from quarter to quarter as a direct result of, among other things, variations in our operating performance and cash flows caused by fluctuations in the prices of our natural gas supply and the demand for and prices of

 

 

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methanol and ammonia. Such variations in the amount of our quarterly distributions may be significant. Unlike most publicly traded partnerships, we will not have a minimum quarterly distribution or employ structures intended to maintain or increase quarterly cash distributions over time. We may change our distribution policy at any time. Our partnership agreement does not require us to pay cash distributions on a quarterly or other basis.

 

  For each of the year ended December 31, 2012 and the twelve months ended March 31, 2013, on a pro forma basis, we would not have generated sufficient cash available for distribution to have paid the per unit quarterly distribution that we project that we will be able to pay for the twelve months ending September 30, 2014. Please read “Our Cash Distribution Policy and Restrictions on Distributions—Unaudited Pro Forma Cash Available for Distribution.”

 

  Subject to certain assumptions and assuming the board of directors of our general partner declares distributions in accordance with our cash distribution policy, we expect that our cash available for distribution for the twelve months ending September 30, 2014 will be approximately $152.5 million, or $             per common unit, and we expect that our cash available for distribution for the three months ending December 31, 2014 will be approximately $64.0 million, or $             per common unit. Please read “Our Cash Distribution Policy and Restrictions on Distributions—Unaudited Forecasted Cash Available for Distribution.” Unanticipated events may occur that could materially adversely affect the actual results we achieve during the forecast periods. Consequently, our actual results of operations, cash flows, need for reserves and financial condition during the forecast periods may vary from the forecasts, and such variations may be material. Prospective investors are cautioned not to place undue reliance on our forecasts and should make their own independent assessment of our future results of operations, cash flows and financial condition. In addition, the board of directors of our general partner may be required to or elect to eliminate our distributions at any time during periods of reduced prices or demand for our products, among other reasons. Please read “Risk Factors.”

 

  For a calculation of our ability to make distributions to unitholders based on our pro forma results of operations for the year ended December 31, 2012 and the twelve months ended March 31, 2013, please read “Our Cash Distribution Policy and Restrictions on Distributions—Unaudited Pro Forma Cash Available for Distribution.” Our pro forma cash available for distribution generated during the year ended December 31, 2012 and the twelve months ended March 31, 2013 would have been $58.1 million and $114.7 million, respectively. However, the pro forma cash available for distribution information for the year ended December 31, 2012 and the twelve months ended March 31, 2013 that we include in this prospectus do not necessarily reflect the actual cash that would have been available for distribution with respect to those periods.

 

 

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Incentive Distribution Rights

None.

 

Subordinated Units

None.

 

Issuance of Additional Units

Our partnership agreement authorizes us to issue an unlimited number of additional units and rights to buy units for the consideration and on the terms and conditions determined by the board of directors of our general partner without the approval of our unitholders. Please read “The Partnership Agreement—Issuance of Additional Securities” and “Common Units Eligible for Future Sale.”

 

Limited Voting Rights

Our general partner manages us and our operations. Unlike the holders of common stock in a corporation, you will have only limited voting rights on matters affecting our business. You will have no right to elect our general partner or our general partner’s directors on an annual or other continuing basis. Our general partner may be removed by a vote of the holders of at least 66  2 / 3 % of our outstanding common units, including any common units held by our general partner and its affiliates (including OCI USA), voting together as a single class. Upon the closing of this offering, our general partner and its affiliates will own an aggregate of approximately             % of our outstanding common units (or approximately             % if the underwriters exercise their option to purchase additional common units in full). Please read “The Partnership Agreement—Voting Rights.”

 

Limited Call Right

If at any time our general partner and its affiliates own more than 90% of the common units, our general partner will have the right, which it may assign to any of its affiliates or to us, but not the obligation, to acquire all, but not less than all, of the common units held by public unitholders at a price not less than their then-current market price, as calculated pursuant to the terms of our partnership agreement. If our general partner and its affiliates reduce their ownership percentage to below 70% of the outstanding units, then concurrently with such reduction, the ownership threshold to exercise the limited call right will be permanently reduced to 80%. There is no restriction in our partnership agreement that prevents our general partner from causing us to issue additional common units and exercising its limited call right. Please read “The Partnership Agreement—Limited Call Right.”

 

Estimated Ratio of Taxable Income to Distributions

We estimate that if you own the common units you purchase in this offering from the date of the completion of this offering through the record date for distributions for the period ending December 31, 2015 you will be allocated, on a cumulative basis, an amount of U.S. federal taxable income for that period that will be approximately             % of the cash distributed to you with respect to that period. Because of the nature of our business and the expected variability of our quarterly distributions, the ratio of our taxable income to distributions may vary significantly from one year to another. Please read “Material U.S. Federal Income Tax Consequences—Tax Consequences of Common Unit Ownership—Ratio of Taxable Income to Distributions.”

 

 

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Material U.S. Federal Income Tax Consequences

Subject to the discussion under “Material U.S. Federal Income Tax Consequences—Partnership Status” and the limitations set forth therein, it is the opinion of Latham & Watkins LLP that we will be classified as a partnership for federal income tax purposes. As a result, we generally will incur no federal income tax liability. Instead, each of our unitholders will be required to take into account his share of items of our income, gain, loss and deduction in computing his federal income tax liability, regardless of whether cash distributions are made to him by us. Consequently, a unitholder may be liable for federal income taxes as a result of ownership of our units even if he has not received a cash distribution from us. Cash distributions by us to a unitholder generally will not give rise to income or gain.

For a discussion of material U.S. federal income tax consequences that may be relevant to prospective unitholders, please read “Material U.S. Federal Income Tax Consequences.”

 

Exchange Listing

We intend to apply to list our common units on the NYSE under the symbol “OCIP.”

 

Risk Factors

Please read “Risk Factors” for a discussion of factors that you should carefully consider before deciding to invest in our common units.

Depending on market conditions at the time of pricing of this offering and other considerations, we may sell fewer or more common units than the number set forth on the cover page of this prospectus.

 

 

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Summary Historical and Pro Forma Financial and Operating Data

The summary historical financial information presented below under the caption “Statements of Operations Data” and “Cash Flows Data” for the years ended December 31, 2012 and 2011 and the summary historical financial information presented below under the caption “Balance Sheets Data” as of December 31, 2012 and 2011 have been derived from OCIB’s audited financial statements included elsewhere in this prospectus, which financial statements have been audited by KPMG LLP, an independent registered public accounting firm (“KPMG”).

The summary historical financial information presented below under the caption “Statements of Operations Data” and “Cash Flows Data” for the three months ended March 31, 2013 and 2012 and the summary financial data presented below under the caption “Balance Sheets Data” as of March 31, 2013 have been derived from OCIB’s unaudited financial statements included in this prospectus which, in the opinion of management, include all adjustments, consisting of only normal, recurring adjustments, necessary for the fair presentation of the results for the unaudited interim periods.

The summary unaudited pro forma condensed statements of operations data presented for the year ended December 31, 2012 and the three months ended March 31, 2013 assumes that the Transactions occurred as of January 1, 2012, and the unaudited pro forma condensed balance sheet data as of March 31, 2013 assumes that the Transactions occurred as of March 31, 2013. The summary unaudited pro forma condensed financial information is derived from our unaudited pro forma condensed financial statements included elsewhere in this prospectus. The pro forma condensed financial data is not comparable to our historical financial data. A more complete explanation of the pro forma condensed financial data can be found in our unaudited pro forma condensed financial statements and accompanying notes included elsewhere in this prospectus. Neither the pro forma condensed statements of operations data nor the pro forma condensed balance sheet data include estimates of the incremental costs of operating as a publicly traded limited partnership.

 

 

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For a detailed discussion of the summary historical financial information and operating data contained in the following table, please read “Management’s Discussion and Analysis of Financial Condition and Results of Operations.” The following table should also be read in conjunction with “Use of Proceeds” and our audited and unaudited historical financial statements and our unaudited pro forma condensed financial statements included elsewhere in this prospectus. Among other things, the historical and unaudited pro forma condensed financial statements include more detailed information regarding the basis of presentation for the information in the following table.

 

    Historical     Pro Forma  
(Dollars and metric tons in thousands)   Three months ended
March 31,
    Year ended December 31,     Three
months
ended
March 31,
    Year
ended
December  31,
 
   

2013

   

2012

   

2012

   

2011

   

2013

   

2012

 
   

(unaudited)

               

(unaudited)

 

Statements of Operations Data:

           

Revenues(1)

  $ 112,161      $ 26,492      $ 224,629      $ —        $ 112,161      $ 224,629   

Cost of goods sold (exclusive of depreciation)

    45,952        17,294        133,430        —          45,952        133,430   

Expenses:

           

Depreciation expense

    5,512        966        11,355        —          5,512        11,355   

Selling, general and administrative

    8,098        3,479        14,980        236        3,750        15,000   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) from operations before interest expense, other income and income tax expense

    52,599        4,753        64,864        (236     56,947        64,844   

Interest expense

    2,259        —          5,718        —          2,688        10,962   

Interest expense – related party

    4,411        —          6,469        —          50        200   

Other income

    9        159        202        523        9        202   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Income before income tax expense

    45,938        4,912        52,879        287        54,218        53,884   

Income tax expense

    474        47        1,048        —          474        1,048   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income

  $ 45,464      $ 4,865      $ 51,831      $ 287      $ 53,744      $ 52,836   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income per common unit (basic and diluted)

           

Common units outstanding (basic and diluted)

           

Cash Flows Data:

           

Net cash provided by (used in):

           

Operating activities

  $ (15,824   $ (4,842   $ 74,657      $ (5,252    

Investing activities

    (6,481     (83,752     (193,965     (130,214    

Financing activities

    —          91,000        159,982        136,500       

Balance Sheets Data (at period end):

           

Cash and cash equivalents

  $ 19,403        $ 41,708      $ 1,034      $ 159,618     

Total assets

    420,411          405,345        154,682        494,643     

Total liabilities

    318,829          349,227        150,395        255,009     

Member’s equity

    101,582          56,118        4,287       

Member’s equity / partners’ capital (including offering proceeds)

            239,634     

Member’s equity / partners’ capital (excluding offering proceeds)(2)

            (206,616  

Other Financial Data:

           

EBITDA(3)

  $ 58,111      $ 5,719      $ 76,219      $ (236   $ 62,459      $ 76,199   

Capital expenditures for property, plant and equipment

    6,481        83,752        193,965        130,214       

Total debt (excluding accrued interest)

    295,482          295,482        132,500        232,650     

Key Operating Data:

           

Production (metric tons)

           

Methanol

    176.5        —          275.0        —         

Ammonia

    64.5        42.8        213.0        21.0       

 

 

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(1) Our ammonia production unit commenced production in December 2011, and our methanol production unit commenced production in July 2012. Although we began producing ammonia in December 2011, we did not sell the produced ammonia volumes until January 2012 in order to build inventories.
(2) Member’s equity / partners’ capital (excluding offering proceeds) gives effect to the Transactions that have taken place or will take place in connection with this offering, except for the issuance and sale of common units in this offering and our expected use of the net proceeds therefrom. Please read “Prospectus Summary—The Transactions” and “Use of Proceeds.” Please also read the unaudited pro forma condensed balance sheet as of March 31, 2013 beginning on page F-3.
(3) EBITDA is defined as net income plus interest expense and other financing costs, depreciation and income tax expense, net of interest income.

EBITDA is used as a supplemental financial measure by management and by external users of our financial statements, such as investors and commercial banks, to assess:

 

   

the financial performance of our assets without regard to financing methods, capital structure or historical cost basis; and

 

   

our operating performance and return on invested capital compared to those of other publicly traded partnerships, without regard to financing methods and capital structure.

EBITDA should not be considered an alternative to net income, operating income, net cash provided by operating activities or any other measure of financial performance or liquidity presented in accordance with GAAP. EBITDA may have material limitations as a performance measure because it excludes items that are necessary elements of our costs and operations. In addition, EBITDA presented by other companies may not be comparable to our presentation because each company may define that term differently.

 

     Historical     Pro Forma  
     Three months ended
March 31,
    Year ended
December 31,
    Three
months
ended
March 31,
     Year
ended
December

31,
 
(dollars in thousands)   

2013

    

2012

   

2012

    

2011

   

2013

    

2012

 
    

(unaudited)

                

(unaudited)

 

Net income

   $ 45,464       $ 4,865      $ 51,831       $ 287      $ 53,744       $ 52,836   

Add:

               

Interest expense, net

     2,250         (159     5,516         (523     2,679         10,760   

Interest expense – related party

     4,411         —          6,469         —          50         200   

Depreciation expense

     5,512         966        11,355         —          5,512         11,355   

Income tax expense

     474         47        1,048         —          474         1,048   
  

 

 

    

 

 

   

 

 

    

 

 

   

 

 

    

 

 

 

EBITDA

   $ 58,111       $ 5,719      $ 76,219       $ (236   $ 62,459       $ 76,199   
  

 

 

    

 

 

   

 

 

    

 

 

   

 

 

    

 

 

 

 

 

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RISK FACTORS

You should carefully consider each of the following risks and all of the information set forth in this prospectus before deciding to invest in our common units. If any of the following risks and uncertainties develops into an actual event, our business, financial condition, cash flows or results of operations could be materially adversely affected. In that case, we might not be able to pay distributions on our common units, the trading price of our common units could decline and you could lose all or part of your investment. Although many of our business risks are comparable to those faced by a corporation engaged in a similar business, limited partner interests are inherently different from the capital stock of a corporation and involve additional risks described below.

Risks Related to Our Business

We may not have sufficient cash available for distribution to pay any quarterly distribution on our common units.

We may not have sufficient cash available for distribution each quarter to enable us to pay any distributions to our common unitholders. The amount of cash we will be able to distribute on our common units principally depends on the amount of cash we generate from our operations, which is directly dependent upon the operating margins we generate. Our profit margins are significantly affected by the level of our cost of goods sold (exclusive of depreciation), including the cost of natural gas, our main feedstock, as well as the costs of hydrogen and nitrogen and other costs, the market-driven prices for methanol and ammonia we are able to charge our customers, seasonality, weather conditions, governmental regulation and global and domestic economic conditions and demand for methanol and ammonia, among other factors. In addition, our results of operations and our ability to pay distributions are affected by:

 

   

the level of capital expenditures we make;

 

   

our debt service requirements;

 

   

the amount of any reimbursement of expenses incurred by our general partner and its affiliates on our behalf;

 

   

fluctuations in our working capital needs;

 

   

our ability to access capital markets;

 

   

planned and unplanned maintenance at our facility, which may result in downtime and thus negatively impact our cash flows in the quarter in which such maintenance occurs;

 

   

fluctuations in interest rates;

 

   

the level of competition in our market and industry;

 

   

restrictions on distributions and on our ability to make working capital borrowings; and

 

   

the amount of cash reserves established by our general partner, including for turnarounds and related expenses.

Our partnership agreement will not require us to pay a minimum quarterly distribution. The amount of distributions that we pay, if any, and the decision to pay any distribution at all will be determined by the board of directors of our general partner. Our quarterly distributions, if any, will be subject to significant fluctuations based on the above factors.

 

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For a description of additional restrictions and factors that may affect our ability to make cash distributions, please read “Our Cash Distribution Policy and Restrictions on Distributions.”

The amount of our quarterly cash distributions, if any, will vary significantly both quarterly and annually and will be directly dependent on the performance of our business. Unlike most publicly traded partnerships, we will not have a minimum quarterly distribution or employ structures intended to maintain or increase quarterly cash distributions over time.

Investors who are looking for an investment that will pay regular and predictable quarterly distributions should not invest in our common units. We expect our business performance will be more volatile, and our cash flows will be less stable, than the business performance and cash flows of most publicly traded partnerships. As a result, our quarterly cash distributions will be volatile and are expected to vary quarterly and annually. Unlike most publicly traded partnerships, we will not have a minimum quarterly distribution or employ structures intended to maintain or increase quarterly cash distributions over time. The amount of our quarterly cash distributions will be directly dependent on the performance of our business, which is subject to volatility. Methanol prices have historically been, and are expected to continue to be, characterized by significant cyclicality. Additionally, ammonia and natural gas prices are volatile, and seasonal and global fluctuations in demand for nitrogen fertilizer products and other ammonia-based products could affect our revenues. Because our quarterly cash distributions will be subject to significant fluctuations directly related to the cash we generate after payment of our fixed and variable expenses and other cash reserves established by our general partner, future quarterly cash distributions paid to our unitholders will vary significantly from quarter to quarter and may be zero. Given the volatile nature of our business, we expect that our unitholders will have direct exposure to fluctuations in the price of methanol and ammonia and the cost of natural gas.

The amount of cash we have available for distribution to unitholders depends primarily on our cash flow and not solely on profitability.

You should be aware that the amount of cash we have available for distribution depends primarily on our cash flow and not solely on our profitability, which may be affected by non-cash items. For example, we may have extraordinary capital expenditures and major maintenance expenses in the future. Please read “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Capital Expenditures.” As a result, we may make cash distributions during periods when we report losses and may not make cash distributions during periods when we report net income.

The board of directors of our general partner may modify or revoke our cash distribution policy at any time at its discretion. Our partnership agreement does not require us to pay any distributions at all.

The board of directors of our general partner will adopt a cash distribution policy pursuant to which we will distribute 100% of the cash available for distribution that we generate each quarter to unitholders of record on a pro rata basis. However, the board of directors may change such policy at any time at its discretion and could elect not to pay distributions for one or more quarters. Please read “Our Cash Distribution Policy and Restrictions on Distributions.”

Our partnership agreement does not require us to pay any distributions at all. Accordingly, investors are cautioned not to place undue reliance on the permanence of such a policy in making a decision to invest in our common units. Any modification or revocation of our cash distribution policy could substantially reduce or eliminate the amounts of distributions to our unitholders. The amount of distributions we make, if any, and the decision to make any distribution at all will be determined by the board of directors of our general partner, whose interests may differ from those of our common unitholders. Our general partner has limited fiduciary and contractual duties, which may permit it to favor its own interests or the interests of OCI to the detriment of our common unitholders.

 

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For each of the year ended December 31, 2012 and the twelve months ended March 31, 2013, on a pro forma basis, we would not have generated sufficient cash available for distribution to have paid the per unit quarterly distribution that we project that we will be able to pay for the twelve months ending September 30, 2014.

We project that we will be able to pay aggregate quarterly distributions of $            per unit for the twelve months ending September 30, 2014. In order to pay these projected distributions, we must generate approximately $152.5 million of cash available for distribution during the twelve months ending September 30, 2014. We have a limited operating history upon which to rely in evaluating whether we will have sufficient cash to allow us to pay quarterly distributions on our common units. We acquired our facility (which had been idled by the previous owners since 2004) in May 2011, commenced an upgrade that was completed in July 2012 and began operating our facility at full capacity in the fourth quarter of 2012. Our newly renovated facility began ammonia production in December 2011 and began methanol production in July 2012 (with no significant methanol production until August 2012), with revenues first generated from ammonia sales in the first quarter of 2012 and from methanol sales in the third quarter of 2012. We did not achieve maximum daily production rates at our current capacity until the fourth quarter of 2012, after an approximate 20-month start-up phase. For a description of the price assumptions upon which we have based our projected per unit quarterly distributions during the twelve months ending September 30, 2014, please read “Our Cash Distribution Policy and Restrictions on Distributions—Assumptions and Considerations.”

The assumptions underlying the forecasts of cash available for distribution that we include in “Our Cash Distribution Policy and Restrictions on Distributions—Unaudited Forecasted Cash Available for Distribution” are inherently uncertain and are subject to significant business, economic, regulatory and competitive risks and uncertainties that could cause actual results to differ materially from those forecasted.

Our forecasts of cash available for distribution set forth in “Our Cash Distribution Policy and Restrictions on Distributions—Unaudited Forecasted Cash Available for Distribution” include our forecast of our results of operations and cash available for distribution for the twelve months ending September 30, 2014 and for the three months ending December 31, 2014. The forecasts have been prepared by our management team. Neither our independent registered public accounting firm nor any other independent accountants have examined, compiled or performed any procedures with respect to the forecasts, nor have any of them expressed any opinion or any other form of assurance on such information or its achievability, and they assume no responsibility for the forecasts. The assumptions underlying the forecasts are inherently uncertain and are subject to significant business, economic, regulatory and competitive risks and uncertainties, including those discussed in this section, that could cause actual results to differ materially from those forecasted. If the forecasted results are not achieved, we would not be able to pay the forecasted distribution amounts, in which event the market price of our common units may decline materially. Our actual results may differ materially from the forecasted results presented in this prospectus. Investors should review the forecast of our results of operations for the twelve months ending September 30, 2014 and for the three months ending December 31, 2014 together with the other information included elsewhere in this prospectus, including “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations.”

We have a limited operating history. As a result, you may have difficulty evaluating our ability to pay quarterly cash distributions to our unitholders or our ability to be successful in implementing our business strategy.

As a newly upgraded facility, the operating performance of our facility over the short-term and long-term is not yet proven. We have already encountered and will continue to encounter risks and difficulties frequently experienced by companies whose performance is dependent upon newly constructed or recently upgraded world-scale processing or manufacturing facilities, such as the risks described in this prospectus. We may not achieve the efficiencies and utilization rates we expect from our newly upgraded facility.

We acquired our facility (which had been idled by the previous owners since 2004) in May 2011, commenced an upgrade that was completed in July 2012 and began operating our facility at full capacity in the

 

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fourth quarter of 2012. Our newly renovated facility began ammonia production in December 2011 and began methanol production in July 2012 (with no significant methanol production until August 2012), with revenues first generated from ammonia sales in the first quarter of 2012 and from methanol sales in the third quarter of 2012. We did not achieve maximum daily production rates at our current capacity until the fourth quarter of 2012, after an approximate 20-month start-up phase. During this period, we experienced unplanned downtime. For example, in the third quarter of 2012, our facility experienced approximately four weeks of unplanned downtime as we took our facility offline to resolve certain start-up issues and to complete other capital and maintenance projects.

Because of our limited operating history and performance record, it is difficult for you to evaluate our business and results of operations to date and to assess our future prospects. Further, our historical financial statements present a period of limited operations and therefore do not provide a meaningful basis for you to evaluate our operations or our ability to achieve our business strategy. We may be less successful than a seasoned company in achieving a consistent operating level at our facility capable of generating cash flows from our operations sufficient to regularly pay a quarterly cash distribution or to pay any quarterly cash distribution to our unitholders. We may also be less successful in implementing our business strategy than a seasoned company with a longer operating history. Finally, we may be less equipped to identify and address operating risks and hazards in the conduct of our business than those companies whose major facilities have longer operating histories.

Our management has no experience in managing our business as a U.S. publicly traded partnership.

Our executive management team and internal accounting staff have no experience in managing our business and reporting as a U.S. publicly traded partnership. As a result, we may not be able to anticipate or respond to material changes or other events in our business as effectively as if our executive management team and accounting staff had such experience. Furthermore, growth projects may place significant strain on our management resources, thereby limiting our ability to execute our business strategy.

Our facility faces operating hazards and interruptions, including unscheduled maintenance or downtime. We could face significant reductions in revenues and increases in expenses to the extent these hazards or interruptions cause a material decline in production and are not fully covered by our existing insurance coverage. Insurance companies that currently insure companies in our industry may cease to do so, may change the coverage provided or may substantially increase premiums in the future.

Our operations, located at a single location, are subject to significant operating hazards and interruptions. Any significant curtailing of production at our facility or individual units within our facility could result in materially lower levels of revenues and cash flow and materially increased expenses for the duration of any downtime and materially adversely impact our results of operations, financial condition and ability to make cash distributions. Operations at our facility could be curtailed or partially or completely shut down, temporarily or permanently, as the result of a number of circumstances, most of which are not within our control, such as:

 

   

unscheduled maintenance or catastrophic events such as a major accident or fire, damage by severe weather, flooding or other natural disaster;

 

   

labor difficulties that result in a work stoppage or slowdown;

 

   

environmental proceedings or other litigation that compel the cessation of all or a portion of the operations at our facility;

 

   

increasingly stringent environmental regulations;

 

   

a disruption in the supply of natural gas to our plant; and

 

   

governmental limitations on the use of our products, either generally or specifically those manufactured at our plant.

 

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The magnitude of the effect on us of any downtime will depend on the length of the downtime and the extent our operations are affected by the downtime. We expect to perform maintenance turnarounds approximately every four years, which will typically last from 20 to 40 days and cost approximately $24 million per turnaround. Such turnarounds may have a material impact on our cash flows and ability to make cash distributions in the quarter or quarters in which they occur. We plan to undertake a turnaround as part of our debottlenecking project that is expected to be completed in the second half of 2014, which will result in approximately 30 to 40 days of downtime at our facility. Scheduled and unscheduled maintenance or downtime could have a material adverse effect on our results of operations, financial condition and ability to make cash distributions during the period of time that any of our units is not operating. During downtime, we will be required to fulfill certain of our customer contracts with product purchased from third parties at spot prices and we may incur losses in connection with those sales. In addition, a major accident, fire, flood or other event could damage our facility or the environment and the surrounding community or result in injuries or loss of life.

For example, in the quarter(s) preceding our planned downtime for major turnarounds as described elsewhere in this prospectus, the board of directors of our general partner may elect to reserve amounts to fund (i) the capital costs associated with our major turnarounds, (ii) all or a portion of the revenues projected to be forgone as a result of the loss of production during the downtime associated with a turnaround or (iii) both. Based upon the decision(s) made by the board of directors of our general partner, the cash available for distribution in the quarter(s) preceding such a planned maintenance event in which the reserves are withheld may be adversely impacted. Conversely, additional amounts may be required to be reserved from cash available for distribution generated in a quarter subsequent to such a planned maintenance event should the scope of the actual work performed during such period be materially different than that planned.

If we experience significant property damage, business interruption, environmental claims or other liabilities, our business could be materially adversely affected to the extent the damages or claims exceed the amount of valid and collectible insurance available to us. We are currently insured under casualty, environmental, property and business interruption insurance policies. These policies contain exclusions and conditions that could have a materially adverse impact on our ability to receive indemnification thereunder, as well as customary sub-limits for particular types of losses. Please read “Business—Insurance.”

We are not fully insured against all risks related to our business and, if an accident or event occurs that is not fully insured, it could materially adversely affect our business.

A major accident, fire, flood or other event could damage our facility or the environment and the surrounding community or result in injuries or loss of life. If we experience significant property damage, business interruption, environmental claims or other liabilities, our business could be materially adversely affected to the extent the damages or claims exceed the amount of valid and collectible insurance available to us. We are currently insured under casualty, environmental, property and business interruption insurance policies. The following conversions from Euros to U.S. dollars with respect to our insurance policies are based on a conversion rate of €1.00 to $1.3067 as of July 12, 2013, as reported by Bloomberg. The property and business interruption insurance policies have a €400.0 million (or approximately $522.7 million) limit, with a €0.5 million (or approximately $0.7 million) deductible for physical damage (€1.0 million (or approximately $1.3 million) for property damage from a major machinery breakdown), a €2.3 million (or approximately $3.0 million) deductible for business interruption and a 30-day waiting period before losses resulting from business interruptions are recoverable. The policies also contain exclusions and conditions that could have a materially adverse impact on our ability to receive indemnification thereunder, as well as customary sub-limits for particular types of losses. For example, the current property policy contains a specific sub-limit of €100.0 million (or approximately $130.7 million) for damage caused by flooding and €100.0 million (or approximately $130.7 million) for damage caused by named windstorm. We are fully exposed to all losses in excess of the applicable limits and sub-limits and for losses due to business interruptions caused by machinery breakdown of fewer than 30 days, and there is a limit of €4.0 million (or approximately $5.2 million) for losses due to such business interruption incurred after the expiration of the 30-day waiting period. With regard to environmental claims due to accidental pollution, we

 

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currently have a policy limit of €100.0 million (or approximately $130.7 million) under the general liability insurance policy in place, and this policy has a deductible of €125,000 (or $163,338). The occurrence of any operating risk not covered by our insurance could have a material adverse effect on our business, financial condition, results of operations and ability to pay distributions to our unitholders. Market factors, including but not limited to catastrophic perils that impact our industry, significant changes in the investment returns of insurance companies, insurance company solvency trends and industry loss ratios and loss trends, can negatively impact the future cost and availability of insurance. There can be no assurance that we will be able to buy and maintain insurance in the future with adequate limits, reasonable pricing terms and conditions.

The substantial majority of our contracts do not provide for a minimum commitment from our customers. The prices we receive for our products are determined by reference to pricing indices and thus could be subject to significant variations.

The substantial majority of our contracts do not provide for a minimum commitment from our customers. Although our contracts set pricing terms, they generally do not obligate the counterparty to purchase a specified minimum volume of methanol or ammonia from us. As such, many of our customers could source their methanol or ammonia supply elsewhere and cease buying our products at any time and for any reason, and we will have no recourse in the event such customer decides not to purchase our products. If customers representing a significant amount of our revenues elect not to purchase the methanol and ammonia we produce, it could materially adversely affect our results of operations, financial condition and ability to make cash distributions.

Methanol and ammonia are global commodities, with little or no product differentiation, and customers make their purchasing decisions principally on the basis of delivered price and availability of the product. As a result, the prevailing market sales prices for methanol and ammonia are subject to volatile, cyclical and seasonal changes in respect to relatively small changes in demand. Since the substantial majority of our contracts do not provide for a minimum commitment from our customers and the prices at which we sell our products are determined by reference to specific pricing indices that change in response to changes in prevailing market conditions, the revenue we receive for the sales of our products will be subject to significant variations from period to period in response to changes in prevailing market prices for methanol and ammonia, which variations will result in changes in our cash available for distribution and distributions per common unit.

The methanol industry is subject to commodity price volatility and supply and demand uncertainty, which could potentially affect our operating and financial results, and expose our unitholders to substantial volatility in our quarterly cash distributions and material reductions in the trading price of our common units.

The methanol industry has historically been characterized by cycles of oversupply caused by either excess supply or reduced demand, resulting in lower prices and idling of capacity, followed by periods of shortage and rising prices as demand exceeds supply until increased prices lead to new plant investment or the restart of idled capacity. The methanol industry has historically operated significantly below stated capacity on a consistent basis, even in periods of high methanol prices, due primarily to shutdowns for planned and unplanned repairs and maintenance, temporary closures of marginal production facilities, as well as shortages of feedstock and other production inputs.

The methanol business is a highly competitive commodity industry, and prices are affected by supply and demand fundamentals and global energy prices. Methanol prices have historically been, and are expected to continue to be, characterized by significant cyclicality. New methanol plants are expected to be built in the United States, and this will increase overall production capacity. For example, Methanex, LyondellBasell Industries N.V. (“LyondellBasell”) and Celanese Corporation (“Celanese”) have each announced plans to relocate, restart or construct methanol plants in the U.S. Gulf Coast region over the next few years, which will increase overall U.S. production capacity and the availability of methanol supply to our customers from competing sources. Please read “Business—Competition.” Additional methanol supply can also become available in the future by restarting idle methanol plants, carrying out major expansions of existing plants or debottlenecking existing plants to increase their

 

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production capacity. Historically, higher-cost plants have been shut down or idled when methanol prices are low, but there can be no assurance that this practice will occur in the future or that such plants will remain idle. Relatively low prices for natural gas have led to reduced idling at the current time. In addition, Jim Jordan projects that by 2017 increased methanol production capacity in the United States could exceed domestic demand. This increased supply could lead to downward pressure on methanol prices.

Demand for methanol largely depends upon levels of global industrial production, changes in general economic conditions and energy prices. We are not able to predict future methanol supply and demand balances, market conditions, global economic activity, methanol prices or energy prices, all of which are affected by numerous factors beyond our control. Since methanol constitutes a significant portion of the products we produce and market, a decline in the price of methanol would have an adverse impact on our financial condition, cash flows and results of operations, which could result in significant volatility or material reductions in the price of our common units or an inability to make quarterly cash distributions on our common units.

The ammonia business is, and ammonia prices are, cyclical and highly volatile and have experienced substantial downturns. Cycles in demand and seasonal fluctuations in pricing could potentially affect our operating and financial results, and expose our unitholders to substantial volatility in our quarterly cash distributions and material reductions in the trading price of our common units.

Ammonia is a commodity, and demand for and prices of ammonia can be highly volatile. In particular, our ammonia business is exposed to fluctuations in the demand for nitrogen fertilizer from the agricultural industry. These fluctuations historically have had and could in the future have significant effects on prices across all ammonia-based products and, in turn, our financial condition, cash flows and results of operations, which could result in significant volatility or material reductions in the price of our common units or an inability to make quarterly cash distributions on our common units.

The ammonia industry is generally seasonal. Farmers tend to apply nitrogen fertilizer during two short application periods, one in the spring and the other in the fall. The strongest demand for nitrogen fertilizers typically occurs during the planting season. In contrast, we and other ammonia producers generally produce our products throughout the year. As a result, ammonia producers generally build inventories during the low demand periods of the year in order to ensure timely product availability during the peak sales seasons. The seasonality of nitrogen fertilizer demand results in ammonia producers’ sales volumes being highest during the North American spring season and their working capital requirements typically being highest just prior to the start of the spring season. The degree of seasonality of the ammonia industry can change significantly from year to year due to conditions in the agricultural industry and other factors. As a consequence of this seasonality, we expect that our distributions will be volatile and will vary quarterly and annually.

If seasonal demand exceeds the projections on which we base our production, we will not have enough product and our customers may acquire ammonia from our competitors, which will negatively impact our profitability. If seasonal demand is less than we expect, we will be left with excess inventory and higher working capital and liquidity requirements associated with the liquidation or storage of such inventory. Additionally, because our inventory storage capacity is not significant, during periods of peak demand we may be required to acquire ammonia at spot prices in order to fulfill our supply obligations to customers. The prices at which we purchase ammonia for sale to our customers may negatively impact our profitability.

The pricing and demand for nitrogen fertilizer products is also dependent on demand for crop nutrients by the global agricultural industry. The agricultural products business can be affected by a number of factors. The most important of these factors, for U.S. markets, are:

 

   

weather patterns and field conditions (particularly during periods of traditionally high nitrogen fertilizer consumption);

 

   

quantities of nitrogen fertilizers imported to and exported from North America;

 

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current and projected grain inventories and prices, which are heavily influenced by U.S. exports and world-wide grain markets; and

 

   

U.S. governmental policies, including farm and biofuel policies, which may directly or indirectly influence the number of acres planted, the level of grain inventories, the mix of crops planted or crop prices.

International market conditions may also significantly influence our operating results. The international market for nitrogen fertilizers is influenced by such factors as the relative value of the U.S. dollar and its impact upon the cost of importing nitrogen fertilizers, foreign agricultural policies, the existence of, or changes in, import or foreign currency exchange barriers in certain foreign markets, changes in the hard currency demands of certain countries and other regulatory policies of foreign governments, as well as the laws and policies of the United States affecting foreign trade and investment.

Since ammonia constitutes a significant portion of the products we produce and market, a decline in the price of or demand for nitrogen fertilizers would have a material adverse effect on our business, cash flow and ability to make distributions.

Methanol and ammonia are global commodities, and we face intense competition from other producers.

Our business is subject to intense price competition from both U.S. and foreign sources, including competitors operating in Trinidad with respect to methanol and in the Persian Gulf, the Asia-Pacific region, the Caribbean, Russia and the Ukraine with respect to ammonia. Both methanol and ammonia are global commodities, with little or no product differentiation, and customers make their purchasing decisions principally on the basis of delivered price and availability of the product. We compete with a number of domestic and foreign producers, including state-owned and government-subsidized entities. Most significantly, producers in Trinidad have historically been the largest suppliers of methanol to the United States. These companies have significant experience and expertise in production, transportation, marketing and sales of methanol in the United States. Some competitors have greater total resources and are less dependent on earnings from methanol or ammonia sales, which makes them less vulnerable to industry downturns and better positioned to pursue new expansion and development opportunities. In addition, Methanex, LyondellBasell and Celanese have each announced plans to relocate, restart or construct methanol plants in the U.S. Gulf Coast region over the next few years, which would compete directly with our facility. If we are unable to provide customers with a reliable supply of methanol or ammonia at competitive prices, we may lose market share to our competitors, which could have an adverse impact on our results of operations, financial condition and ability to make cash distributions.

Our profitability is vulnerable to fluctuations in the cost of natural gas, our primary feedstock.

Our profitability is significantly dependent on the cost of our natural gas feedstock, and a significant increase in the price of natural gas would adversely affect our ability to operate our facility on a profitable basis. In recent history, the price of natural gas has been very volatile, with prices at the NYMEX pricing point, Henry Hub, spiking to near-record high prices in 2008 and dropping to near-record low prices in 2012. This was due to various supply and demand factors, including the increasing overall demand for natural gas from industrial users, which is affected, in part, by the general conditions of the U.S. and global economies, and other factors. We currently procure our natural gas through two main suppliers, Kinder Morgan and DCP Midstream, through supply agreements that are based on spot pricing, making us susceptible to fluctuations in the price of natural gas. A hypothetical increase or decrease of $1.00 per MMBtu of natural gas would increase or decrease our annual cost of goods sold (exclusive of depreciation) by approximately $32.6 million. A material increase in natural gas prices could materially and adversely affect our results of operations, financial condition and ability to make cash distributions.

 

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Our facility operates under a number of federal and state permits, licenses and approvals, and failure to comply with or obtain necessary permits, licenses and approvals may result in unanticipated costs or liabilities, which could reduce our profitability.

Our facility operates under a number of federal and state permits, licenses and approvals with terms and conditions containing a significant number of prescriptive limits and performance standards in order to operate. Our facility is also required to comply with prescriptive limits and meet performance standards specific to chemical facilities as well as to general manufacturing facilities. All of these permits, licenses, approvals and standards require a significant amount of monitoring, record keeping and reporting in order to demonstrate compliance with the underlying permit, license, approval or standard. Incomplete documentation of compliance status may result in the imposition of fines, penalties and injunctive relief. Additionally, due to the nature of our manufacturing processes, there may be times when we are unable to meet the standards and terms and conditions of these permits and licenses due to operational upsets or malfunctions, which may lead to violations or enforcement from regulatory agencies that could potentially result in operating restrictions. This would have a direct material adverse effect on our ability to operate our facilities and accordingly our results of operations, financial condition and ability to make cash distributions.

We hold numerous environmental and other governmental permits and approvals authorizing operations at our plant. We are currently operating our facility under a Title V permit issued by the Texas Commission on Environmental Quality (the “TCEQ”) that limits certain operations to three years from the date of startup. We have applied for an amendment to our existing permit, including an application to EPA for review of greenhouse gas (“GHG”) emissions under best available control technology (“BACT”). A denial of or delay in issuing, renewing or amending a material permit could have an adverse impact on our results of operations, financial condition and ability to make cash distributions because of an inability to operate our facilities in accordance with our business plan.

We plan to undertake a debottlenecking project in the second half of 2014 that we expect will increase output from our methanol and ammonia production units. Our debottlenecking project and any other expansion of our operations is also predicated upon securing the necessary environmental or other permits or approvals, including necessary amendments to current permits to account for increased output. We have applied for a greenhouse gas permit from the U.S. Environmental Protection Agency (the “EPA”) in connection with our debottlenecking project in 2014. In some cases, such permits must be issued prior to the commencement of the project. We have begun pre-construction and other activities associated with our debottlenecking project that do not require a permit. A decision by a government agency to deny or delay issuing a new or renewed material permit or approval, or to revoke or substantially modify an existing permit or approval, could have a material adverse effect on our ability to continue operations or our ability to commence and complete our debottlenecking or other expansion projects.

Our expansion of existing assets and construction of new assets may not result in revenue increases and will be subject to regulatory, environmental, political, legal and economic risks, which could adversely affect our results of operations, financial condition and ability to make cash distributions.

In order to optimize our existing asset base, we intend to evaluate and capitalize on organic opportunities for expansion projects in order to increase revenue. The expansion of production capacity (such as our debottlenecking project), or the construction of new assets, involves numerous regulatory, environmental, political and legal uncertainties, most of which are beyond our control. These risks include:

 

   

changes to plans and specifications;

 

   

engineering problems, including defective plans and specifications;

 

   

shortages of, and price increases in, energy, raw materials and skilled and unskilled labor;

 

   

inflation in key supply markets;

 

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changes in laws and regulations, or in the interpretations and enforcement of laws and regulations, applicable to constructions projects;

 

   

poor workmanship, labor disputes or work stoppages;

 

   

failure by subcontractors to comply with applicable laws and regulations;

 

   

injuries sustained by workers or patrons on the job site;

 

   

disputes with and defaults by contractors and subcontractors;

 

   

claims asserted against us for construction defects, personal injury or property damage;

 

   

environmental issues;

 

   

health and safety incidents and site accidents;

 

   

weather interferences or delays;

 

   

fires and other natural disasters; and

 

   

other unanticipated circumstances or cost increases.

If we undertake any expansion projects, they may not be completed on schedule or at all or at the budgeted cost. We plan to use a portion of the net proceeds from this offering to fund a portion of the costs of our debottlenecking project (including costs associated with a maintenance turnaround and various environmental upgrades) and other budgeted capital projects incurred after the completion of this offering. If the actual cost to complete the debottlenecking project and other budgeted capital projects is greater than the budgeted cost, we would be required to use our cash flow from operations or seek additional sources of financing to complete those projects. We may not have sufficient cash flow from operations, or additional sources of financing may not be available on commercially reasonable terms or at all. Using cash flow from operations or incurring debt to fund our expansion projects (and paying the interest related to such incremental debt) could adversely impact our ability to make cash distributions. If our expansion projects take longer than their contemplated schedules, then our facility could experience prolonged downtime, which could adversely affect our results of operations, financial condition and ability to make cash distributions.

Future demand for methanol for MTBE production may be adversely affected by regulatory developments.

Changes in environmental, health and safety laws, regulations or requirements could impact methanol demand for the production of methyl tertiary butyl ether (“MTBE”). In 2012, methanol demand for the production of MTBE, a source of octane and an oxygenate for gasoline, represented approximately 13% of global methanol demand. Several years ago, environmental concerns and legislative action related to gasoline leaking into water supplies from underground gasoline storage tanks in the United States resulted in the phase-out of MTBE as a gasoline additive in the United States. However, approximately 0.7 million metric tons of methanol was used in the United States in 2012 to produce MTBE for export markets, where demand for MTBE has continued at strong levels. Demand for methanol for use in MTBE production in the United States could decline materially if export demand is impacted by governmental legislation or policy changes. The EPA is currently reviewing the human health effects of MTBE, including its potential carcinogenicity. The European Union issued a final risk assessment report on MTBE in 2002 that permitted the continued use of MTBE, although several risk reduction measures relating to the storage and handling of fuels were recommended. Governmental efforts in recent years in some countries, primarily in the European Union and Latin America, to promote biofuels and alternative fuels through legislation or tax policy are also putting competitive pressures on the use of MTBE in gasoline in these countries. Declines in demand for methanol for use in MTBE production could have an adverse impact on our results of operations, financial condition and ability to make cash distributions.

 

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Future demand for methanol may be adversely affected by regulatory developments.

Some of our customers use methanol that we supply to manufacture formaldehyde, among other chemicals. Formaldehyde currently represents the largest single demand use for methanol in the United States. Formaldehyde, a component of resins used as wood adhesives and as a raw material for engineered plastics and a variety of other products, including elastomers, paints, building products, foams, polyurethane and automotive products, has been classified by the EPA as a likely carcinogen. Changes in environmental, health and safety laws, regulations or requirements relating to formaldehyde could impact methanol demand, which could indirectly have a material adverse effect on our business. In 2011, the National Toxicological Program of the U.S. Department of Health and Human Services (the “NTP”) issued its 12th Report on Carcinogens (“RoC”) which lists formaldehyde as “known to be a human carcinogen.” In December 2011, Congress directed NTP to refer its report on formaldehyde to the National Academy of Sciences (“NAS”) for further review, but the current RoC could have an adverse effect on our customers regardless of the outcome from the NAS review. In addition, the EPA is considering regulatory options for setting limits on formaldehyde emissions from composite wood products that use formaldehyde based adhesives. In 2010, the U.S. Formaldehyde Standards for Composite Wood Products Act became effective required the EPA to promulgate regulations implementing the Act by January 1, 2013. On June 10, 2013, the EPA published a proposed rule that would implement the formaldehyde standards for composite wood and other products as required by the Formaldehyde Standards for Composite Wood Products Act. As proposed, the rule would establish a system where accredited third party certifiers review and certify that composite wood products meet the applicable standards. It is possible that, if adopted as proposed, this rule may affect demand for methanol for formaldehyde production. It is also possible that additional regulatory requirements could be proposed or adopted that would affect our formaldehyde-producing customers. In addition, the EPA is evaluating non-cancer risks associated with exposure to methanol. As a result of these present and possible future regulatory initiatives, we cannot assure you that the demand for our methanol for use in formaldehyde production, and our results of operations, will not be materially and adversely affected. Please read “Business—Environmental Matters” for further information.

Any limitations on the use of nitrogen fertilizer for agricultural purposes could have a material adverse effect on the market for ammonia and on our results of operations, financial condition and ability to make cash distributions.

Conditions in the U.S. agricultural industry may significantly impact our operating results. State and federal governmental regulations and policies, including farm and biofuel subsidies and commodity support programs, as well as the prices of fertilizer products, may also directly or indirectly influence the number of acres planted, the mix of crops planted and the use of ammonia for particular agricultural applications. Developments in crop technology, such as nitrogen fixation, which is the conversion of atmospheric nitrogen into compounds that plants can assimilate, could also reduce the use of chemical fertilizers and adversely affect the demand for nitrogen fertilizer and thus affect general demand for and pricing of ammonia. Unfavorable industry conditions and new technological developments could have a material adverse effect on our results of operations, financial condition and ability to make cash distributions.

In addition, future federal or state environmental laws and regulations, or new interpretations of existing laws or regulations, could limit our ability to market and sell our products to end users. From time to time, various state legislatures have considered limitations on the use and application of chemical fertilizers due to concerns about the impact of these products on the environment. In addition, a number of states have adopted or proposed numeric nutrient water quality criteria that could result in decreased demand for fertilizer products in those states. For instance, in Florida, the EPA and the Florida Department of Environmental Protection (“FDEP”) have issued rules regarding excess nitrogen and phosphorus in waterbodies, as these nutrients have been linked to algae blooms. In response to a consent decree, the EPA has finalized a rule for inland waters in Florida that FDEP had not included in its rulemaking, but the EPA has proposed to stay the effectiveness of this rule until November 15, 2013. The EPA’s rule may require farmers to implement best management practices, including the reduction of fertilizer use, to reduce the impact of fertilizer on water quality. Any such laws, regulations or

 

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interpretations could have a material adverse effect on our results of operations, financial condition and ability to make cash distributions.

A major factor underlying the current high level of demand for nitrogen-based fertilizer products is the expanding production of ethanol. A decrease in ethanol production, an increase in ethanol imports or a shift away from corn as a principal raw material used to produce ethanol could have a material adverse effect on our results of operations, financial condition and ability to make cash distributions.

A major factor underlying the current high level of demand for nitrogen-based fertilizer products is the expanding production of ethanol in the United States and the expanded use of corn in ethanol production. Ethanol production in the United States is highly dependent upon numerous federal and state laws and regulations, and is made significantly more competitive by various federal and state incentives, mandated production of ethanol pursuant to federal renewable fuel standards, and permitted increases in ethanol percentages in gasoline blends, such as E15, a gasoline blend containing 15% ethanol. However, a number of factors, including a continuing “food versus fuel” debate and studies showing that expanded ethanol production may increase the level of greenhouse gases in the environment, have resulted in calls to reduce subsidies for ethanol, allow increased ethanol imports and adopt temporary waivers of the current renewable fuel standard levels, any of which could have an adverse effect on corn-based ethanol production, planted corn acreage and fertilizer demand. Therefore, ethanol incentive programs may not be renewed, or if renewed, they may be renewed on terms significantly less favorable to ethanol producers than current incentive programs. For example, on December 31, 2011, Congress allowed both the 45 cents per gallon ethanol tax credit and the 54 cents per gallon ethanol import tariff to expire. Similarly, the EPA’s waivers partially approving the use of E15 could be revised, rescinded or delayed. These actions could have a material adverse effect on ethanol production in the U.S., which could reduce the demand for ammonia for use as a nitrogen fertilizer. If such reduced demand for nitrogen fertilizer in the United States were significant and prolonged, it could adversely affect the prices we receive on sales of our ammonia products to industrial customers, which could have a material adverse effect on our results of operations, financial condition and ability to make cash distributions.

Furthermore, most ethanol is currently produced from corn and other raw grains, such as milo or sorghum, especially in the Midwest. The current trend in ethanol production research is to develop an efficient method of producing ethanol from cellulose-based biomass, such as agricultural waste, forest residue, municipal solid waste and energy crops (plants grown for use to make biofuels or directly exploited for their energy content). If an efficient method of producing ethanol from cellulose-based biomass is developed, the demand for corn may decrease significantly, which could reduce demand for nitrogen fertilizer products and have a material adverse effect on the prices we receive on sales of our ammonia products and our results of operations, financial condition and ability to make cash distributions.

Evolving environmental laws and regulations on hydraulic fracturing could have an indirect effect on our financial performance.

Hydraulic fracturing is an important and increasingly common practice that is used to stimulate production of crude oil and/or natural gas from dense subsurface rock formations, and is primarily presently regulated by state agencies. However, Congress has in the past and may in the future consider legislation to regulate hydraulic fracturing by federal agencies. Many states have already adopted laws and/or regulations that require disclosure of the chemicals used in hydraulic fracturing, and are considering legal requirements that could impose more stringent permitting, disclosure and well construction requirements on oil and/or natural gas drilling activities. The EPA is also moving forward with various related regulatory actions, including approving, on April 17, 2012, new regulations requiring, among other matters, “green completions” of hydraulically-fractured wells by 2015. We do not believe these new regulations will have a direct effect on our operations, but because oil and/or natural gas production using hydraulic fracturing is growing rapidly in the United States, if new or more stringent federal, state or local legal restrictions relating to such drilling activities or to the hydraulic fracturing process are adopted, this could result in a reduction in the supply of natural gas and an increase in the

 

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price of natural gas. An increase in the price of natural gas could adversely affect our gross margins. In addition, a significant and sustained increase in domestic natural gas prices could make it more attractive for international producers of methanol and ammonia to import their products into the United States, which competition could adversely affect our results of operations, financial condition and our ability to make cash distributions.

Our operations are dependent on third parties and their pipelines to provide us with our natural gas, hydrogen and nitrogen feedstocks. A deterioration in the financial condition of a third-party supplier, the inability of a third-party supplier to perform in accordance with its contractual obligations or the unavailability of a supplier’s pipeline could have a material adverse effect on our results of operations, financial condition and our ability to make cash distributions.

Our operations depend in large part on the performance of third-party suppliers, including Kinder Morgan, DCP Midstream, Florida Gas Transmission, Houston Pipeline Company, Air Products LLC (“Air Products”) and Air Liquide Large Industries U.S. LP (“Air Liquide”) for the supply of natural gas, hydrogen and nitrogen. Our ability to obtain natural gas and other inputs necessary for the production of methanol and ammonia is dependent upon the availability of these third parties’ pipeline systems interconnected to our facility. Because we do not own these pipelines, their continuing operation is not within our control. These pipelines may become unavailable for a number of reasons, including testing, maintenance, capacity constraints, accidents, government regulation, weather-related events or other third party actions. If third-party pipelines become partially or completely unavailable, our ability to operate could be restricted and the transportation costs of our feedstock supply could increase, thereby reducing our profitability. In addition, should any of our third-party suppliers fail to perform in accordance with existing contractual arrangements, our operations could be forced to halt. Alternative sources of supply could be difficult to obtain. Any downtime associated with our operations, even for a limited period, could have a material adverse effect on our results of operations, financial condition and ability to make cash distributions.

Delays, interruptions or other limitations in the transportation of the products we produce could affect our operations.

Transportation logistics play an important role in allowing us to supply products to our customers. Any significant delays, interruptions or other limitations on the ability to transport our products could negatively affect our operations. Currently, all of our ammonia and approximately 55% of our methanol is transported by barge along the Gulf Coast. A significant portion of our methanol production is transported directly to certain of our customers through their pipelines. We may experience risks associated with distribution of our products by barge or pipelines. Delays and interruptions may be caused by weather-related events, including hurricanes, that would prevent the operation of barges for transport of our methanol and ammonia. Transport by pipeline may be interrupted because of accidents, earthquakes, hurricanes, governmental regulation, terrorism or other third party actions. Prolonged interruptions in the transport of our products by barge or pipeline could have a material adverse effect on our results of operations, financial condition and ability to make cash distributions.

Our customers purchase our ammonia and, in certain circumstances, our methanol on an FOB delivered basis at our facility and then arrange and pay to transport them to their final destinations by barge according to customary practice in our market. Methanol is also distributed to certain of our customers through pipelines connected directly to their facilities. However, in the future, our customers’ transportation needs and preferences may change and our customers may no longer be willing or able to transport purchased product from our facility or accept our product through their pipelines. In the event that our competitors are able to transport their products more efficiently or cost effectively than we do or work with our customers to develop direct pipelines to those customers, those customers may reduce or cease purchases of our products. If this were to occur, we could be forced to make a substantial investment in transportation capabilities to meet our customers’ delivery needs, and this would be expensive and time consuming. We may not be able to obtain transportation capabilities on a timely basis or at all, and our inability to provide transportation for products could have a material adverse effect on our results of operations, financial condition and ability to make cash distributions.

 

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We currently derive substantially all of our revenues from a limited number of customers, and the loss of any of these customers without replacement on comparable terms would affect our results of operations, financial condition and ability to make cash distributions.

We derive, and believe that we will continue to derive, substantially all of our revenues from a limited number of customers. For the three months ended March 31, 2013, Methanex, Koch, Rentech and Transammonia accounted for approximately 35.5%, 21.3%, 17.9% and 15.1%, respectively, of our total revenues. For the year ended December 31, 2012, Transammonia, Koch, Methanex and Arkema accounted for approximately 50.6%, 12.0%, 11.2% and 9.8%, respectively, of our total revenues. Our customers, at any time, may decide to purchase fewer metric tons of methanol or ammonia from us. If our customers decide to purchase fewer metric tons of methanol or ammonia or at lower prices, and we are unable to find replacement counterparties on terms as favorable as our current arrangements, our results of operations, financial condition and ability to make cash distributions may be materially adversely affected.

We compete with certain of our customers which may result in conflicts of interest between us and those customers.

We compete with certain of our customers, including Methanex, Koch, Transammonia and Rentech. As competitors, our customers may take actions that would not be in our best interest. These customers may determine that it is strategically advantageous for them to reduce purchases of our product. In addition, they may sell our product to our other customers in an effort to reduce our market share. Any of these actions by our customers could have an adverse effect on our results of operations, financial condition and ability to make cash distributions.

All of our operations are located at a single facility in Texas, which makes us vulnerable to risks associated with operating in one geographic area.

The geographic concentration of our production facility in the Texas Gulf Coast means that we may be disproportionately exposed to disruptions in our operations if the region experiences severe weather, transportation capacity constraints, constraints on the availability of required equipment, facilities, personnel or services, significant governmental regulation or natural disasters. Although we maintain insurance coverage to cover a portion of these types of risks, there are potential risks associated with our operations not covered by insurance. There also may be certain risks covered by insurance where the policy does not reimburse us for all of the costs related to a loss. Downtime or other delays or interruptions to our operations from any of such factors could have a material adverse effect on our results of operations, financial condition and ability to make cash distributions.

Anhydrous ammonia is extremely hazardous. Any liability for accidents involving anhydrous ammonia that cause severe damage to property or injury to the environment and human health could have a material adverse effect on our results of operations, financial condition and ability to make cash distributions. In addition, the costs of transporting anhydrous ammonia could increase significantly in the future.

We manufacture, process, store, handle, distribute and transport anhydrous ammonia, which is extremely hazardous. Major accidents or releases involving anhydrous ammonia could cause severe damage or injury to property, the environment and human health, as well as a possible disruption of supplies and markets. Such an event could result in civil lawsuits, fines, penalties and regulatory enforcement proceedings, all of which could lead to significant liabilities. Any damage to persons, equipment or property or other disruption of our ability to produce or distribute our products could result in a significant decrease in operating revenues and significant additional cost to replace or repair and insure our assets, which could have a material adverse effect on our results of operations, financial condition and ability to make cash distributions.

In addition, we may incur significant losses or costs relating to the operation of barges used for the purpose of transporting our anhydrous ammonia. Due to the dangerous and potentially toxic nature of the cargo, a

 

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barge accident may result in fires, explosions and pollution. These circumstances may result in sudden, severe damage or injury to property, the environment and human health. In the event of pollution, we may be held responsible even if we are not at fault and complied with the laws and regulations in effect at the time of the accident. Litigation arising from accidents involving anhydrous ammonia may result in our being named as a defendant in lawsuits asserting claims for large amounts of damages, which could have a material adverse effect on our results of operations, financial condition and ability to make cash distributions.

Environmental laws and regulations could require us to make substantial capital expenditures to remain in compliance or to remediate current or future contamination that could give rise to material liabilities.

Our operations are subject to a variety of federal, state and local environmental laws and regulations relating to the protection of the environment, including those governing the emission or discharge of pollutants into the environment, product specifications and the generation, treatment, storage, transportation, disposal and remediation of solid and hazardous waste and materials. Violations of these laws and regulations or permit conditions can result in substantial penalties, injunctive orders compelling installation of additional controls, civil and criminal sanctions, permit revocations or facility shutdowns.

In addition, new environmental laws and regulations, new interpretations of existing laws and regulations, increased governmental enforcement of laws and regulations or other developments could require us to make additional unforeseen expenditures. Many of these laws and regulations are becoming increasingly stringent, and the cost of compliance with these requirements can be expected to increase over time. The requirements to be met, as well as the technology and length of time available to meet those requirements, continue to develop and change. These expenditures or costs for environmental compliance could have a material adverse effect on our results of operations, financial condition and ability to make cash distributions.

Our business is subject to accidental spills, discharges or other releases of hazardous substances into the environment. Past or future spills related to our facility or transportation of products or hazardous substances from our facility may give rise to liability (including strict liability, or liability without fault, and potential cleanup responsibility) to governmental entities or private parties under federal, state or local environmental laws, as well as under common law. For example, we could be held strictly liable under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) for past or future spills without regard to fault or whether our actions were in compliance with the law at the time of the spills. Pursuant to CERCLA and similar state statutes, we could be held liable for contamination associated with the facility we currently own and operate, facilities we formerly owned or operated (if any) and facilities to which we transported or arranged for the transportation of wastes or by-products containing hazardous substances for treatment, storage or disposal. The potential penalties and cleanup costs for past or future releases or spills, liability to third parties for damage to their property or exposure to hazardous substances, or the need to address newly discovered information or conditions that may require response actions could be significant and could have a material adverse effect on our results of operations, financial condition and ability to make cash distributions.

In addition, we may incur liability for alleged personal injury or property damage due to exposure to chemicals or other hazardous substances located at or released from our facility. We may also face liability for personal injury, property damage, natural resource damage or for cleanup costs for the alleged migration of contamination or other hazardous substances from our facility to adjacent and other nearby properties.

We may incur future costs relating to the off-site disposal of hazardous wastes. Companies that dispose of, or arrange for the transportation or disposal of, hazardous substances at off-site locations may be held jointly and severally liable for the costs of investigation and remediation of contamination at those off-site locations, regardless of fault. We could become involved in litigation or other proceedings involving off-site waste disposal and the damages or costs in any such proceedings could be material.

 

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Climate change laws and regulations could have a material adverse effect on our results of operations, financial condition and ability to make cash distributions.

Currently, various legislative and regulatory measures to address greenhouse gas emissions (including carbon dioxide, methane and nitrous oxides) are in various phases of discussion or implementation. At the federal legislative level, Congress could adopt some form of federal mandatory greenhouse gas emission reduction laws, although the specific requirements and timing of any such laws are uncertain at this time. In June 2009, the U.S. House of Representatives passed a bill that would create a nationwide cap-and-trade program designed to regulate emissions of carbon dioxide, methane and other greenhouse gases. A similar bill was introduced in the U.S. Senate, but was not voted upon. Congressional passage of such legislation does not appear likely at this time, though it could be adopted at a future date. It is also possible that Congress may pass alternative climate change bills that do not mandate a nationwide cap-and-trade program and instead focus on promoting renewable energy and energy efficiency.

In the absence of congressional legislation curbing greenhouse gas emissions, the EPA is moving ahead administratively under its federal Clean Air Act (“CAA”) authority. In October 2009, the EPA finalized a rule requiring certain large emitters of greenhouse gases to inventory and report their greenhouse gas emissions to the EPA. In accordance with the rule, we have begun monitoring our greenhouse gas emissions from our facility and will report the emissions to the EPA beginning in 2011. On December 7, 2009, the EPA finalized its “endangerment finding” that greenhouse gas emissions, including CO 2 , pose a threat to human health and welfare. The finding allows the EPA to regulate greenhouse gas emissions as air pollutants under the CAA. In May 2010, the EPA finalized the “Greenhouse Gas Tailoring Rule,” which establishes new greenhouse gas emissions thresholds that determine when stationary sources, such as our facility, must obtain permits under the Prevention of Significant Deterioration (“PSD”) and Title V programs of the CAA. The significance of the permitting requirement is that, in cases where a new source is constructed or an existing source undergoes a major modification, such as our debottlenecking project, the facility would need to evaluate and install BACT for its greenhouse gas emissions. Phase-in permit requirements commenced for the largest stationary sources in 2011. Several of the EPA’s greenhouse gas rules are being challenged in pending court proceedings and, depending on the outcome of such proceedings, such rules may be modified or rescinded or the EPA could develop new rules.

On May 21, 2013, the Texas Legislature passed H.B. 788 which is intended to streamline GHG permitting in Texas by directing TCEQ to promulgate rules to be approved by EPA that would replace EPA permitting of GHGs in Texas with TCEQ permitting. The bill was signed by the Governor on June 14, 2013 and is effective. Depending on how and when TCEQ implements this legislation, TCEQ could impose additional requirements on our operations that could increase our operating costs.

The implementation of EPA regulations and/or the passage of federal or state climate change legislation will likely result in increased costs to (i) operate and maintain our facility, (ii) install new emission controls on our facility and (iii) administer and manage any greenhouse gas emissions program. Increased costs associated with compliance with any future legislation or regulation of greenhouse gas emissions, if it occurs, may have a material adverse effect on our results of operations, financial condition and ability to make cash distributions.

In addition, climate change legislation and regulations may result in increased costs not only for our business but also for agricultural producers that utilize our fertilizer products, thereby potentially decreasing demand for our fertilizer products. Decreased demand for our fertilizer products may have a material adverse effect on our results of operations, financial condition and ability to make cash distributions.

New regulations concerning the transportation of hazardous chemicals, risks of terrorism and the security of chemical manufacturing facilities could result in higher operating costs.

The costs of complying with regulations relating to the transportation of hazardous chemicals and security associated with our facility may have a material adverse effect on our results of operations, financial

 

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condition and ability to make cash distributions. Targets such as chemical manufacturing facilities may be at greater risk of future terrorist attacks than other targets in the United States. The chemical industry has responded to the issues that arose in response to the terrorist attacks on September 11, 2001 by starting new initiatives relating to the security of chemical industry facilities and the transportation of hazardous chemicals in the United States. Future terrorist attacks could lead to even stronger, more costly initiatives. Simultaneously, local, state and federal governments have begun a regulatory process that could lead to new regulations impacting the security of chemical plant locations and the transportation of hazardous chemicals. Our business could be materially adversely affected by the cost of complying with new regulations.

We are subject to strict laws and regulations regarding employee and process safety, and failure to comply with these laws and regulations could have a material adverse effect on our results of operations, financial condition and ability to make cash distributions.

Our facility is subject to the requirements of OSHA and comparable state statutes that regulate the protection of the health and safety of workers. In addition, OSHA requires that we maintain information about hazardous materials used or produced in our operations and that we provide this information to employees, state and local governmental authorities, and local residents. Failure to comply with OSHA requirements, including general industry standards, record keeping requirements and monitoring and control of occupational exposure to regulated substances, could have a material adverse effect on our results of operations, financial condition and ability to make cash distributions if we are subjected to significant fines or compliance costs.

Our indebtedness could adversely affect our financial condition or make us more vulnerable to adverse economic conditions.

Our level of indebtedness could have significant effects on our business, financial condition, results of operations and cash flows and, therefore, important consequences to your investment in our securities, such as:

 

   

we may be limited in our ability to obtain additional financing to fund our working capital needs, capital expenditures and debt service requirements or our other operational needs;

 

   

we may be limited in our ability to use operating cash flow in other areas of our business because we must dedicate a substantial portion of these funds to make principal and interest payments on our debt;

 

   

we may be at a competitive disadvantage compared to competitors with less leverage since we may be less capable of responding to adverse economic and industry conditions; and

 

   

we may not have sufficient flexibility to react to adverse changes in the economy, our business or the industries in which we operate.

Our ability to service our indebtedness will depend on our ability to generate cash in the future.

Our ability to make payments on our indebtedness will depend on our ability to generate cash in the future. As of June 30, 2013, our current debt service requirements on an annualized basis are approximately $30.3 million per year, comprised of approximately $16.1 million of interest payments on OCIB’s intercompany debt with OCI Fertilizer, approximately $5.3 million of interest payments on the Term B-1 Loan and approximately $8.9 million of interest payments on the Term B-2 Loan. For a discussion of our forecasted debt service costs, please read “Our Cash Distribution Policy and Restrictions on Distributions—Unaudited Forecasted Cash Available for Distribution—Assumptions and Considerations.” Our ability to generate cash is subject to general economic and market conditions and financial, competitive, legislative, regulatory and other factors that are beyond our control. We cannot assure you that our business will generate sufficient cash to fund our working capital requirements, capital expenditure, debt service and other liquidity needs, which could result in our inability to comply with financial and other covenants contained in our debt agreements, our being unable to repay or pay interest on our indebtedness, and our inability to fund our other liquidity needs. If we are unable to service our debt obligations, fund our other liquidity needs and maintain compliance with our financial and other covenants, we could be forced to curtail our operations, our creditors could accelerate our indebtedness and

 

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exercise other remedies and we could be required to pursue one or more alternative strategies, such as selling assets or refinancing or restructuring our indebtedness. However, we cannot assure you that any such alternatives would be feasible or prove adequate.

Restrictions in the agreements governing our current and future indebtedness contain or will contain significant limitations on our business operations, including our ability to pay distributions and other payments.

As of March 31, 2013, on a pro forma basis after giving effect to this offering, the use of the estimated proceeds hereof and the other transactions described under “Prospectus Summary—The Transactions,” we would have had $235.0 million of debt outstanding, excluding unamortized debt discount of $2.4 million. We and our subsidiary may incur significant additional indebtedness in the future. Our ability to pay distributions to our unitholders will be subject to covenant restrictions under the agreements governing our indebtedness. We expect that our ability to make distributions to our unitholders will depend, in part, on our ability to satisfy applicable covenants as well as the absence of a default or event of default under the agreements governing our indebtedness. If we were unable to comply with any such covenant restrictions in any quarter, our ability to pay distributions to unitholders would be curtailed. Please read “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Credit Facilities.”

In addition, we will be subject to covenants contained in our debt agreements and any agreement governing other future indebtedness that will, subject to significant exceptions, limit our ability and the ability of OCIB or any of our future subsidiaries to, among other things, incur additional indebtedness, create liens on assets, engage in mergers or consolidations, sell assets, pay dividends and distributions or repurchase our common units, make investments, loans or advances, prepay certain subordinated indebtedness, make certain acquisitions or enter into agreements with respect to our equity interests, and engage in certain transactions with affiliates. Please read “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Credit Facilities.” Any failure to comply with these covenants could result in a default under our debt agreements. Upon a default, unless waived, our lenders would have all remedies available to a secured lender and could elect to terminate their commitments, cease making further loans, cause their loans to become due and payable in full, institute foreclosure proceedings against us or our assets and force us and our subsidiaries into bankruptcy or liquidation.

We are a holding company and depend upon our operating subsidiary, OCIB, for our cash flows.

We are a holding company. All of our operations are conducted and all of our assets are owned by OCIB, our wholly owned subsidiary and our sole direct or indirect subsidiary. Consequently, our cash flow and our ability to meet our obligations or to make cash distributions in the future will depend upon the cash flow of OCIB and the payment of funds by OCIB to us in the form of distributions or otherwise. The ability of OCIB to make any payments to us will depend on its earnings, the terms of its indebtedness, including the terms of any debt agreements, and legal restrictions. In particular, future debt agreements entered into by OCIB may impose significant limitations on the ability of OCIB to make distributions to us and consequently our ability to make distributions to our unitholders. Please read “—We may not have sufficient cash available for distribution to pay any quarterly distribution on our common units.” For the year ended December 31, 2012 and the twelve months ended March 31, 2013, on a pro forma basis, our annual distribution would have been $            per unit and $            per unit, respectively, significantly less than the $            per unit distribution we project that we will be able to pay for the twelve months ending September 30, 2014.

We will incur increased costs as a result of being a publicly traded partnership, including costs related to compliance with Section 404 of Sarbanes-Oxley.

As a publicly traded partnership, we will incur significant legal, accounting and other expenses that we did not incur as a private company. We will incur costs associated with our public company reporting requirements. We also anticipate that we will incur costs associated with corporate governance requirements, including requirements under the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), as well as rules

 

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implemented by the SEC and the Financial Industry Regulatory Authority (“FINRA”). We expect these rules and regulations to increase our legal and financial compliance costs and to make some activities more time-consuming and costly, particularly after we are no longer an emerging growth company under the JOBS Act. We also expect these rules and regulations may make it more difficult and more expensive for us to obtain director and officer liability insurance and we may be required to accept reduced policy limits and coverage or incur substantially higher costs to obtain the same or similar coverage. As a result, it may be more difficult for us to attract and retain qualified individuals to serve on the board of directors of our general partner or as executive officers.

We will remain an emerging growth company under the JOBS Act for up to five years. After we are no longer an emerging growth company, we expect to incur significant additional expenses and devote substantial management effort toward ensuring compliance with those requirements applicable to companies that are not emerging growth companies, including Section 404 of the Sarbanes-Oxley Act. In order to comply with the requirements of Section 404 of Sarbanes-Oxley, we will need to implement new financial systems and procedures. We cannot assure you that we will be able to implement appropriate procedures on a timely basis. Failure to implement such procedures could have an adverse effect on our ability to satisfy applicable obligations under the Exchange Act and Sarbanes-Oxley. For the year ended December 31, 2011, we identified deficiencies constituting a material weakness in our internal control over financial reporting. Specifically, we determined that we did not have adequate internal resources to establish an effective and efficient financial statement reporting process to be in compliance with generally accepted accounting principles. During 2012, we hired additional accounting personnel with appropriate levels of training and experience to remediate the material weakness. In addition and during 2013, we identified and corrected immaterial errors associated with debit balances in the financial statement caption “Accounts payable” that should have been written off as of and for the periods ended March 31, 2013, December 31, 2012 and March 31, 2012. As a result, we identified a deficiency constituting a material weakness in our internal control over financial reporting as of December 31, 2012. Please read note 9 to the unaudited condensed financial statements on page F-21 and note 7 to the audited financial statements on page F-34. Specifically, we determined that we did not have adequate internal controls in place as of December 31, 2012 to reconcile certain accounts payable sub-ledger accounts. During 2013, we have implemented new internal controls that identified and corrected the errors and remediated the identified material weakness through redesigning certain internal reports, establishing additional reviews and matching of transactions, and periodic reconciliations of accounts payable sub-ledger accounts. Therefore, management believes that the material weakness has been remediated through the date of this prospectus. If we are unable to timely comply with Section 404 or if the costs related to compliance are significant, our results of operations, financial condition and ability to make cash distributions could be materially adversely affected.

As a publicly traded partnership we qualify for, and are relying on, certain exemptions from the NYSE’s corporate governance requirements. Accordingly, holders of our common units will not have the same protections afforded to equity holders of companies subject to such corporate governance requirements.

As a publicly traded partnership, we qualify for, and are relying on, certain exemptions from the NYSE’s corporate governance requirements, including:

 

   

the requirement that a majority of the board of directors of our general partner consist of independent directors;

 

   

the requirement that the board of directors of our general partner have a nominating/corporate governance committee that is composed entirely of independent directors; and

 

   

the requirement that the board of directors of our general partner have a compensation committee that is composed entirely of independent directors.

 

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As a result of these exemptions, our general partner’s board of directors will not be comprised of a majority of independent directors. Our general partner’s board of directors does not currently intend to establish a nominating/corporate governance committee or a compensation committee. Accordingly, unitholders will not have the same protections afforded to equityholders of companies that are subject to all of the corporate governance requirements of the NYSE. Please read “Management.”

Risks Inherent in an Investment in Us

The board of directors of our general partner will adopt a policy to distribute 100% of the cash available for distribution that we generate each quarter, which could limit our ability to grow and make acquisitions.

The board of directors of our general partner will adopt a policy to distribute 100% of the cash available for distribution that we generate each quarter to our unitholders, beginning with the quarter ending             , 2013. As a result, our general partner will rely primarily upon external financing sources, including commercial bank or intercompany borrowings or issuances of debt or equity securities, to fund our acquisitions and expansion capital expenditures. To the extent we are unable to finance growth externally, our cash distribution policy will significantly impair our ability to grow.

In addition, because the board of directors of our general partner will adopt a policy to distribute 100% of the cash available for distribution that we generate each quarter, our growth may not be as fast as that of businesses that reinvest their available cash to expand ongoing operations. To the extent we issue additional units in connection with any acquisitions or expansion capital expenditures, the payment of distributions on those additional units will decrease the amount we distribute on each outstanding unit. There are no limitations in our partnership agreement on our ability to issue additional units, including units ranking senior to the common units. The incurrence of additional commercial borrowings or other debt to finance our growth strategy would result in increased interest expense, which, in turn, would reduce the cash available for distribution that we have to distribute to our unitholders.

Our general partner and its affiliates, including OCI, have conflicts of interest with us and limited duties to us and our unitholders, and they may favor their own interests to our detriment and that of our unitholders. Additionally, we have no control over the business decisions and operations of OCI, and OCI is under no obligation to adopt a business strategy that favors us.

Following the completion of this offering, OCI will indirectly own a non-economic general partner interest and a             % limited partner interest in us (or             % if the underwriters’ option to purchase additional common units is exercised in full) and will indirectly own and control our general partner. Although our general partner has a duty to manage us in a manner that is in the best interests of our partnership and our unitholders, the directors and officers of our general partner also have a duty to manage our general partner in a manner that is in the best interests of its owner, OCI. Conflicts of interest may arise between OCI and its affiliates, including our general partner, on the one hand, and us and our unitholders, on the other hand. In resolving these conflicts, the general partner may favor its own interests and the interests of its affiliates, including OCI, over the interests of our common unitholders. These conflicts include, among others, the following situations:

 

   

neither our partnership agreement nor any other agreement requires OCI to pursue a business strategy that favors us or utilizes our assets, which could involve decisions by OCI to increase or decrease production, shut down or reconfigure our plant, pursue and grow particular markets, or undertake acquisition opportunities for itself. OCI’s directors and officers have a fiduciary duty to make these decisions in the best interests of the stockholders of OCI;

 

   

OCI may be constrained by the terms of its debt instruments from taking actions, or refraining from taking actions, that may be in our best interests;

 

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our partnership agreement replaces the fiduciary duties that would otherwise be owed by our general partner with contractual standards governing its duties, limiting our general partner’s liabilities and restricting the remedies available to our unitholders for actions that, without the limitations, might constitute breaches of fiduciary duty;

 

   

except in limited circumstances, our general partner has the power and authority to conduct our business without unitholder approval;

 

   

our general partner will determine the amount and timing of asset purchases and sales, capital expenditures, borrowings, repayment of indebtedness, issuances of additional partnership interests and the creation, reduction or increase of cash reserves, each of which can affect the amount of cash that is available for distribution to our common unitholders;

 

   

our general partner will determine which costs incurred by it are reimbursable by us;

 

   

our general partner may cause us to borrow funds in order to permit the payment of cash distributions;

 

   

our partnership agreement does not restrict our general partner from causing us to pay it or its affiliates for any services rendered to us or entering into additional contractual arrangements with any of these entities on our behalf;

 

   

our general partner intends to limit its liability regarding our contractual and other obligations;

 

   

our general partner may exercise its right to call and purchase all of the common units not owned by it and its affiliates if it and its affiliates own more than a specified percentage of our common units (please read “The Partnership Agreement—Limited Call Right”);

 

   

our general partner controls the enforcement of obligations owed to us by our general partner and its affiliates, including our commercial agreements with OCI; and

 

   

our general partner decides whether to retain separate counsel, accountants or others to perform services for us.

Under the terms of our partnership agreement, the doctrine of corporate opportunity, or any analogous doctrine, does not apply to our general partner or any of its affiliates, including its executive officers, directors and owners. Any such person or entity that becomes aware of a potential transaction, agreement, arrangement or other matter that may be an opportunity for us will not have any duty to communicate or offer such opportunity to us. Any such person or entity will not be liable to us or to any limited partner for breach of any fiduciary duty or other duty by reason of the fact that such person or entity pursues or acquires such opportunity for itself, directs such opportunity to another person or entity or does not communicate such opportunity or information to us. This may create actual and potential conflicts of interest between us and affiliates of our general partner and result in less than favorable treatment of us and our unitholders. Please read “Certain Relationships and Related Party Transactions” and “Conflicts of Interest and Duties.”

 

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Our partnership agreement restricts the remedies available to holders of our common units for actions taken by our general partner that might otherwise constitute breaches of fiduciary duty.

Our partnership agreement contains provisions that restrict the remedies available to unitholders for actions taken by our general partner that might otherwise constitute breaches of fiduciary duty under state fiduciary duty law. For example, our partnership agreement:

 

   

provides that whenever our general partner makes a determination or takes, or declines to take, any other action in its capacity as our general partner as opposed to in its individual capacity, our general partner is required to make such determination, or take or decline to take such other action, in good faith and will not be subject to any other or different standard imposed by our partnership agreement, Delaware law, or any other law, rule or regulation, or at equity;

 

   

provides that our general partner will not have any liability to us or our unitholders for decisions made in its capacity as a general partner so long as it acted in good faith reliance on the provisions of our partnership agreement;

 

   

provides that our general partner and its officers and directors will not be liable for monetary damages to us or our limited partners resulting from any act or omission unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that our general partner or its officers and directors, as the case may be, acted in bad faith or engaged in intentional fraud or willful misconduct or, in the case of a criminal matter, acted with knowledge that the conduct was unlawful; and

 

   

provides that our general partner will not be in breach of its obligations under our partnership agreement or its fiduciary duties to us or our limited partners if a transaction with an affiliate or the resolution of a conflict of interest is approved in accordance with, or otherwise meets the standards set forth in, our partnership agreement.

In connection with a situation involving a transaction with an affiliate or a conflict of interest, our partnership agreement provides that any determination by our general partner must be made in good faith, and that our conflicts committee and the board of directors of our general partner are entitled to a presumption that they acted in good faith. In any proceeding brought by or on behalf of any limited partner or the partnership, the person bringing or prosecuting such proceeding will have the burden of overcoming such presumption. Please read “Conflicts of Interest and Duties.”

By purchasing a common unit, a unitholder will become bound by the provisions of our partnership agreement, including the provisions described above. Please read “Description of Our Common Units—Transfer of Common Units.”

Common units are subject to our general partner’s limited call right.

If at any time our general partner and its affiliates own more than 90% of the common units, our general partner will have the right, which it may assign to any of its affiliates or to us, but not the obligation, to acquire all, but not less than all, of the common units held by public unitholders at a price not less than their then-current market price, as calculated pursuant to the terms of our partnership agreement. If our general partner and its affiliates reduce their ownership percentage to below 70% of the outstanding units, then concurrently with such reduction in percentage ownership, the ownership threshold to exercise the limited call right will be permanently reduced to 80%. As a result, you may be required to sell your common units at an undesirable time or at a price that is less than the market price on the date of purchase and may not receive any return on your investment. You may also incur a tax liability upon a sale of your common units. Our general partner is not obligated to obtain a fairness opinion regarding the value of the common units to be repurchased by it upon exercise of the limited call

 

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right. There is no restriction in our partnership agreement that prevents our general partner from issuing additional common units and then exercising its limited call right. Our general partner may use its own discretion, free of fiduciary duty restrictions, in determining whether to exercise this right. Please read “The Partnership Agreement—Limited Call Right.”

Unitholders have very limited voting rights and, even if they are dissatisfied, they cannot remove our general partner without its consent.

Unlike the holders of common stock in a corporation, unitholders have only limited voting rights on matters affecting our business and, therefore, limited ability to influence management’s decisions regarding our business. For example, unlike holders of stock in a public corporation, unitholders will not have “say-on-pay” advisory voting rights. Unitholders did not elect our general partner or the board of directors of our general partner and will have no right to elect our general partner or the board of directors of our general partner on an annual or other continuing basis. The board of directors of our general partner is chosen by the member of our general partner, which is an indirect, wholly owned subsidiary of OCI. Furthermore, if the unitholders are dissatisfied with the performance of our general partner, they will have little ability to remove our general partner. As a result of these limitations, the price at which our common units will trade could be diminished because of the absence or reduction of a takeover premium in the trading price.

Our unitholders will be unable initially to remove our general partner without its consent because our general partner and its affiliates will own sufficient units upon the completion of the offering to be able to prevent its removal. The vote of the holders of at least 66  2 / 3 % of all outstanding units voting together as a single class is required to remove our general partner. At closing, our general partner and its affiliates will own             % of the common units (or            % if the underwriters’ option to purchase additional common units is exercised in full).

Furthermore, unitholders’ voting rights are further restricted by the partnership agreement provision providing that any units held by a person that owns 20% or more of any class of units then outstanding, other than our general partner, its affiliates, their transferees, and persons who acquired such units with the prior approval of the board of directors of our general partner, cannot vote on any matter.

Our partnership agreement also contains provisions limiting the ability of unitholders to call meetings or to acquire information about our operations, as well as other provisions limiting the unitholders’ ability to influence the manner or direction of management.

Unitholders may have liability to repay distributions.

In the event that: (1) we make distributions to our unitholders when our nonrecourse liabilities exceed the sum of (a) the fair market value of our assets not subject to recourse liability and (b) the excess of the fair market value of our assets subject to recourse liability over such liability, or a distribution causes such a result, and (2) a unitholder knows at the time of the distribution of such circumstances, such unitholder will be liable for a period of three years from the time of the impermissible distribution to repay the distribution under Section 17-607 of the Delaware Revised Uniform Limited Partnership Act (the “Delaware Act”).

Likewise, upon the winding up of the partnership, in the event that (1) we do not distribute assets in the following order: (a) to creditors in satisfaction of their liabilities; (b) to partners and former partners in satisfaction of liabilities for distributions owed under our partnership agreement; (c) to partners for the return of their contribution; and finally (d) to the partners in the proportions in which the partners share in distributions and (2) a unitholder knows at the time of such circumstances, then such unitholder will be liable for a period of three years from the impermissible distribution to repay the distribution under Section 17-807 of the Delaware Act.

A purchaser of common units who becomes a limited partner is liable for the obligations of the transferring limited partner to make contributions to us that are known by the purchaser at the time it became a

 

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limited partner and for unknown obligations if the liabilities could be determined from our partnership agreement.

Our general partner interest or the control of our general partner may be transferred to a third party without unitholder consent.

Our general partner may transfer its general partner interest to a third party in a merger or in a sale of all or substantially all of its assets without the consent of the unitholders. Furthermore, there is no restriction in our partnership agreement on the ability of OCI to transfer its membership interest in our general partner to a third party. The new owner of our general partner would then be in a position to replace the board of directors and officers of our general partner with its own choices.

There is no existing market for our common units, and we do not know if one will develop to provide you with adequate liquidity. If our unit price fluctuates after this offering, you could lose a significant part of your investment.

Prior to this offering, there has not been a public market for our common units. If an active trading market does not develop, you may have difficulty selling any of our common units that you buy. The initial public offering price for the common units will be determined by negotiations between us and the underwriters and may not be indicative of prices that will prevail in the open market following this offering. Consequently, you may not be able to sell our common units at prices equal to or greater than the price paid by you in this offering.

In addition, the stock market in general has experienced extreme price and volume fluctuations that have often been unrelated or disproportionate to the operating performance of companies like us. These broad market and industry factors may materially reduce the market price of our common units, regardless of our operating performance.

Our unitholders who fail to furnish certain information requested by our general partner or who our general partner, upon receipt of such information, determines are not eligible citizens may not be entitled to receive distributions in kind upon our liquidation and their common units will be subject to redemption.

Our general partner may require each limited partner to furnish information about such limited partner’s nationality, citizenship or related status. If a limited partner fails to furnish information about such limited partner’s nationality, citizenship or other related status within a reasonable period after a request for the information or our general partner determines after receipt of the information that the limited partner is not an eligible citizen, the limited partner may be treated as an ineligible holder. An ineligible holder does not have the right to direct the voting of such holder’s common units and may not receive distributions in kind upon our liquidation. Furthermore, we have the right to redeem all of the common units of any holder that is an ineligible holder. The redemption price will be paid in cash or by delivery of a promissory note, as determined by our general partner. Please read “The Partnership Agreement—Non-Citizen Assignees; Redemption.”

We may issue additional units without unitholder approval, which would dilute unitholder interests.

At any time, we may issue an unlimited number of limited partner interests of any type without the approval of our unitholders, and our unitholders will have no preemptive or other rights (solely as a result of their status as unitholders) to purchase any such limited partner interests. Further, there are no limitations in our partnership agreement on our ability to issue equity securities that rank equal or senior to our common units as to distributions or in liquidation or that have special voting rights and other rights. The issuance by us of additional common units or other equity securities of equal or senior rank will have the following effects:

 

   

our unitholders’ proportionate ownership interest in us will decrease;

 

   

the amount of cash distributions on each unit may decrease;

 

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the ratio of taxable income to distributions may increase;

 

   

the relative voting strength of each previously outstanding unit may be diminished; and

 

   

the market price of our common units may decline.

OCI USA may sell units in the public or private markets, and such sales could have an adverse impact on the trading price of the common units.

Upon the completion of this offering, OCI USA, an indirect wholly owned subsidiary of OCI, will own              common units, representing approximately             % of our outstanding common units (or approximately             % of our outstanding common units if the underwriters exercise their option to purchase additional common units in full). Additionally, we have agreed to provide OCI USA with certain registration rights under applicable securities laws. Please read “Common Units Eligible for Future Sale.” The sale of these units in the public or private markets could have an adverse impact on the price of the common units or on any trading market that may develop.

Tax Risks

In addition to reading the following risk factors, please read “Material U.S. Federal Income Tax Consequences” for a more complete discussion of the expected material U.S. federal income tax consequences of owning and disposing of our common units.

Our tax treatment depends on our status as a partnership for U.S. federal income tax purposes. If the IRS were to treat us as a corporation for U.S. federal income tax purposes, which would subject us to additional amounts of entity-level taxation, then our cash available for distribution to our unitholders would be substantially reduced.

The anticipated after-tax economic benefit of an investment in our common units depends largely on our being treated as a partnership for U.S. federal income tax purposes.

Despite the fact that we are a limited partnership under Delaware law, it is possible in certain circumstances for a partnership such as ours to be treated as a corporation for U.S. federal income tax purposes. A change in our business or a change in current law could cause us to be treated as a corporation for federal income tax purposes or otherwise subject us to taxation as an entity.

If we were treated as a corporation for U.S. federal income tax purposes, we would pay U.S. federal income tax on our taxable income at the corporate tax rate, which is currently a maximum of 35%, and would likely pay state and local income tax at varying rates. Distributions would generally be taxed again as corporate dividends (to the extent of our current and accumulated earnings and profits), and no income, gain, loss, deduction or credits would flow through to you. Because a tax would be imposed upon us as a corporation, our cash available for distribution to you would be substantially reduced. Therefore, if we were treated as a corporation for U.S. federal income tax purposes, there would be a material reduction in the anticipated cash flow and after-tax return to our unitholders, likely causing a substantial reduction in the value of our common units.

If we were subjected to a material amount of additional entity-level taxation by individual states, it would reduce our cash available for distribution to our unitholders.

Changes in current state law may subject us to additional entity-level taxation by individual states. Because of widespread state budget deficits and other reasons, several states are evaluating ways to subject partnerships to entity-level taxation through the imposition of state income, franchise and other forms of taxation. Imposition of any such taxes may substantially reduce the cash available for distribution to you.

 

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The tax treatment of publicly traded partnerships or an investment in our common units could be subject to potential legislative, judicial or administrative changes and differing interpretations, possibly on a retroactive basis.

The present U.S. federal income tax treatment of publicly traded partnerships, including us, or an investment in our common units may be modified by administrative, legislative or judicial interpretation at any time. For example, from time to time, members of Congress propose and consider substantive changes to the existing U.S. federal income tax laws that affect publicly traded partnerships. Any modification to the U.S. federal income tax laws and interpretations thereof may or may not be retroactively applied and could make it more difficult or impossible to meet the exception for us to be treated as a partnership for federal income tax purposes. Please read “Material U.S. Federal Income Tax Consequences—Partnership Status.” We are unable to predict whether any of these changes or other proposals will ultimately be enacted. However, it is possible that a change in law could affect us, and any such changes could negatively impact the value of an investment in our common units.

If the IRS contests the U.S. federal income tax positions we take, the market for our common units may be adversely impacted and the cost of any IRS contest will reduce our cash available for distribution to our unitholders.

The IRS may adopt positions that differ from the conclusions of our counsel expressed in this prospectus or from the positions we take, and the IRS’s positions may ultimately be sustained. It may be necessary to resort to administrative or court proceedings to sustain some or all of our counsel’s conclusions or the positions we take and such positions may not ultimately be sustained. A court may not agree with some or all of our counsel’s conclusions or the positions we take. Any contest with the IRS, and the outcome of any IRS contest, may have a materially adverse impact on the market for our common units and the price at which they trade. In addition, our costs of any contest with the IRS will be borne indirectly by our unitholders because the costs will reduce our cash available for distribution.

Our unitholders’ share of our income will be taxable to them for U.S. federal income tax purposes even if they do not receive any cash distributions from us.

Because a unitholder will be treated as a partner to whom we will allocate taxable income that could be different in amount than the cash we distribute, a unitholder’s allocable share of our taxable income will be taxable to him, which may require the payment of U.S. federal income taxes and, in some cases, state and local income taxes on his share of our taxable income, even if he receives no cash distributions from us. Our unitholders may not receive cash distributions from us equal to their share of our taxable income or even equal to the actual tax liability that results from that income.

Tax gain or loss on the disposition of our common units could be more or less than expected.

If our unitholders sell common units, they will recognize a gain or loss for U.S. federal income tax purposes equal to the difference between the amount realized and their tax basis in those common units. Because distributions in excess of their allocable share of our net taxable income decrease their tax basis in their common units, the amount, if any, of such prior excess distributions with respect to the common units a unitholder sells will, in effect, become taxable income to the unitholder if it sells such common units at a price greater than its tax basis in those common units, even if the price received is less than its original cost. Furthermore, a substantial portion of the amount realized on any sale of your common units, whether or not representing gain, may be taxed as ordinary income due to potential recapture items, including depreciation recapture. In addition, because the amount realized includes a unitholder’s share of our nonrecourse liabilities, a unitholder that sells common units may incur a tax liability in excess of the amount of cash received from the sale. Please read “Material U.S. Federal Income Tax Consequences—Disposition of Common Units—Recognition of Gain or Loss” for a further discussion of the foregoing.

 

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Tax-exempt entities and non-U.S. persons face unique tax issues from owning our common units that may result in adverse tax consequences to them.

Investment in our common units by tax-exempt entities, such as employee benefit plans and individual retirement accounts (known as IRAs), and non-U.S. persons raises issues unique to them. For example, virtually all of our income allocated to organizations that are exempt from U.S. federal income tax, including IRAs and other retirement plans, will be unrelated business taxable income and will be taxable to them. Distributions to non-U.S. persons will be reduced by withholding taxes at the highest applicable effective tax rate, and non-U.S. persons will be required to file U.S. federal income tax returns and pay tax on their share of our taxable income. If you are a tax-exempt entity or a non-U.S. person, you should consult a tax advisor before investing in our common units.

We will treat each purchaser of common units as having the same tax benefits without regard to the actual common units purchased. The IRS may challenge this treatment, which could adversely affect the value of our common units.

Because we cannot match transferors and transferees of common units and because of other reasons, we will adopt depreciation and amortization positions that may not conform to all aspects of existing Treasury Regulations promulgated under the Internal Revenue Code of 1986 (the “Code”), referred to as “Treasury Regulations.” A successful IRS challenge to those positions could adversely affect the amount of tax benefits available to you. It also could affect the timing of these tax benefits or the amount of gain from your sale of common units and could have a negative impact on the value of our common units or result in audit adjustments to your tax returns. Please read “Material U.S. Federal Income Tax Consequences—Tax Consequences of Common Unit Ownership—Section 754 Election” for a further discussion of the effect of the depreciation and amortization positions we will adopt.

We will prorate our items of income, gain, loss and deduction, for U.S. federal income tax purposes, between transferors and transferees of our common units each month based upon the ownership of our common units on the first day of each month, instead of on the basis of the date a particular common unit is transferred. The IRS may challenge this treatment, which could change the allocation of items of income, gain, loss and deduction among our unitholders.

We will prorate our items of income, gain, loss and deduction for federal income tax purposes between transferors and transferees of our common units each month based upon the ownership of our common units on the first day of each month, instead of on the basis of the date a particular common unit is transferred. The use of this proration method may not be permitted under existing Treasury Regulations. Recently, however, the U.S. Treasury Department issued proposed regulations that provide a safe harbor pursuant to which publicly traded partnerships may use a similar monthly simplifying convention to allocate tax items among transferor and transferee unitholders. Nonetheless, the proposed regulations do not specifically authorize the use of the proration method we will adopt. If the IRS were to challenge this method or new Treasury Regulations were issued, we may be required to change the allocation of items of income, gain, loss and deduction among our unitholders. Latham & Watkins LLP has not rendered an opinion with respect to whether our monthly convention for allocating taxable income and losses is permitted by existing Treasury Regulations. Please read “Material U.S. Federal Income Tax Consequences—Disposition of Common Units—Allocations Between Transferors and Transferees.”

A unitholder whose common units are loaned to a “short seller” to effect a short sale of common units may be considered as having disposed of those common units. If so, he would no longer be treated for U.S. federal income tax purposes as a partner with respect to those common units during the period of the loan and may recognize gain or loss from the disposition.

Because a unitholder whose common units are loaned to a “short seller” to effect a short sale of common units may be considered as having disposed of the loaned common units, he may no longer be treated

 

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for U.S. federal income tax purposes as a partner with respect to those common units during the period of the loan to the short seller and the unitholder may recognize gain or loss from such disposition. Moreover, during the period of the loan to the short seller, any of our income, gain, loss or deduction with respect to those common units may not be reportable by the unitholder and any cash distributions received by the common unitholder as to those common units could be fully taxable as ordinary income. Latham & Watkins LLP has not rendered an opinion regarding the treatment of a unitholder where common units are loaned to a short seller to effect a short sale of common units; therefore, our unitholders desiring to assure their status as partners and avoid the risk of gain recognition from a loan to a short seller are urged to consult a tax advisor to discuss whether it is advisable to modify any applicable brokerage account agreements to prohibit their brokers from loaning their common units.

The sale or exchange of 50% or more of our capital and profits interests during any twelve-month period will result in the termination of the Partnership for U.S. federal income tax purposes.

We will be considered to have technically terminated as a partnership for U.S. federal income tax purposes if there is a sale or exchange of 50% or more of the total interests in our capital and profits within a twelve-month period. For purposes of determining whether the 50% threshold has been met, multiple sales of the same common unit will be counted only once. Our technical termination would, among other things, result in the closing of our taxable year for all unitholders, which would result in us filing two tax returns (and our unitholders could receive two Schedules K-1 if relief was not available, as described below) for one fiscal year and could result in a deferral of depreciation deductions allowable in computing our taxable income. In the case of a unitholder reporting on a taxable year other than a fiscal year ending December 31, the closing of our taxable year may also result in more than twelve months of our taxable income or loss being includable in his taxable income for the year of termination. Our termination currently would not affect our classification as a partnership for federal income tax purposes, but instead we would be treated as a new partnership for federal income tax purposes. If treated as a new partnership, we must make new tax elections, including a new election under Section 754 of the Code, and could be subject to penalties if we are unable to determine that a termination occurred. The IRS has recently announced publicly traded partnership technical termination relief whereby, if a publicly traded partnership that technically terminated requests publicly traded partnership technical termination relief and such relief is granted by the IRS, among other things, the partnership will only have to provide one Schedule K-1 to unitholders for the year notwithstanding two partnership tax years. Please read “Material U.S. Federal Income Tax Consequences—Disposition of Common Units—Constructive Termination” for a discussion of the consequences of our termination for federal income tax purposes.

As a result of investing in our common units, you may become subject to state and local taxes and return filing requirements in jurisdictions where we operate or own or acquire properties.

In addition to U.S. federal income taxes, unitholders will likely be subject to other taxes, including state and local taxes, unincorporated business taxes and estate, inheritance or intangible taxes that are imposed by the various jurisdictions in which we conduct business or control property now or in the future, even if they do not live in any of those jurisdictions. Our unitholders will likely be required to file state and local income tax returns and pay state and local income taxes in some or all of these various jurisdictions. Further, our unitholders may be subject to penalties for failure to comply with those requirements. We initially expect to conduct business in Texas. As we make acquisitions or expand our business, we may control assets or conduct business in additional states that impose a personal income tax. It is your responsibility to file all federal, state and local tax returns. Our counsel has not rendered an opinion on the foreign, state or local tax consequences of an investment in our common units. Please consult your tax advisor.

 

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USE OF PROCEEDS

We estimate that the net proceeds to us from this offering, after deducting the estimated underwriting discount, structuring fees and the estimated offering expenses payable by us, will be approximately $              million (based on an assumed initial public offering price of $             per common unit, the midpoint of the price range set forth on the cover page of this prospectus). We intend to use the net proceeds from this offering as follows:

 

   

approximately $125.0 million to repay in full and terminate the Term B-1 Loan;

 

   

approximately $170.5 million to repay in full and terminate all of OCIB’s intercompany debt with OCI Fertilizer;

 

   

to pay a portion of the costs of our debottlenecking project and other budgeted capital projects incurred after the completion of this offering; and

 

   

the remainder, if any, for general partnership purposes, including working capital.

The table below sets forth our anticipated use of the expected net proceeds from this offering after deducting the estimated underwriting discount, structuring fees and estimated offering expenses payable by us:

 

     Application of
Net Proceeds
     Percentage of
Net Proceeds
 
     ($ in millions)  

Term B-1 Loan

   $ 125.0             

Intercompany debt with OCI Fertilizer

     170.5      

Debottlenecking project, other budgeted capital projects and, if any net proceeds remain, for general partnership purposes

     
  

 

 

    

 

 

 

Total

   $          100.0
  

 

 

    

 

 

 

Borrowings under the Term B-1 Loan bear interest at a variable rate based upon either LIBOR plus 4.0% per annum or the lenders’ alternative base rate plus 3.0% per annum. Borrowings under OCIB’s intercompany debt with OCI Fertilizer bear interest at LIBOR plus 9.25%. As of June 30, 2013, OCIB had $125.0 million outstanding under the Term B-1 Loan and the applicable interest rate was 4.27% per annum. As of June 30, 2013, OCIB had $170.5 million outstanding under its intercompany debt with OCI Fertilizer and the applicable interest rate was 9.45% per annum. The Term B-1 Loan matures on the earlier of the consummation of the Transactions and December 31, 2013. As of June 30, 2013, OCIB had approximately $140.0 million of intercompany debt with OCI Fertilizer maturing on August 1, 2014 and approximately $30.5 million maturing on December 31, 2014.

OCIB used the proceeds from the Term B-1 Loan to repay outstanding borrowings under its previous third-party credit facility. OCIB used the proceeds from its intercompany debt with OCI Fertilizer to fund the upgrade on our facility, to satisfy working capital requirements and for general corporate purposes. Please read “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Credit Facilities.”

Affiliates of certain of the underwriters participating in this offering are lenders under the Term B-1 Loan and may receive a portion of the net proceeds from this offering through the repayment of indebtedness under the Term B-1 Loan. Please read “Underwriting.”

If and to the extent the underwriters exercise their option to purchase additional common units, the number of common units purchased by the underwriters pursuant to such exercise will be issued to the public and the remainder of the              additional common units, if any, will be issued to OCI USA. Any such common

 

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units issued to OCI USA will be issued for no additional consideration. If the underwriters exercise in full their option to purchase additional common units from us, we expect to receive net proceeds of approximately $            million, after deducting the estimated underwriting discount and structuring fees. We will use any net proceeds from the exercise of the underwriters’ option to purchase additional common units from us for general partnership purposes.

A $1.00 increase (or decrease) in the assumed initial public offering price of $             per common unit would increase (decrease) the net proceeds to us from this offering by $            , assuming the number of common units offered by us, as set forth on the cover page of this prospectus, remains the same and assuming the underwriters do not exercise their option to purchase additional common units, and after deducting the estimated underwriting discount, structuring fees and the estimated offering expenses payable by us. The actual initial public offering price is subject to market conditions and negotiations between us and the underwriters.

Depending on market conditions at the time of pricing of this offering and other considerations, we may sell fewer or more common units than the number set forth on the cover page of this prospectus.

 

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CAPITALIZATION

The following table sets forth the combined cash and cash equivalents and capitalization as of March 31, 2013 of:

 

   

OCIB on a historical basis; and

 

   

OCI Partners LP on a pro forma basis to reflect the issuance of our common units in this offering (based on an assumed initial public offering price of $             per common unit, the midpoint of the price range set forth on the cover page of this prospectus), the other transactions described under “Prospectus Summary—The Transactions” and the application of the net proceeds from this offering as described under “Use of Proceeds.”

The table assumes that the underwriters do not exercise their option to purchase additional common units. If and to the extent the underwriters exercise their option to purchase additional common units, the number of common units purchased by the underwriters pursuant to any exercise will be sold to the public, and any remaining common units not purchased by the underwriters pursuant to any exercise of the option will be issued to OCI USA at the expiration of the option period for no additional consideration. We will use any net proceeds from the exercise of the underwriters’ option to purchase additional common units from us for general partnership purposes.

This table is derived from, should be read together with and is qualified in its entirety by reference to OCIB’s unaudited historical interim financial statements and the accompanying notes and our unaudited pro forma condensed financial statements and accompanying notes included elsewhere in this prospectus. You should also read this table in conjunction with “Prospectus Summary—The Transactions,” “Use of Proceeds” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations.”

 

     As of March 31, 2013  
     OCIB
Historical
     OCI Partners LP
Pro Forma
 
     (Unaudited)
(In Thousands)
 

Cash and cash equivalents

   $ 19,403       $                
  

 

 

    

 

 

 

Long-term debt, including current maturities:

     

Intercompany debt (1)

   $ 170,482       $  —     

Previous credit agreement (1)

     125,000         —     

Term B-1 Loan (1)

     —           —     

Term B-2 Loan (1)

     —           —     

Term Loan B (2 )

     —        

Intercompany revolving credit facility (2 )

     —           —     

Member’s equity / partners’ capital:

     

Member’s equity

     101,582         —     

Capital held by public:

     

Common units (none issued and outstanding actual;              issued and outstanding pro forma)

     —        

Capital held by OCI and its affiliates:

     

Common units (none issued and outstanding actual;              issued and outstanding pro forma)

     —        
  

 

 

    

 

 

 

Total member’s equity/partners’ capital (3)

     101,582      
  

 

 

    

 

 

 

Total capitalization

   $ 397,064       $                
  

 

 

    

 

 

 

 

(1)

As of June 30, 2013, OCIB had approximately $170.5 million outstanding under its intercompany debt with OCI Fertilizer, no outstanding borrowings under its previous credit agreement, $125.0 million outstanding

 

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  under the Term B-1 Loan and $235.0 million outstanding under the Term B-2 Loan. Please read “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Credit Facilities.”
(2) We expect that OCIB will enter into a new $235.0 million Term Loan B to replace borrowings under the Term B-2 Loan. We also expect that OCIB will enter into a new $40.0 million intercompany revolving credit facility with OCI Fertilizer. Please read “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Credit Facilities.”
(3) Pro forma total member’s equity / partners’ capital includes all planned distributions, all completed and planned transactions, as well as the impact of sources and uses of the proceeds from this offering, whereas historical total member’s equity / partners’ capital excludes planned distributions, all completed and planned transactions and the impact of sources and uses of the proceeds from this offering. Please see unaudited pro forma condensed balance sheet as of March 31, 2013 beginning on page F-3.

 

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DILUTION

Purchasers of common units offered by this prospectus will suffer immediate and substantial dilution in net tangible book value per unit. Our net tangible book value as of March 31, 2013 was approximately $            million. Our pro forma net tangible book value as of March 31, 2013, after giving effect to the Transactions but prior to giving effect to the issuance and sale of common units to purchasers in this offering, would have been approximately $            million, or approximately $            per unit. Pro forma net tangible book value per unit before the completion of this offering represents the amount of our pro forma tangible assets less our pro forma total liabilities, divided by the pro forma number of common units issued to OCI and its affiliates (assuming that the              common units that could be purchased by the underwriters pursuant to their option to purchase additional common units will be instead issued to OCI USA at the expiration of the option period for no consideration).

Dilution in net tangible book value per unit represents the difference between the amount per unit paid by purchasers of our common units in this offering and the pro forma net tangible book value per unit immediately after this offering. After giving effect to the sale of              common units in this offering at an assumed initial public offering price of $            per unit (the midpoint of the price range set forth on the cover page of this prospectus), and after deducting the estimated underwriting discount, structuring fees and estimated offering expenses payable by us, our pro forma net tangible book value as of March 31, 2013 would have been approximately $            million, or approximately $            per unit. This represents an immediate increase in net tangible book value of $            per unit to OCI and its affiliates and an immediate pro forma dilution of $            per unit to purchasers of common units in this offering. The following table illustrates this dilution on a per unit basis:

 

Assumed initial public offering price per unit (1)

      $                

Pro forma net tangible book value per unit before this offering (2)

   $                   

Increase in net tangible book value per unit attributable to purchasers in this offering and the use of proceeds

   $                   

Less: Pro forma net tangible book value per unit after this offering (3)

      $                
     

 

 

 

Immediate dilution in net tangible book value per unit to purchasers in this offering (4)

      $                
     

 

 

 

 

(1) Represents the midpoint of the price range set forth on the cover page of this prospectus.
(2) Determined by dividing the net tangible book value of our tangible assets less total liabilities by the number of common units issued to OCI USA, an indirect wholly owned subsidiary of OCI.
(3) Determined by dividing our pro forma net tangible book value, after giving effect to the application of the net proceeds from this offering, by the total number of common units to be outstanding after this offering.
(4) A $1.00 increase (decrease) in the assumed initial public offering price of $            per unit (the midpoint of the price range set forth on the cover page of this prospectus) would increase (decrease) our pro forma net tangible book value by $            , the pro forma net tangible book value per unit by $            and the dilution per unit to new investors by $            , assuming the number of common units offered by us, as set forth on the cover page of this prospectus, remains the same and the underwriters do not exercise their option to purchase additional common units, and after deducting the estimated underwriting discount, structuring fees and estimated offering expenses payable by us. If the underwriters’ option to purchase additional common units from us is exercised in full and the net proceeds are used as described under “Use of Proceeds,” the immediate dilution in net tangible book value per unit to purchasers in this offering will be $             . Depending on market conditions at the time of pricing of this offering and other considerations, we may sell fewer or more common units than the number set forth on the cover page of this prospectus.

 

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The following table sets forth the number of common units that we will issue and the total consideration contributed to us by OCI and its affiliates in respect of their common units and by the purchasers of common units in this offering upon the completion of the Transactions contemplated by this prospectus:

 

     Common Units     Total Consideration  
    

Number

  

Percent

   

Amount

    

Percent

 

OCI and its affiliates (1)

                       $                                  

New investors (2)

                       $                                  

Total (3)

                       $                                  

 

(1) The net assets contributed by OCI and its affiliates were recorded at historical cost in accordance with GAAP.
(2) Reflects the net proceeds from this offering after deducting the estimated underwriting discount, structuring fees and estimated offering expenses payable by us.
(3) A $1.00 increase (decrease) in the assumed initial public offering price of $            per unit (the midpoint of the price range set forth on the cover page of this prospectus) would increase (decrease) total consideration paid by new investors and total consideration paid by all unitholders by $            million, assuming the number of common units offered by us, as set forth on the cover page of this prospectus, remains the same, and after deducting the estimated underwriting discount, structuring fees and estimated offering expenses payable by us.

If the underwriters exercise their option to purchase             common units in full, then the pro forma increase per unit attributable to new investors would be $            , the net tangible book value per unit after this offering would be $            and the dilution per unit to new investors would be $            . In addition, new investors would purchase              common units, or approximately     % of units outstanding, and the total consideration contributed to us by new investors would increase to $             million, or     % of the total consideration contributed (based on an assumed initial public offering price of $             per unit, the midpoint of the price range set forth on the cover page of this prospectus).

 

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OUR CASH DISTRIBUTION POLICY AND RESTRICTIONS ON DISTRIBUTIONS

You should read the following discussion of our cash distribution policy and restrictions on distributions in conjunction with the specific assumptions upon which our cash distribution policy is based. Please read “—Assumptions and Considerations” below. For additional information regarding our historical and our pro forma operating results, you should refer to “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” our audited historical financial statements, our unaudited historical financial statements and our unaudited pro forma condensed financial statements included elsewhere in this prospectus. In addition, you should read “Risk Factors” and “Forward-Looking Statements” for information regarding statements that do not relate strictly to historical or current facts and certain risks inherent in our business.

General

Our Cash Distribution Policy

Upon the completion of this offering, the board of directors of our general partner will adopt a policy to distribute 100% of the cash available for distribution that we generate each quarter. Cash available for distribution for each quarter will be determined by the board of directors of our general partner following the end of such quarter. If we have cash available for distribution, our first distribution will take place following the first full quarter after the completion of this offering and will include cash available for distribution with respect to the period beginning on the closing date of this offering and ending on the last day of the first full quarter ending after the completion of this offering. We expect that cash available for distribution for each quarter will generally equal the cash we generate during the quarter, less cash needed for maintenance capital expenditures, debt service and other contractual obligations, and reserves for future operating or capital needs that the board of directors of our general partner deems necessary or appropriate. We intend to fund a portion of the costs of our debottlenecking project and other budgeted capital projects incurred after the completion of this offering with a portion of the net proceeds from this offering. We do not intend to maintain excess distribution coverage for the purpose of maintaining stability or growth in our quarterly distribution or otherwise to reserve cash for distributions, nor do we intend to incur debt to pay quarterly distributions. Other than the expansion capital expenditures we intend to fund with the net proceeds from this offering, we expect to finance substantially all of our growth externally with commercial bank or intercompany borrowings or by issuances of debt or equity securities.

Because our policy will be to distribute 100% of cash available for distribution each quarter, without reserving cash for future distributions or borrowing to pay distributions during periods of low cash flow from operations, our unitholders will have direct exposure to fluctuations in the amount of cash generated by our business. We expect that the amount of our quarterly distributions, if any, will vary based on our operating cash flow during each quarter. Our quarterly cash distributions, if any, will not be stable and will vary from quarter to quarter as a direct result of, among other things, variations in our operating performance and variations in our cash flow caused by fluctuations in the price of natural gas, methanol and ammonia as well as our working capital requirements, planned and unplanned downtime and capital expenditures and our margins from selling our products. Please read “Business—Customers and Contracts,” “Business—Feedstock Supply” and “Business—Seasonality and Volatility.” These variations may be significant. The board of directors of our general partner may change our cash distribution policy at any time and from time to time. Our partnership agreement does not require us to pay cash distributions to our unitholders on a quarterly or other basis.

Limitations on Cash Distributions; Our Ability to Change Our Cash Distribution Policy

There is no guarantee that unitholders will receive cash distributions from us. Our cash distribution policy may be changed at any time and is subject to certain restrictions, including:

 

   

Our unitholders have no contractual or other legal right to receive cash distributions from us on a quarterly or other basis. Our policy will be to distribute to our unitholders each quarter 100% of the

 

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cash available for distribution we generate each quarter, as determined quarterly by the board of directors of our general partner, but it may change this policy at any time.

 

   

Our business performance is expected to be more volatile, and our cash flows are expected to be less stable, than the business performance and cash flows of most publicly traded partnerships. As a result, our cash distributions will be volatile and are expected to vary quarterly and annually.

 

   

Unlike most publicly traded partnerships, we will not have a minimum quarterly distribution or employ structures intended to maintain or increase quarterly cash distributions over time. Furthermore, none of our limited partner interests, including those indirectly held by OCI, will be subordinate in right of distribution payments to the common units sold in this offering.

 

   

The amount of cash available for distribution, the distributions we pay under our cash distribution policy and the decision to make any distribution will be determined by the board of directors of our general partner. Our partnership agreement will not provide for any minimum quarterly distributions. Prior to making any distributions on our units, we will reimburse our general partner and its affiliates for all direct and indirect expenses they incur on our behalf. Our partnership agreement provides that our general partner will determine in good faith the expenses that are allocable to us, but does not limit the amount of expenses for which our general partner and its affiliates may be reimbursed. In connection with this offering, we, our general partner and OCI (or its affiliate) will enter into an omnibus agreement pursuant to which OCI (or its affiliate) will agree to provide us with labor and operational services related to operating our facility and we will reimburse OCI (or its affiliate) for the provision of such services. Under the terms of the omnibus agreement, OCI (or its affiliate) will agree to provide us with selling, general and administrative services, and we will pay to OCI (or its affiliate) a fixed annual fee of $15.0 million for the provision of such services, which amount excludes approximately $4.0 million of estimated incremental general and administrative expenses that we expect to incur as a result of being a publicly traded partnership. The reimbursement of expenses and payment of fees, if any, to our general partner and its affiliates will reduce the amount of cash to pay distributions to our unitholders.

 

   

Under Section 17-607 of the Delaware Act, we may not make a distribution to our limited partners if the distribution would cause our liabilities to exceed the fair value of our assets.

 

   

We expect that our cash distribution policy will be subject to restrictions on distributions under our debt agreements. Please read “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Credit Facilities.” Should we be unable to satisfy these restrictions, we would be prohibited from making cash distributions to you.

 

   

We may lack sufficient cash to make distributions to our unitholders due to a number of factors that would adversely affect us, including, but not limited to, decreases in revenues or increases in operating expenses, principal and interest payments on debt, working capital requirements, capital expenditures, disruptions in the operations at our facility or anticipated cash needs. Please read “Risk Factors” for information regarding these factors.

 

   

We have a limited operating history upon which to rely in evaluating whether we will have sufficient cash to allow us to pay distributions on our common units. While we believe, based on our financial forecasts and related assumptions, that we should have sufficient cash to enable us to pay the forecasted aggregate distribution on all of our common units for the twelve months ending September 30, 2014 and for the three months ending December 31, 2014, we may be unable to pay the forecasted distribution or any amount on our common units.

 

   

We intend to pay our distributions on or about the fifteenth day of each February, May, August and November to holders of record on or about the last day of each prior month. If we have cash

 

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available for distribution, our first distribution will take place following the first full quarter after the completion of this offering and will include cash available for distribution with respect to the period beginning on the closing date of this offering and ending on the last day of the first full quarter ending after the completion of this offering.

In the sections that follow, we present the following two tables:

 

   

“OCI Partners LP Unaudited Pro Forma Cash Available for Distribution for the Year Ended December 31, 2012 and the Twelve Months Ended March 31, 2013,” in which we present our estimate of the amount of pro forma cash available for distribution we would have had for the year ended December 31, 2012 and the twelve months ended March 31, 2013 had the Transactions described under “Prospectus Summary—The Transactions” been completed on January 1, 2012, in each case, based on our unaudited pro forma condensed financial statements included elsewhere in this prospectus. Please read “Unaudited Pro Forma Condensed Financial Statements” beginning on page F-2 of this prospectus; and

 

   

“OCI Partners LP Unaudited Forecasted Cash Available for Distribution for the Twelve Months Ending September 30, 2014 and the Three Months Ending December 31, 2014,” in which we present our unaudited forecast of cash available for distribution for the twelve months ending September 30, 2014 and for the three months ending December 31, 2014.

We do not, as a matter of course, make or intend to make public projections as to our future revenues, earnings or other results. However, our management has prepared the prospective financial information set forth under “—Unaudited Forecasted Cash Available for Distribution” below to supplement our historical and unaudited pro forma condensed financial statements included elsewhere in this prospectus. To management’s knowledge and belief, the accompanying prospective financial information was prepared on a reasonable basis, reflects the best currently available estimates and judgments and presents our expected course of action and our expected future financial performance. However, this information is not fact and should not be relied upon as being indicative of future results, and, therefore, readers of this prospectus are cautioned not to place undue reliance on this prospective financial information. The forecasts included in this prospectus have been prepared by, and are the responsibility of, our management. KPMG has not examined, compiled or performed any procedures with respect to the forecasts, and, accordingly, KPMG does not express an opinion or any other form of assurance with respect thereto. The KPMG report included in this prospectus relates to our historical financial information. The KPMG report does not extend to the forecasts and should not be read to do so. Please read “Risk Factors” and “Forward-Looking Statements.”

Unaudited Pro Forma Cash Available for Distribution

For each of the year ended December 31, 2012 and the twelve months ended March 31, 2013, on a pro forma basis, we would not have generated sufficient cash available for distribution to have paid the per unit quarterly distribution that we project that we will be able to pay for the twelve months ending September 30, 2014. Our pro forma cash available for distribution generated during the year ended December 31, 2012 and the twelve months ended March 31, 2013 would have been approximately $58.1 million and $114.7 million, respectively. Based on our initial cash distribution policy, this amount would have resulted in an aggregate annual distribution equal to $             per unit and $             per unit for the year ended December 31, 2012 and the twelve months ended March 31, 2013, respectively.

The pro forma cash available for distribution calculations set forth below take into account the assumption that incremental general and administrative expenses related to being a publicly traded partnership were paid during the applicable periods in which they are included. The incremental general and administrative expenses reflect our estimate of the incremental expenses that we expect to incur as a publicly traded partnership, including expenses associated with SEC reporting requirements, tax return and Schedule K-1 preparation and

 

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distribution, Sarbanes-Oxley Act compliance, listing our common units on the NYSE, independent auditor fees, legal fees, investor relations costs, registrar and transfer agent fees, directors and officers insurance and director compensation. We estimate that our incremental general and administrative expenses will be approximately $4.0 million per year; however, actual amounts could differ from this estimate and such differences could be material. The estimated incremental general and administrative expenses are reflected in our pro forma cash available for distribution but are not reflected in our unaudited pro forma condensed financial statements included elsewhere in this prospectus.

The unaudited pro forma condensed financial statements, from which pro forma cash available for distribution is derived, do not purport to present our results of operations had the Transactions contemplated below actually been completed as of the date indicated below. Furthermore, cash available for distribution is a cash concept, while our unaudited pro forma condensed financial statements have been prepared on an accrual basis. We derived the amounts of pro forma cash available for distribution stated above in the manner described in the table below. As a result, the amount of pro forma cash available for distribution should only be viewed as a general indication of the amount of cash available for distribution that we might have generated had we been formed and completed the Transactions contemplated below in earlier periods.

The following table illustrates, on a pro forma basis for the year ended December 31, 2012 and the twelve months ended March 31, 2013, the amount of cash that would have been available for distribution to our unitholders, assuming that the Transactions (as defined under “Prospectus Summary—The Transactions”) had occurred, in each case, on January 1, 2012:

OCI Partners LP

Unaudited Pro Forma Cash Available for Distribution

for the

Year Ended December 31, 2012 and the Twelve Months Ended March 31, 2013

 

    

Pro Forma
Year Ended
December 31, 2012

    

Pro Forma
Twelve Months
Ended

March 31, 2013

 
    

(unaudited)

(in millions, except per unit data)

 

Net income

   $ 52.8       $ 104.8   

Add:

     

Interest expense and other financing costs (1)

     11.0         11.1   

Depreciation expense

     11.4         15.9   

Income tax expense (2)

     1.0         1.5   
  

 

 

    

 

 

 

EBITDA (3 )

   $ 76.2       $ 133.3   

Subtract:

     

Net debt service costs (4 )

     13.1         13.1   

Income tax expense (2 )

     1.0         1.5   

Estimated incremental general and administrative expenses (5 )

     4.0         4.0   
  

 

 

    

 

 

 

Cash Available for Distribution

   $ 58.1       $ 114.7   
  

 

 

    

 

 

 

Aggregate annual distributions per unit

   $         $     

Number of common units

     

Other Information

     

Expansion capital expenditures (6 )

     194.0         116.7   

 

(1)

Interest expense and other financing costs represent the interest expense and fees (including amortization of debt issuance costs), net of interest income, related to our borrowings. Our pro forma interest expense is based on (i) a 4.5% interest rate on the new Term Loan B, (ii) amortization of deferred financing costs and

 

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  (iii) a 0.5% commitment fee on the unused portion of the new $40.0 million intercompany revolving credit facility with OCI Fertilizer. We have assumed that OCIB did not incur any borrowings under the intercompany revolving credit facility.
(2) Income tax expense relates to Texas margin taxes.
(3) For a definition of the non-GAAP financial measure of EBITDA and a reconciliation of EBITDA to our most directly comparable financial measures calculated and presented in accordance with GAAP, please read “Selected Historical and Pro Forma Financial and Operating Data.”
(4) Net debt service cost is defined as (i) cash interest expense based on an assumed 4.5% annual interest rate on the $235.0 million Term Loan B, plus (ii) required quarterly principal payments of 0.25% of the outstanding balance (equating to 1% annually), plus (iii) a 0.5% commitment fee on the unused portion of the new $40.0 million intercompany revolving credit facility. Net debt service cost excludes amortization of deferred financing costs.
(5) Reflects an adjustment for estimated incremental general and administrative expense we expect that we will incur as a publicly traded partnership, including expenses associated with SEC reporting requirements, tax return and Schedule K-1 preparation and distribution, Sarbanes-Oxley Act compliance, listing our common units on the NYSE, independent auditor fees, legal fees, investor relations costs, registrar and transfer agent fees, directors and officers insurance and director compensation.
(6) Expansion capital expenditures during these periods related to the upgrade of our facility and were funded with borrowings under credit facilities or intercompany debt.

Unaudited Forecasted Cash Available for Distribution

Subject to certain assumptions and assuming the board of directors of our general partner declares distributions in accordance with our cash distribution policy, we expect that our cash available for distribution for the twelve months ending September 30, 2014 will be approximately $152.5 million, or $            per unit, and we expect that our cash available for distribution for the three months ending December 31, 2014 will be approximately $64.0 million, or $             per unit. In “—Assumptions and Considerations” below, we discuss the material assumptions underlying our forecast of cash available for distribution for the twelve months ending September 30, 2014, followed by a discussion concerning the material assumptions underlying our forecast of cash available for distribution for the three months ending December 31, 2014, which will be the first full operating quarter that includes the additional production capacity resulting from the completion of our debottlenecking project. The forecasted cash available for distribution discussed below should not be viewed as management’s projection of the actual cash available for distribution that we will generate during the twelve months ending September 30, 2014 or for the three months ending December 31, 2014. We can give you no assurance that our assumptions will be realized or that we will generate any cash available for distribution during the forecast periods or otherwise, in which event we will not be able to pay cash distributions on our common units.

We do not, as a matter of course, make or intend to make public projections as to our future revenues, earnings or other results. However, our management has prepared the prospective financial information set forth below in the table entitled “OCI Partners LP Unaudited Forecasted Cash Available for Distribution for the Twelve Months Ending September 30, 2014 and the Three Months Ending December 31, 2014” to present our expectations regarding our ability to generate $152.5 million of cash available for distribution for the twelve months ending September 30, 2014 and $64.0 million of cash available for distribution for the three months ending December 31, 2014. The accompanying prospective financial information was not prepared with a view toward complying with the guidelines established by the American Institute of Certified Public Accountants with respect to prospective financial information, but, in the view of our management, was prepared on a reasonable basis, reflects the best currently available estimates and judgments and presents, to the best of management’s knowledge and belief, our expected course of action and our expected future financial performance. However, this information is not fact and should not be relied upon as being indicative of future results, and, therefore, readers of this prospectus are cautioned not to place undue reliance on this prospective financial information.

Although our management considers the assumptions and estimates underlying the prospective financial information reasonable as of the date of its preparation, such assumptions and estimates are inherently uncertain

 

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and are subject to a wide variety of risks and uncertainties, including significant business, economic and competitive risks and uncertainties described under the headings “Risk Factors” and “Forward-Looking Statements” elsewhere in this prospectus, that could cause our actual results to differ materially from those contained in the prospective financial information. Accordingly, there can be no assurance that the prospective results are indicative of our future performance or that our actual results will not differ materially from those presented in the prospective financial information. Irrespective, investors in our common units should not regard inclusion of the prospective financial information in this prospectus as a representation by any person that the results contained in the prospective financial information will be achieved.

In light of the above, the statements that we believe that we will have sufficient cash available for distribution to allow us to pay the forecasted distributions on all of our outstanding common units for the twelve months ending September 30, 2014 and for the three months ending December 31, 2014 should not be regarded as a representation by us, the underwriters or any other person that we will generate such amount of cash available for distribution or make such distributions. Therefore, you are cautioned not to place undue reliance on this information.

The following table shows how we calculate forecasted cash available for distribution for the twelve months ending September 30, 2014 and for the three months ending December 31, 2014. The assumptions that we believe are relevant to particular line items in the table below are explained in “—Assumptions and Considerations.”

The forecasts included in this prospectus have been prepared by, and are the responsibility of, our management. KPMG has not examined, compiled or performed any procedures with respect to the forecasts, and, accordingly, KPMG does not express an opinion or any other form of assurance with respect thereto. The KPMG report included in this prospectus relates to our historical financial information. The KPMG report does not extend to the forecasts and should not be read to do so.

 

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OCI Partners LP

Unaudited Forecasted Cash Available for Distribution

for the Twelve Months Ending September 30, 2014 and the Three Months Ending December 31, 2014

The following table illustrates the amount of cash that we estimate we will generate for each calendar quarter in the twelve months ending September 30, 2014 and for the three months ending December 31, 2014 that would be available for distribution to our unitholders. All of the amounts in the table below are estimates.

 

     Three Months Ending     Twelve
Months
Ending
    Three
Months
Ending
 
    

December
31, 2013

   

March
31, 2014

   

June
30, 2014

   

September

30, 2014

   

September

30, 2014

   

December
31, 2014

 
     (in millions)        

Revenues

   $ 100.5      $ 99.3      $ 100.9      $ 65.8      $ 366.5      $ 135.6   

Cost of goods sold (exclusive of depreciation)

     45.4        44.5        45.0        27.5        162.4        59.5   

Depreciation expense

     5.3        5.4        5.6        5.8        22.1        8.3   

Selling, general and administrative expenses (1)

     4.8        4.8        4.8        4.8        19.2        4.8   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) from operations before interest and tax expense

     45.0        44.6        45.5        27.7        162.8        63.0   

Net interest expense

     2.7        2.7        2.7        3.1        11.2        2.7   

Other income

     0.1        0.1        0.1        0.1        0.4        0.1   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Income before tax expense

     42.4        42.0        42.9        24.7        152.0        60.4   

Income tax expense

     0.5        0.5        0.5        0.3        1.8        0.7   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income

   $ 41.9      $ 41.5      $ 42.4      $ 24.4      $ 150.2      $ 59.7   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Adjustments to reconcile net income to EBITDA:

            

Add (Subtract):

            

Net interest expense and other financing costs (2)

     2.6        2.6        2.6        3.1        10.9        2.6   

Depreciation and amortization

     5.3        5.4        5.6        5.8        22.1        8.3   

Income tax expense

     0.5        0.5        0.5        0.3        1.8        0.7   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

EBITDA (3)

   $ 50.3      $ 50.0      $ 51.1      $ 33.6      $ 185.0      $ 71.3   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Adjustments to reconcile EBITDA to cash available for distribution:

            

Subtract:

            

Net debt service costs (4)

     3.2        3.2        3.2        3.2        12.8        3.2   

Income tax expense (5)

     0.5        0.5        0.5        0.3        1.8        0.7   

Debottlenecking project capital expenditures (6)

     11.9        27.1        27.8        66.1        132.9        —     

Other expansion capital expenditures (7)

     5.9        6.0        8.2        3.7        23.8        1.9   

Actual maintenance capital expenditures

     1.2        1.1        1.2        17.4        20.9        —     

Turnaround and related expenses reserves

     1.5        1.5        1.5        1.5        6.0        1.5   

Add:

            

Net proceeds from this offering to fund debottlenecking project capital expenditures

     11.9        27.1        27.8        66.1        132.9        —     

Cash reserves to fund actual turnaround and related expenses and other expansion capital projects (8)

     7.1        7.1        9.4        9.2        32.8        —     
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Cash Available for Distribution

   $ 45.1      $ 44.8      $ 45.9      $ 16.7      $ 152.5      $ 64.0   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

(1) Selling, general and administrative expenses includes an adjustment of $4.0 million for estimated incremental general and administrative expense we expect that we will incur as a publicly traded partnership, including expenses associated with SEC reporting requirements, tax return and Schedule K-1 preparation and distribution, Sarbanes-Oxley Act compliance, listing our common units on the NYSE, independent auditor fees, legal fees, investor relations costs, registrar and transfer agent fees, directors and officers insurance and director compensation.

 

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(2) Net interest expense and other financing costs represent the interest expense and fees (including amortization of debt issuance costs), net of interest income and amounts capitalized, related to our borrowings. Forecasted interest expense is based on (i) a 4.5% interest rate on the new Term Loan B, (ii) amortization of deferred financing costs and (iii) a 0.5% commitment fee on the unused portion of the new $40.0 million intercompany revolving credit facility. We have assumed that OCIB will not incur any borrowings under the intercompany revolving credit facility.
(3) For a definition of the non-GAAP financial measure of EBITDA and a reconciliation of EBITDA to our most directly comparable financial measures calculated and presented in accordance with GAAP, please read “Selected Historical and Pro Forma Financial and Operating Data.”
(4) Net debt service cost is defined as (i) cash interest expense based on an assumed 4.5% annual interest rate on the $235.0 million Term Loan B, plus (ii) required quarterly principal payments of 0.25% of the outstanding balance (equating to 1% annually) of the Term Loan B, plus (iii) a 0.5% commitment fee on the unused portion of the new $40.0 million intercompany revolving credit facility. Net debt service cost excludes amortization of deferred financing costs.
(5) Income tax expense relates to Texas margin taxes.
(6) Debottlenecking project capital expenditures relate to costs expected to be incurred after the completion of this offering for our debottlenecking project that will be funded with a portion of the net proceeds from this offering.
(7) Other expansion capital expenditures relate to other budgeted capital projects that will be funded with turnaround and related expenses reserves and a portion of the net proceeds from this offering. Other than the expansion capital expenditures we intend to fund with the net proceeds from this offering, we expect to finance substantially all of our growth externally with commercial bank or intercompany borrowings or by issuances of debt or equity securities.
(8) Cash reserves include a portion of the net proceeds from this offering and turnaround and related expenses reserves.

Assumptions and Considerations

Based upon the specific assumptions outlined below with respect to the twelve months ending September 30, 2014, we estimate that we would generate EBITDA and cash available for distribution in an amount sufficient to allow us to distribute an aggregate of $152.5 million, or $             per unit, on all of our outstanding common units, for the twelve months ending September 30, 2014. Based upon the specific assumptions outlined below with respect to the three months ending December 31, 2014, we estimate that we would generate EBITDA and cash available for distribution in an amount sufficient to allow us to distribute an aggregate of $64.0 million, or $             per unit on all of our outstanding common units, for the three months ending December 31, 2014. If we have cash available for distribution, our first distribution will take place following the first full quarter after the completion of this offering and will include cash available for distribution with respect to the period beginning on the closing date of this offering and ending on the last day of the first full quarter ending after the completion of this offering.

Basis of Presentation

The accompanying financial forecasts and summary of significant forecast assumptions of OCI Partners LP present the forecasted results of operations of OCI Partners LP for the twelve months ending September 30, 2014 and for the three months ending December 31, 2014, assuming that the Transactions (as defined under “Prospectus Summary—The Transactions”) had occurred on October 1, 2013.

Summary of Significant Forecast Assumptions

Our Operating Days . For the twelve months ending September 30, 2014, we estimate that we will have 310 operating days for both our methanol and ammonia production units, which includes an estimated 40-day shutdown period in connection with our debottlenecking project and maintenance turnaround scheduled to occur in August and September of 2014. During the year ended December 31, 2012, our methanol and ammonia production units were in operation for 138 days and 340 days, respectively. Our newly renovated facility began ammonia production in December 2011 and began methanol production in July 2012 (with no significant methanol production until August

 

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2012). We did not achieve maximum daily production rates at our current capacity until the fourth quarter of 2012, after an approximate 20-month start-up phase. During the fourth quarter of 2012, the last quarter of our start-up phase, our methanol and ammonia production units were in operation for 78 days and 88 days, respectively. Following the conclusion of our start-up phase, during the period from January 1, 2013 through June 30, 2013, our methanol and ammonia production units were in operation for 180 days and 165 days, respectively.

Revenues . We estimate revenues based on a forecast of future methanol and ammonia netback prices (assuming that purchasers will pay shipping costs), multiplied by the number of metric tons we estimate we will sell during the forecast period.

Based on these assumptions, we estimate our revenues for the twelve months ending September 30, 2014 will be approximately $366.5 million. Our revenues for the year ended December 31, 2012 and the twelve months ended March 31, 2013, on a pro forma basis, were approximately $224.6 million and $310.3 million, respectively. We estimate that we will sell 604,295 metric tons of methanol during the twelve months ending September 30, 2014 at an average netback price of $385 per ton, for revenues of approximately $232.5 million. We sold 252,230 metric tons of methanol at an average netback price of $380 per ton for revenues of approximately $95.7 million for the year ended December 31, 2012. We sold 411,790 metric tons of methanol at an average netback price of $391 per ton for revenues of approximately $161.1 million for the twelve months ended March 31, 2013 on a pro forma basis. We expect that sales volumes for methanol during the twelve months ending September 30, 2014 will be higher than for the year ended December 31, 2012 and the twelve months ended March 31, 2013, on a pro forma basis, primarily as a result of continued robust demand for methanol throughout the twelve months ending September 30, 2014 and increased operating days due to our methanol production unit operating at maximum daily production rates for the full period. The average netback price estimate for methanol during the twelve months ending September 30, 2014 was determined by management based on price estimates by our marketing group and data received from industry consultants, including Jim Jordan.

We estimate that we will sell 229,335 metric tons of ammonia during the twelve months ending September 30, 2014 at an average netback price of $584 per ton, for revenues of approximately $134.0 million. We generally sell ammonia under month-to-month contracts. Ammonia sales are generally priced at a fixed absolute discount to the CFR Tampa index during the month of delivery. Historically, ammonia prices have been seasonal, as the primary driver of demand for ammonia is fertilizer use, which typically results in ammonia prices rising during the fertilizer application seasons. Over the past two years, this trend has not been evident in our markets, with prices remaining strong throughout the year. We sold 221,820 metric tons of ammonia at an average netback price of $581 per ton for revenues of approximately $129.0 million for the year ended December 31, 2012. We sold 241,170 metric tons of ammonia at an average netback price of $619 per ton for revenues of approximately $149.0 million for the twelve months ended March 31, 2013, on a pro forma basis. We expect that sales volumes for ammonia during the twelve months ending September 30, 2014 will be higher than for the year ended December 31, 2012 and the twelve months ended March 31, 2013, on a pro forma basis, primarily due to continued robust demand for ammonia throughout the twelve months ending September 30, 2014 and increased operating days due to our ammonia production unit operating at maximum daily production rates for the full period. The average netback price estimate for ammonia during the twelve months ending September 30, 2014 was determined by management based on price estimates generated by our marketing group and data received from industry consultants in the fertilizer industry, including Blue Johnson.

Holding all other variables constant, we expect that a $50.00 change in the forecasted price per ton of methanol would change our forecasted cash available for distribution by approximately $25.9 million for the twelve months ending September 30, 2014. For the first three months of 2013, the average realized price of methanol was $409 per ton. Holding all other variables constant, we estimate that a $50.00 change in the forecasted price per ton of ammonia would change our forecasted cash available for distribution by approximately $11.6 million for the twelve months ending September 30, 2014. For the first three months of 2013, the average realized price of ammonia was $641 per ton.

 

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Cost of Goods Sold (Exclusive of Depreciation) . Our cost of goods sold (exclusive of depreciation) consists of costs related to the production of methanol and ammonia. Raw material purchases, such as natural gas and hydrogen, represent the largest component of our total cost of goods sold (exclusive of depreciation). For the three months ended March 31, 2013, natural gas feedstock costs represented approximately 55.5% of our total cost of goods sold (exclusive of depreciation) (or approximately 77.8% of our variable cost of goods sold (exclusive of depreciation)). Our remaining cost of goods (exclusive of depreciation) sold typically consists of purchases of hydrogen and nitrogen feedstock, as well as monthly fixed charges related to labor, maintenance and utilities expenditures. Based on our forecasted revenues, as well as the other assumptions discussed below, we estimate that our total cost of goods sold (exclusive of depreciation) for the twelve months ending September 30, 2014 will be approximately $162.4 million. Our total cost of goods sold (exclusive of depreciation) for the year ended December 31, 2012 was $133.4 million. Our total cost of goods sold (exclusive of depreciation) for the twelve months ended March 31, 2013 was approximately $162.1 million, on a pro forma basis. We expect our total cost of goods sold (exclusive of depreciation) for the twelve months ending September 30, 2014 to be higher than for the year ended December 31, 2012 and the twelve months ended March 31, 2013, on a pro forma basis, due to our facility operating at maximum daily production rates for the full period.

Prior to the start-up of our methanol production unit in July 2012, we purchased and sold methanol to meet sales commitments to our customers and to take advantage of opportunities that we identified in the market. Such purchases of procured methanol were included in our total cost of goods sold (exclusive of depreciation). We did not purchase any methanol after the start-up of our methanol production unit through June 30, 2013, and we have assumed that we will not engage in methanol trading activities during the twelve months ending September 30, 2014.

We estimate that our total natural gas expense for the twelve months ending September 30, 2014 will be approximately $111.0 million assuming consumption of 26.1 million MMBtu of natural gas and an average price of $4.25 per MMBtu during the twelve months ending September 30, 2014. Our total natural gas costs included in cost of goods sold (exclusive of depreciation) for the year ended December 31, 2012 was $28.6 million based on consumption of 9.4 million MMBtu at an average natural gas price of $3.05 per MMBtu, compared to $2.75 per MMBtu Henry Hub natural gas prices over this same period. Our total natural gas costs included in cost of goods sold (exclusive of depreciation) for the twelve months ended March 31, 2013, on a pro forma basis, was approximately $54.1 million based on consumption of 17.3 MMBtu at an average natural gas price of $3.13 per MMBtu, compared to $3.00 per MMBtu Henry Hub natural gas prices over this same period. Holding all other variables constant, we estimate that a $1.00 change per MMBtu in the forecasted price of natural gas (and the resulting effect on our hydrogen price formula) would change our forecasted cash available for distribution by approximately $29.0 million for the twelve months ending September 30, 2014.

The hydrogen needed for our ammonia production is primarily supplied from our methanol production process. However, we also purchase additional hydrogen from nearby suppliers to maximize our ammonia utilization rate. Based on our forecasted operational assumptions, we estimate that our hydrogen expense for the twelve months ending September 30, 2014 will be approximately $23.1 million for 8.1 MMscf purchased from nearby suppliers. Our total hydrogen costs included in cost of goods sold (exclusive of depreciation) for the year ended December 31, 2012 were approximately $36.3 million for 11.5 MMscf, and $28.9 million for 9.4 MMscf for the twelve months ended March 31, 2013, on a pro forma basis.

We estimate that our nitrogen costs for ammonia production for the twelve months ending September 30, 2014 will be approximately $3.4 million, assuming consumption of 5.6 MMscf for the production of 229,335 metric tons of ammonia. Our total nitrogen costs included in cost of goods sold (exclusive of depreciation) for the year ended December 31, 2012 were $3.4 million for 5.4 MMscf. For the twelve months ended March 31, 2013, on a pro forma basis, our nitrogen costs included in cost of goods sold (exclusive of depreciation) included $4.1 million for 5.8 MMscf. We estimate that our labor and operational maintenance costs for the twelve months ending September 30, 2014 will be approximately $18.0 million. Our total labor and maintenance costs included in cost of goods sold (exclusive of depreciation) for the year ended December 31, 2012 and the twelve months ended

 

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March 31, 2013, on a pro forma basis, were $15.5 million and $19.1 million, respectively. In connection with this offering, we, our general partner and OCI (or its affiliate) will enter into an omnibus agreement pursuant to which OCI (or its affiliate) will agree to provide us with labor and operational services related to operating our facility and we will reimburse OCI (or its affiliate) for the provision of such services. Please read “Certain Relationships and Related Party Transactions—Our Agreements with OCI—Omnibus Agreement.”

Depreciation Expense . We estimate that depreciation for the twelve months ending September 30, 2014 will be approximately $22.1 million compared to $11.4 million for the year ended December 31, 2012 and $15.9 million for the twelve months ended March 31, 2013, on a pro forma basis.

Selling, General and Administrative Expenses . Selling, general and administrative expenses consist primarily of direct and allocated compensation, legal, treasury, accounting, marketing and human resources expenses and expenses related to maintaining our corporate offices in Nederland, Texas. Incremental general and administrative expenses will consist of all incremental expenses attributable to our administration as a publicly traded partnership. Incremental general and administrative expenses include, but are not limited to, expenses associated with SEC reporting requirements, tax return and Schedule K-1 preparation and distribution, Sarbanes-Oxley Act compliance, listing our common units on the NYSE, independent auditor fees, legal fees, investor relations costs, registrar and transfer agent fees, directors and officers insurance and director compensation. We estimate that we will incur a total of $4.0 million in incremental general and administrative expenses for the twelve months ending September 30, 2014. We estimate that our selling, general and administrative expenses will be approximately $19.2 million for the twelve months ending September 30, 2014. Selling, general and administrative expense for the year ended December 31, 2012 and the twelve months ended March 31, 2013, on a pro forma basis, were approximately $15.0 million for both periods.

Under the terms of the omnibus agreement, OCI (or its affiliate) will agree to provide us with selling, general and administrative services, and we will pay to OCI (or its affiliate) a fixed annual fee of $15.0 million for the provision of such services, which amount excludes approximately $4.0 million of estimated incremental general and administrative expenses that we expect to incur as a result of being a publicly traded partnership. Please read “Certain Relationships and Related Party Transactions—Our Agreements with OCI—Omnibus Agreement.”

Net Interest Expense and Net Debt Service Costs . Net interest expense and net debt service costs includes interest expense, interest income and other financing costs. As part of the Transactions, we intend to repay in full and retire the Term B-1 Loan and all of OCIB’s approximate $170.5 million of intercompany debt with OCI Fertilizer and related fees and expenses. Please read “Use of Proceeds.” We expect to have $235.0 million of borrowings outstanding under our new Term Loan B at the completion of this offering, excluding unamortized debt discount. We expect the new Term Loan B will bear an interest rate of 4.5%, with a term of 6.5 years. Principal payments on the loan will be paid at 0.25% quarterly of the initial outstanding principal balance (equating to 1% annually) of the new Term Loan B until maturity and the remaining principal balance will be payable in 2020. We also expect that OCIB will enter into a new $40.0 million intercompany revolving credit facility with OCI Fertilizer. We expect the new intercompany revolving credit facility will have a term of seven years and carry an annual 0.5% commitment fee on the unused portion of the credit facility. We have assumed that OCIB will not incur any borrowings under the intercompany revolving credit facility. We do not expect to incur any additional indebtedness during the twelve months ending September 30, 2014. We estimate that net interest expense for the twelve months ending September 30, 2014 will be approximately $10.8 million, compared to $11.0 million for the year ended December 31, 2012 and $11.2 million for the twelve months ended March 31, 2013, on a pro forma basis. We estimate that net debt service costs for the twelve months ending September 30, 2014 will be approximately $12.8 million compared to $13.1 million for both the year ended December 31, 2012 and the twelve months ended March 31, 2013, on a pro forma basis. Net interest expense includes amortization of deferred financing costs, which have been excluded from net debt service costs.

 

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Net debt service costs also include the required quarterly principal payments of 0.25% (equating to $2.4 million or 1% of the initial outstanding principal balance annually of the new Term Loan B) which is excluded from net interest expense.

Income Taxes . As a limited partnership, we expect that we will pay no federal income tax during the twelve months ending September 30, 2014. We estimate that we will pay approximately $1.8 million in Texas margin tax during the twelve months ending September 30, 2014, which is included in income tax expense.

Expansion Capital Expenditures . Expansion capital expenditures are incurred for capital improvements that we expect will increase our production capacity, operating income or asset base over the long term. We are in the early stages of a debottlenecking project on our production facility that is expected to increase our annual methanol production capacity by approximately 182,500 metric tons, or approximately 25%, and increase our annual ammonia production capacity by approximately 40,000 metric tons, or approximately 15%. We expect that the debottlenecking project will be completed in the second half of 2014 and currently estimate the total cost of the project will be approximately $150 million (including costs associated with a turnaround and environmental upgrades). The forecast for the twelve months ending September 30, 2014 does not include revenue from any increase in production resulting from the debottlenecking project. We estimate that we will incur a total of $156.7 million in expansion capital expenditures for the twelve months ending September 30, 2014, including expenditures of $132.9 million related to our debottlenecking project. The remaining $23.8 million of expansion capital expenditures will be spent on various other budgeted capital projects to help improve our operational efficiency and expand our customer accessibility. We will retain a portion of the net proceeds from this offering to fund any of these expenditures incurred after the completion of this offering. Our expansion capital expenditures during the year ended December 31, 2012 and for the twelve months ended March 31, 2013 related to the upgrade of our facility, which was funded by debt borrowings under credit facilities and intercompany debt. Other than the expansion capital expenditures we intend to fund with the net proceeds from this offering, we expect to finance substantially all of our growth externally with commercial bank or intercompany borrowings or by issuances of debt or equity securities.

Maintenance Capital Expenditures . Maintenance capital expenditures are capital expenditures (including expenditures for the addition or improvement to, or the replacement of, our capital assets or for the acquisition of existing, or the construction or development of new, capital assets) made to maintain, including over the long term, our production capacity, operating income or asset base, or to comply with environmental, health, safety or other regulations. Maintenance capital expenditures that are required to comply with regulations may also improve the output, efficiency or reliability of our facility. We estimate that we will incur a total of $20.9 million in maintenance capital expenditures for the twelve months ending September 30, 2014 related to the scheduled maintenance turnaround.

Turnaround and Related Expenses Reserves . In advance of scheduled turnarounds at our facility, the board of directors of our general partner intends to elect to reserve amounts to fund expenditures and working capital requirements associated with such scheduled turnarounds. Such a decision by the board of directors may have an adverse impact on the cash available for distribution in the quarter(s) in which the reserves are withheld and a corresponding mitigating impact on the future quarter(s) in which the reserves are utilized.

We estimate total turnaround expense at approximately $24.0 million over a four-year turnaround cycle. Therefore, we estimate reserving approximately $6.0 million of cash available for distribution for turnaround expense over the twelve months ending September 30, 2014. Expected turnaround expense for the twelve months ending September 30, 2014 is approximately $20.9 million, all of which is attributed to the major turnaround scheduled for 2014 in connection with our debottlenecking project. We are still finalizing our planning for this turnaround, but we have assumed for purposes of the forecast that we will shut down the facility for 40 days during the months of August and September 2014 to complete this turnaround. However, this assumption is subject to change as we complete our turnaround planning.

 

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Three Months Ending December 31, 2014 and the Effect of Our Debottlenecking Project . Following an approximate 40-day shutdown of our facility in August and September 2014 for the completion of the debottlenecking project, we expect to have a full operating quarter with the incremental capacity during the three months ending December 31, 2014. Our daily production capacity for methanol is expected to increase from 2,000 metric tons per day to 2,500 metric tons per day, while our ammonia capacity is expected to increase from 726 metric tons per day to 835 metric tons per day. During the three months ending December 31, 2014, we estimate that we will have 92 operating days for both our methanol and ammonia production units. We estimate that we will sell 239,150 metric tons of methanol during the three months ending December 31, 2014 at an average netback price of $379 per ton, for revenues of approximately $90.7 million. We estimate that we will sell 76,811 metric tons of ammonia during the three months ending December 31, 2014 at an average netback price of $585 per ton, for revenues of approximately $44.9 million. Based on these assumptions, we estimate our revenues for the three months ending December 31, 2014 will be approximately $135.6 million. Our variable costs, such as natural gas, hydrogen and nitrogen, are expected to increase linearly with our expansion of production. However, we do not expect to incur any significant additional fixed costs such as labor, utilities and selling, general and administrative expenses with the completion of the debottlenecking project. Based on our forecasted revenues, as well as the other assumptions discussed above, we estimate that our total cost of goods sold (exclusive of depreciation) for the three months ending December 31, 2014 will be approximately $59.5 million. We estimate that after having completed our debottlenecking project, and based on the assumptions discussed above, we would generate cash available for distribution of $64.0 million for the three months ending December 31, 2014.

Regulatory, Industry and Economic Factors . Our forecasts for the twelve months ending September 30, 2014 and for the three months ending December 31, 2014 are based on the following assumptions related to regulatory, industry and economic factors:

 

   

no material nonperformance or credit-related defaults by suppliers, customers or vendors;

 

   

no new regulation or interpretation of existing regulations that, in either case, would be materially adverse to our business;

 

   

no material accidents, weather-related incidents, floods, unscheduled turnarounds or other downtime or similar unanticipated events;

 

   

no material adverse change in the markets in which we operate resulting from substantially higher natural gas or electricity prices or reduced demand for our products;

 

   

no material decreases in the prices we receive for our products; and

 

   

no material changes in domestic or global agricultural markets or overall domestic or global economic conditions.

Actual regulatory, industry and economic conditions may differ materially from those anticipated in this section as a result of a number of factors, including, but not limited to, those set forth under “Risk Factors” and “Forward-Looking Statements.”

 

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HOW WE MAKE CASH DISTRIBUTIONS

General

Upon the completion of this offering, the board of directors of our general partner will adopt a policy to distribute 100% of the cash available for distribution that we generate each quarter to unitholders of record on a pro rata basis. Within 45 days after the end of each quarter, beginning with the first full quarter following the closing date of this offering, we expect to make distributions, as determined by the board of directors of our general partner, to unitholders of record on the applicable record date.

Common Units Eligible for Distributions

Upon the completion of this offering, we will have             common units outstanding. Each common unit will be allocated a portion of our income, gain, loss, deduction and credit on a pro-rata basis, and each common unit will be entitled to receive distributions (including upon liquidation) in the same manner as each other common unit.

Method of Distributions

We intend to make cash distributions pursuant to our general partner’s determination of the amount of cash available for distribution for the applicable quarter, which we will then distribute to our unitholders, pro rata; provided, however, that we may change this policy at any time and our partnership agreement allows us to issue an unlimited number of additional equity interests of equal or senior rank as to distributions. Our partnership agreement permits us to borrow to make distributions, but we are not required, and do not intend, to borrow to pay quarterly distributions. Accordingly, there is no guarantee that we will pay any distribution on our common units in any quarter. We do not have a legal obligation to pay distributions, and the amount of distributions paid under our cash distribution policy and the decision to make any distribution is determined by the board of directors of our general partner. We expect that the agreements governing our indebtedness will restrict our ability to make cash distributions. Please read “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Credit Facilities” for a discussion of provisions contained in the agreements governing our debt agreements that restrict our ability to make cash distributions.

General Partner Interest

Upon the completion of this offering, our general partner will own a non-economic general partner interest in us and, therefore, will not be entitled to receive cash distributions. However, OCI USA, an indirect wholly owned subsidiary of OCI that owns all of the outstanding member interests in our general partner, will own              common units upon the completion of this offering and may acquire additional common units and other equity interests in the future and will be entitled to receive pro rata distributions therefrom.

 

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SELECTED HISTORICAL AND PRO FORMA FINANCIAL AND OPERATING DATA

The selected historical financial information presented below under the caption “Statements of Operations Data” and “Cash Flows Data” for the years ended December 31, 2012 and 2011 and the selected historical financial information presented below under the caption “Balance Sheets Data” as of December 31, 2012 and 2011 have been derived from OCIB’s audited financial statements included elsewhere in this prospectus, which financial statements have been audited by KPMG LLP, an independent registered public accounting firm.

The selected historical financial information presented below under the caption “Statements of Operations Data” and “Cash Flows Data” for the three months ended March 31, 2013 and 2012 and the selected financial data presented below under the caption “Balance Sheets Data” as of March 31, 2013 have been derived from OCIB’s unaudited financial statements included in this prospectus which, in the opinion of management, include all adjustments, consisting of only normal, recurring adjustments, necessary for the fair presentation of the results for the unaudited interim periods.

The selected unaudited pro forma condensed statements of operations data presented for the year ended December 31, 2012 and the three months ended March 31, 2013 assumes that the Transactions occurred as of January 1, 2012, and the unaudited pro forma condensed balance sheet data as of March 31, 2013 assumes that the Transactions occurred as of March 31, 2013. The selected unaudited pro forma condensed financial information is derived from our unaudited pro forma condensed financial statements included elsewhere in this prospectus. The pro forma condensed financial data is not comparable to our historical financial data. A more complete explanation of the pro forma condensed financial data can be found in our unaudited pro forma condensed financial statements and accompanying notes included elsewhere in this prospectus. Neither the pro forma condensed statements of operations data nor the pro forma condensed balance sheet data include estimates of the incremental costs of operating as a publicly traded limited partnership.

 

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For a detailed discussion of the selected historical financial information and operating data contained in the following table, please read “Management’s Discussion and Analysis of Financial Condition and Results of Operations.” The following table should also be read in conjunction with “Use of Proceeds” and our audited and unaudited historical financial statements and our unaudited pro forma condensed financial statements included elsewhere in this prospectus. Among other things, the historical and unaudited pro forma condensed financial statements include more detailed information regarding the basis of presentation for the information in the following table.

 

    Historical     Pro Forma  
    Three months ended
March 31,
    Year ended December 31,     Three
months
ended
March 31,
    Year
ended
December  31,
 
  2013     2012     2012     2011     2013     2012  
(dollars and metric tons in thousands)  

(unaudited)

               

(unaudited)

 

Statements of Operations Data:

           

Revenues(1)

  $ 112,161      $ 26,492      $ 224,629      $ —        $ 112,161      $ 224,629   

Cost of goods sold (exclusive of depreciation)

    45,952        17,294        133,430        —          45,952        133,430   

Expenses:

           

Depreciation expense

    5,512        966        11,355        —          5,512        11,355   

Selling, general and administrative

    8,098        3,479        14,980        236        3,750        15,000   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) from operations before interest expense, other income and income tax expense

    52,599        4,753        64,864        (236     56,947        64,844   

Interest expense

    2,259        —          5,718        —          2,688        10,962   

Interest expense – related party

    4,411        —          6,469        —          50        200   

Other income

    9        159        202        523        9        202   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Income before income tax expense

    45,938        4,912        52,879        287        54,218        53,884   

Income tax expense

    474        47        1,048        —          474        1,048   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income

  $ 45,464      $ 4,865      $ 51,831      $ 287      $ 53,744      $ 52,836   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income per common unit (basic and diluted)

           

Common units outstanding (basic and diluted)

           

Cash Flows Data:

           

Net cash provided by (used in):

           

Operating activities

  $ (15,824   $ (4,842   $ 74,657      $ (5,252    

Investing activities

    (6,481     (83,752     (193,965     (130,214    

Financing activities

    —          91,000        159,982        136,500       

Balance Sheets Data (at period end):

           

Cash and cash equivalents

  $ 19,403        $ 41,708      $ 1,034      $ 159,618     

Total assets

    420,411          405,345        154,682        494,643     

Total liabilities

    318,829          349,227        150,395        255,009     

Member’s equity

    101,582          56,118        4,287       

Member’s equity / partners’ capital (including offering proceeds)

            239,634     

Member’s equity / partners’ capital (excluding offering proceeds)(2)

            (206,616  

Other Financial Data:

           

EBITDA(3)

  $ 58,111      $ 5,719      $ 76,219      $ (236   $ 62,459      $ 76,199   

Capital expenditures for property, plant and equipment

    6,481        83,752        193,965        130,214       

Total debt (excluding accrued interest)

    295,482          295,482        132,500        232,650     

Key Operating Data:

           

Production (metric tons)

           

Methanol

    176.5        —          275.0        —         

Ammonia

    64.5        42.8        213.0        21.0       

 

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(1) Our ammonia production unit commenced production in December 2011, and our methanol production unit commenced production in July 2012. Although we began producing ammonia in December 2011, we did not sell the produced ammonia volumes until January 2012 in order to build inventories.
(2) Member’s equity/partners’ capital (excluding offering proceeds) gives effect to the Transactions that have taken place or will take place in connection with this offering, except for the issuance and sale of common units in this offering and our expected use of the net proceeds therefrom. Please read “Prospectus Summary—The Transactions” and “Use of Proceeds.” Please also read the unaudited pro forma condensed balance sheet as of March 31, 2013 beginning on page F-3.
(3) EBITDA is defined as net income plus interest expense and other financing costs, depreciation and income tax expense, net of interest income.

EBITDA is used as a supplemental financial measure by management and by external users of our financial statements, such as investors and commercial banks, to assess:

 

   

the financial performance of our assets without regard to financing methods, capital structure or historical cost basis; and

 

   

our operating performance and return on invested capital compared to those of other publicly traded partnerships, without regard to financing methods and capital structure.

EBITDA should not be considered an alternative to net income, operating income, net cash provided by operating activities or any other measure of financial performance or liquidity presented in accordance with GAAP. EBITDA may have material limitations as a performance measure because it excludes items that are necessary elements of our costs and operations. In addition, EBITDA presented by other companies may not be comparable to our presentation because each company may define that term differently.

 

     Historical     Pro Forma  
     Three months
ended March 31,
    Year ended
December 31,
    Three
months
ended
March 31,
     Year ended
December 31,
 
  

2013

    

2012

   

2012

    

2011

   

2013

    

2012

 
(dollars in thousands)   

(unaudited)

                

(unaudited)

 

Net income

   $ 45,464       $ 4,865      $ 51,831       $ 287      $ 53,744       $ 52,836   

Add:

               

Interest expense, net

     2,250         (159     5,516         (523     2,679         10,760   

Interest expense – related party

     4,411         —          6,469         —          50         200   

Depreciation expense

     5,512         966        11,355         —          5,512         11,355   

Income tax expense

     474         47        1,048         —          474         1,048   
  

 

 

    

 

 

   

 

 

    

 

 

   

 

 

    

 

 

 

EBITDA

   $ 58,111       $ 5,719      $ 76,219       $ (236   $ 62,459       $ 76,199   
  

 

 

    

 

 

   

 

 

    

 

 

   

 

 

    

 

 

 

 

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MANAGEMENT’S DISCUSSION AND ANALYSIS OF

FINANCIAL CONDITION AND RESULTS OF OPERATIONS

The following discussion and analysis of our financial condition and results of operations should be read in conjunction with the historical financial statements and notes included elsewhere in this prospectus. Among other things, those historical financial statements include more detailed information regarding the basis of presentation for the following information. This discussion contains forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those discussed below. Factors that could cause or contribute to such differences include, but are not limited to, those identified below and those discussed in the sections entitled “Risk Factors” and “Forward-Looking Statements” and elsewhere in this prospectus.

Overview

We are a Delaware limited partnership formed in February 2013 to own and operate a recently upgraded, integrated methanol and ammonia production facility that is strategically located on the Texas Gulf Coast near Beaumont. We are currently the largest merchant methanol producer in the United States with an annual methanol production capacity of approximately 730,000 metric tons and an annual ammonia production capacity of approximately 265,000 metric tons, and we are in the early stages of a debottlenecking project that will increase our annual methanol production capacity by 25% to approximately 912,500 metric tons and our annual ammonia production capacity by 15% to approximately 305,000 metric tons. Given our advantageous access and connectivity to customers and attractively priced natural gas feedstock supplies, we believe that we are one of the lowest-cost producers of methanol and ammonia in our markets and intend to capitalize on our competitive position to maximize our cash flow. We believe that the prospects for our methanol and ammonia business will remain positive for the foreseeable future because of growing U.S. and global demand for methanol and ammonia, our continued access to attractively priced natural gas feedstock, the United States’ current position as a net importer of both methanol and ammonia and our competitive position in our markets.

Both methanol and ammonia are global commodities that are essential building blocks for numerous end-use products. Methanol is a liquid petrochemical that is used in a variety of industrial and energy-related applications. Methanol is used in industrial applications to produce adhesives used in manufacturing wood products, such as plywood, particle board and laminates, resins to treat paper and plastic products, paint and varnish removers, solvents for the textile industry and polyester fibers for clothing and carpeting. Methanol is also used outside of the United States as a direct fuel for automobile engines, as a fuel blended with gasoline and as an octane booster in reformulated gasoline. In the United States, ammonia is primarily used as a feedstock to produce nitrogen fertilizers, such as urea and ammonium sulfate, and is also directly applied to soil as a fertilizer. In addition, ammonia is widely used in industrial applications, particularly in the Texas Gulf Coast market, including in the production of plastics, synthetic fibers, resins and numerous other chemical compounds.

We acquired our facility (which had been idled by the previous owners since 2004) in May 2011, commenced an upgrade that was completed in July 2012 and began operating our facility at full capacity in the fourth quarter of 2012. Our newly renovated facility began ammonia production in December 2011 and began methanol production in July 2012 (with no significant methanol production until August 2012), with revenues first generated from ammonia sales in the first quarter of 2012 and from methanol sales in the third quarter of 2012. For the three months ended March 31, 2013, our net income and EBITDA, on a pro forma basis, were approximately $53.7 million and $62.5 million, respectively. For the year ended December 31, 2012, our net income and EBITDA were approximately $51.8 million and $76.2 million, respectively. Subject to certain assumptions, we expect our net income and EBITDA to be approximately $150.2 million and $185.0 million, respectively, for the twelve months ending September 30, 2014. For a reconciliation of EBITDA to net income and the assumptions used in our forecast of our net income and EBITDA for the twelve months ending September 30, 2014, please read “Prospectus Summary—Summary Historical and Pro Forma Financial and Operating Data” and “Our Cash Distribution Policy and Restrictions on Distributions—Unaudited Forecasted Cash Available for Distribution.”

 

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Key Industry Factors

Supply and Demand

Revenues and cash flow from operations are significantly affected by methanol and ammonia prices. The price at which we ultimately sell our methanol and ammonia depends on numerous factors, including the global supply and demand for methanol and ammonia.

Methanol . Historically, demand for methanol in chemical derivatives has been closely correlated to levels of global economic activity and industrial production. Because methanol derivatives are used extensively in the building industry, demand for these derivatives rises and falls with building and construction cycles, as well as the level of production of wood products, housing starts, refurbishments and related customer spending. Demand for methanol is also affected by automobile production, durable goods production, industrial investment and environmental and health trends. Lower natural gas prices and improving economic conditions have recently resulted in an increase in methanol supply in the United States, with domestic annual production capacity expected to be 6.2 million metric tons by the end of 2016.

Ammonia . Approximately 95% of global ammonia production is utilized for downstream products, including nitrogen fertilizers. In the United States, there is a meaningful correlation between demand for nitrogen fertilizer products and crop prices. High crop prices incentivize farmers to increase fertilizer application in order to maximize crop yields. Thus, high crop prices tend to buoy fertilizer demand, resulting in higher demand for ammonia. Since 1970, the number of ammonia producers in North America and the Caribbean has declined from 63 to 20, largely driven by market consolidation through mergers and acquisitions. This market consolidation has resulted in a marketplace characterized by a disciplined and rational supplier base.

Natural Gas Prices

The primary feedstock that we use to produce methanol and ammonia is natural gas. Operating at full capacity, our methanol and ammonia production units together require approximately 84,000 MMBtu per day of natural gas. For the three months ended March 31, 2013, natural gas feedstock costs represented approximately 55.5% of our total cost of goods sold (exclusive of depreciation) (or approximately 77.8% of our variable cost of goods sold (exclusive of depreciation)). Accordingly, our profitability depends in large part on the price of our natural gas feedstock. In recent years, increased natural gas production from shale formations in the United States has increased domestic supplies of natural gas, resulting in a relatively low natural gas price environment. As a result, the competitive position of U.S. methanol and ammonia producers has been positively impacted relative to the methanol and ammonia competitive position of producers outside of the United States where the natural gas price environment is generally higher.

We have connections to one major interstate and three major intrastate natural gas pipelines that provide us access to significantly more natural gas supply than our facility requires and flexibility in sourcing our natural gas feedstock. We currently source natural gas from DCP Midstream and Kinder Morgan. In addition, we have recently connected our facility to a natural gas pipeline owned by Florida Gas Transmission and a natural gas pipeline owned by Houston Pipe Line Company. We believe that we have ready access to an abundant supply of natural gas for the foreseeable future due to our location and connectivity to major natural gas pipelines.

During the year ended December 31, 2012, we spent approximately $28.6 million on natural gas feedstock supplies, which equalled an average cost per MMBtu of approximately $3.05. We completed the refurbishment of our natural gas reformer and the upgrade of our methanol production unit in July 2012. Prior to the successful completion of our upgrade, we used hydrogen as our primary feedstock and spent an insignificant amount on natural gas feedstock. Since the completion of our upgrade, natural gas has been our primary feedstock. During the three months ended March 31, 2013, we spent approximately $25.5 million on natural gas feedstock supplies, which equalled an average cost per MMBtu of approximately $3.24.

 

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Key Operational Factors

Product Sales Contracts

We are party to methanol sales contracts with Methanex, Koch, ExxonMobil, Arkema and Lucite. Consistent with industry practice, our methanol sales contracts set our pricing terms to reflect a specified discount to a published monthly benchmark methanol price (Jim Jordan or Southern Chemical), and our methanol is sold on an FOB basis when transported by barge. A substantial majority of our customers do not have minimum volume purchase obligations under these contracts, may determine not to purchase any more methanol from us at any time and may purchase methanol from other suppliers. The payment terms under our methanol sales contacts are net 25-30 days. For the three months ended March 31, 2013, Methanex and Koch accounted for approximately 35.5% and 21.3%, respectively, of our total revenues. For the year ended December 31, 2012, Methanex, Koch and Arkema accounted for approximately 11.2%, 12.0% and 9.8%, respectively, of our total revenues.

We generally sell ammonia under monthly contracts. Consistent with industry practice, these contracts set our pricing terms to reflect a specified discount to a published monthly benchmark ammonia price (CFR Tampa). Our customers have no minimum volume purchase obligations under these contracts, may determine not to purchase any more ammonia from us at any time and may purchase ammonia from other suppliers. The payment terms under our ammonia sales contacts are net 30 days. Although we have ammonia pipeline connections with certain of our customers, currently all of our ammonia is sold on an FOB basis and is transported by barge. For the three months ended March 31, 2013, Transammonia and Rentech accounted for approximately 15.1% and 17.9%, respectively, of our total revenues. For the year ended December 31, 2012, Transammonia accounted for approximately 50.6% of our total revenues.

Facility Reliability

Consistent, safe and reliable operations at our facility are critical to our financial performance and results of operations. Unplanned downtime at our facility may result in lost margin opportunity, increased maintenance expense and a temporary increase in working capital investment and related inventory position. The financial impact of planned downtime, including facility turnarounds, is mitigated through a diligent planning process that takes into account the existing margin environment, the availability of resources to perform the needed maintenance, feedstock logistics and other factors. We acquired our facility (which had been idled by the previous owners since 2004) in May 2011, commenced an upgrade that was completed in July 2012 and began operating our facility at full capacity in the fourth quarter of 2012. Our newly renovated facility began ammonia production in December 2011 and began methanol production in July 2012 (with no significant methanol production until August 2012), with revenues first generated from ammonia sales in the first quarter of 2012 and from methanol sales in the third quarter of 2012. During the fourth quarter of 2012, the last quarter of our start-up phase, our methanol and ammonia production units were in operation for 78 days and 88 days, respectively. Following the conclusion of our start-up phase, during the period from January 1, 2013 through June 30, 2013, our methanol and ammonia production units were in operation for 180 days and 165 days, respectively.

We expect to perform maintenance turnarounds approximately every four years, which will typically last from 20 to 40 days and cost approximately $24 million per turnaround. We will attempt to perform significant maintenance capital projects at our facility during a turnaround to minimize disruption to our operations. We will capitalize the costs related to these projects as property, plant and equipment and will classify the amounts as maintenance capital expenditures. We plan to undertake a turnaround as part of our debottlenecking project that is expected to be completed in the second half of 2014, which will result in approximately 30 to 40 days of downtime at our facility. We expect that the next turnaround after the completion of the debottlenecking project will occur in 2018.

 

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How We Evaluate Our Operations

We generate our revenues from the sale of methanol and ammonia manufactured at our facility. We sell our products, primarily under contract, to industrial and commercial customers for further processing or distribution. For the three months ended March 31, 2013 and the year ended December 31, 2012, we derived approximately 72% and 74%, respectively, of our revenues from the sale of our products to commercial traders for further processing or distribution and derived approximately 28% and 26%, respectively, of our revenues from the sale of our products to industrial users. In addition, we derive a portion of our revenues from uncontracted sales of methanol and ammonia. For the three months ended March 31, 2013 and the year ended December 31, 2012, we derived approximately 0% and 1%, respectively, of our revenues from uncontracted sales of our products. We use the following metrics to evaluate our operating performance.

Utilization

As an industrial chemicals manufacturer, the primary criterion that we use when evaluating our performance is the utilization rates of our production units, which is the total production volumes for a production unit for a given period divided by the nameplate capacity of that production unit. Maintaining consistent and reliable operations at our facility are critical to our financial performance and results of operations. Efficient production of methanol and ammonia requires reliable and stable operations at our facility due to the high costs associated with planned and unplanned downtime.

EBITDA

EBITDA is defined as net income plus interest expense and other financing costs, depreciation and income tax expense, net of interest income. EBITDA is used as a supplemental financial measure by management and by external users of our financial statements, such as investors and commercial banks, to assess:

 

   

the financial performance of our assets without regard to financing methods, capital structure or historical cost basis; and

 

   

our operating performance and return on invested capital compared to those of other publicly traded partnerships, without regard to financing methods and capital structure.

EBITDA should not be considered an alternative to net income, operating income, net cash provided by operating activities or any other measure of financial performance or liquidity presented in accordance with GAAP. EBITDA may have material limitations as a performance measure because it excludes items that are necessary elements of our costs and operations. In addition, EBITDA presented by other companies may not be comparable to our presentation because each company may define EBITDA differently.

Cost of Goods Sold (Exclusive of Depreciation)

Our cost of goods sold (exclusive of depreciation) consists of costs related to the production of methanol and ammonia. Raw material purchases, such as natural gas and hydrogen, represent the largest component of our total cost of goods sold (exclusive of depreciation). For the three months ended March 31, 2013, natural gas feedstock costs represented approximately 55.5% of our total cost of goods sold (exclusive of depreciation) (or approximately 77.8% of our variable cost of goods sold (exclusive of depreciation)). Our remaining cost of goods sold (exclusive of depreciation) typically consists of purchases of hydrogen and nitrogen feedstock, as well as monthly fixed charges related to labor, maintenance and utilities expenditures. During the periods presented, our facility’s start-up costs also contributed to higher cost of goods sold (exclusive of depreciation). Accordingly, the cost of goods sold (exclusive of depreciation) presented below is not reflective of our facility’s expected run-rate cost of goods sold (exclusive of depreciation) in the future.

Factors Affecting Comparability of Financial Information

Our historical results of operations for the periods presented may not be comparable between those periods or to our results of operations in the future for the reasons discussed below.

 

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Start-Up of Our Facility

We did not achieve maximum daily production rates at our current capacity until the fourth quarter of 2012, after an approximate 20-month start-up phase. We acquired our facility (which had been idled by the previous owners since 2004) in May 2011, commenced an upgrade that was completed in July 2012 and began operating our facility at full capacity in the fourth quarter of 2012. Our newly renovated facility began ammonia production in December 2011 and began methanol production in July 2012 (with no significant methanol production until August 2012), with revenues first generated from ammonia sales in the first quarter of 2012 and from methanol sales in the third quarter of 2012. As a result of our limited history of operations due to an extended start-up phase, our results of operations and our operating cash flows presented below for the three months ended March 31, 2012 and for the years ended December 31, 2011 and 2012 do not reflect full utilization of our facility and are not indicative of our expected results of operations and operating cash flows for periods subsequent to the completion of this offering.

Our results of operations for the three months ended March 31, 2013 reflect 86 days and 90 days of operations at our ammonia and methanol production units, respectively, compared to 76 days and no days of operations at our ammonia and methanol production units, respectively, for the three months ended March 31, 2012. We produced approximately 64,500 metric tons of ammonia and approximately 175,500 metric tons of methanol during the three months ended March 31, 2013, representing utilization rates in excess of 100.0% (relative to their respective nameplate capacities) for our ammonia and methanol production units for the operating days during the period, as compared to production of approximately 42,800 metric tons of ammonia and no methanol during the three months ended March 31, 2012, representing a utilization rate of 77.5% for the ammonia production unit for the operating days during the period.

Our results of operations for the year ended December 31, 2012 reflect 340 days and 138 days of operations at our ammonia and methanol production units, respectively, compared to 16 days and no days of operations at our ammonia and methanol production units, respectively, for the year ended December 31, 2011. We produced approximately 215,300 metric tons of ammonia and approximately 221,700 metric tons of methanol during the year ended December 31, 2012, representing utilization rates of 87.2% and 87.4% for the operating days during the period for our ammonia and methanol production units, respectively. In addition, prior to the start-up of our methanol production unit, we purchased and sold methanol to meet sales commitments to our customers and to take advantage of opportunities that we identified in the market. We did not purchase any methanol after the start-up of our methanol production unit through June 30, 2013.

Debt Agreements and Interest Expense

On May 21, 2013, OCIB entered into a $360.0 million senior secured term loan credit facility with a group of lenders and Bank of America, N.A., as administrative agent. The term loan facility is comprised of the $125.0 million Term B-1 Loan and the $235.0 million Term B-2 Loan. We intend to use a portion of the net proceeds from this offering to repay the Term B-1 Loan in full. The Term B-1 Loan matures on the earlier of the consummation of the Transactions and December 31, 2013. The Term B-2 Loan matures on the earliest of (i) December 31, 2013, (ii) the consummation of the Transactions or (iii) the incurrence of the new Term Loan B. Interest on the Term B-1 Loan accrues, at OCIB’s option, at adjusted LIBOR plus 4.0% per annum or the alternate base rate plus 3.0%. Interest on the Term B-2 Loan accrues, at OCIB’s option, at adjusted LIBOR plus 3.5% per annum or the alternate base rate plus 2.5%. The proceeds from the Term B-1 Loan were used to refinance all existing third-party debt. OCIB used approximately $230.0 million of the proceeds from the Term B-2 Loan to finance a distribution to OCI USA and approximately $2.8 million of the proceeds from the Term B-2 Loan to pay for bank fees, accrued interest and legal fees associated with the term loan facility. The remaining proceeds of approximately $2.2 million from the Term B-2 Loan were recorded to cash. Related-party debt outstanding at December 31, 2012 accrued interest at LIBOR plus 9.25%, while the third-party debt accrued interest at LIBOR plus 4.25%. As a result, our results of operations for periods prior to and after the completion of this offering may not be comparable. Please read “—Liquidity and Capital Resources—Credit Facilities.”

 

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Publicly Traded Partnership Expenses

After the completion of this offering, we expect that our general and administrative expenses will increase due to the costs of operating as a publicly traded partnership, including expenses associated with SEC reporting requirements, tax return and Schedule K-1 preparation and distribution, Sarbanes-Oxley Act compliance, listing our common units on the NYSE, independent auditor fees, legal fees, investor relations costs, registrar and transfer agent fees, directors and officers insurance and director compensation. We estimate that this incremental general and administrative expense will be approximately $4.0 million per year, excluding the costs associated with this offering. Our financial statements following this offering will reflect the impact of this incremental expense, which will affect the comparability of our post-offering results with our financial statements from periods prior to the completion of this offering. Our unaudited pro forma condensed financial statements, however, do not reflect this incremental general and administrative expense.

Our Debottlenecking Project

As discussed in “Business—Our Growth Projects—Our Debottlenecking Project,” we intend to expand our existing methanol and ammonia production capacity. To the extent that we proceed with and complete our debottlenecking project, we expect to incur significant costs and expenses for the construction and development of the project. We expect that the debottlenecking project will be completed in the second half of 2014 and currently estimate the total cost of the project will be approximately $150 million (including costs associated with a turnaround and environmental upgrades). We expect that we will shut down our facility for approximately 30 to 40 days in the second half of 2014 in order to complete our debottlenecking project (including completion of the associated turnaround and environmental upgrades). As of June 30, 2013, we had incurred approximately $5.8 million in expenditures related to our debottlenecking project, including costs associated with engineering fees and down payments on equipment. We intend to fund a portion of the costs of our debottlenecking project and other budgeted capital projects incurred after the completion of this offering with a portion of the net proceeds from this offering. We expect our depreciation expense will increase from the additional assets placed into service from our debottlenecking project. To the extent that we successfully complete our debottlenecking project, we expect that our production, revenues and costs of goods sold will be greater in subsequent periods than in prior periods. As a result, our results of operations for periods prior to, during and after the completion of our debottlenecking project may not be comparable.

Results of Operations

The period-to-period comparisons of our results of operations have been prepared using the historical periods included in our financial statements. The following discussion should be read in conjunction with the financial statements and the related notes included elsewhere in this prospectus.

Comparison of the Three Months Ended March 31, 2013 and 2012

 

     Three Months Ended March 31,  
    

2013

    

2012

 
     (in thousands)  

Revenues:

     

Ammonia

   $ 37,348       $ 16,919   

Methanol

     74,813         9,573   
  

 

 

    

 

 

 

Total revenues

     112,161         26,492   
  

 

 

    

 

 

 

Net Income

   $ 45,464       $ 4,865   
  

 

 

    

 

 

 

 

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Three Months Ended
March 31, 2013

    

Three Months Ended
March 31, 2012

 
     Metric Tons      Revenue      Metric Tons      Revenue  
     (in thousands)      (in thousands)  

Product Shipments:

           

Ammonia

     57.8       $ 37,348         38.4       $ 16,919   

Methanol – Procured

     —           —           23.3         9,573   

Methanol – Produced

     182.8         74,813         —           —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

     240.6       $ 112,161         61.7       $ 26,492   

Revenues

Our total revenues were approximately $112.2 million for the three months ended March 31, 2013 compared to approximately $26.5 million for the three months ended March 31, 2012. Our methanol revenues were approximately $74.8 million for the three months ended March 31, 2013 compared to approximately $9.6 million for the three months ended March 31, 2012. This increase was due to start-up downtime associated with our methanol production unit during 2012, which commenced methanol production in July 2012, ramped up production during the third and fourth quarters of 2012 and achieved maximum daily production rates at our current capacity in the fourth quarter of 2012. Prior to the start-up of our methanol production unit, we purchased and sold methanol to meet sales commitments to our customers and to take advantage of opportunities that we identified in the market. We did not purchase any methanol after the start-up of our methanol production unit through June 30, 2013. Our ammonia revenues were approximately $37.3 million for the three months ended March 31, 2013 compared to approximately $16.9 million for the three months ended March 31, 2012. This increase was due to continuing upgrades at our ammonia production unit during 2012. Although our ammonia production began in December 2011, we did not achieve maximum daily production rates of ammonia at our current capacity until August 2012.

We sold approximately 182,800 metric tons of produced methanol and no procured methanol during the three months ended March 31, 2013 compared to no produced methanol and approximately 23,300 metric tons of procured methanol during the three months ended March 31, 2012. The average sales prices per metric ton during the three months ended March 31, 2013 was $409 per metric ton for methanol compared to $411 per metric ton for methanol for the three months ended March 31, 2012. This represents a decrease of 0.5% for methanol compared to the average sales price per metric ton for methanol during the three months ended March 31, 2012. Sales of methanol comprised approximately 66.7% of our total revenues for the three months ended March 31, 2013 compared to 36.1% of our total revenues for the three months ended March 31, 2012

We sold approximately 57,800 metric tons of ammonia during the three months ended March 31, 2013 compared to approximately 38,400 metric tons of ammonia during the three months ended March 31, 2012. The average sales prices per metric ton during the three months ended March 31, 2013 was $646 per metric ton for ammonia compared to $441 per metric ton for ammonia for the three months ended March 31, 2012. This represents an increase of 46.5% for ammonia compared to the average sales price per metric ton for ammonia during the three months ended March 31, 2012. This increase in the sales price for ammonia was due to increases in the market price for ammonia. Sales of ammonia comprised approximately 33.3% of our total revenues for the three months ended March 31, 2013 compared to 63.9% of our total revenues for the three months ended March 31, 2012.

Cost of Goods Sold (Exclusive of Depreciation)

Cost of goods sold (exclusive of depreciation) was approximately $46.0 million for the three months ended March 31, 2013 compared to approximately $17.3 million for the three months ended March 31, 2012. The increase in cost of goods sold (exclusive of depreciation) for the three months ended March 31, 2013 compared to the three months ended March 31, 2012 was primarily due to our commencing methanol production in July 2012 and to higher ammonia sales volume for the three months ended March 31, 2013. Our methanol production unit began methanol production in July 2012 (with no significant methanol production until August 2012). Prior to the start-up

 

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of our methanol production unit, we purchased and sold methanol to meet sales commitments to our customers and to take advantage of opportunities that we identified in the market. We did not purchase any methanol after the start-up of our methanol production unit through June 30, 2013, and we do not intend to engage in methanol trading activities in the future. Methanol production was 182,800 metric tons for the three months ended March 31, 2013. Ammonia sales increased from 38,400 metric tons for the three months ended March 31, 2012 to 57,800 metric tons for the three months ended March 31, 2013. In addition, our purchase price for natural gas increased from an average of $3.23 per MMBtu for the three month period ended March 31, 2012 to an average of $3.24 per MMBtu for the three month period ended March 31, 2013.

Natural gas costs comprised approximately 55.5% of our total cost of goods sold (exclusive of depreciation)(or approximately 77.8% of our variable cost of goods sold (exclusive of depreciation)) for the three months ended March 31, 2013. Prior to the completion of the refurbishment of our natural gas reformer and the upgrade of our methanol production unit in July 2012, we used hydrogen as our primary feedstock for the production of ammonia. Upon the completion of our facility upgrades, hydrogen use has been reduced to normal operating levels. Hydrogen costs comprised approximately 4.8% of our cost of goods sold (exclusive of depreciation) for the three months ended March 31, 2013 compared to approximately 56.1% of our cost of goods sold (exclusive of depreciation) for the three months ended March 31, 2012. Nitrogen costs comprised approximately 2.6% of our cost of goods sold (exclusive of depreciation) for the three months ended March 31, 2013 compared to approximately 3.2% of our cost of goods sold (exclusive of depreciation) for the three months ended March 31, 2012. Procured methanol comprised approximately 45.1% of our cost of goods sold (exclusive of depreciation) for the three months ended March 31, 2012. We did not purchase methanol for sale during the three months ended March 31, 2013. In addition, fixed manufacturing costs of approximately $2.4 million per month were recorded as costs of goods sold for the three months ended March 31, 2013, as compared to approximately $250,000 per month for the three months ended March 31, 2012. This increase in fixed manufacturing costs relates to the completion of the upgrade of our methanol production unit in July 2012, the increase in production levels and labor costs in 2012 and the corresponding increase in other related fixed manufacturing costs. Labor costs comprised approximately 4.5% of our cost of goods sold (exclusive of depreciation) for the three months ended March 31, 2013 compared to approximately 2.9% of our cost of goods sold (exclusive of depreciation) for the three months ended March 31, 2012. Maintenance costs comprised approximately 4.8% of our cost of goods sold (exclusive of depreciation) for the three months ended March 31, 2013 compared to approximately 1.1% of our cost of goods sold (exclusive of depreciation) for the three months ended March 31, 2012.

Depreciation Expense

Depreciation expense was approximately $5.5 million for the three months ended March 31, 2013 compared to approximately $1.0 million for the three months ended March 31, 2012. This increase was primarily due to depreciation expense associated with our methanol production unit that was placed into service in July 2012.

Selling, General and Administrative Expenses

Selling, general and administrative expenses were approximately $8.1 million for the three months ended March 31, 2013 compared to approximately $3.5 million for the three months ended March 31, 2012. This increase was primarily due to additional insurance expense related to our upgraded facility, an increase in administrative and personnel expenses due to the addition of employees during the periods after March 31, 2012 and non-recurring corporate costs of $4.1 million in the aggregate related to a management fee paid to OCI and a consulting contract that has since been terminated. In connection with this offering, we, our general partner and OCI (or its affiliate) will enter into an omnibus agreement pursuant to which OCI (or its affiliate) will agree to provide us with selling, general and administrative services, and we will pay to OCI (or its affiliate) a fixed annual fee of $15.0 million for the provision of such services, which amount excludes approximately $4.0 million of estimated incremental general and administrative expenses that we expect to incur as a result of being a publicly traded partnership. Please read “Certain Relationships and Related Party Transactions—Our Agreements with OCI—Omnibus Agreement.”

 

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After the completion of this offering, we expect that our general and administrative expenses will increase due to the costs of operating as a publicly traded partnership, including expenses associated with SEC reporting requirements, tax return and Schedule K-1 preparation and distribution, Sarbanes-Oxley Act compliance, listing our common units on the NYSE, independent auditor fees, legal fees, investor relations costs, registrar and transfer agent fees, directors and officers insurance and director compensation. We estimate that this incremental general and administrative expense will be approximately $4.0 million per year, excluding the costs associated with this offering.

Interest Expense

Interest expense and interest expense–related party were approximately $2.3 million and $4.4 million, respectively, for the three months ended March 31, 2013 compared to no interest expense or interest expense–related party for the three months ended March 31, 2012. Interest expense–related party relates to interest on OCIB’s intercompany debt owed to OCI Fertilizer that bears interest at LIBOR plus 9.25%. This increase was primarily due to increased borrowings to facilitate the upgrade of our facility.

Other Income

Other income was approximately $9,000 for the three months ended March 31, 2013 compared to approximately $0.2 million for the three months ended March 31, 2012. This decrease was primarily due to investment income realized during the three months ended March 31, 2012. No interest bearing investments were held during the three months ended March 31, 2013.

Comparison of the Years Ended December 31, 2012 and 2011

 

     Year Ended December 31,  
    

2012

    

2011

 
     (in thousands)  

Revenues:

     

Ammonia

   $ 128,954       $ —     

Methanol

     95,675         —     
  

 

 

    

 

 

 

Total revenues

     224,629         —     
  

 

 

    

 

 

 

Net Income

   $ 51,831       $ 287   
  

 

 

    

 

 

 

 

     Year Ended December 31,
2012
     Year Ended
December 31, 2011
 
     Metric Tons      Revenue      Metric Tons      Revenue  
     (in thousands)      (in thousands)  

Product Shipments:

           

Ammonia

     221.8       $ 128,954         —         $ —     

Methanol – Procured

     51.2         20,382         —           —     

Methanol – Produced

     201.0         75,293         —           —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

     474.0       $ 224,629         —         $ —     

Revenues

Our total revenues were approximately $224.6 million for the year ended December 31, 2012 compared to no revenues for the year ended December 31, 2011. Our ammonia production unit commenced production in December 2011, and our methanol production unit commenced production in July 2012. Although we began producing ammonia in December 2011, we did not sell the produced ammonia volumes until January 2012 in order to build inventories, resulting in all ammonia produced in 2011 being included in our 2012 revenues. Revenues from sales of methanol and ammonia comprised approximately $95.7 million (42.7%) and $129.0 million (57.3%), respectively, of our total revenues for the year ended December 31, 2012.

 

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We sold approximately 201,000 metric tons of produced methanol and approximately 51,200 metric tons of procured methanol during the year ended December 31, 2012. The average sales prices per metric ton during the year ended December 31, 2012 was $375 per metric ton for produced methanol and $401 per metric ton for procured methanol, as compared to no sales in 2011. Our methanol production unit commenced production in July 2012 (with no significant methanol production until August 2012) and ramped up production during the third and fourth quarters of 2012. Prior to the start-up of our methanol production unit, we purchased and sold methanol to meet sales commitments to our customers and to take advantage of opportunities that we identified in the market. We did not purchase any methanol after the start-up of our methanol production unit through June 30, 2013.

We sold approximately 221,800 metric tons of ammonia during the year ended December 31, 2012. The average sales prices per metric ton during the year ended December 31, 2012 was $581 per metric ton for ammonia, as compared to no sales in 2011.

Cost of Goods Sold (Exclusive of Depreciation)

Cost of goods sold (exclusive of depreciation) was approximately $133.4 million for the year ended December 31, 2012 compared to no costs of goods sold for the year ended December 31, 2011. Our ammonia production unit commenced production in December 2011 and our methanol production unit commenced production in July 2012 (with no significant methanol production until August 2012). Although we began producing ammonia in December 2011, we did not sell the produced ammonia volumes until January 2012 in order to build inventories. As there were no ammonia or methanol revenues recorded for the year ended December 31, 2011, no costs of goods sold were recorded in the period. Prior to the completion of the refurbishment of our natural gas reformer and the upgrade of our methanol production unit in July 2012, we used hydrogen as our primary feedstock for the production of ammonia. Consequently, hydrogen costs comprised approximately 27.2% of our total cost of goods sold (exclusive of depreciation) for the year ended December 31, 2012. Upon the completion of our facility upgrades, hydrogen use has been reduced to normal operating levels. Natural gas accounted for approximately 20.5% of our total cost of goods sold (exclusive of depreciation) for the year ended December 31, 2012. Nitrogen costs accounted for approximately 2.5% of our total cost of goods sold (exclusive of depreciation) for the year ended December 31, 2012. Procured methanol comprised approximately 16.6% of our total costs of goods sold for the year ended December 31, 2012. Prior to the start-up of our methanol production unit, we purchased and sold methanol to meet sales commitments to our customers and to take advantage of opportunities that we identified in the market. We did not purchase any methanol after the start-up of our methanol production unit through June 30, 2013.

In addition, fixed manufacturing costs, primarily relating to labor and maintenance, of approximately $1.5 million per month were recorded as costs of goods sold (exclusive of depreciation) for the year ended December 31, 2012. Labor costs comprised approximately 5.8% of our total cost of goods sold (exclusive of depreciation) for the year ended December 31, 2012. Maintenance costs comprised approximately 5.9% of our total cost of goods sold (exclusive of depreciation) for the year ended December 31, 2012.

For the year ended December 31, 2012, our cost of goods sold (exclusive of depreciation) was impacted by high procurement costs for the hydrogen required by our ammonia production unit. When our facility became fully operational in July 2012, we began obtaining the hydrogen necessary to produce ammonia as a by-product of our methanol production process. However, until our methanol production unit became operational in July 2012, we acquired hydrogen from the local market. In addition, one-time start-up costs related to the commissioning and ramp-up of methanol production capacity at our facility required higher natural gas usage per ton.

Depreciation Expense

Depreciation expense was approximately $11.4 million for the year ended December 31, 2012 compared to no depreciation expense for the year ended December 31, 2011. This increase was primarily due to our

 

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methanol production unit being placed into service in July 2012 and our ammonia production unit being in service for the full year ended December 31, 2012. As of December 31, 2011, our production units were still undergoing upgrades and not ready for their intended use. Accordingly, no depreciation expense was recorded for the year ended December 31, 2011.

Selling, General and Administrative Expenses

Selling, general and administrative expenses were approximately $15.0 million for the year ended December 31, 2012 compared to approximately $0.2 million for the year ended December 31, 2011. This increase was primarily due to additional insurance expense related to our upgraded facility, an increase in administrative and personnel expenses due to the addition of employees during 2012 and additional corporate costs.

Interest Expense

Interest expense and interest expense–related party were approximately $5.7 million and $6.5 million, respectively, for the year ended December 31, 2012 compared to no interest expense for the year ended December 31, 2011. Our policy is to capitalize interest costs incurred during the construction of major projects. Because our facility was undergoing an upgrade during the year ended December 31, 2011 and we had no revenues during that period, we capitalized $3.5 million of interest incurred and recorded no interest expense for the year ended December 31, 2011. The increase in interest incurred for the year ended December 31, 2012 compared to the year ended December 31, 2011 was primarily due to increased borrowings to facilitate the upgrade of our facility.

Other Income

Other income was approximately $0.2 million for the year ended December 31, 2012 compared to approximately $0.5 million for the year ended December 31, 2011. This decrease was primarily due to a reduction in investment income caused by a reduction in interest bearing cash equivalents held during the year ended December 31, 2012 as compared to those held during the year ended December 31, 2011. This reduction in interest bearing assets was due to the funds being required to complete the upgrade of our facility.

Liquidity and Capital Resources

For the year ended December 31, 2012 and the three months ended March 31, 2013, we funded our operations and construction primarily from intercompany loans from OCI Fertilizer, third party loans and operating cash flow.

Our principal uses of cash are expected to be for our operations, distributions, capital expenditures and funding our debt service obligations. We believe that our cash from operations and the net proceeds from this offering will be adequate to fund our commercial commitments and planned capital expenditures for the next twelve months.

Distributions

Upon the completion of this offering, the board of directors of our general partner will adopt a policy to distribute 100% of the cash available for distribution we generate each quarter to our unitholders, which could materially impact our liquidity and limit our ability to grow and make acquisitions. Cash available for distribution for each quarter will be determined by the board of directors of our general partner following the end of such quarter. As a result of our cash distribution policy, our liquidity will be significantly impacted, and other than the expansion capital expenditures we intend to fund with the net proceeds from this offering, we expect to finance substantially all of our growth externally with commercial bank or intercompany borrowings or by issuances of debt or equity securities. However, our partnership agreement does not require us to pay cash

 

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distributions on a quarterly or other basis, and we may change our cash distribution policy at any time and from time to time. Please read “Our Cash Distribution Policy and Restrictions on Distributions.”

Intercompany Debt

As of March 31, 2013, we had approximately $170.5 million of intercompany debt with OCI Fertilizer, an indirect wholly owned subsidiary of OCI, which we incurred to fund the upgrade of our facility that was completed in July 2012, satisfy working capital requirements and for general corporate purposes. Please read “Certain Relationships and Related Party Transactions—Other Transactions with Related Parties—Intercompany Debt.” We intend to repay all outstanding intercompany debt owed to OCI Fertilizer with a portion of the net proceeds from this offering. Please read “Use of Proceeds.” Please also see “—Credit Facilities—Intercompany Revolving Credit Facility.”

Credit Facilities

Existing Term Loan Facility . On May 21, 2013, OCIB entered into a $360.0 million senior secured term loan credit facility with a group of lenders and Bank of America, N.A., as administrative agent. The term loan facility is comprised of a $125.0 million Term B-1 Loan and a $235.0 million Term B-1 Loan, respectively. Borrowings under the term loan facility are unconditionally guaranteed by OCI USA. The Term B-1 Loan matures on the earlier of the consummation of the Transactions and December 31, 2013. We intend to use a portion of the net proceeds from this offering to repay the $125.0 million Term B-1 Loan in full and to pay related fees and expenses. Please read “Use of Proceeds.” The Term B-2 Loan matures on the earliest of (i) December 31, 2013, (ii) the consummation of the Transactions or (iii) the incurrence of the new Term Loan B described below. Borrowings under the term loan facility are secured by a first priority lien on substantially all of OCIB’s assets and a pledge by OCI USA of its ownership interest in OCIB. Interest on the Term B-1 Loan accrues, at OCIB’s option, at adjusted LIBOR plus 4.0% per annum or the alternate base rate plus 3.0%. Interest on the Term B-2 Loan accrues, at OCIB’s option, at adjusted LIBOR plus 3.5% per annum or the alternate base rate plus 2.5%. The agreement governing the term loan facility contains customary covenants and conditions. In addition, the agreement governing the term loan facility requires that OCIB not permit aggregate capital expenditures to exceed $70.0 million and that OCIB maintain a minimum trailing three-month EBITDA of $45.0 million. Upon the occurrence of certain events of default, OCIB’s obligations under the term loan facility may be accelerated.

New Term Loan Facility . In August 2013, we expect that OCIB will enter into a new $235.0 million senior secured term loan credit facility with a syndicate of lenders and Bank of America, N.A., as administrative agent, to replace borrowings under OCIB’s existing term loan facility that will be outstanding after the completion of this offering. We expect that the new term loan facility will be comprised of a new $235.0 million Term Loan B. Borrowings under the term loan facility will be unconditionally guaranteed by OCI USA. We expect that the new Term Loan B will mature 6.5 years after the incurrence of the term loan. We expect that the term loan facility will be subject to certain mandatory prepayment obligations upon the disposition of certain assets and the incurrence of certain indebtedness. We expect that borrowings under the term loan facility will be secured by a first priority lien on substantially all of OCIB’s assets and a pledge by OCI USA of its ownership interest in OCIB. We expect that interest on the new Term Loan B will accrue, at OCIB’s option, at adjusted LIBOR plus             % per annum or the alternate base rate plus             %. We expect that the agreement governing the term loan facility will contain customary covenants and conditions. Upon the occurrence of certain events of default, OCIB’s obligations under the term loan facility may be accelerated.

We expect the operating and financial restrictions and covenants in OCIB’s new Term Loan B will adversely affect our ability to finance future operations or capital needs or to engage in other business activities. We expect these restrictions and covenants will limit our and OCIB’s ability, among other things, to:

 

   

incur additional indebtedness;

 

   

create liens on assets;

 

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engage in mergers or consolidations;

 

   

sell assets;

 

   

pay dividends and distributions or repurchase our common units;

 

   

make investments, loans or advances;

 

   

prepay certain subordinated indebtedness;

 

   

make certain acquisitions or enter into agreements with respect to our equity interests; and

 

   

engage in certain transactions with affiliates.

We also expect that OCIB’s new Term Loan B will contain financial covenants requiring the maintenance of a minimum interest coverage ratio and a maximum senior secured leverage ratio on a quarterly basis. In addition, we expect that our distributions to unitholders will be subject to our compliance with a fixed charge coverage ratio of not less than         to 1.00, which may limit our ability to make cash distributions.

As a result of these covenants, we will be limited in the manner in which we conduct our business and we may be unable to engage in favorable business activities or finance future operations or capital needs.

Intercompany Revolving Credit Facility. At the closing of the offering, OCIB will enter into a new $40.0 million, seven-year intercompany revolving credit facility with OCI Fertilizer as the lender. We expect that interest on borrowings under the intercompany revolving credit facility will accrue at         %. OCIB will pay a commitment fee to OCI Fertilizer on the unused portion of the intercompany revolving credit facility of 0.5% annually. The intercompany revolving credit facility will be subordinated to indebtedness under the new Term Loan B.

Capital Expenditures

We divide our capital expenditures into two categories: maintenance capital expenditures and expansion capital expenditures. Maintenance capital expenditures are capital expenditures (including expenditures for the addition or improvement to, or the replacement of, our capital assets or for the acquisition of existing or the construction or development of new capital assets) made to maintain, including over the long term, our production capacity, operating income or asset base (including capital expenditures relating to turnarounds), or to comply with environmental, health, safety or other regulations. Maintenance capital expenditures that are required to comply with regulations may also improve the output, efficiency or reliability of our facility. We expense our maintenance capital expenditures in the period incurred. Expansion capital expenditures are capital expenditures incurred for acquisitions or capital improvements that we expect will increase our production capacity, operating income or asset base over the long term. Expansion capital expenditures are capitalized and amortized over the period of expected benefits.

During the years ended December 31, 2011 and 2012, all equipment at our facility was tested, inspected and upgraded. All capital expenditures incurred during the period from our acquisition of the facility until it reached full production capacity in the fourth quarter of 2012 were recorded as expansion capital expenditures. We have not recorded any maintenance capital expenditures for the three months ended March 31, 2013, or for the years ended December 31, 2011 and 2012. We expect to perform maintenance turnarounds approximately every four years, which will typically last from 20 to 40 days and cost approximately $24 million per turnaround. We will attempt to perform significant maintenance capital projects at our facility during a turnaround to minimize disruption to our operations. We will capitalize the costs related to these projects as property, plant and equipment and will classify the amounts as maintenance capital expenditures. We plan to undertake a turnaround as part of our debottlenecking project that is expected to be completed in the second half of 2014, which will result in approximately 30 to 40 days of downtime at our facility. We expect that the next turnaround after the

 

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completion of the debottlenecking project will occur in 2018. Our expansion capital expenditures totalled approximately $6.5 million, $194.0 million and $130.2 million for the three months ended March 31, 2013 and the years ended December 31, 2012 and 2011, respectively.

Our expansion capital expenditures are expected to be approximately $37.8 million and $140.8 million for the years ending December 31, 2013 and 2014, respectively, for expenditures related to our debottlenecking project and other budgeted capital projects. As discussed in “Business—Our Growth Projects,” we expect to incur a total of approximately $150 million in expansion capital expenditures for our debottlenecking project (including costs associated with a turnaround and environmental upgrades). As of June 30, 2013, we had incurred approximately $5.8 million in expenditures related to our debottlenecking project, including costs associated with engineering fees and down payments on equipment. We intend to fund a portion of the costs of our debottlenecking project and other budgeted capital projects incurred after the completion of this offering with a portion of the net proceeds from this offering.

Our estimated capital expenditures are subject to change due to unanticipated increases in the cost, scope and completion time for our capital projects. For example, we may experience increases in labor or equipment costs necessary to comply with government regulations or to complete projects that sustain or improve the profitability of our facility. Our future capital expenditures will be determined by the board of directors of our general partner.

Cash Flows

Our profits, operating cash flows and cash available for distribution are subject to changes in the prices of our products and natural gas, which is our primary feedstock. Our products and feedstocks are commodities and, as such, their prices can be volatile in response to numerous factors outside of our control.

As a result of our limited history of operations due to an extended start-up phase associated with the upgrade of our facility, our operating cash flows presented below for the three months ended March 31, 2012 and for the years ended December 31, 2011 and 2012 do not reflect full utilization of our facility and are not indicative of our expected operating cash flows for periods subsequent to the completion of this offering.

Net cash from (used in) operating activities, investing activities and financing activities for the three months ended March 31, 2013 and 2012 and for the years ended December 31, 2012 and 2011 were as follows :

 

     Three Months
Ended

March 31,
    Year Ended
December 31,
 
     2013     2012     2012     2011  
    

(in thousands)

 

Net cash used provided by (used in):

    

Operating activities

   $ (15.8   $ (4.8   $ 74.7      $ (5.3

Investing activities

     (6.5     (83.8     (194.0     (130.2

Financing activities

     —          91.0        160.0        136.5   

Three Months Ended March 31, 2013 Compared to Three Months Ended March 31, 2012

Operating Activities.  Net cash used in operating activities for the three months ended March 31, 2013 was approximately $15.8 million. We had net income of $45.5 million for the three months ended March 31, 2013. During this period, we recorded depreciation expense of $5.5 million and amortization of debt issuance costs of $0.8 million. Accounts receivable increased by $27.4 million during the three months ended March 31, 2013 as our facility reached full production capacity on both our methanol and ammonia production units. Prepaid interest (related party) increased by $10.4 million, while accrued interest (related party) decreased by $20.2 million during the three months ended March 31, 2013, due to the payment of interest on long-term debt owed to OCI USA. Accounts payable (excluding non-cash

 

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accruals of property, plant and equipment), accounts payable (related party) and other payables and accruals decreased by $6.5 million, $1.3 million and $3.4 million, respectively. This net decrease in accounts payable of $11.2 million was due to our improved liquidity position and the settlement of 2012 corporate allocations in the first quarter of 2013.

Net cash used in operating activities for the three months ended March 31, 2012 was approximately $4.8 million. We had net income of $2.3 million for the three months ended March 31, 2012. During this period, we recorded depreciation expense of $1.0 million. Accounts receivable increased by $8.2 million during the three months ended March 31, 2012 due to the start-up of the ammonia production unit and the initial sales activity during the period then ended. Inventories increased by $5.9 million during the three months ended March 31, 2012 due to completion of upgrades at our ammonia production unit and the ramp-up of our production of ammonia during the period then ended. Accounts payable (excluding non-cash accruals of property, plant and equipment) increased by $5.8 million due to the upgrade of our facility and purchases of additional feedstock as our ammonia production began.

Investing Activities.  Net cash used in investing activities was approximately $6.5 million and $83.8 million, respectively, for the three months ended March 31, 2013 and 2012. The decrease in purchases of property, plant and equipment of $77.3 million for the three months ended March 31, 2013 compared to the three months ended March 31, 2012 was primarily due to the completion of upgrades at our ammonia production unit in December 2011 and the completion of upgrades at our methanol production unit in July 2012.

Financing Activities.  There was no net cash provided by or used in financing activities for the three months ended March 31, 2013 compared to net cash provided by financing activities of $91.0 million for the three months ended March 31, 2012. During the three months ended March 31, 2012, we received contributions of $91.0 million from OCI USA.

Year Ended December 31, 2012 Compared to Year Ended December 31, 2011

Operating Activities.  Net cash provided by operating activities for the year ended December 31, 2012 was approximately $74.7 million. We had net income of $51.8 million for the year ended December 31, 2012. During this period, we recorded depreciation expense of $11.4 million and amortization of debt issuance costs of $2.0 million. Accounts receivable increased by $28.1 million during the year ended December 31, 2012, due to increased shipments of our products. Accounts payable (excluding non-cash accruals of property, plant and equipment), accounts payable (related party) and other payables and accruals increased by $18.7 million, $3.6 million and $7.7 million, respectively. This net increase in accounts payable of $30.0 million was due to an increase in purchases of feedstock as a result of increased production volumes and an increase in corporate allocations.

Net cash used in operating activities for the year ended December 31, 2011 was approximately $5.3 million. We had net income of $0.3 million for the year ended December 31, 2011. We had no accounts receivable during the year ended December 31, 2011. Inventories increased by $4.9 million during the year ended December 31, 2011 due to the ammonia production unit commencing production in December 2011 and the build-up of inventory until our first shipment in January 2012.

Investing Activities.  Net cash used in investing activities was approximately $194.0 million and $130.2 million, respectively, for the years ended December 31, 2012 and 2011 related to the upgrade of our facility.

Financing Activities.  Net cash provided by financing activities was approximately $160.0 million for the year ended December 31, 2012 compared to net cash provided by financing activities of $136.5 million for the year ended December 31, 2011. During the year ended December 31, 2012, we borrowed approximately $257.5 million of debt, repaid approximately $94.5 million of outstanding borrowings and incurred approximately $3.0 million in debt issuance costs. During the year ended December 31, 2011, we borrowed approximately $132.5 million of debt and received $4.0 million in contributions from OCI USA.

 

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Contractual Obligations

The following table lists our significant contractual obligations and their future payments at March 31, 2013:

 

Contractual Obligations

   Total      Less than
1  Year
     1-3
Years
     3-5
Years
     More
than 5
Years
 
     (in thousands)  

Credit facility (1)

   $ 125,000       $ 125,000       $       $       $   

Intercompany debt (2 )

     170,482                 170,482                   

Interest payments on debt

     34,100         17,989         16,111                   

Hydrogen supply contract

     4,384         4,384                           

Natural gas supply contract

     10,786         10,786                           

Purchase commitments

     15,659         15,659                           
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 360,411       $ 173,818       $ 186,593       $       $   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

 

(1) Proceeds from borrowings under the Term B-1 Loan were used to pay in full and retire this credit facility in May 2013. Please read “—Liquidity and Capital Resources—Credit Facilities.” We intend to use a portion of the net proceeds from this offering to repay the $125.0 million Term B-1 Loan in full and to pay related fees and expenses. Please read “Use of Proceeds.”

 

(2) We intend to use a portion of the net proceeds from this offering to repay the $170.5 million intercompany loan with OCI Fertilizer in full. Please read “Use of Proceeds.”

The following table lists our significant contractual obligations and their future payments on a pro forma basis at March 31, 2013:

 

Contractual Obligations (Pro Forma)

   Total      Less than
1  Year
     1-3
Years
     3-5
Years
     More than
5 Years
 
     (in thousands)  

Term Loan B (1)

   $ 235,000       $ 1,763       $ 4,700       $ 4,700       $ 223,837   

Interest payments on debt (1)

     53,458         7,848         20,541         20,146         4,923   

Hydrogen supply contract

     4,384         4,384                           

Natural gas supply contract

     10,786         10,786                           

Purchase commitments

     15,729         15,729                           
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 319,357       $ 40,510       $ 25,241       $ 24,846       $ 228,760   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

 

(1) We intend to use a portion of the net proceeds from this offering to pay in full the $125.0 million Term B-1 Loan and the intercompany debt with OCI Fertilizer. Please read “Use of Proceeds.” We intend to draw $235 million under the new Term Loan B, with quarterly principal repayments of 0.25% (equating to 1% annually of the original principal balance, an assumed annual interest rate of 4.5%, and a maturity of 6.5 years to pay in full and retire the Term B-2 Loan.

Off-Balance Sheet Arrangements

We do not have any off-balance sheet arrangements.

Critical Accounting Policies

The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities at the dates of the financial statements and the reported amounts of revenues and expenses

 

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during the reporting periods. Actual results may differ from those estimates based on the accuracy of the information utilized and subsequent events. Described below are the most significant policies we apply in preparing our consolidated financial statements, some of which are subject to alternative treatments under GAAP. We also describe the most significant estimates and assumptions we make in applying these policies. Our accounting policies are described in the notes to our audited financial statements included elsewhere in this prospectus.

Use of Estimates . The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the amounts of revenues and expenses reported for the period then ended.

Trade Accounts Receivable . Trade accounts receivable are recorded at the invoiced amount and do not bear interest. We maintain a customer specific allowance for doubtful accounts for estimated losses inherent in our accounts receivable portfolio. In establishing the required allowance, management considers customers’ financial condition, the amount of receivables in dispute, the current receivables aging and current payment patterns. We review our allowance for doubtful accounts monthly. Past due balances over 90 days and over a specified amount are reviewed individually for collectability. All other balances are reviewed on a pooled basis for collectability. Account balances are charged off against the allowance after all means of collection have been exhausted and the potential for recovery is considered remote. There were no bad debt write-offs during the years ended December 31, 2012 and 2011. We do not have any off-balance-sheet credit exposure related to our customers.

Property, Plant and Equipment . Property, plant and equipment are stated at cost. Depreciation on plant and equipment is calculated on the straight-line method over the estimated useful lives of the assets. The estimated useful life of machinery, equipment and buildings is 15 years, while the estimated useful lives of furniture, office equipment and vehicles are 5 years. Our policy is to exclude depreciation expense from cost of goods sold. We estimate initial useful lives based on experience and current technology. These estimates may be extended through sustaining capital programs. Factors affecting the fair value of our assets may also affect the estimated useful lives of our assets and these factors can change. Therefore, we periodically review the estimated remaining lives of our facilities and other significant assets and adjust our depreciation rates prospectively where appropriate.

Major Maintenance Activities . We incur maintenance costs on our major equipment. Repair and maintenance costs are expensed as incurred. For the three months ended March 31, 2013 and 2012, we expensed approximately $3.4 million and $0.4 million, respectively, of repair and maintenance costs. For the years ended December 31, 2012 and 2011, we expensed approximately $7.5 million and $3,951, respectively, of repair and maintenance costs. Major capital expenditures that extend the life, increase the capacity or improve the safety or efficiency of the asset are capitalized and amortized over the period of expected benefits.

Commitments and Contingencies . Liabilities for loss contingencies, including environmental remediation costs not within the scope of Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (ASC) Topic 410, Asset Retirement and Environmental Obligations, arising from claims, assessments, litigation, fines and penalties and other sources, are recorded when it is probable that a liability has been incurred and the amount of the assessment and/or remediation can be reasonably estimated. Legal costs incurred in connection with loss contingencies are expensed as incurred. Accruals for estimated losses from environmental remediation obligations generally are recognized no later than completion of the remedial feasibility study. Such accruals are adjusted as further information develops or circumstances change. Costs of expected future expenditures for environment remediation obligations are not discounted to their present value. We regularly assess the likelihood of material adverse judgments or outcomes as well as potential ranges or probability of losses. We determine the amount of accruals required, if any, for contingencies after carefully analyzing each individual matter. Actual costs incurred in future periods may vary from the estimates, given the

 

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inherent uncertainties in evaluating environmental exposures. As of December 31, 2012 and 2011, we had no environmental remediation obligations.

Long-Lived Assets . Long-lived assets, such as property, plant and equipment, are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. The carrying amount of a long-lived asset group is not recoverable if it exceeds the sum of the undiscounted cash flows expected to result from the use and eventual disposition of the asset group. If circumstances require a long-lived asset or asset group be tested for possible impairment, we first compare undiscounted cash flows expected to be generated by that asset or asset group to its carrying value. If the carrying value of the long-lived asset or asset group is not recoverable on an undiscounted cash flow basis, an impairment is recognized to the extent that the carrying value exceeds its fair value. Fair value is determined through various valuation techniques including discounted cash flow models, quoted market values and third-party independent appraisals, as considered necessary. Assessing the potential impairment of long-lived assets involves estimates that require significant management judgment, and include inherent uncertainties that are often interdependent and do not change in isolation. Factors that management must estimate include, among others, industry and market conditions, the economic life of the asset, sales volume and prices, inflation, raw materials costs, cost of capital, and capital spending. No events or changes in circumstances occurred during the years ended December 31, 2012 and 2011 that indicated the carrying amount of an asset may not be recoverable.

Asset Retirement Obligation . We recognize the fair value of the liability for an asset retirement obligation in the period in which it is incurred. Upon initial recognition of a liability for an asset retirement obligation, we will capitalize the asset retirement cost by increasing the carrying amount of the related long-lived asset by the same amount as the liability. The liability is accreted to its present value each period, while the capitalized cost is depreciated over the useful life of the related asset. We recognize asset retirement obligations in the period in which we have an existing legal obligation, and the amount of the liability can be reasonably estimated. We utilize internal engineering experts as well as third-party consultants to assist management in determining the costs of retiring certain of our long-term operating assets. Assumptions and estimates reflect our historical experience and our best judgments regarding future expenditures. The assumed costs are inflated based on an estimated inflation factor and discounted based on a credit-adjusted risk-free rate. Retirement obligations associated with long-lived assets are those for which a legal obligation exists under enacted laws, statutes, or written or oral contracts, including obligations arising under the doctrine of promissory estoppel. We own the land, assets and facilities related to our business; however, management does not believe that we have any legal and/or constructive obligations for asset retirement obligations as of December 31, 2012 and 2011.

Recent Accounting Pronouncements

Future Adoption of Accounting Standards . The following new accounting pronouncements have been issued, but have not yet been adopted as of December 31, 2012:

In December 2011, the FASB issued Accounting Standards Update (“ASU”) No. 2011-11, “Balance Sheet (Topic 210): Disclosures about Offsetting Assets and Liabilities” (ASU 2011-11). This newly issued accounting standard requires an entity to disclose both gross and net information about instruments and transactions eligible for offset in the statement of financial position as well as instruments and transactions executed under a master netting or similar arrangement and was issued to enable users of financial statements to understand the effects or potential effects of those arrangements on its financial position. This ASU is required to be applied retrospectively and is effective for fiscal years, and interim periods within those years, beginning on or after January 1, 2013. As this accounting standard only requires enhanced disclosure, the adoption of this standard is not expected to have a material impact on our financial position or results of operations.

 

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Quantitative and Qualitative Disclosures About Market Risk

Interest Rate Risk . We are exposed to interest rate risk related to our borrowings under our existing term loan facility. As of June 30, 2013, borrowings under the Term B-1 Loan bear interest at LIBOR plus 4.0% per annum or the alternate base rate plus 2.5%, and borrowings under the Term B-2 Loan bear interest at LIBOR plus 3.5% per annum or the alternate base rate plus 2.5%. Please read “—Liquidity and Capital Resources—Credit Facilities.” Based upon the outstanding balances of our variable-interest rate debt at March 31, 2013, and assuming interest rates are above the applicable minimum, a hypothetical increase or decrease of 100 basis points would result in an increase or decrease to our annual interest expense of approximately $3.6 million.

Commodity Price Risk . We are exposed to significant market risk due to potential changes in prices for methanol, ammonia and natural gas. Natural gas is the primary raw material used in the production of the methanol and ammonia manufactured at our facility. We have supply agreements with Kinder Morgan and DCP Midstream to supply natural gas required for our production of methanol and ammonia. Please read “Business—Feedstock Supply.” A hypothetical increase or decrease of $1.00 per MMBtu of natural gas would result in an increase or decrease to our annual cost of goods sold (exclusive of depreciation) of approximately $32.6 million.

In the normal course of business, we produce methanol and ammonia throughout the year to supply the needs of our customers. Our inventory is subject to market risk due to fluctuations in the price of methanol and ammonia, changes in demand, natural gas feedstock costs and other factors. Methanol prices have historically been, and are expected to continue to be, characterized by significant cyclicality. A hypothetical increase or decrease of $50 per ton in the price of methanol would result in an increase or decrease to our annual revenue of approximately $33.6 million. A hypothetical increase or decrease of $50 per ton in the price of ammonia would result in an increase or decrease to our annual revenue of approximately $12.8 million.

 

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INDUSTRY OVERVIEW

Unless otherwise indicated, the information set forth in this “Industry Overview,” including all statistical data and related forecasts regarding (i) the methanol industry, is derived from information provided by Jim Jordan and Associates, LP, referred to herein as Jim Jordan, as of May 30, 2013, and (ii) the ammonia industry, is derived from information provided by Blue Johnson & Associates, Inc., referred to herein as Blue Johnson, as of June 11, 2013, and is included in this prospectus in reliance upon the authority of Jim Jordan and Blue Johnson as experts on the methanol industry and the ammonia industry, respectively. The information under the caption “—Natural Gas Feedstock” is not part of the information included upon the authority of Jim Jordan and Blue Johnson. The information presented under the caption “—Natural Gas Feedstock” has been derived by us from various sources noted herein. We believe that the information provided is reliable, but we have not independently verified the information provided nor have we ascertained any underlying assumptions relied upon therein. While we are not aware of any misstatements regarding the methanol and ammonia industry data presented herein, estimates involve risks and uncertainties and are subject to change based on various factors, including those discussed under the heading “Risk Factors.”

Overview

Methanol

Methanol, a global commodity, is a liquid petrochemical utilized in a variety of industrial and energy-related applications. It is predominantly produced from natural gas, but is also produced from coal, particularly in China. In 2012, global methanol production was approximately 62.6 million metric tons, with 41.7% of 2012 global production originating in China and 9.7% originating in Trinidad. Significantly, Trinidad was the largest exporter of methanol to the United States in 2012. Methanol demand is largely driven by global economic activity, and as a result of improving economic conditions, demand has increased since 2009. Global demand is currently expected to increase to approximately 81.2 million metric tons by 2016, representing a compound annual growth rate of 6.7% between 2012 and 2016. In 2012, U.S. consumption and production of methanol totalled 6.0 million metric tons and 1.1 million metric tons, respectively, resulting in the majority of U.S. demand being met by imports. In 2016, U.S. consumption of methanol is projected to increase to approximately 7.1 million metric tons, with production expected to increase to 5.1 million metric tons, resulting in a continued dependency on imports to satisfy U.S. demand for methanol. Global methanol prices are strongly correlated to feedstock prices in China, where the primary feedstock is coal, as well as global demand for end products that utilize methanol as a feedstock.

The methanol industry experienced a wave of global plant closures totalling more than 10.5 million metric tons of annual production between 1998-2007 due to high natural gas prices as well as generally weaker demand for chemicals. During this period, numerous U.S. methanol facilities were shut down or relocated to other countries resulting in the inability of current U.S. production capacity to meet current U.S. methanol demand.

The primary use of methanol is to make other chemicals, with approximately 29.9% of global methanol demand in 2012 being converted to formaldehyde, which is then used for a host of other industrial applications. Methanol is also used to produce adhesives for the lumber industry, such as plywood, particle board and laminates, for resins to treat paper and plastic products, and also in paint and varnish removers, solvents for the textile industry and polyester fibers for clothing and carpeting. Outside of the United States, methanol is used as a direct fuel for automobile engines, as a fuel blended with gasoline and as an octane booster in reformulated gasoline.

Ammonia

Ammonia, a global commodity, produced in anhydrous form (containing no water) from the reaction of nitrogen and hydrogen, constitutes the base feedstock for nearly all of the world‘s nitrogen chemical production.

 

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In 2012, global production of ammonia was approximately 166.0 million metric tons. In 2011, annual global production of ammonia was approximately 163.0 million metric tons, with approximately 30.8% of 2011 global production originating in China, 25.6% originating in the rest of Asia and Australia, 14.3% originating in the former Soviet Union and 3.5% originating in Trinidad. Significantly, Trinidad was the largest exporter of ammonia to the United States in 2012. In 2012, U.S. consumption and production of ammonia totalled 16.5 million metric tons and 10.1 million metric tons, respectively. In 2016, U.S. agricultural and industrial consumption of ammonia is projected to increase to approximately 17.5 million metric tons, with production expected to increase to 11.7 million metric tons, resulting in a continued dependency on imports to satisfy U.S. demand for ammonia.

Since 1970, the number of ammonia producers in North America and the Caribbean has declined from 63 to 20, with the top five producers currently accounting for 70% of total ammonia production capacity. Plant closures, as well as some market consolidation through mergers and acquisitions were the result of an increasingly competitive supply environment. Similar consolidation has also occurred elsewhere in the world, particularly in Europe, and is still occurring today on a global scale. Given the current supply deficit in the United States of approximately 6.4 million metric tons of annual production, imports, largely from Trinidad, are projected to meet this demand through at least 2016. Over 95% of global ammonia output is used as a feedstock to produce other chemical forms of nitrogen, such as fertilizers (urea, ammonium nitrate, ammonium sulfates, phosphates); blasting/mining compounds (ammonium nitrate); fibers and plastics (acrylonitrile, caprolactam and other nylon intermediates, isocyanates and other urethane intermediates, amino resins); and NOx emission reducing agents (ammonia, urea), among others, with 3% to 4% being directly applied to the soil for agricultural purposes.

Natural Gas Feedstock

The U.S. Natural Gas Advantage

The primary feedstock for global methanol and ammonia production is natural gas, accounting for 76% and 68%, respectively, of the average volumes produced. In recent years, improved production techniques and drilling technologies in the United States have resulted in an increased supply of U.S. natural gas that is projected to continue for the foreseeable future. This abundance of U.S. natural gas has resulted in attractive domestic natural gas prices, often substantially below natural gas prices in other global markets, such as Europe, Japan and Northeast Asia.

 

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As indicated by the Energy Information Administration (“EIA”) forecasts shown in the diagram below, as the depletion of conventional onshore and offshore U.S. natural gas resources continues, natural gas from unconventional resource plays, such as shale formations and coalbeds, is forecasted to continue to gain market share from conventional and often higher-cost sources of natural gas. In fact, the EIA estimates that natural gas production from the major shale formations will provide the majority of the growth in domestically produced natural gas supply for the foreseeable future, increasing to approximately 50% in 2040 as compared with 34% in 2011. According to the EIA, shale gas will be the largest contributor to natural gas production growth, while production from tight sands, coalbed methane deposits and offshore waters is expected to remain stable.

U.S. Natural Gas Production by Source, 1990 – 2040

 

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Source: EIA, Annual Energy Outlook 2013 (January 2013).

According to the EIA, total annual U.S. natural gas consumption is expected to grow from approximately 24.4 Tcf in 2011 to approximately 29.5 Tcf in 2040, or 0.7% per year on average. However, during the same time period, U.S. natural gas production is expected to increase from approximately 23.1 Tcf to approximately 33.2 Tcf, or 1.5% per year on average. The United States consumed more natural gas than it produced in 2011, with net imports of almost 2.0 Tcf. However, U.S. natural gas production is expected to exceed U.S. natural gas consumption by 2019, which is expected to spur the growth of net U.S. natural gas exports to approximately 3.6 Tcf in 2040.

 

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Total U.S. Natural Gas Production and Consumption, 1990 – 2040

 

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Source: EIA, Annual Energy Outlook 2013 (January 2013).

As a result of the previously described fundamentals for natural gas in the United States, the EIA expects natural gas prices to remain relatively low for the foreseeable future. More specifically, in the EIA 2013 Annual Energy Outlook published in January 2013, the EIA expects Henry Hub average natural gas prices to remain below $4.00 per MMBtu until 2019 and thereafter to remain below $6.00 per MMBtu until 2034. As natural gas is the feedstock for the majority of global methanol and ammonia production, having a low cost natural gas feedstock is a significant competitive advantage for U.S. producers like us.

Annual Average Henry Hub Spot Natural Gas Prices, 1990 – 2040

 

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Source: EIA, Annual Energy Outlook 2013 (January 2013).

The natural gas advantage currently enjoyed by the United States is highlighted by a comparison to Trinidad, which has historically been the largest exporter of methanol and ammonia to the United States. Trinidad is currently facing a natural gas supply deficit driven by maintenance work on key natural gas production sites as well as government rationing. In addition, Trinidad natural gas production has not been replaced with new reserves, with the country’s average reserve life decreasing from 40.1 years in 2000 to 10.1 years in 2011.

 

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Source: EIA

According to the Trinidad & Tobago Ministry of Energy and Energy Affairs, natural gas production in Trinidad has decreased from 4,274 MMscf per day in 2010 to 4,093 MMscf per day in 2012, and the allocation of the natural gas produced to power and industrial uses has decreased from 4,066 MMscf per day in 2010 to 3,470 MMscf per day in 2012. As a result, natural gas allocations for the production of ammonia and methanol have declined by 15% and 17% between 2010 and 2012, respectively. The decreased production of natural gas in Trinidad has led to reduced allocations to the methanol and ammonia production industries resulted in reduced methanol and ammonia capacity utilization rates in 2011 and 2012.

 

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Methanol

Global Methanol Demand

Over the last several years, the global methanol market has become more complex and subject to increasingly diverse influences due to the expanding number of uses for methanol and its derivatives, changing global energy prices and significant increases in capital costs for new methanol plants. With the global economic recovery beginning in 2009, the global methanol market has improved with global demand increasing 49.6% to 62.6 million metric tons in 2012 from 41.9 million metric tons in 2008. The chart below details historical and projected global methanol demand and production capacity:

 

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More recently, demand has also been influenced by energy prices due to the growing use of methanol in energy applications. Increased use in energy applications contributed to a 12% increase in global demand for methanol in 2012, primarily driven by Chinese demand for methanol for both traditional chemical derivatives as well as energy applications.

Historically, demand for methanol in chemical derivatives has been closely correlated to levels of global economic activity and industrial production. In 2012, approximately two-thirds of all methanol was utilized to produce formaldehyde, acetic acid and a variety of other chemicals that form the foundation of a large number of chemical derivatives. Demand for these derivatives is largely influenced by levels of global economic activity and industrial production. These derivatives are used to manufacture a wide range of products, including plywood, particleboard, foams, resins and plastics. Demand is emerging for methanol-to-olefins (“MTO”) technology since methanol is cost-competitive relative to the traditional method of producing olefins from naphtha. Because methanol derivatives, such as formaldehyde and acetic acid, are used extensively in the building industry, demand for these derivatives rises and falls with building and construction cycles, as well as the level of production of wood products, housing starts, refurbishments and related consumer spending. Demand for methanol and its derivatives is also affected by automobile production, durable goods production, industrial investment and environmental and health trends, as well as new product development.

Chemical derivative demand for methanol has historically been relatively insensitive to changes in methanol prices. We believe this demand inelasticity is due to the fact that there are few cost-effective substitutes for methanol-based chemical derivative products and because methanol costs typically account for only a small portion of the total cost of many of the end products.

 

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Energy-related applications consumed the remaining one-third of global methanol demand in 2012. Over the last few years, high oil prices have driven strong demand growth for methanol in energy applications such as gasoline blending and as a feedstock in the production of dimethyl ether (“DME”) and MTBE, primarily in China. Methanol blending in gasoline is currently not permitted in the United States. The development and implementation of methanol-to-gasoline (“MTG”) technology to produce sulfur-free fuel may create additional demand for methanol. The chart below shows 2012 methanol demand by end product:

 

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U.S. Methanol Demand

The U.S. methanol market consumed approximately 6.0 million metric tons and produced approximately 1.1 million metric tons in 2012. The United States satisfies a portion of its demand by importing methanol, and is currently the world’s second largest importer of methanol behind China. In 2011, approximately 68.6% of U.S. methanol imports were sourced from Trinidad and 16.1% from Venezuela. Total demand for methanol in the United States is expected to grow at a compound annual growth rate of 4.2% between 2012 and 2016 from 6.0 million metric tons to 7.1 million metric tons. This growth is mainly driven by an expected recovery in the industrial markets that are end users of methanol, coupled with increasing use for energy applications given the attractiveness of the natural gas-linked price for methanol relative to oil-linked prices for many other fuels.

 

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Demand for formaldehyde, which represents the largest single derivative for methanol in the United States, is largely tied to activity in the housing and auto sectors. In 2012, demand for formaldehyde in the United States was at 1.8 million metric tons, compared to a ten-year high of 2.5 million metric tons in 2005. Methanol demand from the formaldehyde industry is expected to return to 2005 levels by 2016, and total methanol demand in the United States is expected to reach 7.1 million metric tons by 2016. The chart below shows historical and projected U.S. demand and production capacity for methanol:

 

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Global Methanol Supply

The global methanol industry consistently operates significantly below stated capacity, even in periods of high methanol prices. This dynamic is due to a number of factors, including downtime for planned and unplanned repairs and maintenance, temporary closures of marginal production facilities, and shortages of feedstock and other production inputs. In 2012, global production capacity totalled 90.9 million metric tons, with total production of 62.6 million metric tons, implying a global utilization rate of 68.9%. The chart below shows the percentage of total global methanol production by region in 2012:

 

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North America only accounted for 2.7% of methanol production in 2012. Over the last decade, world-scale methanol plants have generally been constructed in remote coastal locations with access to lower cost feedstock, although this advantage is sometimes mitigated by higher distribution costs due to their distance to major markets for methanol. As regional natural gas prices fluctuate and shipping costs escalate, producers are increasingly incentivized to build new methanol capacity closer to customers in major markets. The planning and construction of a new world-scale methanol plant typically takes between four and six years. In addition to the time required to bring a methanol plant to operational status, there are significant barriers to entry in the methanol industry. The construction of world-scale methanol facilities requires considerable capital over a long lead time, a location with access to significant natural gas or coal feedstock with appropriate pricing, the ability and proximity to cost-effectively and reliably deliver methanol to customers, and the overcoming of environmental regulatory hurdles. As such, additions to current capacity in the next several years, not including previously announced projects, will be limited. Globally, approximately 11.0 million metric tons of new annual production capacity is expected to have commenced operations by 2016.

Methanol Plant Closures

In 2008, the global economic crisis had a significant negative impact on demand for methanol and its derivatives resulting in several methanol plants with aggregate production capacity between 5 and 10 million metric tons per year being idled, primarily in China. In the United States, due to natural gas price increases from 1998 through 2007 that resulted in unfavourable market fundamentals for most U.S. methanol producers, more than 6.4 million metric tons of annual production capacity was removed from the market as numerous methanol plants underwent shutdowns or were idled, with many being disabled and rebuilt at other international locations. The chart below details select U.S. methanol plant closures from 1998 to 2009:

 

Select U.S. Methanol Plant Closures 1998 - 2009

 

Year of

Closure

  

Facility

 

Location

  

Production

Capacity

(Metric Tons)

 

1998

   Georgia Gulf   Plaquemine, LA      480,000   

1999

   Methanex   Fortier, LA      570,000   

1999

   Ashland   Plaquemine, LA      450,000   

2000

   Sterling   Texas City, TX      450,000   

2000

   Borden Chemicals & Plastics   Geismar, LA      990,000   

2001

   Delaware City   Delaware City, DE      200,000   

2001

   Enron   Pasadena, TX      375,000   

2003

   Air Products   Pace, FL      120,000   

2003

   El Paso   Cheyenne, WY      180,000   

2004

   Lyondell   Channelview, TX      770,000   

2004

   Beaumont Methanol *   Beaumont, TX      730,000   

2004

   Celanese   Clear Lake, TX      600,000   

2005

   Celanese   Bishop, TX      500,000   

 

* Represents our current facility.

United States Methanol Supply

More recently, lower U.S. natural gas prices and improving economic conditions have resulted in increased methanol production in the United States. By the end of 2013, U.S. methanol production capacity is expected to be 1.6 million metric tons, with domestic production expected to be 1.4 million metric tons in 2013, versus 1.1 million metric tons in 2012. Methanol is currently produced in the United States by LyondellBasell in Deer Park, TX, Eastman Chemical Company in Kingsport, TN, Praxair in Geismar, LA., and us at our facility in Beaumont, TX. With 730,000 metric tons of annual production capacity, our facility is the largest merchant

 

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producer of methanol in the United States. Assuming the expected methanol production capacity is built and comes online as announced, the United States is expected to remain a net importer of methanol until at least 2016.

Methanol Pricing Trends

Methanol prices have historically been cyclical and sensitive to overall production capacity relative to demand, the price of feedstock (primarily natural gas or coal), energy prices and general economic conditions. Prices in different regions of the world are highly correlated to each other as methanol is an internationally traded commodity. The majority of methanol sold globally is priced with reference to various published regional contract prices to which discounts may be applied. While there is a significant spot market in Asia and an appreciable spot market in Europe, the spot markets in North America and Latin America are relatively small in relation to the total volume of methanol traded. Global pricing is primarily linked to prices set by the coal-based producers in China.

In 2012, total traded volume, or the volume of merchant production sold internationally, was approximately 25.9 million metric tons, with China and the United States importing more than 5.0 million metric tons each. Despite China being the world’s largest producer of methanol, the country remains the largest importer of methanol. Approximately 90% of Chinese producers use coal as their primary feedstock, which typically results in significantly higher production costs as compared to the majority of natural gas-based methanol producers. As a result, China’s methanol producers have effectively set an international price floor of approximately $310 per metric ton, in line with methanol’s 2007-2012 average global spot price (ex-China) of $350 per metric ton. With the United States’ dependency on imports expected to decrease when announced capacity additions come online, China’s producers are expected to continue to effectively set the price floor for methanol globally.

Since 2009, global methanol prices have generally risen steadily over time while natural gas prices have decreased. The following chart details this trend since January 2008:

 

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Source: Bloomberg data as of June 7, 2013

 

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Ammonia

Global Ammonia Demand

In 2012, global ammonia consumption was approximately 166.0 million metric tons and approximately 95% of all global production was utilized for downstream products, including nitrogen fertilizers, with another 3-4% being directly applied to the soil for agricultural purposes. In 2012, North America was the third largest consumer of nitrogen fertilizer products, accounting for approximately 10% of global consumption. In addition, in 2012, North America was also the world’s largest consumer of ammonia for direct agricultural applications, accounting for approximately 3.8 million metric tons of ammonia or 80-85% of the global demand for ammonia for such uses. In 2012, total U.S. consumption of ammonia totalled 16.5 million metric tons and is projected to increase to approximately 17.5 million metric tons by 2016.

Approximately 86% of ammonia production is consumed within the same chemical complexes in which it is produced. The remainder is sold into the global ammonia trading market, in which the United States is the largest single participant. In 2012, the United States accounted for approximately 28% of global demand for merchant production, importing 6.4 million metric tons to supplement the approximately 2.5 million metric tons of domestic merchant production.

Global Ammonia Supply

In 2012, global production of ammonia was approximately 166.0 million metric tons. In 2011, annual global production of ammonia was approximately 163.0 million metric tons, with approximately 30.8% of 2011 global production originating in China, 25.6% originating in the rest of Asia and Australia, 14.3% originating in the former Soviet Union and 3.5% originating in Trinidad. In 2012, U.S. production of ammonia totalled 10.1 million metric tons, and is expected to increase to 11.7 million metric tons in 2016. In 2011, global ammonia production was 163.0 million metric tons. The following chart shows the percentage of global ammonia production by region in 2011:

 

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Given the historical and current deficit in U.S. production, ammonia imports have been, and are expected to continue to be, needed to meet U.S. demand for ammonia. In 2012, approximately 80% of U.S. ammonia imports were sourced from offshore sources for delivery to tanks at port locations in Texas, NOLA (New Orleans area), Mississippi, and Florida (Tampa area). Of this tonnage, nearly 70% was used as a feedstock to produce other chemicals.

 

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In 2012, Trinidad accounted for 60% of ammonia imports to the United States and approximately 36% of total nitrogen imports. More relevant to us, Trinidad has historically accounted for over 90% of the Texas Gulf Coast’s ammonia imports. However, Trinidad is currently facing a natural gas supply deficit driven by declining reserves, maintenance work on key natural gas production sites and government rationing. As a result of the reduced allocation of natural gas supplies to the ammonia production industry, ammonia capacity utilization rates in Trinidad were reduced in 2011 and 2012 as natural gas supply issues have limited production.

Ammonia Plant Closures

Since 1970 the number of producers that own ammonia plants in North America and the Caribbean has declined from 63 to 20, with the top five producers currently accounting for 70% of total ammonia production capacity. These declines have been largely driven by closures of old, obsolete production units and market consolidation through mergers and acquisitions, both of which have contributed to the current controlled supply environment. Similar consolidation has occurred elsewhere in the world, particularly in Europe. We believe that this market consolidation has resulted in domestic and international marketplaces characterized by a disciplined and rational supplier base. The chart below details select U.S. ammonia plant closures from 1998 to 2009:

 

Select U.S. Ammonia Plant Closures 1998 - 2009

 

Year of

Closure

  

Facility

 

Location

  

Production

Capacity

(Metric Tons)

 

1999

   Potash Corp.   Clinton, IA      281,000   

1999

   Potash Corp.   La Platte, NE      231,000   

1999

   Solutia   Lulling, LA      551,000   

2000

   Borden Chemicals & Plastics   Geismar, LA      468,000   

2000

   Diamond Shamrock   Dumas, TX      83,000   

2001

   Agrium   Kennewick, WA      237,000   

2001

   Cytec   Fortier, LA      485,000   

2001

   DuPont   Beaumont, TX      540,000   

2001

   Farmland   Lawrence, KS      518,000   

2001

   Vanguard   Pollock, LA      568,000   

2003

   Koch   Sterlington, LA      1,213,000   

2003

   Simplot   Pocatello, ID      116,000   

2003

   Terra   Yazoo City, MS      193,000   

2004

   Air Products   Pace, FL      110,000   

2004

   Potash Corp.   Memphis, TN      452,000   

2004

   Terra   Blythville, AR      496,000   

2005

   Agrium   Kenai, AK      694,000   

2005

   Diamond Shamrock   Dumas, TX      88,000   

2005

   Terra*   Beaumont, TX      264,990   

2007

   Agrium   Kenai, AK      777,000   

 

* Represents our current facility.

 

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United States Ammonia Market Trends

Ammonia is primarily used in the United States for agricultural purposes. The following chart shows average U.S. ammonia consumption by end market for the past three years (2010-2012):

 

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Our plant in Beaumont, Texas is centrally located in the Texas Gulf Coast ammonia market. The Gulf Coast has historically accounted for approximately 8.6 million metric tons of ammonia consumption per year, of which approximately 4.7 million metric tons, or approximately 54.7%, was produced and consumed on-site as feedstock for downstream products. Prior to our ammonia production unit commencing operations in late December 2011, consumers depended almost solely on imports for the remaining 3.9 million metric tons, with 92% of such imports coming from Trinidad. Today, we supply approximately 15% of the Texas Gulf Coast’s annual ammonia needs, with imports accounting for virtually all of the remaining 85%.

Despite the positive outlook for U.S. ammonia production due to lower natural gas pricing, the country remains the single largest global importer of ammonia, accounting for 6.4 million metric tons, or 28% of global merchant production, in 2012. Notwithstanding expected capacity additions in the near-term, this undersupply is expected to continue through at least 2020 when annual U.S. demand is expected to reach 20.0 million metric tons.

 

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Ammonia Pricing Trends

While there are several factors that influence nitrogen fertilizer prices in the United States, there is a meaningful correlation between nitrogen fertilizer prices and crop prices. We believe that high crop prices incentivize farmers to increase fertilizer application in order to maximize crop yields. Thus, high crop prices tend to buoy fertilizer demand and in turn increase ammonia prices. Similarly, periods of low crop prices tend to experience lower fertilizer demand and resulting lower ammonia prices. Additionally, ammonia prices across regions largely track one another. The marginal producers in Eastern Europe (particularly the Ukraine), effectively set the price floor, and each region applies its own premium based on a number of factors such as local supply/demand dynamics, transportation, logistics and government policies. Nevertheless, ammonia is a global commodity, with global prices generally moving together through market peaks and troughs. The chart below shows the relationship between ammonia, corn and wheat prices:

 

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Source: Bloomberg data as of June 7, 2013.

The U.S. Department of Agriculture’s projected global “stocks-to-use” ratio of 16.5% for the 2013/2014 planting season is significantly lower than historical ratios of 25%. The 2013/2014 ratio is indicative of tightening supplies and growing demand, which are expected to have a positive effect on agricultural commodity pricing, potentially boosting fertilizer demand and U.S. ammonia prices.

 

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BUSINESS

Overview

We are a Delaware limited partnership formed in February 2013 to own and operate a recently upgraded, integrated methanol and ammonia production facility that is strategically located on the Texas Gulf Coast near Beaumont. We are currently the largest merchant methanol producer in the United States with an annual methanol production capacity of approximately 730,000 metric tons and an annual ammonia production capacity of approximately 265,000 metric tons, and we are in the early stages of a debottlenecking project that will increase our annual methanol production capacity by 25% to approximately 912,500 metric tons and our annual ammonia production capacity by 15% to approximately 305,000 metric tons. Given our advantageous access and connectivity to customers and attractively priced natural gas feedstock supplies, we believe that we are one of the lowest-cost producers of methanol and ammonia in our markets and intend to capitalize on our competitive position to maximize our cash flow. We believe that the prospects for our methanol and ammonia business will remain positive for the foreseeable future because of growing U.S. and global demand for methanol and ammonia, our continued access to attractively priced natural gas feedstock, the United States’ current position as a net importer of both methanol and ammonia and our competitive position in our markets.

Both methanol and ammonia are global commodities that are essential building blocks for numerous end-use products. Methanol is a liquid petrochemical that is used in a variety of industrial and energy-related applications. Methanol is used in industrial applications to produce adhesives used in manufacturing wood products, such as plywood, particle board and laminates, resins to treat paper and plastic products, paint and varnish removers, solvents for the textile industry and polyester fibers for clothing and carpeting. Methanol is also used outside of the United States as a direct fuel for automobile engines, as a fuel blended with gasoline and as an octane booster in reformulated gasoline. In the United States, ammonia is primarily used as a feedstock to produce nitrogen fertilizers, such as urea and ammonium sulfate, and is also directly applied to soil as a fertilizer. In addition, ammonia is widely used in industrial applications, particularly in the Texas Gulf Coast market, including in the production of plastics, synthetic fibers, resins and numerous other chemical compounds.

Natural gas, methanol and ammonia commodity market dynamics have contributed favorably to our profitability in four ways. First, increased natural gas production from shale formations in the United States has increased domestic supplies of natural gas, resulting in a relatively low natural gas price environment. Second, robust and increasing domestic and global demand for both methanol and ammonia has led to historically high prices for those commodities. Third, domestic methanol and ammonia production capacity is currently constrained, as the higher domestic natural gas price environment during the period from 1998 through 2007 prompted U.S. producers to shut down or relocate U.S. production facilities, which has resulted in significantly more domestic demand for methanol and ammonia than can be satisfied with domestic production and substantial reliance on foreign imports to meet domestic demand for methanol and ammonia. Consequently, approximately 82% of U.S. methanol demand and approximately 39% of U.S. ammonia demand during 2012 was met by imports according to Jim Jordan and Blue Johnson, respectively. Fourth, we and other domestic methanol and ammonia producers have been able to satisfy a growing portion of domestic demand as foreign natural gas-based producers, particularly in Trinidad, are experiencing declining methanol and ammonia production due to decreased natural gas production and declining natural gas reserves. The favorable pricing environment for our products driven by robust demand, together with attractive natural gas feedstock prices, has enabled us to realize significant profit margins since our facility began operating at full capacity in the fourth quarter of 2012.

We expect the current commodity market dynamics for our products and natural gas feedstock to continue for the foreseeable future. In addition, according to Jim Jordan, annual U.S. demand for methanol is forecasted to increase from approximately 6.0 million metric tons in 2012 to approximately 7.1 million metric tons by 2016, representing a compound annual growth rate of approximately 4.2%, while annual domestic production of methanol is expected to increase from approximately 1.1 million metric tons to approximately 5.1 million metric tons over this same period. Moreover, according to Blue Johnson, annual U.S. demand for

 

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ammonia is forecasted to increase from approximately 16.5 million metric tons in 2012 to approximately 17.5 million metric tons in 2016, representing a compound annual growth rate of approximately 1.5%, while annual domestic production of ammonia is expected to increase from approximately 10.1 million metric tons to approximately 11.7 million metric tons over this same period, which is expected to result in an annual production deficit of approximately 5.8 million metric tons in 2016. In addition, recent increases in domestic natural gas production levels from shale formations have resulted in a significant increase in the supply of natural gas, leading to a lower natural gas price environment in the United States compared to other regions. We expect this trend of relatively low natural gas prices in the United States to continue for the foreseeable future as a result of ongoing investment in the development of shale formations and related midstream infrastructure.

We acquired our facility (which had been idled by the previous owners since 2004) in May 2011, commenced an upgrade that was completed in July 2012 and began operating our facility at full capacity in the fourth quarter of 2012. Our newly renovated facility began ammonia production in December 2011 and began methanol production in July 2012 (with no significant methanol production until August 2012), with revenues first generated from ammonia sales in the first quarter of 2012 and from methanol sales in the third quarter of 2012. For the three months ended March 31, 2013, our net income and EBITDA, on a pro forma basis, were approximately $53.7 million and $62.5 million, respectively. Subject to certain assumptions, we expect our net income and EBITDA to be approximately $150.2 million and $185.0 million, respectively, for the twelve months ending September 30, 2014. For a reconciliation of EBITDA to net income and the assumptions used in our forecast of our net income and EBITDA for the twelve months ending September 30, 2014, please read “Selected Historical and Pro Forma Financial and Operating Data” and “Our Cash Distribution Policy and Restrictions on Distribution—Unaudited Forecasted Cash Available for Distribution.”

Our Competitive Strengths

Attractively Priced Natural Gas for Methanol and Ammonia Production . Given our ready access to abundant domestic natural gas supplies and our relatively low natural gas feedstock costs compared to our overseas competitors, including Trinidadian producers, we believe that we are one of the lowest-cost producers of methanol and ammonia in our markets. For the three months ended March 31, 2013, natural gas feedstock represented approximately 55.5% of our total cost of goods sold (exclusive of depreciation)(or approximately 77.8% of our variable cost of goods sold (exclusive of depreciation)). The emergence of a U.S. “shale gas advantage” has led to an increase in the domestic production of natural gas, resulting in attractive domestic natural gas feedstock prices. Please read “Industry Overview—Natural Gas Feedstock.” In addition, continued robust demand for methanol and ammonia globally has resulted in a favorable pricing environment for our products. Since our facility began operating at full capacity in the fourth quarter of 2012, we have been able to compete effectively with higher-cost foreign producers and realize significant profit margins. The following chart illustrates U.S. natural gas (Henry Hub), methanol (U.S. Gulf Coast) and ammonia (Mid Corn Belt) prices for the last four years as of May 20, 2013:

 

LOGO

Source: Bloomberg data.

 

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Favorable Market Fundamentals with Growing Demand for Our Products. Due to growing demand and constrained domestic production capacity for our products, we expect the fundamentals for the production and sale of methanol and ammonia in the United States to remain favorable for the foreseeable future.

 

   

According to Jim Jordan, annual global demand for methanol is forecasted to increase from 62.6 million metric tons in 2012 to 81.2 million metric tons in 2016, representing a compound annual growth rate of approximately 6.7%. Annual U.S. demand for methanol is forecasted to increase from 6.0 million metric tons to 7.1 million metric tons over this same period, representing a compound annual growth rate of approximately 4.2%. Over this same period, the United States is expected to remain a net importer of methanol, as Jim Jordan forecasts that annual domestic methanol production will increase to only 5.1 million metric tons by the end of 2016. We expect prices for methanol to remain favorable for the foreseeable future as global prices for methanol are highly correlated to the prices set by higher-cost, coal-based methanol producers in China.

 

   

According to Blue Johnson, annual global demand for ammonia is forecasted to increase from 166.0 million metric tons in 2012 to 182.0 million metric tons in 2016, representing a compound annual growth rate of approximately 2.3%. Annual U.S. demand for ammonia is forecasted to increase from 16.5 million metric tons to 17.5 million metric tons over this same period, representing a compound annual growth rate of approximately 1.5%. Over this same period, the United States is expected to remain a net importer of ammonia, as Blue Johnson forecasts that imports will comprise approximately 6.4 million metric tons of U.S. consumption in 2016. In addition, Blue Johnson forecasts that ammonia prices in the United States will remain elevated for the foreseeable future as a result of growing agricultural demand and continued strong industrial demand, particularly in the Texas Gulf Coast region.

As a result of growing demand and constrained production capacity in the United States, we expect that domestic producers of methanol and ammonia will continue to displace a portion of imported supplies for the foreseeable future because of the higher feedstock and transportation costs associated with foreign supplies.

Strategic Location on the Texas Gulf Coast with Access to Port and Pipeline Facilities. We are strategically located on the Texas Gulf Coast, which provides us advantageous access and connectivity to our existing and prospective customers and attractively priced natural gas feedstock supplies. Our facility is connected to established infrastructure and transportation facilities, including pipeline connections to adjacent customers and port access with dedicated methanol and ammonia export barge docks. We also have the flexibility to add rail and truck loading facilities to improve delivery options for our customers. We have connections to one major interstate and three major intrastate natural gas pipelines that provide us access to significantly more natural gas supply than our facility requires and flexibility in sourcing our natural gas feedstock. Our facility is located in close proximity to many of our major customers, which allows us to deliver our products to those customers at competitive prices and realize greater margins than overseas suppliers that are subject to significant costs associated with transporting product to our markets. In addition, we have direct pipeline connections to certain of our methanol and ammonia customers, which provides us a competitive advantage in supplying their methanol and ammonia requirements.

Recently Upgraded Production Facility that Operates Efficiently and Maximizes Returns . We completed an upgrade on the methanol and ammonia production units at our facility in 2012. From January 1, 2013 through June 30, 2013, our methanol production unit and our ammonia production unit each operated at over a 98% utilization rate relative to their respective nameplate capacities. As a means of further optimizing our production efficiencies, we are in the early stages of a debottlenecking project on our production facility that is expected to be completed in the second half of 2014 and increase our annual methanol production capacity by approximately 25% and our annual ammonia production capacity by approximately 15%. For information on our debottlenecking project, please read “—Our Growth Projects—Our Debottlenecking Project.”

 

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Advantageous Relationship with Our Sponsor, OCI. We expect to benefit from OCI’s commercial, operational and technical expertise. OCI is a global nitrogen-based fertilizer producer and engineering and construction contractor based in the Netherlands, with projects and investments across Europe, the United States, South America, the Middle East, North Africa and Central Asia. We expect to benefit from OCI’s expertise in strategic development, as OCI’s management team has successfully executed over $25 billion in acquisitions, divestments and greenfield projects in 15 countries in the past eight years. In June 2013, we entered into a procurement and construction contract with Orascom E&C USA Inc., an indirect wholly owned construction subsidiary of OCI, for our debottlenecking project. OCI Construction Group’s technical expertise and experience with large-scale infrastructure and industrial projects were critical to the recent upgrade of our facility that was completed in 2012 and will be essential to the cost-effective implementation of our debottlenecking project.

Experienced Management and Operational Team. We are managed by an experienced and dedicated team of executives with a long history in the chemical industry. Our senior operational team has an average of 30 years of experience in the chemical industry and significant experience operating facilities such as ours. In fact, a majority of our operating management team ran our facility for many years under prior ownership. Our management team was responsible for developing and executing the recent upgrade of our facility and will be integral in the execution of our debottlenecking project and any future expansion projects. After the completion of this offering, we expect that Mr. Frank Bakker, our President and Chief Executive Officer, and each member of our senior operational team will devote 100% of their time to managing and operating our business. We expect that Mr. Fady Kiama, our Vice President and Chief Financial Officer, will devote approximately 75% of his time to managing our financial affairs.

Our Business Strategies

Distribute 100% of Our Cash Available for Distribution each Quarter. Upon the completion of this offering, the board of directors of our general partner will adopt a policy to distribute 100% of the cash available for distribution that we generate each quarter to unitholders of record on a pro rata basis. We do not intend to maintain excess distribution coverage or retain funds in order to maintain stable quarterly distributions or fund future distributions. Unlike many publicly traded partnerships, our general partner will have a non-economic general partner interest and will have no incentive distribution rights. Therefore, all of our cash distributions will be made to our unitholders, in contrast to other publicly traded partnerships, some of which distribute up to 50% of their quarterly cash distributions in excess of specified levels to their general partner. Our structure is designed to maximize distributions to our unitholders and to align OCI’s interests with those of our other unitholders. We expect our distribution yield to be             % (calculated by dividing our forecasted distribution for the twelve months ending September 30, 2014 of $             per common unit by $             (the midpoint of the price range set forth on the cover page of this prospectus)). Please read “Our Cash Distribution Policy and Restrictions on Distributions—Unaudited Forecasted Cash Available for Distribution.”

Pursue Organic Growth Opportunities and Strategic Acquisitions. We will continue to evaluate methods of expanding our production capabilities and product offerings. We are in the early stages of a debottlenecking project that is designed to increase our annual methanol production capacity by approximately 182,500 metric tons, or approximately 25%, and increase our annual ammonia production capacity by approximately 40,000 metric tons, or approximately 15%. As part of the debottlenecking project, we additionally plan to complete a maintenance turnaround as well as various other upgrades to our facility. We expect that the debottlenecking project will be completed in the second half of 2014 and currently estimate the total cost of the project will be approximately $150 million (including costs associated with a maintenance turnaround and various other upgrades). We intend to fund a portion of the costs of our debottlenecking project and other budgeted capital projects incurred after the completion of this offering with a portion of the net proceeds from this offering. Please read “—Our Growth Projects—Our Debottlenecking Project.”

We also intend to pursue strategic acquisitions that offer attractive synergies and maximize distributions to our unitholders, such as increasing our logistical capabilities by purchasing infrastructure at the industrial park in which

 

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our production facility is located. In addition, we intend to evaluate and pursue acquisition and development opportunities that will enhance our operating platform and increase our cash available for distribution.

Maintain High Utilization Rates . From January 1, 2013 through June 30, 2013, we operated at over a 98% utilization rate relative to the respective nameplate capacities of our methanol and ammonia production units, and we intend to maintain consistent and reliable operations at our facility, which are critical to our financial performance and results of operations. Efficient production of methanol and ammonia requires reliable and stable operations at our facility due to the high costs associated with planned and unplanned downtime. In addition, strict production schedules are essential in order to maximize utilization and productivity and to ensure a competitive cost position. We intend to continue implementing our rigorous maintenance program, which is executed by a skilled, experienced and well-trained workforce, at regular intervals. To continue to maintain our high utilization rates and minimize downtime at our facility, we plan to perform maintenance capital projects that require downtime during scheduled turnarounds. We believe that our diligent adherence to proactive maintenance programs and the experience of our workforce will minimize unplanned downtime and maintain our facility’s longevity and high utilization rates.

Continue Commitment to Health, Safety and the Environment . We are committed to maintaining a culture that makes health, safety and the environment a high priority. We have made significant investments in safety analysis and reporting technology and have established a track record of safe operations, with a total case incident rate (the average number of work-related injuries incurred by 100 workers during a one-year period) for both our employees and contractors of 0.13 for 2012 and 0.0 from January 1, 2013 through June 30, 2013. We also view personnel training as essential for accident prevention and successful operation of our facility and intend to continue our efforts in these areas. In addition, we are participating in OSHA Voluntary Protection Programs to become an OSHA Star site. Companies in OSHA’s Star Program have achieved injury and illness rates at or below the national average of their respective industries. We believe that our commitment to health, safety and the environment is critical to the success of our business.

Maintain a Conservative and Flexible Capital Structure. We are committed to maintaining a conservative capital structure with prudent leverage that affords us the financial flexibility to execute our business strategy. As of March 31, 2013, on a pro forma basis, after giving effect to the Transactions (including this offering), we would have had approximately $235.0 million of total indebtedness (excluding unamortized debt discount of $2.4 million) and approximately $                 million of cash and cash equivalents, resulting in net leverage of $                 million (or approximately $235.0 million of total indebtedness (excluding unamortized debt discount of $2.4 million) and approximately $             million of cash and cash equivalents, resulting in net leverage of $             million, if the underwriters exercise their option to purchase additional common units in full). We will retain a portion of net proceeds from this offering to pre-fund growth capital expenditures, including the anticipated remaining costs of our debottlenecking project (including a maintenance turnaround and various other upgrades).

Our Sponsor

OCI is a global nitrogen-based fertilizer producer and engineering and construction contractor based in the Netherlands, with projects and investments across Europe, the United States, South America, the Middle East, North Africa and Central Asia. The OCI Fertilizer Group owns and operates nitrogen fertilizer plants in the Netherlands, the United States, Egypt and Algeria and has an international distribution platform spanning from the Americas to Asia. The OCI Fertilizer Group ranks among the world’s largest nitrogen fertilizer producers by production capacity with annual production capacity of nearly 7.0 million metric tons.

The OCI Fertilizer Group’s latest greenfield project, the Iowa Fertilizer Company located near the Mississippi River in Wever, Iowa, is a $1.8 billion plant that is the first world scale natural gas-based fertilizer plant to be built in the United States in nearly 25 years. The plant is being constructed by Orascom E&C USA

 

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Inc., an indirect wholly owned subsidiary of OCI, and is expected to produce approximately 2.0 million metric tons of nitrogen fertilizer annually following completion of construction in late 2015. In connection with financing the project, Iowa Fertilizer Company issued approximately $1.2 billion of tax-exempt bonds, representing one of the largest non-investment grade transactions ever sold in the U.S. tax-exempt bond market.

The OCI Construction Group provides international engineering and construction services primarily on infrastructure, industrial and high-end commercial projects in the United States, Europe, the Middle East, North Africa and Central Asia for public and private clients. According to the Engineering News Record, the OCI Construction Group consistently ranks among the world’s top global contractors.

OCI employs more than 75,000 people in 35 countries and is listed on the NYSE Euronext in Amsterdam under the symbol “OCI.” OCI’s market capitalization, as reported by Bloomberg, was approximately $6.0 billion as of July 17, 2013.

Our Facility

Overview

Our integrated methanol and ammonia production facility is located on a 28-acre site south of Beaumont, Texas on the Neches River. We acquired our facility (which had been idled by the previous owners since 2004) in May 2011, commenced an upgrade that was completed in July 2012 and began operating our facility at full capacity in the fourth quarter of 2012. Our newly renovated facility began ammonia production in December 2011 and began methanol production in July 2012 (with no significant methanol production until August 2012), with revenues first generated from ammonia sales in the first quarter of 2012 and from methanol sales in the third quarter of 2012.

The following table sets forth our facility’s production capacity and storage capacity:

 

Product

   Current Production
Capacity
     Production
during the
Three
Months
Ended
March 31,
2013
     Expected Production
Capacity after
Completion of
Debottlenecking Project
    

Product

Storage

Capacity

(Metric Tons)

     Metric
Tons/Day
     Metric
Tons/Year (1)
     Metric Tons      Metric
Tons/Day
     Metric
Tons/Year (1)
    

Methanol

     2,000         730,000         175,523         2,500         912,500       42,000 (2 tanks)

Ammonia

     726         264,990         64,491         835         304,739       18,000 (1 tank)

 

(1)  

Assumes facility operates 365 days per year.

Our facility is strategically located on the Texas Gulf Coast, which provides us advantageous access and connectivity to our existing and prospective customers and attractively priced natural gas feedstock supplies. Our facility is connected to established infrastructure and transportation facilities, including pipeline connections to adjacent customers and port access with dedicated methanol and ammonia export barge docks. We also have the flexibility to add rail and truck loading facilities to improve delivery options for our customers. We have connections to one major interstate and three major intrastate natural gas pipelines that provide us access to significantly more natural gas supply than our facility requires and flexibility in sourcing our natural gas feedstock. Our facility is located in close proximity to many of our major customers, which allows us to deliver our products to those customers at competitive prices and realize greater margins than overseas suppliers that are subject to significant transportation costs associated with transporting product to our markets.

 

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The following graphic illustrates the connectivity of our facility to customers and feedstock suppliers:

LOGO

 

 

(1) We have physical pipeline connections to these customers but are not currently shipping any ammonia volumes by pipeline.

The following table indicates ownership of the pipelines connected to our facility. Although we transport methanol and ammonia to various customers, we do not have ownership of all the pipelines that we use.

Manufactured Product:

 

Pipeline

  

Product

  

Ownership

ExxonMobil/Arkema Pipeline

   Methanol    ExxonMobil

Oiltanking (Huntsman)

   Methanol    OCI Partners LP

Lucite

   Ammonia    Lucite

 

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Feedstocks:

 

Pipeline

  

Product

  

Ownership

Kinder Morgan Pipeline

   Natural Gas    Kinder Morgan

DCP Midstream Pipeline

   Natural Gas    DCP Midstream

Florida Gas Transmission Natural Gas Pipeline

   Natural Gas    OCI Partners LP/Florida Gas Transmission Company

Houston Pipeline

   Natural Gas    Houston Pipe Line Company LP

Air Liquide Nitrogen Pipeline

   Nitrogen    Air Liquide

Air Products Hydrogen Pipeline

   Hydrogen    Air Products

Our Methanol Production Unit

Our methanol production unit is a 730,000 metric ton per year unit that is comprised of Foster Wheeler-designed twin steam methane reformers for synthesis gas production, two Lurgi-designed parallel low pressure, water-cooled reactors and four distillation columns. Our debottlenecking project is expected to increase the annual production capacity of our methanol production unit by approximately 25%. Our methanol production unit contains two 21,000 metric ton storage tanks. In addition, our methanol production unit has a crude methanol surge tank, refined receiver tank, storage tank scrubber and crude tank scrubber. During the three months ended March 31, 2013, our methanol production unit produced approximately 175,500 metric tons of methanol. We expect our methanol production unit to undergo an approximate four-week turnaround once approximately every four years.

Our Ammonia Production Unit

Our ammonia production unit is a 264,990 metric ton per year unit. Our debottlenecking project is expected to increase the annual production capacity of our ammonia production unit by approximately 15%. The Haldor Topsøe-designed ammonia synthesis loop at our facility processes hydrogen produced by our methanol production process as the feedstock to produce ammonia. From time to time, our ammonia production unit also uses hydrogen we purchase from third parties to supplement the hydrogen produced by our methanol production process. Our ammonia production unit contains an 18,000 metric ton refrigerated ammonia storage tank. During the three months ended March 31, 2013, our ammonia production unit produced approximately 64,500 metric tons of ammonia. We expect our ammonia production unit to undergo an approximate four-week turnaround once approximately every four years in connection with the turnaround of our methanol production unit.

 

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Facility History

E.I. du Pont de Nemours and Company (“DuPont”) completed construction of our methanol production unit in 1967, which was the largest methanol production unit in the world at that time with a nameplate capacity of 600,000 metric tons of methanol per year. Since its original construction, our facility has undergone a number of ownership changes and upgrades. The following summarizes key milestones for our facility:

 

Year(s)

  

Event

1967

  

•   DuPont completes construction of 600,000 metric ton methanol production unit.

1980s

  

•   DuPont modernizes the methanol production unit using Lurgi low pressure methanol technology.

1990s

  

•   Beaumont Methanol Corporation (“BMC”) acquires the methanol production unit from DuPont.

  

•   BMC merges with Agricultural Minerals Corporation to form Agricultural Minerals and Chemicals, Inc. (“AMCI”).

  

•   Terra Industries Inc. (“Terra”) acquires AMCI.

  

•   Terra adds 250,000 metric ton capacity ammonia synthesis loop to the methanol production unit.

2000s

  

•   Terra completes construction of ammonia production unit built by Foster Wheeler with a Haldor Topsøe process design.

  

•   In December 2003, Methanex acquires exclusive production rights to all methanol production for five years.

•   In December 2004, Terra shuts down production of methanol and ammonia.

•   In December 2008, Eastman Chemical Company (“Eastman”) acquires the facility from Terra; production of methanol and ammonia remains shut down.

2011

  

•   In May 2011, OCI and a joint venture partner acquire the facility from Eastman and commence an upgrade of the facility.

  

•   In November 2011, OCI acquires a 100% ownership interest in the facility.

•   In December 2011, ammonia production commences.

2012

  

•   In July 2012, OCI completes upgrade of the facility; methanol production commences.

Our Recent Upgrade of the Facility

We commenced an upgrade of our facility in May 2011 that was completed in July 2012. In connection with our upgrade, we installed an advanced distributed control system at our facility to efficiently control our integrated production process. We opened, inspected and hydrostatically tested all of the static equipment at our facility. We also hydrostatically tested the piping at our facility and performed other integrity tests, including thickness measurements, and we replaced connecting gaskets and bolts and any out-of-code piping. We completely refurbished our rotating equipment, including pumps, compressors and fans, and we cleaned and, if necessary, re-tubed our heat exhangers. In addition, our storage tanks were emptied, cleaned and inspected. Moreover, our furnaces were inspected and the related burners and refractory were overhauled. After completing our upgrades, our methanol and ammonia production units underwent commissioning and testing of the safety interlocks.

Our Growth Projects

We intend to expand our existing methanol and ammonia production capacity and utilize the experience of our management team to execute our growth strategy. Our growth strategy includes expanding our production capacity by pursuing organic growth opportunities, such as our debottlenecking project.

Our Debottlenecking Project

As a means of further optimizing our production efficiencies, we are in the early stages of a debottlenecking project on our production facility, including a maintenance turnaround and environmental

 

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upgrades. This project is expected to increase our annual methanol production capacity by approximately 182,500 metric tons, or approximately 25%, and increase our annual ammonia production capacity by approximately 40,000 metric tons, or approximately 15%. We expect the debottlenecking project to be completed in the second half of 2014 and currently estimate the total cost of the project to be approximately $150 million (including costs associated with a maintenance turnaround and environmental upgrades). We expect to shut down our facility for approximately 30 to 40 days in the second half of 2014 in order to complete our debottlenecking project. As of June 30, 2013, OCIB had incurred approximately $5.8 million in expenditures related to our debottlenecking project, including costs associated with engineering fees and down payments on equipment, and will fund any costs incurred through the completion of this offering. We intend to fund a portion of the costs of our debottlenecking project and other budgeted capital projects incurred after the completion of this offering with a portion of the net proceeds from this offering.

As part of our debottlenecking project we plan to undertake the following:

 

   

install a selective catalytic reduction unit;

 

   

replace reformer tubes, which will result in increased synthesis gas production;

 

   

install a pre-reformer;

 

   

install a saturator;

 

   

install an additional flare;

 

   

modify the synthesis gas compressor and steam turbine to handle the increased volume of synthesis gas;

 

   

modify the convection section and the heat exchangers; and

 

   

increase the capacity of the synthesis gas compressor and the refrigeration compressor on our ammonia production unit and replace several heat exchangers and vessels to handle the higher volume.

The goal of our debottlenecking project is to maximize our production capacity and reduce our energy consumption. As part of the debottlenecking project, we also plan to complete a maintenance turnaround as well as various mandatory and discretionary environmental upgrades to the facility. In June 2013, we entered into a procurement and construction contract with Orascom E&C USA Inc., an indirect wholly owned construction subsidiary of OCI, for our debottlenecking project. Please read “Certain Relationships and Related Party Transactions—Our Agreements with OCI—Construction Agreement with Orascom E&C USA Inc.” The OCI Construction Group’s technical expertise and their experience on large-scale infrastructure and industrial projects were critical to the recent upgrade of our facility that was completed in 2012 and will be essential in the cost-effective implementation of our debottlenecking project.

Feedstock Supply

The primary feedstock that we use to produce methanol and ammonia is natural gas. Operating at full capacity, our methanol and ammonia production units together require approximately 84,000 MMBtu per day of natural gas. For the three months ended March 31, 2013, natural gas feedstock costs represented approximately 55.5% of our total cost of goods sold (exclusive of depreciation)(or approximately 77.8% of our variable cost of goods sold (exclusive of depreciation)). Accordingly, our profitability depends in large part on the price of our natural gas feedstock.

We have connections to one major interstate and three major intrastate natural gas pipelines that provide us flexibility in sourcing our natural gas supplies. We currently source natural gas from DCP Midstream and Kinder Morgan. In addition, we have recently connected our facility to a natural gas pipeline owned by Florida

 

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Gas Transmission and a natural gas pipeline owned by Houston Pipe Line Company. We believe that we have ready access to an abundant supply of natural gas for the foreseeable future due to our location and connectivity to major natural gas pipelines.

We procure our hydrogen and nitrogen supply needs from Air Products and Air Liquide, respectively. Our contract with Air Products is a ten-year contract for 25 MMscf per day of hydrogen, expiring in 2021. The price we pay under the Air Products contract is linked to natural gas prices. Our contract with Air Liquide is a ten-year contract for up to 20.4 MMscf of nitrogen per day. The price we pay under our contract with Air Liquide is based on a combination of the cost of electric power, average gross hourly earnings and the latest value of the U.S. Bureau of Statistics Producer Price Index for Industrial Commodities.

Our Production Process

We purchase natural gas from third parties and process the natural gas into synthesis gas, which we then further process in the production of methanol and ammonia. We store and sell the processed methanol and ammonia to industrial and commercial customers for further processing or distribution. Our production process involves multiple steps summarized below:

Processing of Natural Gas into Synthesis Gas . We process raw natural gas into synthesis gas by heating the natural gas stream, injecting steam (H 2 O) into the natural gas stream and passing the natural gas stream over a nickel catalyst, which reforms the natural gas stream into a mixture of carbon monoxide (CO), carbon dioxide (CO 2 ) and hydrogen (H 2 ). This process, referred to as steam methane reforming, of producing synthesis gas (also known as syngas) is widely used in oil refineries around the world. Synthesis gas is used to produce both methanol and ammonia.

Processing Synthesis Gas into Methanol . We process synthesis gas into methanol by feeding the synthesis gas into a reactor under high temperatures and pressures where the carbon monoxide (CO) and hydrogen (H 2 ) molecules are combined in the presence of a copper-based catalyst to produce hydrogen (H 2 ), water (H 2 O) and methanol (CH 3 OH). The hydrogen (H 2 ) is diverted to our ammonia production unit where it is ultimately combined with nitrogen (N 2 ) to produce ammonia (NH 3 ). The water is recirculated through the plant so that it can be re-used in the processing of natural gas into synthesis gas.

Processing Nitrogen into Ammonia . We process raw natural gas and other reactants into ammonia using the Haber-Bosch synthesis process. This reaction happens in a special high pressure reactor in the presence of an iron oxide catalyst. Through a series of chemical processes the natural gas and other reactants are converted into a mixture of nitrogen (N 2 ) and hydrogen (H 2 ). The synthesis gas enters the ammonia reactor, where it undergoes a synthesis reaction. The synthesis reactor consists of a number of beds containing the catalyst through which the reactants pass and are converted to ammonia (NH 3 ) under equilibrium conditions. Because the reaction is exothermic, heat is removed by coolers (heat exchangers) to maximize the amount of ammonia that is converted.

At the end of the reactor a stream of mixed gas (ammonia + nitrogen + hydrogen) is removed and cooled. The cooled ammonia condenses and is separated from the other gas which is then returned to the reactor for reprocessing. This is a continuous process—at the one end ammonia is continuously removed and this is balanced by new synthesis gas which is continuously added to the reactor.

 

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Our production process is illustrated below:

 

LOGO

Customers and Contracts

We generate our revenues from the sale of methanol and ammonia manufactured at our facility. We sell our products, primarily under contract, to industrial users and commercial traders for further processing or distribution. For the three months ended March 31, 2013 and the year ended December 31, 2012, we derived approximately 72% and 74%, respectively, of our revenues from the sale of our products to commercial traders for further processing or distribution and derived approximately 28% and 26%, respectively, of our revenues from the sale of our products to industrial users. In addition, we derive a portion of our revenues from uncontracted sales of methanol and ammonia. For the three months ended March 31, 2013 and the year ended December 31, 2012, we derived approximately 0% and 1%, respectively, of our revenues from uncontracted sales of our products. We are party to methanol sales contracts with Methanex, Koch, ExxonMobil, Arkema and Lucite. Our methanol sales contracts generally range in duration from two to five years in length and are renewable at the end of their terms. A substantial majority of our customers do not have minimum volume purchase obligations under these contracts, may determine not to purchase any more methanol from us and may purchase methanol from other suppliers. Consistent with industry practice, our methanol sales contracts set our pricing terms to reflect a specified discount to a published monthly benchmark methanol price (Jim Jordan or Southern Chemical), and our methanol is sold on an FOB basis when delivered by barge. The payment terms under our methanol sales contacts are net 25-30 days. Currently, we deliver approximately 55% of our methanol sales by barge and approximately 45% of our methanol sales by pipeline. For the three months ended March 31, 2013, Methanex and Koch accounted for approximately 35.5% and 21.3%, respectively, of our total revenues. For the year ended December 31, 2012, Methanex, Koch and Arkema accounted for approximately 11.2%, 12.0% and 9.8%, respectively, of our total revenues.

 

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We generally sell ammonia under monthly contracts. Our customers have no minimum volume purchase obligations under these contracts, may determine not to purchase any more ammonia from us at any time and may purchase ammonia from other suppliers. Consistent with industry practice, these contracts set our pricing terms to reflect a specified discount to a published monthly benchmark ammonia price (CFR Tampa). The payment terms under our ammonia sales contacts are net 30 days. Although we have ammonia pipeline connections with certain of our customers, currently all of our ammonia is sold on an FOB basis and is transported by barge. For the three months ended March 31, 2013, Transammonia and Rentech accounted for approximately 15.1% and 17.9%, respectively, of our total revenues. For the year ended December 31, 2012, Transammonia accounted for approximately 50.6% of our total revenues.

Competition

The industries in which we operate are highly competitive. Methanol and ammonia are global commodities, and we compete with a number of domestic and foreign producers of methanol and ammonia. In addition, a long period of stable and low natural gas prices in the United States has made it economical for companies to upgrade existing plants and initiate construction of new methanol and nitrogen projects. For example, Methanex, LyondellBasell and Celanese have each announced plans to relocate, restart or construct methanol plants in the U.S. Gulf Coast region over the next few years, which will increase overall U.S. production capacity and the availability of methanol supply to our customers from competing sources.

While the methanol and ammonia industries are global in nature, we believe that our strategic location on the Texas Gulf Coast positions us as a key local supplier. Our proximity to customers and access to major infrastructure and transportation facilities, including pipeline connections to adjacent customers and port access with dedicated methanol and ammonia barge docks, provide us with as a competitive advantage over other suppliers. Furthermore, because the majority of our competitors are based outside of the United States or are commodity traders, we believe that we will be able to consistently offer our products at attractive prices to our customers while maintaining strong margins.

The majority of methanol consumed in the U.S. Gulf Coast is either sourced from Trinidad or produced in-house by U.S.-based chemical companies as part of a vertically integrated industrial process. Producers in Trinidad have been facing significant natural gas feedstock shortages, thereby reducing the supply of all natural-gas based products from Trinidad to the United States. Furthermore, transportation and port-handling costs for methanol imported from Trinidad and other countries provide us with a cost advantage over foreign producers and allow us to displace higher cost methanol supplies. Please read “Industry Overview—Methanol.”

Similarly, the majority of ammonia consumed in our market is sourced overseas, particularly from Trinidad, and is transported through the U.S. Gulf Coast. Our close proximity to our customers allows us to maintain a significant cost advantage over our competition. Ammonia sourced from Trinidad accounts for approximately 60% of total imported ammonia in the United States. Although ammonia sourced from Trinidad historically enjoyed a competitive cost advantage, natural gas supply shortages and higher production costs in recent years have eroded this competitive advantage. Furthermore, transportation and port-handling costs for all imported ammonia have allowed us to displace foreign supply. According to Blue Johnson, we currently supply approximately 15% of the Texas Gulf Coast market’s annual ammonia needs. Please read “Industry Overview—Ammonia.”

Seasonality and Volatility

While most U.S. methanol is sold pursuant to long-term contracts based on market index pricing and fixed volumes, the market price of methanol can be volatile. Methanol is an internationally traded commodity chemical, and the methanol industry has historically been characterized by cycles of oversupply caused by either excess supply or reduced demand, resulting in lower prices and idling of capacity, followed by periods of shortage and rising prices as demand exceeds supply until increased prices lead to new plant investment or the

 

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restart of idled capacity. Methanol prices have historically been cyclical and sensitive to overall production capacity relative to demand, the price of feedstock (primarily natural gas or coal), energy prices and general economic conditions.

The seasonality of the ammonia business largely tracks the seasonality of the fertilizer business in the United States because the substantial majority of all domestic ammonia consumption in the United States is for fertilizer use. The fertilizer business is seasonal, based upon the planting, growing and harvesting cycles. Inventories must be accumulated to allow for customer shipments during the spring and fall fertilizer application seasons, which requires significant storage capacity. The accumulation of inventory to be available for seasonal sales requires fertilizer producers to maintain significant working capital. This seasonality generally results in higher fertilizer prices during peak periods, with prices normally reaching their highest point in the spring, decreasing in the summer, and increasing again in the fall. Fertilizer products are sold both on the spot market for immediate delivery and under product prepayment contracts for future delivery at fixed prices. The terms of the product prepayment contracts, including the percentage of the purchase price paid as a down payment, can vary from season to season. Variations in the proportion of product sold through forward sales and variations in the terms of the product prepayment contracts can increase the seasonal volatility of fertilizer producers’ cash flows and cause changes in the patterns of seasonal volatility from year-to-year. Nitrogen fertilizer prices can also be volatile as a result of a number of other factors, including weather patterns, field conditions, quantities of fertilizers imported to the United States, current and projected grain inventories and prices and price fluctuations in natural gas prices. In addition, governmental policies may directly or indirectly influence the number of acres planted, the level of grain inventories, the mix of crops planted and crop prices.

Environmental Matters

Our business is subject to extensive and frequently changing federal, state and local, environmental, health and safety regulations governing the emission and release of hazardous substances into the environment, the treatment and discharge of waste water and the storage, handling, use and transportation of our methanol and ammonia. These laws include the CAA, the federal Water Pollution Control Act (the “Clean Water Act”), the Resource Conservation and Recovery Act, CERCLA, the Toxic Substances Control Act and various other federal, state and local laws and regulations. These laws, their underlying regulatory requirements and the enforcement thereof impact us by imposing:

 

   

restrictions on operations or the need to install enhanced or additional controls;

 

   

the need to obtain and comply with permits and authorizations;

 

   

liability for the investigation and remediation of contaminated soil and groundwater at current and former facilities (if any) and off-site waste disposal locations; and

 

   

specifications for the products we market, primarily methanol and ammonia.

Our operations require numerous permits and authorizations. Failure to comply with these permits or environmental laws generally could result in substantial fines, penalties or other sanctions, court orders to install pollution-control equipment, permit revocations and facility shutdowns. In addition, environmental, health and safety laws may impose joint and several liability, without regard to fault, for cleanup costs on potentially responsible parties who have released or disposed of hazardous substances into the environment. We may experience delays in obtaining or be unable to obtain required permits, which may delay or interrupt our operations and limit our growth and revenue. Private parties, including the owners of properties adjacent to other facilities where our wastes are taken for disposal, also may have the right to pursue legal actions to enforce compliance as well as to seek damages for non-compliance with environmental laws and regulations or for personal injury or property or natural resource damages. In addition, the risk of accidental spills or releases could expose us to significant liabilities that could have a material adverse effect on our business, financial condition or results of operations.

 

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The laws and regulations to which we are subject are complex, change frequently and have tended to become more stringent over time. The ultimate impact on our business of complying with existing laws and regulations is not always clearly known or determinable due in part to the fact that our operations may change over time and certain implementing regulations for laws, such as the CAA, have not yet been finalized, are under governmental or judicial review or are being revised. These laws and regulations could result in increased capital, operating and compliance costs.

Our facility has experienced some level of regulatory scrutiny in the past, and we may be subject to further regulatory inspections, future requests for investigation or assertions of liability relating to environmental issues. In the future, we could incur material liabilities or costs related to environmental matters, and these environmental liabilities or costs (including fines or other sanctions) could have a material adverse effect on our results of operations, financial condition and ability to make cash distributions.

The principal environmental regulations and risks associated with our business are outlined below. We believe that we are in material compliance with all of these environmental regulations.

The Federal Clean Air Act . The CAA and its implementing regulations, as well as the corresponding state laws and regulations that regulate emissions of pollutants into the air, affect us through the CAA’s permitting requirements and emission control requirements relating to specific air pollutants, as well as the requirement to maintain a risk management program to help prevent accidental releases of certain substances. Some or all of the standards promulgated pursuant to the CAA, or any future promulgations of standards, may require the installation of controls or changes to our facility in order to comply. If new controls or changes to operations are needed, the costs could be significant. In addition, failure to comply with the requirements of the CAA and its implementing regulations could result in fines, penalties or other sanctions.

The regulation of air emissions under the CAA requires that we obtain various construction and operating permits, including Title V and PSD air permits issued by TCEQ and EPA. Requirements under these permits will cause us to incur capital expenditures for the installation of certain air pollution control devices at our operations. Various regulations specific to our operations have been implemented, such as National Emission Standard for Hazardous Air Pollutants, New Source Performance Standards and New Source Review. We have incurred, and expect to continue to incur, substantial capital expenditures to maintain compliance with these and other air emission regulations that have been promulgated or may be promulgated or revised in the future, including in connection with the following projects that are designed to comply with our emission limits and requirements of our Title V CAA permit.

Release Reporting . The release of hazardous substances or extremely hazardous substances into the environment is subject to release reporting requirements under federal and state environmental laws, including the Emergency Planning and Community Right-to-Know Act. We occasionally experience minor releases of hazardous or extremely hazardous substances from our equipment. We report such releases to the federal Environmental Protection Agency (the “EPA”), TCEQ and other relevant state and local agencies as required by applicable laws and regulations. If we fail to properly report a release, or if the release violates the law or our permits, it could cause us to become the subject of a governmental enforcement action or third-party claims. Government enforcement or third-party claims relating to releases of hazardous or extremely hazardous substances could result in significant expenditures and liability.

Clean Water Act. The Clean Water Act (“CWA”) and analogous state laws impose restrictions and strict controls with respect to the discharge of pollutants, including spills and leaks of oil and other substances, into waters of the U.S. The discharge of pollutants into regulated waters is prohibited, except in accordance with the terms of a permit issued by the EPA or an analogous state agency. The CWA and regulations implemented thereunder also prohibit the discharge of dredge and fill material into regulated waters, including wetlands, unless authorized by an appropriately issued permit. In addition, the CWA and analogous state laws require individual permits or coverage under general permits for discharges of storm water runoff from certain types of facilities. Spill prevention, control and countermeasure requirements of federal laws require appropriate containment berms and similar structures to

 

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help prevent the contamination of navigable waters by a petroleum hydrocarbon tank spill, rupture or leak. Federal and state regulatory agencies can impose administrative, civil and criminal penalties for non-compliance with discharge permits or other requirements of the CWA and analogous state laws and regulations.

GHG Emissions . Currently, various legislative and regulatory measures to address greenhouse gas (“GHG”) emissions (including CO 2 , methane and nitrous oxides) are in various phases of discussion or implementation. At the federal legislative level, Congress has previously considered legislation requiring a mandatory reduction of GHG emissions. Although Congressional passage of such legislation does not appear likely at this time, it could be adopted at a future date. It is also possible that Congress may pass alternative climate change bills that do not mandate a nationwide cap-and-trade program and instead focus on promoting renewable energy and energy efficiency.

In the absence of congressional legislation curbing GHG emissions, the EPA is moving ahead administratively under its CAA authority. In October 2009, the EPA finalized a rule requiring certain large emitters of GHGs to inventory and report their GHG emissions to the EPA. In accordance with the rule, we monitor our GHG emissions from our facility and will report the emissions to the EPA annually beginning in September 2011. On December 7, 2009, the EPA finalized its “endangerment finding” that GHG emissions, including CO 2 , pose a threat to human health and welfare. The finding allows the EPA to regulate GHG emissions as air pollutants under the CAA. In May 2010, the EPA finalized the “Greenhouse Gas Tailoring Rule,” which establishes new GHG emissions thresholds that determine when stationary sources, such as our facility, must obtain permits under the PSD and Title V programs of the CAA. The permitting requirements of the PSD program apply only to newly constructed or modified major sources. Obtaining a PSD or Title V permit requires a source to install BACT for those regulated pollutants that are emitted in certain quantities. Phase I of the Greenhouse Gas Tailoring Rule, which became effective on January 2, 2011, requires projects already triggering PSD or Title V permitting that are also increasing GHG emissions by more than 75,000 tons per year to comply with BACT rules for their GHG emissions. Phase II of the Greenhouse Gas Tailoring Rule, which became effective on July 1, 2011, requires preconstruction permits using BACT for new projects that emit 100,000 tons of GHG emissions per year or existing facilities that make major modifications increasing GHG emissions by more than 75,000 tons per year. Our debottlenecking project will require us to install additional BACT. We have filed for a PSD permit and amendment of our NSR permit for our greenhouse gas emissions at our facility. Several of the EPA’s GHG rules are being challenged in pending court proceedings and, depending on the outcome of such proceedings, such rules may be modified or rescinded or the EPA could develop new rules.

On May 21, 2013, the Texas Legislature passed H.B. 788 which is intended to streamline GHG permitting in Texas by directing TCEQ to promulgate rules to be approved by EPA that would replace EPA permitting of GHGs in Texas with TCEQ permitting. The bill was signed by the Governor on June 14, 2013 and is effective. Depending on how and when TCEQ implements this legislation, TCEQ could impose additional requirements on our operations that could increase our operating costs.

The implementation of additional EPA regulations and/or the passage of federal or state climate change legislation will likely result in increased costs to (i) operate and maintain our facilities, (ii) install new emission controls on our facilities and (iii) administer and manage any GHG emissions program. Increased costs associated with compliance with any future legislation or regulation of GHG emissions, if it occurs, may have a material adverse effect on our results of operations, financial condition and ability to make cash distributions. In addition, climate change legislation and regulations may result in increased costs not only for our business but also for agricultural producers that utilize our fertilizer products, thereby potentially decreasing demand for our nitrogen fertilizer products. Decreased demand for our fertilizer products may have a material adverse effect on our results of operations, financial condition and ability to make cash distributions.

Environmental Remediation . Under CERCLA and related state laws, certain persons may be liable for the release or threatened release of hazardous substances. These persons can include the current owner or operator of property where a release or threatened release occurred, any persons who owned or operated the property when the

 

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release occurred, and any persons who disposed of, or arranged for the transportation or disposal of, hazardous substances at a contaminated property. Liability under CERCLA is strict, retroactive and, under certain circumstances, joint and several, so that any responsible party may be held liable for the entire cost of investigating and remediating the release of hazardous substances. As is the case with all companies engaged in similar industries, depending on the underlying facts and circumstances we face potential exposure from future claims and lawsuits involving environmental matters, including soil and water contamination, personal injury or property damage allegedly caused by hazardous substances that we manufactured, handled, used, stored, transported, spilled, disposed of or released. We cannot assure you that we will not become involved in future proceedings related to our release of hazardous or extremely hazardous substances or that, if we were held responsible for damages in any existing or future proceedings, such costs would be covered by insurance or would not be material.

Chemical Derivatives of Methanol . Some of our customers use methanol that we supply to manufacture formaldehyde, among other chemicals. In 2012, methanol demand for the production of formaldehyde represented approximately 29.9% of global demand. Formaldehyde, a component of resins used as wood adhesives and as a raw material for engineering plastics and a variety of other products, including elastomers, paints, building products, foams, polyurethane and automotive products, has been classified by the EPA as a likely carcinogen. Changes in environmental, health and safety laws, regulations or requirements relating to formaldehyde could impact methanol demand, which could indirectly have a material adverse effect on our business.

Because of certain government public health agencies’ concerns regarding the potential for adverse human health effects, formaldehyde is a regulated chemical and public health agencies continue to evaluate its safety. In 2004, a division of the World Health Organization, the International Agency for Research on Cancer (“IARC”), reclassified formaldehyde as “carcinogenic to humans,” a higher classification than set forth in previous IARC evaluations. In 2009, the IARC determined that there is sufficient evidence in human beings of a causal association between formaldehyde exposure and leukemia. In 2011, the National Toxicology Program within the U.S. Department of Health and Human Services (“NTP”) issued its 12th Report on Carcinogens, or RoC, which lists formaldehyde as “known to be a human carcinogen.” This NTP listing was based, in part, upon certain studies reporting an increased risk of certain types of cancers, including myeloid leukemia, in individuals with higher measures of formaldehyde exposure (exposure level or duration).

The EPA, under its Integrated Risk Information System (“IRIS”), has also released a draft of its toxicological review of formaldehyde. This draft review states that formaldehyde meets the criteria to be described as “carcinogenic to humans” by the inhalation route of exposure based upon evidence of causal links to certain cancers, including leukemia. The National Academy of Sciences (“NAS”) was requested by the EPA to serve as the external peer review body for the draft review. The NAS reviewed the draft IRIS toxicological review and issued a report in April 2011 that criticized the draft IRIS toxicological review and stated that the methodologies and the underlying science used in the draft IRIS review did not clearly support a conclusion of a causal link between formaldehyde exposure and leukemia. It is possible that the EPA may revise the IRIS toxicological review to reflect the NAS findings, including the conclusions regarding a causal link between formaldehyde exposure and leukemia.

The EPA is considering regulatory options for setting limits on formaldehyde emissions from composite wood products that use formaldehyde based adhesives. In 2010, the U.S. Formaldehyde Standards for Composite Wood Products Act became effective, setting standards requiring a reduction in the emissions standards for formaldehyde used in hardwood plywood, particleboard and medium-density fiberboard sold in the United States. This Act required the EPA to promulgate regulations implementing the Act by January 1, 2013. On June 10, 2013, the EPA published a proposed rule that would implement the formaldehyde standards for composite wood and other products as required by the Formaldehyde Standards for Composite Wood Products Act. As proposed, the rule would establish a system where accredited third party certifiers review and certify that composite wood products meet the applicable standards. It is possible that, if adopted as proposed, this rule may affect demand for methanol for formaldehyde production.

 

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In December 2011, the conference report for the FY 2012 Omnibus Appropriations bill included a provision directing NTP to refer the NTP 12th Report in Carcinogens (“RoC”) file for formaldehyde to the NAS for further review. It is possible, once the NAS review of the NTP 12th RoC formaldehyde file is completed (likely in 2014), the NTP listing of formaldehyde may change. According to NTP, a listing in the RoC indicates a potential hazard and does not assess cancer risks to individuals associated with exposures in their daily lives. A 2012 Omnibus Appropriations legislation directed the Department of Health and Human Services to have the 12th RoC reviews by the NAS. However, the report, as it exists now, could have material adverse effects on our business.

In October 2011, the European Chemical Agency (“ECHA”) publicly released for comment the “Proposal for Harmonized Classification and Labelling Based on Regulation (EC) No 1272/2008 (C.I.P. Regulation), Annex VI, Part 2, Substance Name: FORMALDEHYDE Version Number 2, Date: 28 September 2011.” The French Member State Competent Authorities (“MSCA”) proposed that formaldehyde be reclassified as a Category 1A Carcinogen and Category 2 Mutagen based upon their review of the available evidence. The proposal cited a relationship to nasopharyngeal cancer (“NPC”). NPC is a rare cancer of the upper respiratory tract. Following a review of the proposal, the Risk Assessment Committee of ECHA, which is made up of representatives from all EU member states, determined that there was sufficient evidence to justify the classification of formaldehyde as a Category 2 Mutagen, but that the evidence reviewed only supported the classification of formaldehyde as a Category 1B Carcinogen (described by the applicable EU regulation as “presumed to have carcinogenic potential for humans, classification is largely based on animal evidence”) rather than as a Category 1A Carcinogen (described as “known to have carcinogenic potential for humans, classification is largely based on human evidence”) as proposed by France. ECHA will forward the recommendation to the European Commission, which could adopt the classification.

It is possible that new regulatory requirements could be promulgated to limit human exposure to formaldehyde, that we could incur substantial additional costs to meet any such regulatory requirements, and that there could be a reduction in demand for our formaldehyde-based products. These additional costs and reduced demand could have a material adverse effect on our operations and profitability.

Changes in environmental, health and safety laws, regulations or requirements could also impact methanol demand for the production of MTBE. In 2012, methanol demand for the production of MTBE, a source of octane and an oxygenate for gasoline, represented approximately 13% of global methanol demand. Several years ago, environmental concerns and legislative action related to gasoline leaking into water supplies from underground gasoline storage tanks in the United States resulted in the phase-out of MTBE as a gasoline additive in the United States. However, approximately 0.7 million metric tons of methanol was used in the United States in 2012 to produce MTBE for export markets, where demand for MTBE has continued at strong levels. While we currently expect demand for methanol for use in MTBE production in the United States to remain steady or to decline slightly in 2013, it could decline materially if export demand is impacted by governmental legislation or policy changes. The EPA is currently reviewing the human health effects of MTBE, including its potential carcinogenicity. The European Union issued a final risk assessment report on MTBE in 2002 that permitted the continued use of MTBE, although several risk reduction measures relating to the storage and handling of fuels were recommended. Governmental efforts in recent years in some countries, primarily in the European Union and Latin America, to promote biofuels and alternative fuels through legislation or tax policy are also putting competitive pressures on the use of MTBE in gasoline in these countries. Declines in demand for methanol for use in MTBE production could have an adverse impact on our results of operations, financial condition and ability to make cash distributions.

Material Estimated Capital Expenditures for Environmental Matters . We expect to incur approximately $9.7 million in capital expenditures from July 15, 2013 to December 31, 2013 relating to the installation of a selective catalytic reduction (“SCR”) unit for nitrogen oxide control; the installation of a saturator column system to improve plant efficiency, decrease nitrogen oxide emissions and decrease wastewater treatment from distillation; and the installation of a new flare to decrease carbon monoxide emissions during start-ups and

 

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shutdowns of our facility. We expect to incur approximately $39.0 million in capital expenditures relating to the SCR, the saturator column system and an additional flare for the year ending December 31, 2014. These capital expenditures will assist us in complying with federal, state and local environmental, health and safety regulations. We do not believe that compliance with such federal, state and local environmental, health and safety regulations will have a material effect on our earnings or competitive position.

Safety, Health and Security Matters

We are subject to a number of federal and state laws and regulations related to safety, including OSHA, and comparable state statutes, the purpose of which are to protect the health and safety of workers. We also are subject to OSHA Process Safety Management regulations, which are designed to prevent or minimize the consequences of catastrophic releases of toxic, reactive, flammable or explosive chemicals. These regulations apply to any process that involves a chemical at or above the specified thresholds or any process that involves flammable liquid or gas, pressurized tanks, caverns and wells in excess of 10,000 pounds at various locations. We have an internal safety, health and security program designed to monitor and enforce compliance with worker safety requirements, and we routinely review and consider improvements in our programs. We also are subject to EPA Chemical Accident Prevention Provisions, known as the Risk Management Plan requirements, which are designed to prevent the accidental release of toxic, reactive, flammable or explosive materials, and the U.S. Coast Guard’s Maritime Security Standards for Facilities, which are designed to regulate the security of high-risk maritime facilities. We believe that we are in material compliance with all applicable laws and regulations related to worker health and safety. Notwithstanding these preventative measures, we cannot guarantee that serious accidents will not occur in the future.

Employees

We are managed and operated by the board of directors and executive officers of OCI GP LLC, our general partner. Neither we nor our subsidiaries have any employees. Our general partner has the sole responsibility for providing the employees and other personnel necessary to conduct our operations. All of the employees that conduct our business are employed by our general partner or its affiliates. Immediately after the closing of this offering, we expect that our general partner and its affiliates will have approximately 100 employees performing services for our operations. We believe that our general partner and its affiliates have a satisfactory relationship with those employees.

Properties

Our methanol and ammonia production facility is located on a 28-acre site that is part of a large chemical refining and industrial complex located six miles south of Beaumont, Texas, on the Neches River. We own the land, plant and processing equipment at our facility. We believe that the land, plant and processing equipment at our facility are adequate for our current operations.

Insurance

Our assets may experience physical damage as a result of an accident or natural disaster. These hazards can also cause personal injury and loss of life, severe damage to and destruction of property and equipment, pollution or environmental damage, and suspension of operations. We are currently insured under casualty, environmental, property and business interruption insurance policies. The following conversions from Euros to U.S. dollars with respect to our insurance policies are based on a conversion rate of €1.00 to $1.3067 as of July 12, 2013, as reported by Bloomberg. The property and business interruption insurance policies have a €400.0 million (or approximately $522.7 million) limit, with a €0.5 million (or approximately $0.7 million) deductible for physical damage (€1.0 million (or approximately $1.3 million) for property damage from a major machinery breakdown), a €2.3 million (or approximately $3.0 million) deductible for business interruption and a 30-day waiting period before losses resulting from business interruptions are recoverable. Our current property policy contains a specific sub-limit of €100.0 million (or approximately $130.7 million) for damage caused by flooding and €100 million (or approximately $130.7 million) for damage caused by named windstorm. We are

 

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fully exposed to all losses in excess of the applicable limits and sub-limits and for losses due to business interruptions caused by machinery breakdown of fewer than 30 days, and there is a limit of €4.0 million (or approximately $5.2 million) for losses due to such business interruption incurred after the expiration of the 30-day waiting period. With regard to environmental claims due to accidental pollution, we currently have a policy limit of €100.0 million (or approximately $130.7 million) under the general liability insurance policy in place, and this policy has a deductible of €125,000 (or $163,338). As we continue to grow, we will continue to evaluate our policy limits and retentions as they relate to the overall cost and scope of our insurance program.

Legal Proceedings

We are, and will continue to be, subject to litigation from time to time in the ordinary course of our business. We are not party to any pending legal proceedings that we believe will have a material adverse effect on our business, and there are no existing legal proceedings where we believe that the reasonably possible loss or range of loss is material.

 

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MANAGEMENT

Management of OCI Partners LP

We are managed by the directors and executive officers of our general partner, OCI GP LLC. OCI USA, an indirect wholly owned subsidiary of OCI, owns all of the membership interests in our general partner and has the right to appoint the entire board of directors of our general partner, including our independent directors. Our unitholders are not entitled to elect the directors of our general partner’s board of directors or to directly or indirectly participate in our management or operations. Our general partner will be liable, as general partner, for all of our debts (to the extent not paid from our assets), except for indebtedness or other obligations that are made specifically nonrecourse to it. Whenever possible, we intend to incur indebtedness that is nonrecourse to our general partner.

At the completion of this offering, we expect that our general partner will have five directors, including one prospective director who will become a member of our board of directors at the completion of this offering. OCI USA will appoint all of the members to the board of directors of our general partner. In accordance with the NYSE’s phase-in rules, we will have at least three independent directors within one year following the effective date of the registration statement of which this prospectus forms a part. We expect that our board will determine that Mr. Meyer, our prospective director who will become a member of our board of directors prior to the completion of this offering, is independent under the independence standards of the NYSE.

In evaluating director candidates, OCI USA will assess whether a candidate possesses the integrity, judgment, knowledge, experience, skill and expertise that are likely to enhance the ability of our board of directors to manage and direct our affairs and business, including, when applicable, to enhance the ability of committees of the board of directors of our general partner to fulfill their duties.

Director Independence

As a publicly traded partnership, we qualify for, and are relying on, certain exemptions from the NYSE’s corporate governance requirements, including:

 

   

the requirement that a majority of the board of directors of our general partner consist of independent directors;

 

   

the requirement that the board of directors of our general partner have a nominating/corporate governance committee that is composed entirely of independent directors; and

 

   

the requirement that the board of directors of our general partner have a compensation committee that is composed entirely of independent directors.

As a result of these exemptions, we do not expect that our general partner’s board of directors will be comprised of a majority of independent directors. Our board of directors does not currently intend to establish a nominating/corporate governance committee or a compensation committee. Accordingly, unitholders will not have the same protections afforded to equityholders of companies that are subject to all of the corporate governance requirements of the NYSE.

We are, however, required to have an audit committee of at least three members, and all of its members are required to meet the independence and experience standards established by the NYSE and the Exchange Act, subject to certain transitional relief during the one-year period following the effective date of the registration statement of which this prospectus forms a part. In accordance with the NYSE’s corporate governance standards, we must have at least one independent member on our audit committee who satisfies the independence and experience requirements by the date our common units are listed on the NYSE, at least a majority of independent members within 90 days of the effective date of the registration statement of which this prospectus forms a part and a fully independent audit committee within one year of such effective date.

 

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Committees of the Board of Directors

The board of directors of our general partner will have an audit committee and a conflicts committee, and may have such other committees as the board of directors shall determine from time to time. Each of the standing committees of the board of directors will have the composition and responsibilities described below.

Audit Committee

We are required to have an audit committee of at least three members, and all of its members are required to meet the independence and experience standards established by the NYSE and the Exchange Act, subject to certain transitional relief during the one-year period following the effective date of the registration statement of which this prospectus forms a part. The audit committee of the board of directors of our general partner will assist the board of directors in its oversight of the integrity of our financial statements and our compliance with legal and regulatory requirements and partnership policies and controls. The audit committee will have the sole authority to (1) retain and terminate our independent registered public accounting firm, (2) approve all auditing services and related fees and the terms thereof performed by our independent registered public accounting firm and (3) pre-approve any non-audit services and tax services to be rendered by our independent registered public accounting firm. The audit committee will also be responsible for confirming the independence and objectivity of our independent registered public accounting firm. Our independent registered public accounting firm will be given unrestricted access to the audit committee and our management, as necessary. We expect that Mr. Meyer will serve as the initial member of the audit committee. We expect that Mr. Meyer will satisfy the definition of audit committee financial expert for purposes of the SEC’s rules. OCI USA will appoint a second member to the audit committee within 90 days of the effective date of the registration statement of which this prospectus forms a part and appoint a third member to the audit committee within one year following such effective date.

Conflicts Committee

At least two members of the board of directors of our general partner will serve on our conflicts committee to review specific matters that may involve conflicts of interest in accordance with the terms of our partnership agreement. The board of directors of our general partner will determine whether to refer a matter to the conflicts committee on a case-by-case basis. The members of our conflicts committee may not be officers or employees of our general partner or directors, officers or employees of its affiliates (including OCI), and must meet the independence and experience standards established by the NYSE and the Exchange Act to serve on an audit committee of a board of directors. In addition, the members of our conflicts committee may not own any interest in our general partner or any interest in us or our subsidiaries other than common units or awards under our incentive compensation plan. Any matters approved by our conflicts committee in good faith will be deemed to be approved by all of our partners and not a breach by our general partner of any duties it may owe us or our unitholders.

Directors and Executive Officers of OCI GP LLC

Directors are elected by OCI USA, the sole member of our general partner, and hold office until their successors have been elected or qualified or until their earlier death, resignation, removal or disqualification. Executive officers are appointed by, and serve at the discretion of, the board of directors. The following table shows information for the directors, prospective director and executive officers of OCI GP LLC as of June 30, 2013. Our prospective director will become a member of our board of directors at the completion of this offering.

 

Name

   Age     

Position with Our General Partner

Michael L. Bennett

     60       Chairman of the Board of Directors

Frank Bakker

     48       President, Chief Executive Officer and Director

Nassef Sawiris

     52       Director

Renso Zwiers

     58       Director

Francis G. Meyer

     61       Director Nominee

Fady Kiama

     45       Vice President, Chief Financial Officer

 

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Michael L. Bennett—Chairman of the Board . Mr. Bennett was appointed chairman of the board of directors of our general partner in June 2013. Mr. Bennett has served as chairman of the board of directors of OCI since January 2013. Mr. Bennett served as chief executive officer and director of Terra Industries Inc., a publicly traded producer of nitrogen fertilizer, from 2001 until its acquisition by CF Industries Holdings, Inc. in 2010. From 2001 until 2010, Mr. Bennett served as chairman of the board and chief executive officer of Terra Nitrogen GP Inc., the general partner of Terra Nitrogen Company, L.P. (NYSE: TNH). Mr. Bennett is a past chairman of both The Fertilizer Institute and the Methanol Institute in the United States. Mr. Bennett currently serves as a director of Alliant Energy Corporation and Arclin, Inc., a privately held manufacturer of resins and surfaces, as well as chairman of the board at Morningside College in Sioux City, Iowa. We believe that Mr. Bennett should serve as chairman of the board of directors of our general partner due to his knowledge of our industry, historical understanding of our operations and the significant executive leadership experience he gained through his employment with Terra Industries Inc. and Terra Nitrogen GP Inc.

Frank Bakker—President, Chief Executive Officer and Director . Mr. Bakker was appointed President, Chief Executive Officer and director of our general partner in June 2013. Prior to his appointment, Mr. Bakker served as vice president and general manager of OCIB from September 2011 to June 2013. Prior to joining OCIB, Mr. Bakker served as site manager at DSM-Neoresins from September 2010 to September 2011 and manufacturing director at DSM Sarlink from 2007 to 2010. Mr. Bakker holds an M.B.A. from the University of Massachusetts at Amherst and a M.S. in mechanical engineering from Twente University. We believe that Mr. Bakker should serve as a member of the board of directors of our general partner because of his extensive manufacturing experience in the chemicals industry and, in particular, his leadership experience in operating our facility.

Nassef Sawiris—Director . Mr. Sawiris was appointed as a member of the board of directors of our general partner in June 2013. Mr. Sawiris has served as chief executive officer and director of OCI since January 2013. Mr. Sawiris has also served as chief executive officer and director of Orascom Construction Industries S.A.E. (“OCI SAE”), a publicly traded Egyptian company, since its incorporation in 1998. Prior to the incorporation of OCI SAE, Mr. Sawiris oversaw the construction activities of Orascom (Onsi Sawiris & Co.). Since 2008, Mr. Sawiris has served as a director of Lafarge S.A., a publicly traded French building materials company. Mr. Sawiris holds a B.A. in economics from the University of Chicago. We believe that Mr. Sawiris’ should serve as a member of the board of directors of our general partner because of his extensive experience in the fertilizer and construction industries and his position as chief executive officer and director of OCI.

Renso Zwiers—Director . Mr. Zwiers was appointed as a member of the board of directors of our general partner in June 2013. Mr. Zwiers has served as chief operating officer of OCI’s Fertilizer Group since January 2013. Mr. Zwiers has served as chief executive officer of OCI Nitrogen, a Netherlands-based fertilizer producer, since its acquisition from DSM in May 2010. Mr. Zwiers was the president of DSM Agro from April 2003 to May 2010. Mr. Zwiers holds a M.S. in Polymer Chemistry from the University of Groningen. We believe that Mr. Zwiers should serve as a member of the board of directors of our general partner because of his extensive experience in the fertilizer industry, including his position as chief operating officer of OCI’s Fertilizer Group.

Francis G. Meyer—Director Nominee . Mr. Meyer has agreed to serve as a director of our general partner and will become a member of the board of directors prior to the completion of this offering. Mr. Meyer served as executive vice president of Terra Industries Inc. from 2007 until his retirement in April 2008 and as senior vice president and chief financial officer from 1995 until 2007. Mr. Meyer served as a director of Terra Nitrogen GP Inc., which is the general partner of Terra Nitrogen Company, L.P. from 1995 until 2008. Mr. Meyer served in various management positions for Terra Industries Inc. from 1986 to 1995. Mr. Meyer has a B.B.A. in accounting from the University of Iowa. We believe that Mr. Meyer is a suitable member of the board of directors of our general partner because of his extensive industry experience and knowledge of industry accounting and financial practices he gained during his employment with Terra Industries Inc. and Terra Nitrogen GP Inc.

 

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Fady Kiama—Vice President and Chief Financial Officer . Mr. Kiama was appointed vice president and chief financial officer of our general partner in June 2013. Mr. Kiama has more than 22 years of financial management experience and has served as corporate planning director and group controller of OCI SAE from 2001 until May 2013. Mr. Kiama served as chief financial officer of Misr Gulf Oil Processing Co. in Egypt from 1999 to 2001, chief financial officer for PepsiCo Foods Saudi Arabia from 1995 to 1997 and as a financial analyst then group finance manager for Procter & Gamble Egypt from 1990 to 1995. Mr. Kiama holds a B.A. and a M. A. in economics from the American University in Cairo.

Board Leadership Structure

The board of directors of our general partner has no policy with respect to the separation of the offices of chairman of the board of directors and chief executive officer. Instead, that relationship is defined and governed by the amended and restated limited liability company agreement of our general partner, which permits the same person to hold both offices. Directors of the board of directors of our general partner are designated or elected by OCI USA. Accordingly, unlike holders of common stock in a corporation, our unitholders will have only limited voting rights on matters affecting our business or governance, subject in all cases to any specific unitholder rights contained in our partnership agreement.

Board Role in Risk Oversight

Our corporate governance guidelines will provide that the board of directors of our general partner is responsible for reviewing the process for assessing the major risks facing us and the options for their mitigation. This responsibility will be largely satisfied by our audit committee, which is responsible for reviewing and discussing with management and our independent registered public accounting firm our major risk exposures and the policies management has implemented to monitor such exposures, including our financial risk exposures and risk management policies.

Reimbursement of Expenses

Our partnership agreement requires us to reimburse our general partner for (1) direct and indirect expenses it incurs or payments it makes on our behalf (including salary, bonus, incentive compensation and other amounts paid to any person, including affiliates of our general partner, to perform services for us or our subsidiaries or for our general partner in the discharge of its duties to us and our subsidiaries), and (2) all other expenses reasonably allocable to us or our subsidiaries or otherwise incurred by our general partner in connection with operating our business (including expenses allocated to our general partner by its affiliates). Our general partner is entitled to determine the expenses that are allocable to us and our subsidiaries.

Executive Compensation

This executive compensation disclosure provides an overview of the executive compensation program for our two named executive officers (“NEOs”), who are:

 

   

Frank Bakker, our President and Chief Executive Officer; and

 

   

Fady Kiama, our Vice President and Chief Financial Officer.

The compensation-related sections of this document are intended to comply with the reduced disclosure requirements provided under the JOBS Act. In addition, Mr. Kiama was appointed as our Vice President and Chief Financial Officer in June 2013 and did not provide, or receive any compensation with respect to, services for OCIB, us or our general partner during any part of 2012. As a result, we are not presenting compensation information for historical periods for Mr. Kiama. Mr. Kiama serves as our Vice President and Chief Financial Officer and is initially expected to devote approximately 75% of his working time to our business, but also has certain responsibilities for OCI and its subsidiaries other than us.

 

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Summary Compensation Table for 2012

The following summarizes the total compensation paid to our NEOs for their services to us in 2012, which for Mr. Bakker represents compensation paid in his role as General Manager of OCIB. Mr. Bakker was appointed as our President and Chief Executive Officer in June 2013 and devotes 100% of his working time to our business. Salary, bonus and certain other benefits provided to Mr. Bakker were paid in Euros. Amounts shown below have been converted to U.S. Dollars based on the average daily exchange rate during 2012.

 

Name and Principal Position

   Salary ($)      Non-Equity
Incentive Plan
Compensation (1)

($)
     All Other
Compensation (2)

($)
     Total
($)
 

Frank Bakker

           

President and Chief Executive Officer

   $ 201,716       $ 18,154       $ 115,037       $ 334,907   

Fady Kiama

           

Vice President and Chief Financial Officer

     —           —           —           —     

 

(1) Amount shown represents the cash bonus earned by Mr. Bakker under our annual cash incentive plan for 2012.
(2) Amount shown reflects benefits provided in conjunction with Mr. Bakker’s international assignment to the United States in 2012. This includes housing assistance of $34,715, dependent tuition assistance of $12,500, an international assignment allowance of $20,172, a representation fee (incidentals) of $1,403, automobile provision of $11,766, home leave expenses of $19,843 and healthcare benefits of $14,638.

Narrative Disclosure to Summary Compensation Table

The primary elements of compensation for the NEOs are base salary and an annual cash incentive award. The NEOs also receive certain retirement, health, welfare and additional benefits as described below. In the future, as our general partner formulates and implements the compensation programs for our NEOs, our general partner may provide different and/or additional compensation components, benefits and/or perquisites to our NEOs to ensure that they are provided with a balanced, comprehensive and competitive compensation structure.

Base Salary . In connection with Mr. Bakker’s appointment as President and Chief Executive Officer in June 2013 and Mr. Kiama’s appointment as Vice President and Chief Financial Officer in June 2013 and in contemplation of this offering, base salaries will initially be set at levels deemed necessary to attract and retain individuals with superior talent and consistent with competitive pay practices. Salaries may be adjusted from time to time to reflect increases in responsibility, company performance, cost of living increases or other such other factors as our general partner may consider.

Annual Cash Incentive Awards . In 2012, Mr. Bakker was eligible for an annual cash incentive award with a target value of 20% of his base salary based on OCI’s annual bonus programs. The annual bonus program for 2012 provided Mr. Bakker with an opportunity to earn a bonus based upon certain financial performance metrics as well as individual and team based objectives, which included certain strategic imperatives, fixed out-of-pocket and capital expenditure management, output, asset utilization and safety.

Based on our and Mr. Bakker’s performance in 2012, Mr. Bakker received a bonus at approximately 45% of the target level, or $18,154. Following the completion of this offering, we do not expect that our NEOs will receive bonuses based on OCI’s bonus programs and instead will participate in bonus programs that will be established by our general partner for our NEOs and other key employees. We initially expect that decisions with respect to annual bonuses for our NEOs will be made by our general partner on a purely discretionary basis. However, our general partner may determine to implement more structured annual bonus programs in the future.

 

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Retirement, Health, Welfare and Additional Benefits . Employee benefit plans and programs are offered to our employees, subject to the terms and eligibility requirements of those plans, as in effect from time to time. The NEOs are also eligible to participate in these programs to the same extent as all employees generally. These benefits include a tax-qualified 401(k) defined contribution plan that includes a matching company contribution.

In connection with his international assignment to the United States, Mr. Bakker received certain benefits as part of OCI’s international relocation policy. This included housing assistance, dependent tuition assistance, international assignment allowance, representation fee (incidentals), automobile provision, home leave expenses and healthcare benefits. The amounts provided are included in the Summary Compensation Table under the column labeled “All Other Compensation.”

Outstanding Equity Awards at December 31, 2012

Our NEOs have not previously received any awards or grants of equity or equity-based compensation in us or in relation to their services for us or our general partner, and our NEOs do not hold any outstanding equity or equity-based awards. In addition, we do not currently have any present intention to grant any long-term equity or equity-based awards to our NEOs as part of their annual compensation. However, in connection with this offering, we are adopting a new 2013 Long-Term Incentive Plan. While we expect that equity and equity-based awards will be granted only to non-employee members of our general partner’s board of directors, we may in the future make equity or equity-based grants to employees, including our NEOs, as our compensation programs may change or evolve from time to time. For additional information, please read “—2013 Long-Term Incentive Plan” below.

Employment, Severance and Change in Control Arrangements

We do not maintain any individual employment agreements for our NEOs. NEOs are generally subject to the same employment conditions and policies as other employees of the organization. In addition, our NEOs have no agreements that provide for severance payments upon termination of employment or in connection with a change in control.

2013 Long-Term Incentive Plan

Our general partner intends to adopt the OCI Partners LP 2013 Long-Term Incentive Plan (our “LTIP”) under which our general partner may issue long-term equity based awards to directors, officers and employees of our general partner or its affiliates, or to any consultants, affiliates of our general partner or other individuals who perform services for us. These awards will be intended to compensate the recipients thereof based on the performance of our common units and their continued service during the vesting period, as well as to align their long-term interests with those of our unitholders. We will be responsible for the cost of awards granted under our LTIP and all determinations with respect to awards to be made under our LTIP will be made by the board of directors of our general partner or any committee thereof that may be established for such purpose or by any delegate of the board of directors or such committee, subject to applicable law, which we refer to as the plan administrator. We currently expect that the board of directors of our general partner or a committee thereof will be designated as the plan administrator. The following description reflects the terms that are currently expected to be included in the LTIP.

General

The LTIP will provide for the grant, from time to time at the discretion of the board of directors of our general partner or any delegate thereof, subject to applicable law, of unit awards, restricted units, phantom units, unit options, unit appreciation rights, distribution equivalent rights, profits interest units and other unit-based awards. The purpose of awards under the LTIP is to provide additional incentive compensation to individuals providing services to us, and to align the economic interests of such individuals with the interests of our unitholders. Common units subject to awards that are cancelled, forfeited, withheld to satisfy exercise prices or tax withholding obligations or otherwise terminated without delivery of the common units will be available for delivery pursuant to other awards.

 

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Restricted Units and Phantom Units

A restricted unit is a common unit that is subject to forfeiture. Upon vesting, the forfeiture restrictions lapse and the recipient holds a common unit that is not subject to forfeiture. A phantom unit is a notional unit that entitles the grantee to receive a common unit upon the vesting of the phantom unit or on a deferred basis upon specified future dates or events or, in the discretion of the plan administrator, cash equal to the fair market value of a common unit. The plan administrator of the LTIP may make grants of restricted units and phantom units under the LTIP that contain such terms, consistent with the LTIP, as the plan administrator may determine are appropriate, including the period over which restricted units or phantom units will vest. The plan administrator of the LTIP may, in its discretion, base vesting on the grantee’s completion of a period of service or upon the achievement of specified financial objectives or other criteria or upon a change of control (as defined in the LTIP) or as otherwise described in an award agreement.

Distributions made by us with respect to awards of restricted units may be subject to the same vesting requirements as the restricted units.

Distribution Equivalent Rights

The plan administrator of the LTIP, in its discretion, may also grant distribution equivalent rights, either as standalone awards or in tandem with other awards. Distribution equivalent rights are rights to receive an amount in cash, restricted units or phantom units equal to all or a portion of the cash distributions made on units during the period an award remains outstanding.

Unit Options and Unit Appreciation Rights

The LTIP may also permit the grant of options covering common units. Unit options represent the right to purchase a number of common units at a specified exercise price. Unit appreciation rights represent the right to receive the appreciation in the value of a number of common units over a specified exercise price, either in cash or in common units. Unit options and unit appreciation rights may be granted to such eligible individuals and with such terms as the plan administrator of the LTIP may determine, consistent with the LTIP; however, a unit option or unit appreciation right must have an exercise price equal to at least the fair market value of a common unit on the date of grant.

Unit Awards

Awards covering common units may be granted under the LTIP with such terms and conditions, including restrictions on transferability, as the plan administrator of the LTIP may establish.

Profits Interest Units

Awards granted to grantees who are partners, or granted to grantees in anticipation of the grantee becoming a partner or granted as otherwise determined by the plan administrator, may consist of profits interest units. The plan administrator will determine the applicable vesting dates, conditions to vesting and restrictions on transferability and any other restrictions for profits interest awards.

Other Unit-Based Awards

The LTIP may also permit the grant of “other unit-based awards,” which are awards that, in whole or in part, are valued or based on or related to the value of a common unit. The vesting of another unit-based award may be based on a participant’s continued service, the achievement of performance criteria or other measures. On vesting or on a deferred basis upon specified future dates or events, another unit-based award may be paid in cash and/or in units (including restricted units) or any combination thereof as the plan administrator of the LTIP may determine.

 

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Source of Common Units

Common units to be delivered with respect to awards may be newly-issued units, common units acquired by us or our general partner in the open market, common units already owned by our general partner or us, common units acquired by our general partner directly from us or any other person or any combination of the foregoing.

Anti-Dilution Adjustments and Change in Control

If an “equity restructuring” event occurs that could result in an additional compensation expense under applicable accounting standards if adjustments to awards under the LTIP with respect to such event were discretionary, the plan administrator of the LTIP will equitably adjust the number and type of units covered by each outstanding award and the terms and conditions of such award to equitably reflect the restructuring event, and the plan administrator will adjust the number and type of units with respect to which future awards may be granted under the LTIP. With respect to other similar events, including, for example, a combination or exchange of units, a merger or consolidation or an extraordinary distribution of our assets to unitholders, that would not result in an accounting charge if adjustment to awards were discretionary, the plan administrator of the LTIP shall have discretion to adjust awards in the manner it deems appropriate and to make equitable adjustments, if any, with respect to the number of units available under the LTIP and the kind of units or other securities available for grant under the LTIP. Furthermore, upon any such event, including a change in control of us or our general partner, or a change in any law or regulation affecting the LTIP or outstanding awards or any relevant change in accounting principles, the plan administrator of the LTIP will generally have discretion to (i) accelerate the time of exercisability or vesting or payment of an award, (ii) require awards to be surrendered in exchange for a cash payment or substitute other rights or property for the award, (iii) provide for the award to assumed by a successor or one of its affiliates, with appropriate adjustments thereto, (iv) cancel unvested awards without payment or (v) make other adjustments to awards as the plan administrator deems appropriate to reflect the applicable transaction or event.

Termination of Service

The consequences of the termination of a grantee’s membership on the board of directors of our general partner or other service arrangement will generally be determined by the plan administrator in the terms of the relevant award agreement.

Amendment or Termination of Long-Term Incentive Plan

The plan administrator of the LTIP, at its discretion, may terminate the LTIP at any time with respect to the common units for which a grant has not previously been made. The LTIP automatically terminates on the tenth anniversary of the date it was initially adopted by our general partner. The plan administrator of the LTIP also has the right to alter or amend the LTIP or any part of it from time to time or to amend any outstanding award made under the LTIP, provided that no change in any outstanding award may be made that would materially impair the vested rights of the participant without the consent of the affected participant or result in taxation to the participant under Section 409A of the Code.

Compensation of Our Directors

Our general partner did not have any, and paid no compensation to, members of its board of directors in 2012. Following the completion of this offering, the officers or employees of our general partner or of OCI or its affiliates who also serve as directors of our general partner will not receive additional compensation for their service as a director of our general partner. Directors of our general partner who are not officers or employees of our general partner or of OCI or its affiliates will receive compensation as “non-employee directors” commensurate with market practices. Further, each director will be indemnified for his or her actions associated with being a director to the fullest extent permitted under Delaware law and will be reimbursed for all expenses incurred in attending to his or her duties as a director.

 

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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

The following table presents information regarding beneficial ownership of our common units upon the completion of this offering by:

 

   

our general partner;

 

   

each of our general partner’s directors;

 

   

each of our general partner’s named executive officers;

 

   

each unitholder known by us to beneficially hold five percent or more of our outstanding common units; and

 

   

all of our general partner’s executive officers and directors as a group.

Beneficial ownership is determined under the rules of the SEC and generally includes voting or investment power with respect to securities. Unless indicated below, to our knowledge, the persons and entities named in the table have sole voting and sole investment power with respect to all common units beneficially owned by them, subject to community property laws where applicable. Except as otherwise indicated, the business address for each of our beneficial owners is c/o OCI Partners LP, 5470 N. Twin City Highway, Nederland, Texas 77627.

 

Name and Address of Beneficial Owner

   Amount of Common
Units to be
Beneficially Owned
     Percentage of Total
Common Units to be

Beneficially Owned (1)
 

OCI GP LLC (2)

     —           —     

OCI USA Inc. (3)

        %   

Michael L. Bennett

     —           —     

Frank Bakker

     —           —     

Nassef Sawiris

     —           —     

Renso Zwiers

     —           —     

Francis G. Meyer

        *   

Fady Kiama

     —           —     

All directors and executive officers of our general partner as a group (six persons)

        *   

 

* Less than 1%
(1) Based on              common units outstanding following the completion of this offering.
(2) OCI GP LLC, a wholly owned subsidiary of OCI USA, is our general partner and manages and operates our business and has a non-economic general partner interest in us.
(3) OCI USA is an indirect wholly owned subsidiary of OCI.

The following table sets forth, as of July 17, 2013, the number of ordinary shares of common stock of OCI owned by each of the named executive officers and directors of our general partner and all executive officers and directors of our general partner as a group. The percentage of total ordinary shares is based on 206,918,461 ordinary shares outstanding as of July 17, 2013.

Beneficial ownership is determined under the rules of the SEC and generally includes voting or investment power with respect to securities. Unless indicated below, to our knowledge, the persons and entities named in the table have sole voting and sole investment power with respect to all shares of common stock

 

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beneficially owned by them, subject to community property laws where applicable. Except as otherwise indicated, the business address for each of the following persons is c/o OCI USA Inc., 660 Madison Avenue, 19th Floor, New York, New York 10065.

 

Name and Address of Beneficial Owner

   Number of
Ordinary
Shares
Beneficially
Owned
     Percentage
of Total
Ordinary
Shares
 

Michael L. Bennett

     —           —     

Frank Bakker

     —           —     

Nassef Sawiris

     59,901,262         28.9

Renso Zwiers

     1,000         *   

Francis G. Meyer

     —           —     

Fady Kiama

     —           —     

All directors and executive officers of our general partner as a group (six persons)

     59,902,262         28.9

 

* Less than 1%

 

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CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS

Upon the completion of this offering, OCI USA, an indirect wholly owned subsidiary of OCI, will own (i)              common units, representing approximately             % of our outstanding common units (or approximately             % of our outstanding common units if the underwriters exercise their option to purchase additional common units in full) and (ii) all of the member interests in our general partner, which will own a non-economic general partner interest in us.

Distributions and Payments to OCI and Its Affiliates

The following table summarizes the distributions and payments made or to be made by us to OCI and its affiliates (including our general partner) in connection with the formation, ongoing operation and any liquidation of us. These distributions and payments were or will be determined by and among affiliated entities and, consequently, are not the result of arm’s-length negotiations.

 

Formation Stage

  

The consideration received by OCI and its affiliates

for our formation

  

•   a non-economic general partner interest; and

 

•   100% of our limited partner interests

  

Offering Stage

  

The consideration received by OCI and its affiliates for the contribution of OCIB to us

  

•               common units issued immediately prior to the completion of this offering; and

•   approximately $             million in cash, as repayment in full of intercompany debt owed to OCI Fertilizer.

  

Post-IPO Operational Stage

  

Distributions to OCI and its affiliates

  

•   We will generally make cash distributions to our unitholders pro rata, including to OCI USA as a holder of common units. Upon the completion of this offering, OCI USA will own             common units, representing approximately            % of our outstanding common units (or approximately             % of our outstanding common units if the underwriters exercise their option to purchase additional common units in full) and would receive a pro rata percentage of the cash available for distribution that we distribute in respect thereof.

Payments to our general partner and its affiliates

  

•   We will reimburse our general partner and its affiliates for all expenses incurred on our behalf.

Liquidation Stage

  

Liquidation

  

•   Upon our liquidation, our unitholders will be entitled to receive liquidating distributions according to their respective capital account balances.

Our Agreements with OCI

In connection with the completion of this offering, we, our general partner and OCI will enter into the following agreements that will govern the business relations among us, our general partner and OCI. These agreements were not the result of arm’s-length negotiations and the terms of these agreements are not necessarily at least as favorable to each party to these agreements as terms which could have been obtained from unaffiliated third parties.

 

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Contribution Agreement

Prior to the completion of this offering, we will enter into a contribution, conveyance and assumption agreement, which we refer to as the contribution agreement, with OCI Fertilizer, Iapetus B.V., OCI USA, our general partner and OCIB. Pursuant to the contribution agreement, the following transactions, among other things, will take place upon the completion of this offering in the order they are listed:

 

   

OCIB will transfer all of its employees to OCI GP LLC;

 

   

OCIB will distribute to OCI USA all of OCIB’s cash, restricted cash and accounts receivable;

 

   

OCI USA will contribute the member interests it owns in OCIB to OCI Partners LP in exchange for              common units;

 

   

OCI Partners LP will (i) pay offering expenses, estimated at approximately $             million, excluding the underwriting discount, (ii) pay a structuring fee of approximately $             million to Merrill Lynch, Pierce, Fenner & Smith Incorporated for the evaluation, analysis and structuring of OCI Partners LP in connection with this offering and (iii) make a capital contribution to OCIB of the remaining net proceeds from this offering, estimated to be approximately $             million (based on an assumed initial public offering price of $             per common unit, the midpoint of the price range set forth on the cover page of this prospectus);

 

   

OCIB will use the capital contribution from OCI Partners LP of the net proceeds from this offering referred to in the immediately preceding bullet as described in “Use of Proceeds;”

 

   

OCIB will enter into a new $40.0 million, seven-year intercompany revolving credit facility with OCI Fertilizer as the lender;

 

   

OCI Partners LP’s partnership agreement and the limited liability company agreement of OCI GP LLC will be amended and restated to the extent necessary to reflect the transactions in the contribution agreement; and

 

   

OCI Partners LP will redeem the limited partner interest issued to OCI USA in connection with OCI Partners LP’s formation and will retire such limited partner interest in exchange for a payment of $1,000 to OCI USA.

Omnibus Agreement

In connection with the completion of this offering, we will enter into an omnibus agreement with our general partner and OCI, which we refer to as the omnibus agreement, that will address certain aspects of our relationship with them.

Subject to the terms and conditions of the omnibus agreement, OCI will grant us and our general partner a royalty-free, worldwide, non-exclusive, non-sublicensable and non-transferable (without the prior written consent of OCI) right and license to use OCI’s corporate logo and the “OCI” name and related marks, which will terminate upon a “change of control” (as defined in the omnibus agreement) of us or our general partner. In addition, the omnibus agreement will detail the terms of certain services provided to us by OCI (or its affiliate), including:

 

   

the provision by OCI (or its affiliate) to us of certain selling, general and administrative services; and

 

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the provision by OCI (or its affiliate) to us of such employees as may be necessary to operate and manage our business, including for labor and operation of our facility.

Pursuant to the omnibus agreement, we will reimburse OCI (or its affiliate) for direct operating expenses, including labor, incurred on our behalf. In addition, we will pay a $15.0 million fixed annual fee to OCI (or its affiliate) for selling, general and administrative services provided under the omnibus agreement, which amount excludes the approximate $4.0 million for estimated incremental general and administrative expense we expect that we will incur as a publicly traded partnership. The fixed annual fee will be subject to an escalator tied to inflation. In addition, we will reimburse OCI USA for our share of state and local income or other taxes borne by OCI USA as a result of our income being included in a combined or consolidated state or local tax return filed by OCI USA with respect to taxable periods including or beginning on the closing date of this offering.

Construction Agreement with Orascom E&C USA Inc.

In June 2013, OCIB entered into a procurement and construction contract with Orascom E&C USA Inc., an indirect wholly owned subsidiary of OCI, pursuant to which Orascom E&C USA Inc. will undertake the debottlenecking of our methanol and ammonia production units, a maintenance turnaround of our facility and the implementation of certain environmental upgrades. Under the terms of the contract, Orascom E&C USA Inc. will be paid on a cost reimbursable basis, plus a fixed fee that will equal 9% of the costs of the project, excluding any discounts. The contract allocates customary responsibilities to OCIB and Orascom E&C USA Inc. The agreement does not provide for the imposition of liquidated or consequential damages.

Intercompany Revolving Credit Facility

At the closing of the offering, OCIB will enter into a new $40.0 million, seven-year intercompany revolving credit facility with OCI Fertilizer as the lender. We expect that interest on borrowings under the intercompany revolving credit facility will accrue at         %. OCIB will pay a commitment fee to OCI Fertilizer on the unused portion of the intercompany revolving credit facility of 0.5% annually. The intercompany revolving credit facility will be subordinated to indebtedness under the new Term Loan B.

Other Transactions with Related Parties

Intercompany Debt

OCIB incurred the following intercompany debt with OCI Fertilizer, an indirect wholly owned subsidiary of OCI, to fund the upgrade on our facility that was completed in July 2012, satisfy working capital requirements and for general corporate purposes. As of March 31, 2013, OCIB had the following outstanding intercompany debt payable to OCI Fertilizer:

 

     March 31, 2013  
     (In thousands)  

Facility loan I (LIBOR + 9.25%)

   $ 40,000   

Facility loan II (LIBOR + 9.25%)

     100,000   

Facility loan III (LIBOR + 9.25%)

     30,482   
  

 

 

 

Total Intercompany Debt

   $ 170,482   
  

 

 

 

As of June 30, 2013, OCIB had approximately $170.5 million intercompany debt outstanding to OCI Fertilizer (including accrued interest). The facility loan I matures on August 1, 2014, the facility loan II matures on August 1, 2014 and the facility loan III matures on December 31, 2014. As of June 30, 2013, the interest rate on each of these loans accrued at 9.45%. We intend to repay all outstanding intercompany debt owed to OCI Fertilizer with a portion of the net proceeds from this offering. Please read “Use of Proceeds.”

 

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Guarantee of Term Loan Facility

OCI USA, an indirect wholly owned subsidiary of OCI, has guaranteed OCIB’s borrowings under the Term B-1 Loan and Term B-2 Loan. We expect that OCI USA will guarantee OCIB’s borrowings under the new Term Loan B.

Management Support Fees

During the year ended December 31, 2012 and the three months ended March 31, 2013, OCIB incurred approximately $4.0 million and $2.2 million, respectively, in management support fees for OCI Fertilizer’s provision of certain services in connection with managing and operating OCIB’s business.

Indemnification Agreements

Prior to the completion of this offering, we expect to enter into indemnification agreements with each of the directors and executive officers of our general partner. We expect these indemnification agreements will provide indemnification to these directors and executive officers under certain circumstances for acts or omissions which may not be covered by directors’ and officers’ liability insurance.

Procedures for Review, Approval and Ratification of Related Person Transactions

The board of directors of our general partner will adopt a code of business conduct and ethics in connection with the completion of this offering that will provide that the independent members of the board of directors of our general partner or an authorized independent committee of the board of directors periodically will review all transactions with a related person that are required to be disclosed under SEC rules and, when appropriate, initially authorize or ratify all such transactions. In the event that the independent members of the board of directors of our general partner or the authorized independent committee considers ratification of a transaction with a related person and determines not to so ratify, the code of business conduct and ethics will provide that our management will make all reasonable efforts to cancel or annul the transaction.

The code of business conduct and ethics will provide that, in determining whether or not to recommend the initial approval or ratification of a transaction with a related person, the independent members of the board of directors of our general partner or the authorized independent committee should consider all of the relevant facts and circumstances available, including (if applicable) but not limited to: (i) whether there is an appropriate business justification for the transaction; (ii) the benefits that accrue to us as a result of the transaction; (iii) the terms available to unrelated third parties entering into similar transactions; (iv) the impact of the transaction on a director’s independence (in the event the related person is a director, an immediate family member of a director or an entity in which a director or an immediately family member of a director is a partner, shareholder, member or executive officer); (v) the availability of other sources for comparable products or services; (vi) whether it is a single transaction or a series of ongoing, related transactions; and (vii) whether entering into the transaction would be consistent with the code of business conduct and ethics.

The code of business conduct and ethics described above will be adopted in connection with the completion of this offering, and, therefore, the transactions described above were not reviewed under such policy.

 

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CONFLICTS OF INTEREST AND DUTIES

Conflicts of Interest

Conflicts of interest exist and may arise in the future as a result of the relationships between our general partner and its affiliates, including OCI, on the one hand, and us and our unaffiliated limited partners, on the other hand. The directors and executive officers of our general partner have fiduciary duties to manage our general partner in a manner that is in the best interests of its owners. At the same time, our general partner has a duty to manage us in a manner that is in the best interests of our partnership.

Whenever a conflict arises between our general partner or its affiliates, on the one hand, and us or any other partner, on the other hand, our general partner will resolve that conflict. Our general partner may seek the approval of such resolution from the conflicts committee of the board of directors of our general partner or from our unitholders, but is not required to do so. There is no requirement under our partnership agreement that our general partner seek the approval of the conflicts committee or our unitholders for the resolution of any conflict, and, under our partnership agreement, our general partner may decide to seek such approval or resolve a conflict of interest in any other way permitted by our partnership agreement, as described below, in its sole discretion. The board of directors of our general partner will decide whether to refer a matter to the conflicts committee or to our unitholders on a case-by-case basis. In determining whether to refer a matter to the conflicts committee or to our unitholders for approval, the board of directors of our general partner will consider a variety of factors, including the nature of the conflict, the size and dollar amount involved, the identity of the parties involved and any other factors the board of directors deems relevant in determining whether it will seek approval from the conflicts committee or our unitholders. Whenever the board of directors of our general partner makes a determination to refer or not to refer any potential conflict of interest to the conflicts committee for approval or to seek or not to seek unitholder approval, the general partner is acting in its individual capacity, which means that it may act free of any duty or obligation whatsoever to us or our unitholders and will not be required to act in good faith or pursuant to any other standard or duty imposed by our partnership agreement or under applicable law, other than the implied contractual covenant of good faith and fair dealing.

Our general partner will not be in breach of its obligations under our partnership agreement or its duties to us or our unitholders if the resolution of the conflict is:

 

   

approved by the conflicts committee, which our partnership agreement defines as “special approval;”

 

   

approved by the vote of a majority of the outstanding common units, excluding any common units owned by our general partner or any of its affiliates;

 

   

determined by the board of directors of our general partner to be on terms no less favorable to us than those generally being provided to or available from unrelated third parties; or

 

   

determined by the board of directors of our general partner to be fair and reasonable to us, taking into account the totality of the relationships between the parties involved, including other transactions that may be particularly favorable or advantageous to us.

If our general partner seeks approval from the conflicts committee, then it will be presumed that, in making its decision, the conflicts committee acted in good faith, and in any proceeding brought by or on behalf of any limited partner or the partnership challenging such determination, the person bringing or prosecuting such proceeding will have the burden of overcoming such presumption. If our general partner does not seek approval from the conflicts committee or our unitholders and our general partner’s board of directors determines that the resolution or course of action taken with respect to the conflict of interest satisfies either of the standards set forth in the third and fourth bullet points above, then it will be presumed that, in making its decision, the board of directors acted in good faith, and in any proceeding brought by or on behalf of any limited partner or the partnership challenging such determination, the person bringing or prosecuting such proceeding will have the

 

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burden of overcoming such presumption. Unless the resolution of a conflict is specifically provided for in our partnership agreement, our general partner or the conflicts committee of our general partner’s board of directors may consider any factors it determines in good faith to consider when resolving a conflict. When our partnership agreement requires someone to act in good faith, it requires that person to subjectively believe that he is acting in a manner that is in the best interests of the partnership or that the determination or other action meets the specified standard, for example, a transaction on terms no less favorable to us than those generally being provided to or available from unrelated third parties, or is “fair and reasonable” to us. In taking such action, such person may take into account the totality of the circumstances or the totality of the relationships between the parties involved, including other relationships or transactions that may be particularly favorable or advantageous to us. If that person has the required subjective belief, then the decision or action will be conclusively deemed to be in good faith for all purposes under our partnership agreement.

It is possible, but we believe it is unlikely, that our general partner would approve a matter that the conflicts committee has previously declined to approve or declined to recommend that the full board of directors approve. If the conflicts committee does not approve or does not recommend that the full board of directors approve a matter that has been presented to it, then, unless the board of directors of our general partner has delegated exclusive authority to the conflicts committee, the board of directors of our general partner may subsequently approve the matter. In such a case, although the matter will not have received “special approval” under our partnership agreement, the board of directors of our general partner could still determine that the resolution of the conflict of interest satisfied another standard under our partnership agreement, for example, that the resolution was on terms no less favorable to us than those generally being provided to or available from unrelated third parties or was fair and reasonable to us, taking into account the totality of the relationships between the parties involved, including other transactions that may be particularly favorable or advantageous to us. Please read “Management—Committees of the Board of Directors—Conflicts Committee” for information about the conflicts committee of our general partner’s board of directors.

Conflicts of interest could arise in the situations described below, among others.

Affiliates of our general partner, including OCI, may compete with us, and neither our general partner nor its affiliates have any obligation to present business opportunities to us.

Our partnership agreement provides that our general partner will be restricted from engaging in any business activities other than acting as our general partner (or as general partner or managing member of another entity of which we are a partner or member) or those activities incidental to its ownership of interests in us. However, affiliates of our general partner, including OCI, are not prohibited from engaging in other businesses or activities, including those that might compete with us.

Under the terms of our partnership agreement, the doctrine of corporate opportunity, or any analogous doctrine, will not apply to our general partner or any of its affiliates, including its executive officers, directors and OCI. Any such person or entity that becomes aware of a potential transaction, agreement, arrangement or other matter that may be an opportunity for us will not have any duty to communicate or offer such opportunity to us. Any such person or entity will not be liable to us or to any limited partner for breach of any fiduciary duty or other duty by reason of the fact that such person or entity pursues or acquires such opportunity for itself, directs such opportunity to another person or entity or does not communicate such opportunity or information to us. Therefore, OCI may compete with us for acquisition opportunities and may own an interest in entities that compete with us.

Our general partner is allowed to take into account the interests of parties other than us, such as OCI, in resolving conflicts of interest.

Our partnership agreement contains provisions that reduce and modify the standards to which our general partner would otherwise be held by state fiduciary duty law. For example, our partnership agreement permits our general partner to make a number of decisions in its individual capacity, as opposed to in its capacity as our general partner, free of any duty or obligation to us and our unitholders, other than the implied contractual

 

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covenant of good faith and fair dealing, which means that a court will enforce the reasonable expectations of the partners where the language in our partnership agreement does not provide for a clear course of action. This entitles our general partner to consider only the interests and factors that it desires and relieves it of any duty or obligation to give any consideration to any interest of, or factors affecting, us or any limited partner. Examples of decisions that our general partner may make in its individual capacity include the allocation of business opportunities among us and our affiliates, the exercise of its limited call right, its voting rights with respect to the units it owns and its registration rights, its determination of whether to sell or otherwise dispose of units or other partnership interests that it owns, its determination whether or not to consent to any merger, consolidation or conversion of the partnership or amendment to our partnership agreement and its determination of whether to refer or not to refer any potential conflict of interest to the conflicts committee for special approval or to seek or not to seek unitholder approval.

Our partnership agreement replaces the fiduciary duties that would otherwise be owed by our general partner with contractual standards governing its duties and limits our general partner’s liabilities and the remedies available to our unitholders for actions that, without the limitations, might constitute breaches of fiduciary duty under applicable Delaware law.

In addition to the provisions described above, our partnership agreement contains provisions that restrict the remedies available to our limited partners for actions that might constitute breaches of fiduciary duty under applicable Delaware law. For example, our partnership agreement:

 

   

permits our general partner to make a number of decisions in its individual capacity, as opposed to in its capacity as our general partner. When acting in its individual capacity, our general partner is entitled to consider only the interests and factors that it desires, and it has no duty or obligation to give any consideration to any interest of, or factors affecting, us or any limited partner. Examples of decisions that our general partner may make in its individual capacity include: (1) how to allocate business opportunities among us and its other affiliates; (2) whether to exercise its limited call right; (3) how to exercise its voting rights with respect to the units it owns; (4) whether to exercise its registration rights; (5) whether to sell or otherwise dispose of units or other partnership interests that it owns; (6) whether to consent to any merger, consolidation or conversion of the partnership or amendment to our partnership agreement; and (7) whether to refer or not to refer any potential conflict of interest to the conflicts committee for special approval or to seek or not to seek unitholder approval;

 

   

provides that the general partner will have no liability to us or our limited partners for decisions made in its capacity as a general partner so long as such decisions are made in good faith reliance on the provisions of our partnership agreement;

 

   

generally provides that in a situation involving a transaction with an affiliate or other conflict of interest, any determination by our general partner must be made in good faith. If an affiliate transaction or the resolution of another conflict of interest is not approved by our public common unitholders or the conflicts committee and the board of directors of our general partner determines that the resolution or course of action taken with respect to the affiliate transaction or conflict of interest is either on terms no less favorable to us than those generally being provided to or available from unrelated third parties or is “fair and reasonable” to us, considering the totality of the relationships between the parties involved, including other transactions that may be particularly advantageous or beneficial to us, then it will be presumed that in making its decision, the board of directors of our general partner acted in good faith, and in any proceeding brought by or on behalf of any limited partner or us challenging such decision, the person bringing or prosecuting such proceeding will have the burden of overcoming such presumption; and

 

   

provides that our general partner and its officers and directors will not be liable for monetary damages to us or our limited partners resulting from any act or omission unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that our

 

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general partner or its officers or directors, as the cases may be, acted in bad faith or engaged in intentional fraud or willful misconduct or, in the case of a criminal matter, acted with knowledge that the conduct was unlawful.

By purchasing a common unit, a common unitholder will be deemed to have agreed to become bound by the provisions in our partnership agreement, including the provisions discussed above.

Except in limited circumstances, our general partner has the power and authority to conduct our business without unitholder approval.

Under our partnership agreement, our general partner has full power and authority to do all things, other than those items that require unitholder approval, on such terms as it determines to be necessary or appropriate to conduct our business, including, but not limited to, the following:

 

   

the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible into our securities, and the incurring of any other obligations;

 

   

the purchase, sale or other acquisition or disposition of our securities, or the issuance of additional options, rights, warrants and appreciation rights relating to our securities;

 

   

the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of our assets (though subject to any prior approval required under our partnership agreement);

 

   

the negotiation, execution and performance of any contracts, conveyances or other instruments;

 

   

the distribution of our cash;

 

   

the selection and dismissal of employees (including officers) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;

 

   

the maintenance of insurance for our benefit and the benefit of our partners;

 

   

the formation of, or acquisition of an interest in, the contribution of property to, and the making of loans to, any limited or general partnership, joint venture, corporation, limited liability company or other entity;

 

   

the control of any matters affecting our rights and obligations, including the bringing and defending of actions at law or in equity, otherwise engaging in the conduct of litigation, arbitration or mediation and the incurring of legal expense, the settlement of claims and litigation;

 

   

the indemnification of any person against liabilities and contingencies to the extent permitted by law;

 

   

the making of tax, regulatory and other filings, or the rendering of periodic or other reports to governmental or other agencies having jurisdiction over our business or assets; and

 

   

the entering into of agreements with any of its affiliates to render services to us or to itself in the discharge of its duties as our general partner.

Our partnership agreement provides that our general partner must act in good faith when making decisions on our behalf in its capacity as our general partner, and our partnership agreement further provides that in order for a determination to be made in good faith, our general partner must subjectively believe that the determination is in the best interests of our partnership. In making such determination, our general partner may

 

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take into account the totality of the circumstances or the totality of the relationships between the parties involved, including other relationships or transactions that may be particularly favorable or advantageous to us. When our general partner is acting in its individual capacity, as opposed to in its capacity as our general partner, it may act free of any duty or obligation to us or our limited partners, other than the implied contractual covenant of good faith and fair dealing. Please read “The Partnership Agreement—Voting Rights” for information regarding matters that require unitholder approval.

Actions taken by our general partner may affect the amount of cash distributions to unitholders.

The amount of cash that is available for distribution to unitholders is affected by decisions of our general partner regarding matters such as:

 

   

cash expenditures;

 

   

borrowings;

 

   

the issuance of additional units;

 

   

the creation, increase or reduction in cash reserves in any quarter; and

 

   

the amount and timing of asset purchases and sales.

Our partnership agreement provides that we and our subsidiaries may borrow funds from our general partner and its affiliates. Our general partner and its affiliates may not borrow funds from us or our subsidiaries.

Our general partner and its affiliates are not required to own any of our common units. If our general partner’s affiliates were to sell all or substantially all of their common units, this would heighten the risk that our general partner would act in ways that are more beneficial to itself than our common unitholders.

Upon the completion of this offering, affiliates of our general partner will own the majority of our outstanding common units, but there is no requirement that they continue to do so. Our general partner and its affiliates are permitted to sell all of their common units. In addition, although our general partner generally may not sell its general partner interest in us to a third party without unitholder approval until            , 2023, the current owner of our general partner may sell the ownership interests in our general partner to an unrelated third party at any time without unitholder approval. If neither our general partner nor its affiliates owned any of our common units, this would heighten the risk that our general partner would act in ways that are more beneficial to itself than our common unitholders.

We will reimburse our general partner and its affiliates for expenses.

We will reimburse our general partner and its affiliates, including OCI, for costs incurred in managing and operating us. Our partnership agreement provides that our general partner will determine the expenses that are allocable to us in good faith, and it will charge on a fully allocated cost basis for services provided to us. Our omnibus agreement with OCI will also address our payment of annual amounts to, and our reimbursement of, our general partner and its affiliates for these costs and services. Please read “Certain Relationships and Related Party Transactions.”

Contracts between us, on the one hand, and our general partner and its affiliates, on the other hand, will not be the result of arm’s-length negotiations.

Our partnership agreement allows our general partner to determine, in good faith, any amounts to pay itself or its affiliates for any services rendered to us. Our general partner may also enter into additional contractual arrangements with any of its affiliates on our behalf. Our general partner will determine, in good faith, the terms of any arrangements or transactions entered into after the completion of this offering. While

 

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neither our partnership agreement nor any of the other agreements, contracts and arrangements between us and our general partner and its affiliates are or will be the result of arm’s-length negotiations, we believe the terms of all of our initial agreements with our general partner and its affiliates will be, and specifically intend the fees to be, generally no less favorable to either party than those that could have been negotiated with unaffiliated parties with respect to similar services. Similarly, agreements, contracts or arrangements between us and our general partner and its affiliates that are entered into following the completion of this offering will not be required to be negotiated on an arm’s-length basis, although, in some circumstances, our general partner may determine that the conflicts committee may make a determination on our behalf with respect to such arrangements.

Our general partner and its affiliates will have no obligation to permit us to use any facilities or assets of our general partner and its affiliates, except as may be provided in contracts entered into specifically for such use. There is no obligation of our general partner and its affiliates to enter into any contracts of this kind.

Our general partner intends to limit its liability regarding our obligations.

Our general partner intends to limit its liability under contractual arrangements so that counterparties to such agreements have recourse only against our assets and not against our general partner or its assets or any affiliate of our general partner or its assets. Our partnership agreement provides that any action taken by our general partner to limit its liability is not a breach of our general partner’s fiduciary duties, even if we could have obtained terms that are more favorable without the limitation on liability.

Common units are subject to our general partner’s limited call right.

Our general partner may exercise its right to call and purchase common units, as provided in our partnership agreement, or may assign this right to one of its affiliates or to us. Our general partner may use its own discretion, free of any duty or liability to us or our unitholders, in determining whether to exercise this right. As a result, a common unitholder may have to sell his common units at an undesirable time or at a price that is less than the market price on the date of purchase. Please read “The Partnership Agreement—Limited Call Right.”

Common unitholders will have no right to enforce obligations of our general partner and its affiliates under agreements with us.

Any agreements between us, on the one hand, and our general partner and its affiliates, on the other hand, will not grant to the unitholders, separate and apart from us, the right to enforce the obligations of our general partner and its affiliates in our favor.

Our general partner decides whether to retain separate counsel, accountants or others to perform services for us.

The attorneys, independent accountants and others who perform services for us have been retained by our general partner. Attorneys, independent accountants and others who perform services for us are selected by our general partner or our conflicts committee and may perform services for our general partner and its affiliates. We may retain separate counsel for ourselves or the holders of common units in the event of a conflict of interest between our general partner and its affiliates, on the one hand, and us or the holders of common units, on the other hand, depending on the nature of the conflict. We do not intend to do so in most cases.

Duties of the General Partner

The Delaware Act provides that a Delaware limited partnership may, in its partnership agreement, expand, restrict or eliminate, except for the implied contractual covenant of good faith and fair dealing, the fiduciary duties otherwise owed by the general partner to limited partners and the partnership.

 

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As permitted by the Delaware Act, our partnership agreement contains various provisions replacing the fiduciary duties that might otherwise be owed by our general partner with contractual standards governing the duties of our general partner and contractual methods of resolving conflicts of interest. We have adopted these provisions to allow our general partner or its affiliates to engage in transactions with us that would otherwise be prohibited by state-law fiduciary standards and to take into account the interests of other parties in addition to our interests when resolving conflicts of interest. We believe this is appropriate and necessary because the board of directors of our general partner has duties to manage our general partner in a manner that is in the best interests of its owners in addition to the best interests of our partnership. Without these provisions, our general partner’s ability to make decisions involving conflicts of interest would be restricted. These provisions enable our general partner to take into consideration the interests of all parties involved in the proposed action. These provisions also strengthen the ability of our general partner to attract and retain experienced and capable directors. These provisions disadvantage the common unitholders because they restrict the rights and remedies that would otherwise be available to such unitholders for actions that, without those limitations, might constitute breaches of fiduciary duty, as described below, and permit our general partner to take into account the interests of third parties in addition to our interests when resolving conflicts of interest. The following is a summary of the fiduciary duties imposed on general partners of a limited partnership by the Delaware Act in the absence of partnership agreement provisions to the contrary, the contractual duties of our general partner contained in our partnership agreement that replace the fiduciary duties that would otherwise be imposed by Delaware laws on our general partner and the rights and remedies of our unitholders with respect to these contractual duties:

 

State law fiduciary duty standards

Fiduciary duties are generally considered to include an obligation to act in good faith and with due care and loyalty. The duty of care, in the absence of a provision in a partnership agreement providing otherwise, would generally require a general partner to act for the partnership in the same manner as a prudent person would act on his own behalf. The duty of loyalty, in the absence of a provision in a partnership agreement providing otherwise, would generally prohibit a general partner of a Delaware limited partnership from taking any action or engaging in any transaction where a conflict of interest is present unless such transactions were entirely fair to the partnership.

 

Partnership agreement modified standards

Our partnership agreement contains provisions that waive or consent to conduct by our general partner and its affiliates that might otherwise raise issues as to compliance with fiduciary duties or applicable law. For example, our partnership agreement provides that when our general partner is acting in its capacity as our general partner, as opposed to in its individual capacity, it must act in good faith, meaning that it subjectively believed that the decision was in the best interests of our partnership, and our general partner will not be subject to any other standard under our partnership agreement or applicable law, other than the implied contractual covenant of good faith and fair dealing. If our general partner has the required subjective belief, then the decision or action will be conclusively deemed to be in good faith for all purposes under our partnership agreement. In taking such action, our general partner may take into account the totality of the circumstances or the totality of the relationships between the parties involved, including other relationships or transactions that may be particularly favorable or advantageous to us. In addition, when our general partner is acting in its individual capacity, as opposed to in its capacity as our general partner, it may act free of any duty or obligation to us or our limited

 

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partners, other than the implied contractual covenant of good faith and fair dealing. These standards reduce the obligations to which our general partner would otherwise be held. Our partnership agreement generally provides that affiliated transactions and resolutions of conflicts of interest not involving a vote of unitholders or that are not approved by our conflicts committee must be: on terms no less favorable to us than those generally being provided to or available from unrelated third parties; or “fair and reasonable” to us, taking into account the totality of the relationships between the parties involved (including other transactions that may be particularly favorable or advantageous to us). If our general partner seeks approval from the conflicts committee, then it will be presumed that, in making its decision, the conflicts committee acted in good faith, and in any proceeding brought by or on behalf of any limited partner or the partnership challenging such determination, the person bringing or prosecuting such proceeding will have the burden of overcoming such presumption. If our general partner does not seek approval from our conflicts committee and its board of directors determines that the resolution or course of action taken with respect to the conflict of interest satisfies either of the standards set forth in the bullet points above, then it will be presumed that, in making its decision, the board of directors, which may include board members affected by the conflict of interest, acted in good faith, and in any proceeding brought by or on behalf of any limited partner or us challenging such approval, the person bringing or prosecuting such proceeding will have the burden of overcoming such presumption. These standards reduce the obligations to which our general partner would otherwise be held.

 

  In addition to the other more specific provisions limiting the obligations of our general partner, our partnership agreement further provides that our general partner and its officers and directors will not be liable for monetary damages to us or our limited partners for errors of judgment or for any acts or omissions unless there has been a final and nonappealable judgment by a court of competent jurisdiction determining that our general partner or its officers and directors acted in bad faith or engaged in intentional fraud or willful misconduct or, in the case of a criminal matter, acted with knowledge that the conduct was unlawful.

 

Rights and remedies of unitholders

The Delaware Act generally provides that a limited partner may institute legal action on behalf of the partnership to recover damages from a third party where a general partner has refused to institute the action or where an effort to cause a general partner to do so is not likely to succeed. These actions include actions against a general partner for breach of its fiduciary duties, if any, or of the partnership agreement.

By purchasing our common units, each common unitholder automatically agrees to be bound by the provisions in our partnership agreement, including the provisions discussed above. This is in accordance with the policy of the Delaware Act favoring the principle of freedom of contract and the enforceability of partnership agreements. The failure of a limited partner to sign a partnership agreement does not render the partnership agreement unenforceable against that person.

 

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Under our partnership agreement, we must indemnify our general partner and its officers, directors and managers, to the fullest extent permitted by law, against liabilities, costs and expenses incurred by our general partner or these other persons. We must provide this indemnification unless there has been a final and nonappealable judgment by a court of competent jurisdiction determining that these persons acted in bad faith or engaged in intentional fraud or willful misconduct or, in the case of a criminal matter, acted with knowledge that the conduct was unlawful. We also must provide this indemnification for criminal proceedings when our general partner or these other persons acted with no knowledge that their conduct was unlawful. Thus, our general partner could be indemnified for its negligent acts if it met the requirements set forth above. To the extent that these provisions purport to include indemnification for liabilities arising under the Securities Act of 1933 (the “Securities Act”), in the opinion of the SEC, such indemnification is contrary to public policy and therefore unenforceable. Please read “The Partnership Agreement—Indemnification.”

 

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DESCRIPTION OF OUR COMMON UNITS

Our Common Units

The common units offered hereby represent limited partner interests in us. The holders of common units are entitled to participate in partnership distributions and exercise the rights and privileges provided to limited partners under our partnership agreement. For a description of the rights and privileges of holders of our common units to partnership distributions, please read “How We Make Cash Distributions” and “Our Cash Distribution Policy and Restrictions on Distributions.” For a description of the rights and privileges of limited partners under our partnership agreement, including voting rights, please read “The Partnership Agreement.”

Transfer Agent and Registrar

Duties.                      will serve as transfer agent and registrar for our common units. We will pay all fees charged by the transfer agent for transfers of common units, except the following, which must be paid by unitholders:

 

   

surety bond premiums to replace lost or stolen certificates, or to cover taxes and other governmental charges in connection therewith;

 

   

special charges for services requested by a holder of a common unit; and

 

   

other similar fees or charges.

There will be no charge to unitholders for disbursements of our cash distributions. We will indemnify the transfer agent, its agents and each of their respective stockholders, directors, officers and employees against all claims and losses that may arise out of acts performed or omitted for its activities in that capacity, except for any liability due to any gross negligence or intentional misconduct of the indemnified person or entity.

Resignation or Removal.  The transfer agent may resign, by notice to us, or be removed by us. The resignation or removal of the transfer agent will become effective upon our appointment of a successor transfer agent and registrar and its acceptance of the appointment. If a successor has not been appointed or has not accepted its appointment within 30 days after notice of the resignation or removal, our general partner may act as the transfer agent and registrar until a successor is appointed.

Transfer of Common Units

By transfer of common units in accordance with our partnership agreement, each transferee of common units shall be admitted as a limited partner with respect to the common units transferred when such transfer and admission is reflected in our books and records. Each transferee:

 

   

represents that the transferee has the capacity, power and authority to become bound by our partnership agreement;

 

   

automatically agrees to be bound by the terms and conditions of, and is deemed to have executed, our partnership agreement; and

 

   

gives the consents and approvals contained in our partnership agreement, such as the approval of all transactions and agreements entered into in connection with our formation and this offering.

A transferee will become a substituted limited partner of our partnership for the transferred common units automatically upon the recording of the transfer on our books and records. Our general partner will cause any transfers to be recorded on our books and records from time to time as necessary to accurately reflect the transfers but no less frequently that quarterly.

 

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We may, at our discretion, treat the nominee holder of a common unit as the absolute owner. In that case, the beneficial holder’s rights are limited solely to those that it has against the nominee holder as a result of any agreement between the beneficial owner and the nominee holder.

Common units are securities and are transferable according to the laws governing the transfer of securities. In addition to other rights acquired upon transfer, the transferor gives the transferee the right to become a substituted limited partner in our partnership for the transferred common units.

Until a common unit has been transferred on our books, we and the transfer agent may treat the record holder of the common unit as the absolute owner for all purposes, except as otherwise required by law or securities exchange regulations.

Listing

We intend to apply to list our common units on the NYSE under the symbol “OCIP.”

 

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THE PARTNERSHIP AGREEMENT

The following is a summary of the material provisions of our partnership agreement. The form of our partnership agreement is included in this prospectus as Appendix A. We will provide prospective investors with a copy of our partnership agreement upon request at no charge.

We summarize the following provisions of our partnership agreement elsewhere in this prospectus:

 

   

with regard to distributions of cash available for distribution, please read “How We Make Cash Distributions;”

 

   

with regard to the duties of our general partner, please read “Conflicts of Interest and Duties;”

 

   

with regard to the authority of our general partner to manage our business and activities, please read “Management—Management of OCI Partners LP;”

 

   

with regard to the transfer of common units, please read “Description of Our Common Units—Transfer of Common Units;” and

 

   

with regard to allocations of taxable income and taxable loss, please read “Material U.S. Federal Income Tax Consequences.”

Organization and Duration

We were organized on February 7, 2013 and will have a perpetual existence unless terminated pursuant to the terms of our partnership agreement.

Purpose

Under our partnership agreement, the purpose and nature of the business to be conducted by us shall be to engage directly or indirectly in any business activity that is approved by our general partner, in its sole discretion, and that lawfully may be conducted by a limited partnership organized pursuant to the Delaware Act; provided, however, that our general partner shall not cause us to engage, directly or indirectly, in any business activity that our general partner determines would be reasonably likely to cause us to be treated as an association taxable as a corporation or otherwise taxable as an entity for U.S. federal income tax purposes.

Although our general partner has the ability to cause us and our subsidiaries to engage in activities other than those related to the methanol and ammonia production business now or hereafter customarily conducted in conjunction with this business, our general partner currently has no plans to do so and may decline to do so free of any duty or obligation whatsoever to us or the limited partners, including any duty to act in the best interests of us or our limited partners, other than the implied contractual covenant of good faith and fair dealing. In general, our general partner is authorized to perform all acts it determines to be necessary or appropriate to carry out our purposes and to conduct our business.

Capital Contributions

Common unitholders are not obligated to make additional capital contributions, except as described below under “—Limited Liability.” For a discussion of our general partner’s right to contribute capital to maintain its and its affiliates’ percentage interest if we issue partnership interests, please read “—Issuance of Additional Securities.”

Voting Rights

The following is a summary of the unitholder vote required for the matters specified below. Matters requiring the approval of a “unit majority” require the approval of a majority of the outstanding common units.

 

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At the completion of this offering, OCI will have the ability to ensure passage of, as well as the ability to ensure the defeat of, any amendment that requires a unit majority by virtue of its approximate             % indirect ownership of our common units (or approximate             % indirect ownership of our common units if the underwriters exercise their option to purchase additional common units in full).

In voting their common units, our general partner and its affiliates will have no duty or obligation whatsoever to us or the limited partners, including any duty to act in the best interests of us or the limited partners, other than the implied contractual covenant of good faith and fair dealing.

 

Issuance of additional units

No approval rights.

 

Amendment of our partnership agreement

Certain amendments may be made by the general partner without the approval of the unitholders. Other amendments generally require the approval of a unit majority. Please read “—Amendment of Our Partnership Agreement.”

 

Merger of our partnership or the sale of all or substantially all of our assets

Unit majority. Please read “—Merger, Consolidation, Conversion, Sale or Other Disposition of Assets.”

 

Dissolution of our partnership

Unit majority. Please read “—Termination and Dissolution.”

 

Continuation of our business upon dissolution

Unit majority. Please read “—Termination and Dissolution.”

 

Withdrawal of the general partner

Under most circumstances, the approval of unitholders holding at least a majority of the outstanding common units, excluding common units held by our general partner and its affiliates, is required for the withdrawal of the general partner prior to            , 2023, in a manner which would cause a dissolution of our partnership. Please read “—Withdrawal or Removal of Our General Partner.”

 

Removal of the general partner

Not less than 66  2 / 3 % of the outstanding units, voting as a single class, including units held by our general partner and its affiliates. Please read “—Withdrawal or Removal of Our General Partner.”

 

Transfer of the general partner interest

Our general partner may transfer all, but not less than all, of its general partner interest in us without a vote of our unitholders to an affiliate or another person in connection with its merger or consolidation with or into, or sale of all or substantially all of its assets to, such person. The approval of a majority of the outstanding common units, excluding common units held by our general partner and its affiliates, is required in other circumstances for a transfer of the general partner interest to a third party prior to            , 2023. Please read “—Transfer of General Partner Interest.”

 

Transfer of ownership interests in our general partner

No approval right. Please read “—Transfer of Ownership Interests in Our General Partner.”

 

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Limited Liability

Assuming that a limited partner does not participate in the control of our business within the meaning of the Delaware Act and that it otherwise acts in conformity with the provisions of our partnership agreement, its liability under the Delaware Act will be limited, subject to possible exceptions, to the amount of capital it is obligated to contribute to us for its common units plus its share of any undistributed profits and assets. If it were determined, however, that the right, or exercise of the right of, by the limited partners as a group to:

 

   

remove or replace our general partner;

 

   

approve some amendments to our partnership agreement; or

 

   

take other action under our partnership agreement;

constituted “participation in the control” of our business for the purposes of the Delaware Act, then the limited partners could be held personally liable for our obligations under the laws of Delaware, to the same extent as our general partner. This liability would extend to persons who transact business with us who reasonably believe that a limited partner is a general partner. Neither our partnership agreement nor the Delaware Act specifically provides for legal recourse against our general partner if a limited partner were to lose limited liability through any fault of our general partner. While this does not mean that a limited partner could not seek legal recourse, we know of no precedent for this type of a claim in Delaware case law.

Under the Delaware Act, a limited partnership may not make a distribution to a partner if, after the distribution, all liabilities of the limited partnership, other than liabilities to partners on account of their limited partner interests and liabilities for which the recourse of creditors is limited to specific property of the partnership, would exceed the fair value of the assets of the limited partnership, except that the fair value of property that is subject to a liability for which the recourse of creditors is limited is included in the assets of the limited partnership only to the extent that the fair value of that property exceeds that liability. For the purpose of determining the fair value of the assets of a limited partnership, the Delaware Act provides that the fair value of property subject to liability for which recourse of creditors is limited shall be included in the assets of the limited partnership only to the extent that the fair value of that property exceeds the nonrecourse liability. The Delaware Act provides that a limited partner who receives a distribution and knew at the time of the distribution that the distribution was in violation of the Delaware Act shall be liable to the limited partnership for the amount of the distribution for three years. Under the Delaware Act, a substituted limited partner of a limited partnership is liable for the obligations of its assignor to make contributions to the partnership, except that such person is not obligated for liabilities unknown to it at the time it became a limited partner and that could not be ascertained from the partnership agreement.

OCIB conducts business in the State of Texas. We may have subsidiaries that conduct business in other states in the future. Maintenance of our limited liability as a member of OCIB and other subsidiaries that we may own in the future may require compliance with legal requirements in the jurisdictions in which OCIB and such other subsidiaries conduct business, including qualifying such entities to do business there.

Limitations on the liability of members or limited partners for the obligations of a limited liability company or limited partnership have not been clearly established in many jurisdictions. If, by virtue of our ownership interests in our operating subsidiaries or otherwise, it were determined that we were conducting business in any state without compliance with the applicable limited partnership or limited liability company statute, or that the right or exercise of the right by the limited partners as a group to remove or replace our general partner, to approve some amendments to our partnership agreement, or to take other action under our partnership agreement constituted “participation in the control” of our business for purposes of the statutes of any relevant jurisdiction, then the limited partners could be held personally liable for our obligations under the law of that jurisdiction to the same extent as our general partner under the circumstances. We will operate in a manner that our general partner considers reasonable and necessary or appropriate to preserve the limited liability of the limited partners.

 

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Issuance of Additional Securities

Our partnership agreement authorizes us to issue an unlimited number of additional partnership interests for the consideration and on the terms and conditions determined by our general partner without the approval of the unitholders.

It is possible that we will fund acquisitions through the issuance of additional common units or other partnership interests. Holders of any additional common units we issue will be entitled to share equally with the then-existing holders of common units in our cash available for distribution. In addition, the issuance of additional common units or other partnership interests may dilute the value of the interests of the then-existing holders of common units in our net assets.

In accordance with Delaware law and the provisions of our partnership agreement, we may also issue additional partnership interests that, as determined by our general partner, may have special voting rights to which the common units are not entitled. In addition, our partnership agreement does not prohibit the issuance by our subsidiaries of equity interests, which may effectively rank senior to the common units.

Our general partner will have the right, which it may from time to time assign in whole or in part to any of its affiliates, to purchase common units or other partnership interests whenever, and on the same terms that, we issue those interests to persons other than our general partner and its affiliates, to the extent necessary to maintain the percentage interest of the general partner and its affiliates represented by common units and other partnership interests that existed immediately prior to each issuance. The other holders of common units will not have preemptive rights to acquire additional common units or other partnership interests.

Amendment of Our Partnership Agreement

General

Amendments to our partnership agreement may be proposed only by our general partner. However, our general partner will have no duty or obligation to propose any amendment and may decline to do so free of any duty or obligation whatsoever to us or our limited partners, including any duty to act in the best interests of us or the limited partners, other than the implied contractual covenant of good faith and fair dealing. In order to adopt a proposed amendment, other than the amendments discussed below, our general partner is required to seek written approval of the holders of the number of units required to approve the amendment or call a meeting of the limited partners to consider and vote upon the proposed amendment. Except as described below, an amendment must be approved by a unit majority.

Prohibited amendments

No amendment may be made that would, among other actions:

 

   

enlarge the obligations of any limited partner without its consent, unless such is deemed to have occurred as a result of an amendment approved by at least a majority of the type or class of limited partner interests so affected; or

 

   

enlarge the obligations of, restrict in any way any action by or rights of, or reduce in any way the amounts distributable, reimbursable or otherwise payable by us to our general partner or any of its affiliates without its consent, which consent may be given or withheld at its option.

The provisions of our partnership agreement preventing the amendments having the effects described in any of the clauses above can be amended upon the approval of the holders of at least 90% of the outstanding units voting together as a single class (including units owned by our general partner and its affiliates). Upon the completion of this offering, our general partner and its affiliates will own approximately            % of the outstanding common units (or approximately             % of the outstanding common units if the underwriters exercise in full their option to purchase additional common units from us).

 

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No unitholder approval

Our general partner may generally make amendments to our partnership agreement without the approval of any limited partner to reflect:

 

   

a change in our name, the location of our principal office, our registered agent or our registered office;

 

   

the admission, substitution, withdrawal or removal of partners in accordance with our partnership agreement;

 

   

a change that our general partner determines to be necessary or appropriate to qualify or continue our qualification as a limited partnership or a partnership in which the limited partners have limited liability under the laws of any state or to ensure that neither we nor any of our subsidiaries will be treated as an association taxable as a corporation or otherwise taxed as an entity for federal income tax purposes;

 

   

an amendment that is necessary, in the opinion of our counsel, to prevent us or our general partner or its directors, officers, agents or trustees, from in any manner, being subjected to the provisions of the Investment Company Act of 1940, the Investment Advisors Act of 1940, or “plan asset” regulations adopted under the Employee Retirement Income Security Act of 1974 (“ERISA”), each as amended, whether or not substantially similar to plan asset regulations currently applied or proposed by the U.S. Department of Labor;

 

   

an amendment that our general partner determines to be necessary or appropriate in connection with the authorization or issuance of additional partnership interests;

 

   

any amendment expressly permitted in our partnership agreement to be made by our general partner acting alone;

 

   

an amendment effected, necessitated or contemplated by a merger agreement or plan of conversion that has been approved under the terms of our partnership agreement;

 

   

any amendment that our general partner determines to be necessary or appropriate to reflect and account for the formation by us of, or our investment in, any corporation, partnership or other entity, in connection with our conduct of activities permitted by our partnership agreement;

 

   

a change in our fiscal year or taxable year and any other changes that our general partner determines to be necessary or appropriate as a result of such change;

 

   

mergers with, conveyances to or conversions into another limited liability entity that is newly formed and has no assets, liabilities or operations at the time of the merger, conveyance or conversion other than those it receives by way of the merger, conveyance or conversion; or

 

   

any other amendments substantially similar to any of the matters described in the clauses above.

In addition, our general partner may make amendments to our partnership agreement without the approval of any limited partner if our general partner determines that those amendments:

 

   

do not adversely affect in any material respect the limited partners considered as a whole or any particular class of partnership interests as compared to other classes of partnership interests;

 

   

are necessary or appropriate to satisfy any requirements, conditions or guidelines contained in any opinion, directive, order, ruling or regulation of any federal or state agency or judicial authority or contained in any federal or state statute;

 

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are necessary or appropriate to facilitate the trading of limited partner interests or to comply with any rule, regulation, guideline or requirement of any securities exchange on which the limited partner interests are or will be listed or admitted to trading;

 

   

are necessary or appropriate for any action taken by our general partner relating to splits or combinations of units under the provisions of our partnership agreement; or

 

   

are required to effect the intent expressed in this prospectus or the intent of the provisions of our partnership agreement or are otherwise contemplated by our partnership agreement.

Opinion of counsel and unitholder approval

For amendments of the type not requiring unitholder approval, our general partner will not be required to obtain an opinion of counsel to the effect that an amendment will not affect the limited liability of any limited partner under Delaware law. No other amendments to our partnership agreement will become effective without the approval of holders of at least 90% of the outstanding units voting as a single class unless we first obtain such an opinion of counsel.

In addition to the above restrictions, any amendment that would have a material adverse effect on the rights or preferences of any type or class of partnership interests in relation to other classes of partnership interests will require the approval of at least a majority of the type or class of partnership interests so affected. Any amendment that would reduce the percentage of units required to take any action, other than to remove our general partner or call a meeting of unitholders, must be approved by the affirmative vote of limited partners whose aggregate outstanding units constitute not less than the percentage sought to be reduced. Any amendment that would increase the percentage of units required to remove our general partner must be approved by the affirmative vote of limited partners whose aggregate outstanding units constitute not less than 90% of outstanding units. Any amendment that would increase the percentage of units required to call a meeting of unitholders must be approved by the affirmative vote of limited partners whose aggregate outstanding units constitute at least a majority of the outstanding units.

Merger, Consolidation, Conversion, Sale or Other Disposition of Assets

A merger, consolidation or conversion of our partnership requires the prior consent of our general partner. However, our general partner will have no duty or obligation to consent to any merger, consolidation or conversion and may decline to do so free of any duty or obligation whatsoever to us or the limited partners, including any duty to act in the best interest of us or the limited partners, other than the implied contractual covenant of good faith and fair dealing.

In addition, our partnership agreement generally prohibits our general partner, without the prior approval of the holders of a unit majority, from causing us to, among other things, sell, exchange or otherwise dispose of all or substantially all of our assets in a single transaction or a series of related transactions. Our general partner may, however, mortgage, pledge, hypothecate, or grant a security interest in all or substantially all of our assets without that approval. Our general partner may also sell any or all of our assets under a foreclosure or other realization upon those encumbrances without that approval. Finally, our general partner may consummate any merger with another limited liability entity without the prior approval of our unitholders if we are the surviving entity in the transaction, our general partner has received an opinion of counsel regarding limited liability and tax matters, the transaction would not result in an amendment to our partnership agreement requiring unitholder approval, each of our units will be an identical unit of our partnership following the transaction and the partnership interests to be issued by us in such merger do not exceed 20% of our outstanding partnership interests immediately prior to the transaction.

If the conditions specified in our partnership agreement are satisfied, our general partner may convert us or any of our subsidiaries into a new limited liability entity or merge us or any of our subsidiaries into, or convey

 

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all of our assets to, a newly formed entity if the sole purpose of that conversion, merger or conveyance is to effect a mere change in our legal form into another limited liability entity, our general partner has received an opinion of counsel regarding limited liability and tax matters, and our general partner determines that the governing instruments of the new entity provide the limited partners and our general partner with the same rights and obligations as contained in our partnership agreement. The unitholders are not entitled to dissenters’ rights of appraisal under our partnership agreement or applicable Delaware law in the event of a conversion, merger or consolidation, a sale of substantially all of our assets or any other similar transaction or event.

Termination and Dissolution

We will continue as a limited partnership until dissolved and terminated under our partnership agreement. We will dissolve upon:

 

   

the withdrawal or removal of our general partner or any other event that results in its ceasing to be our general partner other than by reason of a transfer of its general partner interest in accordance with our partnership agreement or withdrawal or removal followed by approval and admission of a successor;

 

   

the election of our general partner to dissolve us, if approved by the holders of units representing a unit majority;

 

   

the entry of a decree of judicial dissolution of our partnership; or

 

   

there being no limited partners, unless we are continued without dissolution in accordance with the Delaware Act.

Upon a dissolution under the first clause above, the holders of a unit majority may also elect, within specific time limitations, to continue our business on the same terms and conditions described in our partnership agreement by appointing as a successor general partner an entity approved by the holders of units representing a unit majority, subject to our receipt of an opinion of counsel to the effect that:

 

   

the action would not result in the loss of limited liability of any limited partner; and

 

   

neither our partnership nor any of our subsidiaries would be treated as an association taxable as a corporation or otherwise be taxable as an entity for federal income tax purposes upon the exercise of that right to continue (to the extent not already so treated or taxed).

Liquidation and Distribution of Proceeds

Upon our dissolution, unless we are continued as a new limited partnership, the liquidator authorized to wind up our affairs will, acting with all of the powers of our general partner that are necessary or appropriate to, liquidate our assets and apply the proceeds of the liquidation as described in our partnership agreement. The liquidator may defer liquidation or distribution of our assets for a reasonable period of time or distribute assets to partners in kind if it determines that a sale would be impractical or would cause undue loss to our partners.

Withdrawal or Removal of Our General Partner

Except as described below, our general partner has agreed not to withdraw voluntarily as our general partner prior to            , 2023, without obtaining the approval of the holders of at least a majority of the outstanding common units, excluding common units held by our general partner and its affiliates, and by giving 90 days’ written notice and furnishing an opinion of counsel regarding limited liability and tax matters. On or after            , 2023, our general partner may withdraw as general partner without first obtaining approval of any unitholder by giving 90 days’ written notice, and that withdrawal will not constitute a violation of our partnership agreement. Notwithstanding the information above, our general partner may withdraw without unitholder

 

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approval upon 90 days’ written notice to the limited partners if at least 50% of the outstanding units are held or controlled by one person and its affiliates other than our general partner and its affiliates. In addition, our partnership agreement permits our general partner in some instances to sell or otherwise transfer all of its general partner interest in us without the approval of the unitholders. Please read “—Transfer of General Partner Interest.”

Upon voluntary withdrawal of our general partner by giving notice to the other partners, the holders of a unit majority may select a successor to that withdrawing general partner. If a successor is not elected, or is elected but an opinion of counsel regarding limited liability and tax matters cannot be obtained, we will be dissolved, wound up and liquidated, unless within a specified period after that withdrawal, the holders of a unit majority agree to continue our business by appointing a successor general partner. Please read “—Termination and Dissolution.”

Our general partner may not be removed unless that removal is approved by the vote of the holders of not less than 66  2 / 3 % of our outstanding units, voting together as a single class, including units held by our general partner and its affiliates, and we receive an opinion of counsel regarding limited liability and tax matters. Any removal of our general partner is also subject to the approval of a successor general partner by the vote of the holders of a majority of the outstanding common units. The ownership of more than 33  1 / 3 % of the outstanding units by our general partner and its affiliates would give them the practical ability to prevent our general partner’s removal. At the completion of this offering, affiliates of our general partner, including OCI, will own approximately             % of the outstanding common units (or approximately             % of the outstanding common units if the underwriters exercise in full their option to purchase additional common units from us).

In the event of (a) withdrawal of our general partner or (b) removal of our general partner by the unitholders (i) if a successor general partner is elected in accordance with the terms of our partnership agreement or (ii) if the business of our partnership is continued pursuant to our partnership agreement and the successor general partner is not the former general partner, then the successor general partner must, prior to the effective date of the withdrawal or removal of the departing general partner, purchase the departing general partner’s general partner interest in exchange for an amount in cash equal to the fair market value of the general partner interest, such amount to be determined and payable as of the effective date of the departing general partner’s withdrawal or removal. In each case, this fair market value will be determined by agreement between the departing general partner and the successor general partner. If no agreement is reached, an independent investment banking firm or other independent expert selected by the departing general partner and the successor general partner will determine the fair market value. Or, if the departing general partner and the successor general partner cannot agree upon an expert, then an expert chosen by agreement of the experts selected by each of them will determine the fair market value.

We will be required to reimburse the departing general partner for all amounts due the departing general partner, including, without limitation, all employee-related liabilities, including severance liabilities, incurred for the termination of any employees employed by the departing general partner or its affiliates for our benefit.

Transfer of General Partner Interest

Except for transfer by our general partner of all, but not less than all, of its general partner interest to (1) an affiliate of our general partner (other than an individual), or (2) another entity as part of the merger or consolidation of our general partner with or into such entity or the transfer by our general partner of all or substantially all of its assets to such entity, our general partner may not transfer all or any part of its general partner interest to another person prior to            , 2023, without the approval of the holders of at least a majority of the outstanding common units, excluding common units held by our general partner and its affiliates. As a condition of this transfer, the transferee must assume, among other things, the rights and duties of our general partner, agree to be bound by the provisions of our partnership agreement, and furnish an opinion of counsel regarding limited liability and tax matters.

 

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Our general partner and its affiliates may at any time transfer common units or other limited partner interests that it may own to one or more persons, without unitholder approval.

Transfer of Ownership Interests in Our General Partner

At any time, OCI and its affiliates may sell or transfer all or part of their membership interest in our general partner, to an affiliate or third party without the approval of our unitholders.

Change of Management Provisions

Our partnership agreement contains specific provisions that are intended to discourage a person or group from attempting to remove OCI GP LLC as our general partner or otherwise change our management. If any person or group other than our general partner and its affiliates acquires beneficial ownership of 20% or more of any class of units, that person or group loses voting rights on all of its units. This loss of voting rights does not apply to any person or group that acquires the units from our general partner or its affiliates and any transferees of that person or group who are notified by our general partner that they will not lose their voting rights or to any person or group who acquires the units with the prior approval of the board of directors of our general partner. Please read “—Withdrawal or Removal of Our General Partner.”

Limited Call Right

If at any time our general partner and its affiliates own more than 90% of the common units, our general partner will have the right, which it may assign to any of its affiliates or to us, but not the obligation, to acquire all, but not less than all, of the common units held by public unitholders as of a record date to be selected by our general partner, on at least 10, but not more than 60, days’ written notice. If our general partner and its affiliates reduce their ownership percentage to below 70% of the outstanding units, then concurrently with such reduction, the ownership threshold to exercise the limited call right will be permanently reduced to 80%.

The purchase price in the event of this purchase is the greater of:

 

   

the highest cash price paid by either our general partner or any of its affiliates for any limited partner interests of the class purchased within the 90 days preceding the date on which our general partner first mails notice of its election to purchase those limited partner interests; and

 

   

the current market price calculated in accordance with our partnership agreement as of the date three business days before the date the notice is mailed.

As a result of our general partner’s right to purchase outstanding limited partner interests, a holder of limited partner interests may have his limited partner interests purchased at a price that may be lower than market prices at various times prior to such purchase or lower than a unitholder may anticipate the market price to be in the future. The tax consequences to a unitholder of the exercise of this limited call right are the same as a sale by that unitholder of his common units in the market. Please read “Material U.S. Federal Income Tax Consequences—Disposition of Common Units.”

 

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Non-Citizen Assignees; Redemption

If our general partner, with the advice of counsel, determines we are subject to U.S. federal, state or local laws or regulations that create a substantial risk of cancellation or forfeiture of any property that we have an interest in because of the nationality, citizenship or other related status of any limited partner, then our general partner may adopt such amendments to our partnership agreement as it determines necessary or advisable to:

 

   

obtain proof of the nationality, citizenship or other related status of our limited partners (and their owners, to the extent relevant); and

 

   

permit us to redeem the common units held by any person whose nationality, citizenship or other related status creates substantial risk of cancellation or forfeiture of any property or who fails to comply with the procedures instituted by our general partner to obtain proof of the nationality, citizenship or other related status. The redemption price in the case of such redemption will be the average of the daily closing prices per unit for the 20 consecutive trading days immediately prior to the date set for redemption. The redemption price will be paid in cash or by delivery of a promissory note, as determined by our general partner.

Non-Taxpaying Assignees; Redemption

To avoid any adverse effect on the maximum applicable rates chargeable to customers by us or any of our subsidiaries under certain laws or regulations that may be applicable to our future businesses or operations, or in order to reverse an adverse determination that has occurred regarding such maximum rate, our partnership agreement provides our general partner with the power to amend our partnership agreement. If our general partner, with the advice of counsel, determines that our not being treated as an association taxable as a corporation or otherwise taxable as an entity for U.S. federal income tax purposes, coupled with the tax status (or lack of proof thereof) of one or more of our partners, has, or is reasonably likely to have, a material adverse effect on the maximum applicable rates chargeable to customers by our current or future subsidiaries, then our general partner may adopt such amendments to our partnership agreement as it determines necessary or advisable to:

 

   

obtain proof of the U.S. federal income tax status of our limited partners (and their owners, to the extent relevant); and

 

   

permit us to redeem the common units held by any person whose tax status has or is reasonably likely to have a material adverse effect on the maximum applicable rates or who fails to comply with the procedures instituted by our general partner to obtain proof of the U.S. federal income tax status. The redemption price in the case of such redemption will be the average of the daily closing prices per unit for the 20 consecutive trading days immediately prior to the date set for redemption. The redemption price will be paid in cash or by delivery of a promissory note, as determined by our general partner.

Meetings; Voting

Except as described below regarding a person or group owning 20% or more of any class of units then outstanding, record holders of units on the record date will be entitled to notice of, and to vote at, meetings of our limited partners and to act upon matters for which approvals may be solicited.

Our general partner does not anticipate that any meeting of unitholders will be called in the foreseeable future. Any action that is required or permitted to be taken by the unitholders may be taken either at a meeting of the unitholders or, if authorized by our general partner, without a meeting if consents in writing describing the action so taken are signed by holders of the number of units that would be necessary to authorize or take that action at a meeting where all limited partners were present and voted. Meetings of the unitholders may be called by our general partner or by unitholders owning at least 20% of the outstanding units of the class for which a

 

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meeting is proposed. Unitholders may vote either in person or by proxy at meetings. The holders of a majority of the outstanding units of the class or classes for which a meeting has been called, represented in person or by proxy, will constitute a quorum unless any action by the unitholders requires approval by holders of a greater percentage of the units, in which case the quorum will be the greater percentage. The units representing the general partner interest are units for distribution and allocation purposes, but do not entitle our general partner to any vote other than its rights as general partner under our partnership agreement, will not be entitled to vote on any action required or permitted to be taken by the unitholders and will not count toward or be considered outstanding when calculating required votes, determining the presence of a quorum, or for similar purposes.

Each record holder of a unit has a vote according to its percentage interest in us, although additional limited partner interests having special voting rights could be issued. Please read “—Issuance of Additional Securities.” However, if at any time any person or group, other than our general partner and its affiliates, a direct transferee of our general partner and its affiliates or a transferee of such direct transferee who is notified by our general partner that it will not lose its voting rights, acquires, in the aggregate, beneficial ownership of 20% or more of any class of units then outstanding, that person or group will lose voting rights on all of its units and the units may not be voted on any matter and will not be considered to be outstanding when sending notices of a meeting of unitholders, calculating required votes, determining the presence of a quorum, or for other similar purposes. Common units held in nominee or street name account will be voted by the broker or other nominee in accordance with the instruction of the beneficial owner unless the arrangement between the beneficial owner and its nominee provides otherwise. Any notice, demand, request, report or proxy material required or permitted to be given or made to record holders of common units under our partnership agreement will be delivered to the record holder by us or by the transfer agent.

Status as Limited Partner

By transfer of common units in accordance with our partnership agreement, each transferee of common units shall be admitted as a limited partner with respect to the common units transferred when such transfer and admission is reflected in our register. Except as described under “—Limited Liability,” the common units will be fully paid, and unitholders will not be required to make additional contributions.

Indemnification

Under our partnership agreement, in most circumstances, we will indemnify the following persons, to the fullest extent permitted by law, from and against all losses, claims, damages or similar events:

 

   

our general partner;

 

   

any departing general partner;

 

   

any person who is or was an affiliate of our general partner or any departing general partner;

 

   

any person who is or was a director, officer, managing member, manager, general partner, fiduciary or trustee of us or our subsidiaries, an affiliate of us or our subsidiaries or any entity set forth in the preceding three bullet points;

 

   

any person who is or was serving as director, officer, managing member, manager, general partner, fiduciary or trustee of another person owing a fiduciary duty to us or any of our subsidiaries at the request of our general partner or any departing general partner or any of their affiliates, excluding any such person providing, on a fee-for-service basis, trustee, fiduciary of custodial services; and

 

   

any person designated by our general partner because such person’s status, service or relationship expose such person to potential claims or suits relating to our or our subsidiaries’ business and affairs.

 

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Any indemnification under these provisions will only be out of our assets. Unless it otherwise agrees, our general partner will not be personally liable for, or have any obligation to contribute or lend funds or assets to us to enable us to effectuate, indemnification. We will purchase insurance against liabilities asserted against and expenses incurred by persons for our activities, regardless of whether we would have the power to indemnify the person against such liabilities under our partnership agreement.

Reimbursement of Expenses

Our partnership agreement requires us to reimburse our general partner for all direct and indirect expenses it incurs or payments it makes on our behalf and all other expenses allocable to us or otherwise incurred by our general partner in connection with operating our business. These expenses include salary, bonus, incentive compensation and other amounts paid to persons who perform services for us or on our behalf and expenses allocated to our general partner by its affiliates. Our general partner is entitled to determine in good faith the expenses that are allocable to us. The expenses for which we are required to reimburse our general partner are not subject to any caps or other limits. Please read “Certain Relationships and Related Party Transactions—Our Agreements with OCI.”

Books and Reports

Our general partner is required to keep appropriate books of our business at our principal offices. The books will be maintained for financial reporting purposes on an accrual basis. For fiscal and tax reporting purposes, our fiscal year is the calendar year.

We will mail or make available to record holders of common units, within 105 days after the close of each fiscal year, an annual report containing audited financial statements and a report on those financial statements by our independent public accountants. Except for our fourth quarter, we will also mail or make available summary financial information within 45 days after the close of each quarter (or such shorter period as required by the SEC).

We will furnish each record holder of a unit with information reasonably required for tax reporting purposes within 90 days after the close of each calendar year. This information is expected to be furnished in summary form so that some complex calculations normally required of partners can be avoided. Our ability to furnish this summary information to unitholders will depend on the cooperation of unitholders in supplying us with specific information. Every unitholder will receive information to assist such unitholder in determining its federal and state tax liability and filing its federal and state income tax returns, regardless of whether such unitholder supplies us with information.

Right to Inspect Our Books and Records

Our partnership agreement provides that a limited partner can, for a purpose reasonably related to its interest as a limited partner, upon reasonable written demand stating the purpose of such demand and at its own expense, have furnished to such limited partner:

 

   

a current list of the name and last known address of each record holder;

 

   

copies of our partnership agreement and our certificate of limited partnership and all amendments thereto; and

 

   

certain information regarding the status of our business and financial condition.

Our general partner may, and intends to, keep confidential from the limited partners trade secrets or other information the disclosure of which our general partner determines is not in our best interests or that we are required by law or by agreements with third parties to keep confidential. Our partnership agreement limits the right to information that a limited partner would otherwise have under Delaware law.

 

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Registration Rights

Under our partnership agreement, we have agreed to register for resale under the Securities Act and applicable state securities laws any common units or other partnership interests proposed to be sold by our general partner or any of its affiliates, other than individuals, or their assignees if an exemption from the registration requirements is not otherwise available. We are obligated to pay all expenses incidental to the registration, excluding underwriting discounts and commissions. Please read “Common Units Eligible for Future Sale.”

Exclusive Forum

Our partnership agreement will provide that the Court of Chancery of the State of Delaware shall be the exclusive forum for any claims, suits, actions or proceedings (1) arising out of or relating in any way to our partnership agreement (including any claims, suits or actions to interpret, apply or enforce the provisions of our partnership agreement or the duties, obligations or liabilities among our partners, or obligations or liabilities of our partners to us, or the rights or powers of, or restrictions on, our partners or us), (2) brought in a derivative manner on our behalf, (3) asserting a claim of breach of a duty owed by any of our, or our general partner’s, directors, officers, or other employees, or owed by our general partner, to us or our partners, (4) asserting a claim against us arising pursuant to any provision of the Delaware Act or (5) asserting a claim against us governed by the internal affairs doctrine. Although we believe this provision benefits us by providing increased consistency in the application of Delaware law in the types of lawsuits to which it applies, the provision may have the effect of discouraging lawsuits against our directors and officers. The enforceability of similar choice of forum provisions in other companies’ certificates of incorporation or similar governing documents have been challenged in legal proceedings, and it is possible that, in connection with any action, a court could find the choice of forum provisions contained in our partnership agreement to be inapplicable or unenforceable in such action.

 

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COMMON UNITS ELIGIBLE FOR FUTURE SALE

After the sale of the common units offered by this prospectus and assuming that the underwriters do not exercise their option to purchase additional common units, OCI USA, an indirect wholly owned subsidiary of OCI, will hold an aggregate of              common units. The sale of these common units could have an adverse impact on the price of our common units or on any trading market that may develop.

Rule 144

The common units sold in this offering will generally be freely transferable without restriction or further registration under the Securities Act, except that any common units held by an “affiliate” of ours may not be resold publicly except in compliance with the registration requirements of the Securities Act or under an exemption from the registration requirements pursuant to Rule 144 or otherwise. Rule 144 permits securities acquired by an affiliate to be sold into the market in an amount that does not exceed, during any three-month period, the greater of:

 

   

1.0% of the total number of our common units outstanding; or

 

   

the average weekly reported trading volume of our common units for the four weeks prior to the sale.

Sales under Rule 144 are also subject to specific manner of sale provisions, holding period requirements, notice requirements and the availability of current public information about us. Once we have been a reporting company for at least 90 days, a person who is not deemed to have been an affiliate of ours at any time during the three months preceding a sale, and who has beneficially owned the common units proposed to be sold for at least six months, would be entitled to sell those common units without complying with the manner of sale, volume limitation or notice provisions of Rule 144, subject only to the current public information requirement. After beneficially owning Rule 144 restricted common units for at least one year, such person would be entitled to freely sell those common units without regard to any of the requirements of Rule 144.

Our Partnership Agreement and Registration Rights

Our partnership agreement authorizes us to issue an unlimited number of additional partnership interests and options, rights, warrants and appreciation rights relating to the partnership interests for any partnership purpose at any time and from time to time to such persons for such consideration and on such terms and conditions as our general partner shall determine in its sole discretion, all without the approval of any partners. Any issuance of additional common units or other limited partner interests would result in a corresponding decrease in the proportionate ownership interest in us represented by, and could adversely affect the cash distributions to and market price of, common units then outstanding. Please read “The Partnership Agreement—Issuance of Additional Securities.”

Under our partnership agreement, our general partner and its affiliates, other than individuals, have the right to cause us to register under the Securities Act and applicable state securities laws the offer and sale of any common units that they hold. Subject to the terms and conditions of our partnership agreement, these registration rights allow our general partner and its affiliates or their assignees holding any common units or other limited partner interests to require registration of any of these common units or other limited partner interests and to include any of these common units or other limited partner interests in a registration by us of other partnership interests, including common units offered by us or by any unitholder. Our general partner and its affiliates will continue to have these registration rights for two years after OCI GP LLC ceases to be our general partner. In connection with any registration of this kind, we will indemnify each unitholder participating in the registration and its officers, directors and controlling persons from and against any liabilities under the Securities Act or any

 

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applicable state securities laws arising from the registration statement or prospectus. We will bear all costs and expenses incidental to any registration, excluding any underwriting discounts and commissions. Except as described below, our general partner and its affiliates may sell their common units or other limited partner interests in private transactions at any time, subject to compliance with applicable laws.

Lock-Up Agreements

We, our general partner, and certain of our general partner’s directors and executive officers and certain of our affiliates have agreed that for a period of 180 days from the date of this prospectus they will not, without the prior written consent of the representatives of the underwriters, dispose of or hedge any common units or any securities convertible into or exchangeable for our common units. Please read “Underwriting” for a description of these lock-up provisions.

 

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MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES

This section is a summary of the material tax considerations that may be relevant to prospective unitholders who are individual citizens or residents of the U.S. and, unless otherwise noted in the following discussion, is the opinion of Latham & Watkins LLP, counsel to our general partner and us, insofar as it relates to legal conclusions with respect to matters of U.S. federal income tax law. This section is based upon current provisions of the Code, existing and proposed Treasury Regulations and current administrative rulings and court decisions, all of which are subject to change. Later changes in these authorities may cause the tax consequences to vary substantially from the consequences described below. Unless the context otherwise requires, references in this section to “us” or “we” are references to OCI Partners LP and our operating subsidiaries.

The following discussion does not comment on all federal income tax matters affecting us or our unitholders. Moreover, the discussion focuses on unitholders who are individual citizens or residents of the U.S. and has only limited application to corporations, estates, entities treated as partnerships for U.S. federal income tax purposes, trusts, nonresident aliens, U.S. expatriates and former citizens or long-term residents of the U.S. or other unitholders subject to specialized tax treatment, such as banks, insurance companies and other financial institutions, tax-exempt institutions, foreign persons (including, without limitation, controlled foreign corporations, passive foreign investment companies and non-U.S. persons eligible for the benefits of an applicable income tax treaty with the U.S.), IRAs, real estate investment trusts (“REITs”) or mutual funds, dealers in securities or currencies, traders in securities, U.S. persons whose “functional currency” is not the U.S. dollar, persons holding their common units as part of a “straddle,” “hedge,” “conversion transaction” or other risk reduction transaction, and persons deemed to sell their common units under the constructive sale provisions of the Code. In addition, the discussion only comments to a limited extent on state, local and foreign tax consequences. Accordingly, we encourage each prospective unitholder to consult his own tax advisor in analyzing the state, local and foreign tax consequences particular to him of the ownership or disposition of common units and potential changes in applicable tax laws.

No ruling has been requested from the IRS regarding our characterization as a partnership for tax purposes. Instead, we will rely on opinions of Latham & Watkins LLP. Unlike a ruling, an opinion of counsel represents only that counsel’s best legal judgment and does not bind the IRS or the courts. Accordingly, the opinions and statements made herein may not be sustained by a court if contested by the IRS. Any contest of this sort with the IRS may materially and adversely impact the market for the common units and the prices at which common units trade. In addition, the costs of any contest with the IRS, principally legal, accounting and related fees, will result in a reduction in cash available for distribution to our unitholders and thus will be borne indirectly by our unitholders. Furthermore, the tax treatment of us, or of an investment in us, may be significantly modified by future legislative or administrative changes or court decisions. Any modifications may or may not be retroactively applied.

All statements as to matters of federal income tax law and legal conclusions with respect thereto, but not as to factual matters, contained in this section, unless otherwise noted, are the opinion of Latham & Watkins LLP and are based on the accuracy of the representations made by us.

For the reasons described below, Latham & Watkins LLP has not rendered an opinion with respect to the following specific federal income tax issues: (i) the treatment of a unitholder whose common units are loaned to a short seller to cover a short sale of common units (please read “—Tax Consequences of Common Unit Ownership—Treatment of Short Sales”); (ii) whether our monthly convention for allocating taxable income and losses is permitted by existing Treasury Regulations (please read “—Disposition of Common Units—Allocations Between Transferors and Transferees”); (iii) whether our method for taking into account Section 743 adjustments is sustainable in certain cases (please read “—Tax Consequences of Common Unit Ownership—Section 754 Election” and “—Uniformity of Common Units”); and (iv) the availability or the extent of Section 199 deduction, if any, to our unitholders (please read “—Tax Treatment of Operations—Deduction for U.S. Production Activities”).

 

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Partnership Status

A partnership is not a taxable entity and incurs no federal income tax liability. Instead, each partner of a partnership is required to take into account his share of items of income, gain, loss and deduction of the partnership in computing his federal income tax liability, regardless of whether cash distributions are made to him by the partnership. Distributions by a partnership to a partner are generally not taxable to the partnership or the partner unless the amount of cash distributed to him is in excess of the partner’s adjusted basis in his partnership interest. Section 7704 of the Code provides that publicly traded partnerships will, as a general rule, be taxed as corporations. However, an exception, referred to as the “Qualifying Income Exception,” exists with respect to publicly traded partnerships of which 90.0% or more of the gross income for every taxable year consists of “qualifying income.” Qualifying income includes income and gains derived from the production, processing and marketing of any natural resource, including methanol and ammonia. Other types of qualifying income include interest (other than from a financial business), dividends, gains from the sale of real property and gains from the sale or other disposition of capital assets held for the production of income that otherwise constitutes qualifying income. We estimate that less than             % of our current gross income is not qualifying income; however, this estimate could change from time to time. Based upon and subject to this estimate, the factual representations made by us and our general partner and a review of the applicable legal authorities, Latham & Watkins LLP is of the opinion that at least 90.0% of our current gross income constitutes qualifying income. The portion of our income that is qualifying income may change from time to time.

The IRS has made no determination as to our status or the status of our operating subsidiaries for federal income tax purposes. Instead, we will rely on the opinion of Latham & Watkins LLP on such matters. It is the opinion of Latham & Watkins LLP that, based upon the Code, its regulations, published revenue rulings and court decisions and the representations described below that:

 

   

We will be classified as a partnership for federal income tax purposes; and

 

   

Each of our operating subsidiaries will be treated as a partnership or will be disregarded as an entity separate from us for federal income tax purposes.

In rendering its opinion, Latham & Watkins LLP has relied on factual representations made by us and our general partner. The representations made by us and our general partner upon which Latham & Watkins LLP has relied include:

 

   

Neither we nor any of the operating subsidiaries has elected or will elect to be treated as a corporation; and

 

   

For each taxable year, more than 90.0% of our gross income has been and will be income of the type that Latham & Watkins LLP has opined or will opine is “qualifying income” within the meaning of Section 7704(d) of the Code.

We believe that these representations have been true in the past and expect that these representations will continue to be true in the future.

If we fail to meet the Qualifying Income Exception, other than a failure that is determined by the IRS to be inadvertent and that is cured within a reasonable time after discovery (in which case the IRS may also require us to make adjustments with respect to our unitholders or pay other amounts), we will be treated as if we had transferred all of our assets, subject to liabilities, to a newly formed corporation, on the first day of the year in which we fail to meet the Qualifying Income Exception, in return for stock in that corporation, and then distributed that stock to the unitholders in liquidation of their interests in us. This deemed contribution and liquidation should be tax-free to unitholders and us so long as we, at that time, do not have liabilities in excess of the tax basis of our assets. Thereafter, we would be treated as a corporation for federal income tax purposes.

 

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If we were treated as an association taxable as a corporation in any taxable year, either as a result of a failure to meet the Qualifying Income Exception or otherwise, our items of income, gain, loss and deduction would be reflected only on our tax return rather than being passed through to our unitholders, and our net income would be taxed to us at corporate rates. In addition, any distribution made to a unitholder would be treated as taxable dividend income, to the extent of our current and accumulated earnings and profits, or, in the absence of earnings and profits, a nontaxable return of capital, to the extent of the unitholder’s tax basis in his common units, or taxable capital gain, after the unitholder’s tax basis in his common units is reduced to zero. Accordingly, taxation as a corporation would result in a material reduction in a unitholder’s cash flow and after-tax return and thus would likely result in a substantial reduction of the value of the common units.

The discussion below is based on Latham & Watkins LLP’s opinion that we will be classified as a partnership for federal income tax purposes.

Limited Partner Status

Unitholders of OCI Partners LP will be treated as partners of OCI Partners LP for federal income tax purposes. Also, unitholders whose common units are held in street name or by a nominee and who have the right to direct the nominee in the exercise of all substantive rights attendant to the ownership of their common units will be treated as partners of OCI Partners LP for federal income tax purposes.

A beneficial owner of common units whose units have been transferred to a short seller to complete a short sale would appear to lose his status as a partner with respect to those common units for federal income tax purposes. Please read “—Tax Consequences of Common Unit Ownership—Treatment of Short Sales.”

Income, gain, loss or deduction would not appear to be reportable by a unitholder who is not a partner for federal income tax purposes, and any cash distributions received by a unitholder who is not a partner for federal income tax purposes would therefore appear to be fully taxable as ordinary income. These holders are urged to consult their tax advisors with respect to the tax consequences to them of holding common units in OCI Partners LP. The references to “unitholders” in the discussion that follows are to persons who are treated as partners in OCI Partners LP for federal income tax purposes.

Tax Consequences of Common Unit Ownership

Flow-Through of Taxable Income

Subject to the discussion below under “—Entity-Level Collections” we will not pay any federal income tax. Instead, each unitholder will be required to report on his income tax return his share of our income, gain, loss and deduction without regard to whether we make cash distributions to him. Consequently, we may allocate income to a unitholder even if he has not received a cash distribution. Each unitholder will be required to include in income his allocable share of our income, gain, loss and deduction for our taxable year ending with or within his taxable year. Our taxable year ends on December 31.

Treatment of Distributions

Distributions by us to a unitholder generally will not be taxable to the unitholder for federal income tax purposes, except to the extent the amount of any such cash distribution exceeds his tax basis in his common units immediately before the distribution. Our cash distributions in excess of a unitholder’s tax basis generally will be considered to be gain from the sale or exchange of the common units, taxable in accordance with the rules described under “—Disposition of Common Units.” Any reduction in a unitholder’s share of our liabilities for which no partner bears the economic risk of loss, known as “nonrecourse liabilities,” will be treated as a distribution by us of cash to that unitholder. To the extent our distributions cause a unitholder’s “at-risk” amount to be less than zero at the end of any taxable year, he must recapture any losses deducted in previous years. Please read “—Tax Consequences of Common Unit Ownership—Limitations on Deductibility of Losses.”

 

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A decrease in a unitholder’s percentage interest in us because of our issuance of additional common units will decrease his share of our nonrecourse liabilities, and thus will result in a corresponding deemed distribution of cash. This deemed distribution may constitute a non-pro rata distribution. A non-pro rata distribution of money or property may result in ordinary income to a unitholder, regardless of his tax basis in his common units, if the distribution reduces the unitholder’s share of our “unrealized receivables,” including depreciation recapture and/or substantially appreciated “inventory items,” each as defined in the Code, and collectively, “Section 751 Assets.” To that extent, the unitholder will be treated as having been distributed his proportionate share of the Section 751 Assets and then having exchanged those assets with us in return for the non-pro rata portion of the actual distribution made to him. This latter deemed exchange will generally result in the unitholder’s realization of ordinary income, which will equal the excess of (i) the non-pro rata portion of that distribution over (ii) the unitholder’s tax basis (often zero) for the share of Section 751 Assets deemed relinquished in the exchange.

Ratio of Taxable Income to Distributions

We estimate that a purchaser of common units in this offering who owns those common units from the date of closing of this offering through the record date for distributions for the period ending December 31, 2015, will be allocated, on a cumulative basis, an amount of federal taxable income for that period that will be             % or less of the cash distributed with respect to that period. Thereafter, we anticipate that the ratio of allocable taxable income to cash distributions to the unitholders will increase. Our estimate is based upon many assumptions regarding our business operations, including assumptions as to our revenues, capital expenditures, cash flow, net working capital and anticipated cash distributions. These estimates and assumptions are subject to, among other things, numerous business, economic, regulatory, legislative, competitive and political uncertainties beyond our control. Further, the estimates are based on current tax law and tax reporting positions that we will adopt and with which the IRS could disagree. Accordingly, we cannot assure you that these estimates will prove to be correct.

The actual percentage of distributions that will constitute taxable income could be higher or lower than expected, and any differences could be material and could materially affect the value of the common units. For example, the ratio of allocable taxable income to cash distributions to a purchaser of common units in this offering will be greater, and perhaps substantially greater, than our estimate with respect to the period described above if:

 

   

gross income from operations exceeds the amount required to make anticipated quarterly distributions on all units, yet we only distribute the anticipated quarterly distributions on all units; or

 

   

we make a future offering of common units and use the proceeds from the offering in a manner that does not produce substantial additional deductions during the period described above, such as to repay indebtedness outstanding at the time of this offering or to acquire property that is not eligible for depreciation or amortization for federal income tax purposes or that is depreciable or amortizable at a rate significantly slower than the rate applicable to our assets at the time of this offering.

Basis of Common Units

A unitholder’s initial tax basis for his common units will be the amount he paid for the common units plus his share of our nonrecourse liabilities. That basis will be increased by his share of our income and by any increases in his share of our nonrecourse liabilities. That basis will be decreased, but not below zero, by distributions from us, by the unitholder’s share of our losses, by any decreases in his share of our nonrecourse liabilities and by his share of our expenditures that are not deductible in computing taxable income and are not

 

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required to be capitalized. A unitholder will have a share, generally based on his share of profits, of our nonrecourse liabilities. Please read “—Disposition of Common Units—Recognition of Gain or Loss.”

Limitations on Deductibility of Losses

The deduction by a common unitholder of his share of our losses will be limited to the tax basis in his common units and, in the case of an individual unitholder, estate, trust, or corporate unitholder (if more than 50.0% of the value of the corporate unitholder’s stock is owned directly or indirectly by or for five or fewer individuals or some tax-exempt organizations) to the amount for which the unitholder is considered to be “at risk” with respect to our activities, if that is less than his tax basis. A common unitholder subject to these limitations must recapture losses deducted in previous years to the extent that distributions cause his at-risk amount to be less than zero at the end of any taxable year. Losses disallowed to a unitholder or recaptured as a result of these limitations will carry forward and will be allowable as a deduction to the extent that his at-risk amount is subsequently increased, provided such losses do not exceed such common unitholder’s tax basis in his common units. Upon the taxable disposition of a unit, any gain recognized by a unitholder can be offset by losses that were previously suspended by the at-risk limitation but may not be offset by losses suspended by the basis limitation. Any loss previously suspended by the at-risk limitation in excess of that gain would no longer be utilizable.

In general, a common unitholder will be at risk to the extent of the tax basis of his common units, excluding any portion of that basis attributable to his share of our nonrecourse liabilities, reduced by (i) any portion of that basis representing amounts otherwise protected against loss because of a guarantee, stop loss agreement or other similar arrangement and (ii) any amount of money he borrows to acquire or hold his units, if the lender of those borrowed funds owns an interest in us, is related to the unitholder or can look only to the common units for repayment. A unitholder’s at-risk amount will increase or decrease as the tax basis of the unitholder’s common units increases or decreases, other than tax basis increases or decreases attributable to increases or decreases in his share of our nonrecourse liabilities.

In addition to the basis and at-risk limitations on the deductibility of losses, the passive loss limitations generally provide that individuals, estates, trusts and some closely-held corporations and personal service corporations can deduct losses from passive activities, which are generally trade or business activities in which the taxpayer does not materially participate, only to the extent of the taxpayer’s income from those passive activities. The passive loss limitations are applied separately with respect to each publicly traded partnership. Consequently, any passive losses we generate will only be available to offset our passive income generated in the future and will not be available to offset income from other passive activities or investments, including our investments or a unitholder’s investments in other publicly traded partnerships, or the unitholder’s salary, active business or other income. Passive losses that are not deductible because they exceed a unitholder’s share of income we generate may be deducted in full when he disposes of his entire investment in us in a fully taxable transaction with an unrelated party. The passive loss limitations are applied after other applicable limitations on deductions, including the at-risk rules and the basis limitation.

A unitholder’s share of our net income may be offset by any of our suspended passive losses, but it may not be offset by any other current or carryover losses from other passive activities, including those attributable to other publicly traded partnerships.

Limitations on Interest Deductions

The deductibility of a non-corporate taxpayer’s “investment interest expense” is generally limited to the amount of that taxpayer’s “net investment income.” Investment interest expense includes:

 

   

interest on indebtedness properly allocable to property held for investment;

 

   

our interest expense attributed to portfolio income; and

 

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the portion of interest expense incurred to purchase or carry an interest in a passive activity to the extent attributable to portfolio income.

The computation of a unitholder’s investment interest expense will take into account interest on any margin account borrowing or other loan incurred to purchase or carry a unit. Net investment income includes gross income from property held for investment and amounts treated as portfolio income under the passive loss rules, less deductible expenses, other than interest, directly connected with the production of investment income, but generally does not include gains attributable to the disposition of property held for investment or (if applicable) qualified dividend income. The IRS has indicated that the net passive income earned by a publicly traded partnership will be treated as investment income to its unitholders. In addition, the unitholder’s share of our portfolio income will be treated as investment income.

Entity-Level Collections

If we are required or elect under applicable law to pay any federal, state, local or foreign income tax on behalf of any unitholder or any former unitholder, we are authorized to pay those taxes from our funds. That payment, if made, will be treated as a distribution of cash to the unitholder on whose behalf the payment was made. If the payment is made on behalf of a person whose identity cannot be determined, we are authorized to treat the payment as a distribution to all current unitholders. We are authorized to amend our partnership agreement in the manner necessary to maintain uniformity of intrinsic tax characteristics of units and to adjust later distributions, so that after giving effect to these distributions, the priority and characterization of distributions otherwise applicable under our partnership agreement is maintained as nearly as is practicable. Payments by us as described above could give rise to an overpayment of tax on behalf of an individual unitholder in which event the unitholder would be required to file a claim in order to obtain a credit or refund.

Allocation of Income, Gain, Loss and Deduction

In general, if we have a net profit, our items of income, gain, loss and deduction will be allocated among our unitholders in accordance with their percentage interests in us. Although we do not expect that our operations will result in the creation of negative capital accounts, if negative capital accounts nevertheless result, items of our income and gain will be allocated in an amount and manner sufficient to eliminate the negative balance as quickly as possible.

Specified items of our income, gain, loss and deduction will be allocated to account for (i) any difference between the tax basis and fair market value of our assets at the time of this offering and (ii) any difference between the tax basis and fair market value of any property contributed to us that exists at the time of such contribution, together referred to in this discussion as the “Contributed Property.” The effect of these allocations, referred to as Section 704(c) Allocations, to a unitholder purchasing common units from us in this offering will be essentially the same as if the tax bases of our assets were equal to their fair market values at the time of this offering. In the event we issue additional common units or engage in certain other transactions in the future, “reverse Section 704(c) Allocations,” similar to the Section 704(c) Allocations described above, will be made to all of our unitholders immediately prior to such issuance or other transactions to account for the difference between the “book” basis for purposes of maintaining capital accounts and the fair market value of all property held by us at the time of such issuance or future transaction. In addition, items of recapture income will be allocated to the extent possible to the unitholder who was allocated the deduction giving rise to the treatment of that gain as recapture income in order to minimize the recognition of ordinary income by some unitholders.

An allocation of items of our income, gain, loss or deduction, other than an allocation required by the Code to eliminate the difference between a partner’s “book” capital account, credited with the fair market value of Contributed Property, and “tax” capital account, credited with the tax basis of Contributed Property, referred to in this discussion as the “Book-Tax Disparity,” will generally be given effect for federal income tax purposes in determining a partner’s share of an item of income, gain, loss or deduction only if the allocation has “substantial economic effect.” In any other case, a partner’s share of an item will be determined on the basis of

 

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his interest in us, which will be determined by taking into account all the facts and circumstances, including:

 

   

his or her relative contributions to us;

 

   

the interests of all the partners in profits and losses;

 

   

the interest of all the partners in cash flow; and

 

   

the rights of all the partners to distributions of capital upon liquidation.

Latham & Watkins LLP is of the opinion that, with the exception of the issues described in “—Section 754 Election” and “—Disposition of Common Units—Allocations Between Transferors and Transferees,” allocations under our partnership agreement will be given effect for federal income tax purposes in determining a partner’s share of an item of income, gain, loss or deduction.

Treatment of Short Sales

A unitholder whose units are loaned to a “short seller” to cover a short sale of units may be considered as having disposed of those units. If so, he would no longer be treated for tax purposes as a partner with respect to those units during the period of the loan and may recognize gain or loss from the disposition. As a result, during this period:

 

   

any of our income, gain, loss or deduction with respect to those units would not be reportable by the unitholder;

 

   

any cash distributions received by the unitholder as to those units would be fully taxable; and

 

   

while not entirely free from doubt, all of these distributions would appear to be ordinary income.

Because there is no direct or indirect controlling authority on the issue relating to partnership interests, Latham & Watkins LLP has not rendered an opinion regarding the tax treatment of a unitholder whose common units are loaned to a short seller to cover a short sale of common units; therefore, unitholders desiring to assure their status as partners and avoid the risk of gain recognition from a loan to a short seller are urged to consult a tax advisor to discuss whether it is advisable to modify any applicable brokerage account agreements to prohibit their brokers from borrowing and loaning their units. The IRS has previously announced that it is studying issues relating to the tax treatment of short sales of partnership interests. Please also read “—Disposition of Common Units—Recognition of Gain or Loss.”

Alternative Minimum Tax

Each unitholder will be required to take into account his distributive share of any items of our income, gain, loss or deduction for purposes of the alternative minimum tax. The current minimum tax rate for noncorporate taxpayers is 26.0% on the first $179,500 of alternative minimum taxable income in excess of the exemption amount and 28.0% on any additional alternative minimum taxable income. Prospective unitholders are urged to consult with their tax advisors as to the impact of an investment in units on their liability for the alternative minimum tax.

Tax Rates

Under current law, the highest marginal U.S. federal income tax rate applicable to ordinary income of individuals is 39.6% and the highest marginal U.S. federal income tax rate applicable to long-term capital gains (generally, capital gains on certain assets held for more than twelve months) of individuals is 20.0%. However, such rates are subject to change by new legislation at any time.

 

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In addition, a 3.8% Medicare tax applies to certain net investment income (NIIT) earned by individuals, estates and trusts for taxable years beginning after December 31, 2012. For these purposes, net investment income generally includes a unitholder’s allocable share of our income and gain realized by a unitholder from a sale of units. In the case of an individual, the tax will be imposed on the lesser of (1) the unitholder’s net investment income and (2) the amount by which the unitholder’s modified adjusted gross income exceeds $250,000 (if the unitholder is married and filing jointly or a surviving spouse), $125,000 (if the unitholder is married and filing separately) or $200,000 (in any other case). In the case of an estate or trust, the tax will be imposed on the lesser of (1) undistributed net investment income and (2) the excess adjusted gross income over the dollar amount at which the highest income tax bracket applicable to an estate or trust begins. Recently, the U.S. Department of the Treasury and the IRS issued proposed Treasury Regulations that provide guidance regarding the NIIT. Although the proposed Treasury Regulations are effective for taxable years beginning after December 31, 2013, taxpayers may rely on the proposed Treasury Regulations for purposes of compliance until the effective date of the final regulations. Prospective unitholders are urged to consult with their tax advisors as to the impact of the NIIT on an investment in our common units.

Section 754 Election

We will make the election permitted by Section 754 of the Code. That election is irrevocable without the consent of the IRS unless there is a constructive termination of the partnership. Please read “—Disposition of Common Units—Constructive Termination.” The election will generally permit us to adjust a common unit purchaser’s tax basis in our assets (“inside basis”) under Section 743(b) of the Code to reflect his purchase price. This election does not apply with respect to a person who purchases common units directly from us. The Section 743(b) adjustment belongs to the purchaser and not to other unitholders. For purposes of this discussion, the inside basis in our assets with respect to a unitholder will be considered to have two components: (i) his share of our tax basis in our assets (“common basis”) and (ii) his Section 743(b) adjustment to that basis.

We will adopt the remedial allocation method as to all our properties. Where the remedial allocation method is adopted, the Treasury Regulations under Section 743 of the Code require a portion of the Section 743(b) adjustment that is attributable to recovery property that is subject to depreciation under Section 168 of the Code and whose book basis is in excess of its tax basis to be depreciated over the remaining cost recovery period for the property’s unamortized Book-Tax Disparity. Under Treasury Regulation Section 1.167(c)-1(a)(6), a Section 743(b) adjustment attributable to property subject to depreciation under Section 167 of the Code, rather than cost recovery deductions under Section 168, is generally required to be depreciated using either the straight-line method or the 150.0% declining balance method. Under our partnership agreement, our general partner is authorized to take a position to preserve the uniformity of common units even if that position is not consistent with these and any other Treasury Regulations. Please read “—Uniformity of Common Units.”

We intend to depreciate the portion of a Section 743(b) adjustment attributable to unrealized appreciation in the value of Contributed Property, to the extent of any unamortized Book-Tax Disparity, using a rate of depreciation or amortization derived from the depreciation or amortization method and useful life applied to the property’s unamortized Book-Tax Disparity, or treat that portion as non-amortizable to the extent attributable to property which is not amortizable. This method is consistent with the methods employed by other publicly traded partnerships but is arguably inconsistent with Treasury Regulation Section 1.167(c)-1(a)(6), which is not expected to directly apply to a material portion of our assets. To the extent this Section 743(b) adjustment is attributable to appreciation in value in excess of the unamortized Book-Tax Disparity, we will apply the rules described in the Treasury Regulations and legislative history. If we determine that this position cannot reasonably be taken, we may take a depreciation or amortization position under which all purchasers acquiring units in the same month would receive depreciation or amortization, whether attributable to common basis or a Section 743(b) adjustment, based upon the same applicable rate as if they had purchased a direct interest in our assets. This kind of aggregate approach may result in lower annual depreciation or amortization deductions than would otherwise be allowable to some unitholders. Please read “—Uniformity of Common

 

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Units.” A unitholder’s tax basis for his common units is reduced by his share of our deductions (whether or not such deductions were claimed on an individual’s income tax return) so that any position we take that understates deductions will overstate the common unitholder’s basis in his common units, which may cause the unitholder to understate gain or overstate loss on any sale of such units. Please read “—Disposition of Common Units—Recognition of Gain or Loss.” Latham & Watkins LLP is unable to opine as to whether our method for taking into account Section 743 adjustments is sustainable for property subject to depreciation under Section 167 of the Code or if we use an aggregate approach as described above, as there is no direct or indirect controlling authority addressing the validity of these positions. Moreover, the IRS may challenge our position with respect to depreciating or amortizing the Section 743(b) adjustment we take to preserve the uniformity of the common units. If such a challenge were sustained, the gain from the sale of common units might be increased without the benefit of additional deductions.

A Section 754 election is advantageous if the transferee’s tax basis in his units is higher than the units’ share of the aggregate tax basis of our assets immediately prior to the transfer. In that case, as a result of the election, the transferee would have, among other items, a greater amount of depreciation deductions and his share of any gain or loss on a sale of our assets would be less. Conversely, a Section 754 election is disadvantageous if the transferee’s tax basis in his units is lower than those units’ share of the aggregate tax basis of our assets immediately prior to the transfer. Thus, the fair market value of the units may be affected either favorably or unfavorably by the election. A basis adjustment is required regardless of whether a Section 754 election is made in the case of a transfer of an interest in us if we have a substantial built-in loss immediately after the transfer, or if we distribute property and have a substantial basis reduction. Generally, a built-in loss or a basis reduction is substantial if it exceeds $250,000.

The calculations involved in the Section 754 election are complex and will be made on the basis of assumptions as to the value of our assets and other matters. For example, the allocation of the Section 743(b) adjustment among our assets must be made in accordance with the Code. The IRS could seek to reallocate some or all of any Section 743(b) adjustment allocated by us to our tangible assets to goodwill instead. Goodwill, as an intangible asset, is generally nonamortizable or amortizable over a longer period of time or under a less accelerated method than our tangible assets. We cannot assure you that the determinations we make will not be successfully challenged by the IRS and that the deductions resulting from them will not be reduced or disallowed altogether. Should the IRS require a different basis adjustment to be made, and should, in our opinion, the expense of compliance exceed the benefit of the election, we may seek permission from the IRS to revoke our Section 754 election. If permission is granted, a subsequent purchaser of units may be allocated more income than he would have been allocated had the election not been revoked.

Tax Treatment of Operations

Accounting Method and Taxable Year

We use the year ending December 31 as our taxable year and the accrual method of accounting for federal income tax purposes. Each unitholder will be required to include in income his share of our income, gain, loss and deduction for our taxable year ending within or with his taxable year. In addition, a unitholder who has a taxable year ending on a date other than December 31 and who disposes of all of his units following the close of our taxable year but before the close of his taxable year must include his share of our income, gain, loss and deduction in income for his taxable year, with the result that he will be required to include in income for his taxable year his share of more than twelve months of our income, gain, loss and deduction. Please read “—Disposition of Common Units—Allocations Between Transferors and Transferees.”

Deduction for U.S. Production Activities

Subject to the limitations on the deductibility of losses discussed in this disclosure and the limitation discussed below, our unitholders may be entitled to a deduction, herein referred to as the Section 199 deduction,

 

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equal to a percentage of such unitholders’ qualified production activities income, but not to exceed 50% of the Form W-2 wages actually or deemed paid by the unitholder during the taxable year and allocable to domestic production gross receipts.

Qualified production activities income is generally equal to gross receipts from domestic production activities reduced by cost of goods sold allocable to those receipts, other expenses directly associated with those receipts, and a share of other deductions, expenses, and losses that are not directly allocable to those receipts or to another class of income. The products produced must be manufactured, produced, grown, or extracted in whole or in significant part by the taxpayer in the U.S.

For a partnership, the Section 199 deduction, if any, is determined at the partner level. To determine his Section 199 deduction, each unitholder will aggregate his share of the qualified production activities income allocated to him from us with the unitholder’s qualified production activities income from other sources. Each unitholder must take into account his distributive share of the expenses allocated to him from our qualified production activities regardless of whether we otherwise have taxable income. However, our expenses that otherwise would be taken into account for purposes of computing the Section 199 deduction, if any, are taken into account only if and to the extent the unitholder’s share of losses and deductions from all of our activities is not disallowed by the tax basis rules, the at-risk rules, or the passive activity loss rules. Please read “—Tax Consequences of Common Unit Ownership—Limitations on Deductibility of Losses.”

The amount of a unitholder’s Section 199 deduction for each year, if any, is limited to 50% of the IRS Form W-2 wages actually or deemed paid by the unitholder during the calendar year that are deducted in arriving at qualified production activities income. Each unitholder is treated as having been allocated IRS Form W-2 wages from us equal to the unitholder’s allocable share of our wages that are deducted in arriving at qualified production activities income for that taxable year. It is not anticipated that we or our operating subsidiaries will pay material wages that will be allocated to our unitholders, and thus a unitholder’s ability to claim the Section 199 deduction, if any, may be limited.

This discussion of the Section 199 deduction does not purport to be a complete analysis of the complex legislation and Treasury authority relating to the calculation of domestic production gross receipts, qualified production activities income, or IRS Form W-2 wages, or how such items are allocated by us to unitholders. Further, because the Section 199 deduction is required to be computed separately by each unitholder, no assurance can be given, and Latham and Watkins is unable to express any opinion, as to the availability or extent of the Section 199 deduction, if any, to our unitholders. Each prospective unitholder is encouraged to consult his tax advisor to determine whether any Section 199 deduction would be available to him.

Initial Tax Basis, Depreciation and Amortization

The tax basis of our assets will be used for purposes of computing depreciation and cost recovery deductions and, ultimately, gain or loss on the disposition of these assets. The federal income tax burden associated with the difference between the fair market value of our assets and their tax basis immediately prior to (i) this offering will be borne by the affiliates of our general partner, and (ii) any other offering will be borne by our unitholders as of that time. Please read “—Tax Consequences of Common Unit Ownership—Allocation of Income, Gain, Loss and Deduction.”

To the extent allowable, we may elect to use the depreciation and cost recovery methods, including bonus depreciation to the extent available, that will result in the largest deductions being taken in the early years after assets subject to these allowances are placed in service. Please read “—Uniformity of Common Units.” Property we subsequently acquire or construct may be depreciated using accelerated methods permitted by the Code.

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be subject to the recapture rules and taxed as ordinary income rather than capital gain. Similarly, a unitholder who has taken cost recovery or depreciation deductions with respect to property we own will likely be required to recapture some or all of those deductions as ordinary income upon a sale of his interest in us. Please read “—Tax Consequences of Common Unit Ownership—Allocation of Income, Gain, Loss and Deduction” and “—Disposition of Common Units—Recognition of Gain or Loss.”

The costs we incur in selling our units (called “syndication expenses”) must be capitalized and cannot be deducted currently, ratably or upon our termination. There are uncertainties regarding the classification of costs as organization expenses, which may be amortized by us, and as syndication expenses, which may not be amortized by us. The underwriting discount we incur will be treated as syndication expenses.

Valuation and Tax Basis of Our Properties

The federal income tax consequences of the ownership and disposition of units will depend in part on our estimates of the relative fair market values, and the initial tax bases, of our assets. Although we may from time to time consult with professional appraisers regarding valuation matters, we will make many of the relative fair market value estimates ourselves. These estimates and determinations of basis are subject to challenge and will not be binding on the IRS or the courts. If the estimates of fair market value or basis are later found to be incorrect, the character and amount of items of income, gain, loss or deduction previously reported by unitholders might change, and unitholders might be required to adjust their tax liability for prior years and incur interest and penalties with respect to those adjustments.

Disposition of Common Units

Recognition of Gain or Loss

Gain or loss will be recognized on a sale of common units equal to the difference between the amount realized and the unitholder’s tax basis for the common units sold. A unitholder’s amount realized will be measured by the sum of the cash or the fair market value of other property received by him plus his share of our nonrecourse liabilities. Because the amount realized includes a unitholder’s share of our nonrecourse liabilities, the gain recognized on the sale of common units could result in a tax liability in excess of any cash received from the sale.

Prior distributions from us that in the aggregate were in excess of cumulative net taxable income for a common unit and, therefore, decreased a unitholder’s tax basis in that common unit will, in effect, become taxable income if the common unit is sold at a price greater than the unitholder’s tax basis in that common unit, even if the price received is less than his original cost.

Except as noted below, gain or loss recognized by a unitholder, other than a “dealer” in common units, on the sale or exchange of a unit will generally be taxable as capital gain or loss. Capital gain recognized by an individual on the sale of common units held for more than twelve months will generally be taxed at the U.S. federal income tax rate applicable to long-term capital gains. However, a portion of this gain or loss, which will likely be substantial, will be separately computed and taxed as ordinary income or loss under Section 751 of the Code to the extent attributable to assets giving rise to depreciation recapture or other “unrealized receivables” or to “inventory items” we own. The term “unrealized receivables” includes potential recapture items, including depreciation recapture. Ordinary income attributable to unrealized receivables, inventory items and depreciation recapture may exceed net taxable gain realized upon the sale of a unit and may be recognized even if there is a net taxable loss realized on the sale of a unit. Thus, a unitholder may recognize both ordinary income and a capital loss upon a sale of common units. Capital losses may offset capital gains and no more than $3,000 of ordinary income, in the case of individuals, and may only be used to offset capital gains in the case of corporations. Both ordinary income and capital gain recognized on a sale of units may be subject to the NIIT in certain circumstances. Please read “—Tax Consequences of Common Unit Ownership—Tax Rates.”

 

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The IRS has ruled that a partner who acquires interests in a partnership in separate transactions must combine those interests and maintain a single adjusted tax basis for all those interests. Upon a sale or other disposition of less than all of those interests, a portion of that tax basis must be allocated to the interests sold using an “equitable apportionment” method, which generally means that the tax basis allocated to the interest sold equals an amount that bears the same relation to the partner’s tax basis in his entire interest in the partnership as the value of the interest sold bears to the value of the partner’s entire interest in the partnership. Treasury Regulations under Section 1223 of the Code allow a selling unitholder who can identify common units transferred with an ascertainable holding period to elect to use the actual holding period of the common units transferred. Thus, according to the ruling discussed above, a common unitholder will be unable to select high or low basis common units to sell as would be the case with corporate stock, but, according to the Treasury Regulations, he may designate specific common units sold for purposes of determining the holding period of units transferred. A unitholder electing to use the actual holding period of common units transferred must consistently use that identification method for all subsequent sales or exchanges of common units. A unitholder considering the purchase of additional units or a sale of common units purchased in separate transactions is urged to consult his tax advisor as to the possible consequences of this ruling and application of the Treasury Regulations.

Specific provisions of the Code affect the taxation of some financial products and securities, including partnership interests, by treating a taxpayer as having sold an “appreciated” partnership interest, one in which gain would be recognized if it were sold, assigned or terminated at its fair market value, if the taxpayer or related persons enter(s) into:

 

   

a short sale;

 

   

an offsetting notional principal contract; or

 

   

a futures or forward contract;

in each case, with respect to the partnership interest or substantially identical property.

Moreover, if a taxpayer has previously entered into a short sale, an offsetting notional principal contract or a futures or forward contract with respect to the partnership interest, the taxpayer will be treated as having sold that position if the taxpayer or a related person then acquires the partnership interest or substantially identical property. The Secretary of the Treasury is also authorized to issue regulations that treat a taxpayer that enters into transactions or positions that have substantially the same effect as the preceding transactions as having constructively sold the financial position.

In general, no gain or loss should be recognized by a unitholder upon the gift of a common unit, although there may be federal gift tax imposed on such gift. However, there are exceptions to the general rule that may result in the recognition of gain, but not loss, and federal income tax liability to the donor. A gift of common units generally results in a reduction in a unitholder’s share of our nonrecourse liabilities if the donee accepts the common units subject to the debt. If the amount of the decrease in liabilities exceeds the unitholder’s adjusted basis in his common units, the transaction should be treated as a part gift and a part sale transaction, resulting in taxable gain to the extent the amount of such liabilities exceeds his adjusted basis in his common units. The tax consequences of any gift of our common units by a unitholder will depend upon the particular circumstances of such a gift and upon the individuals or organizations involved in the transaction. As a result, before making any gift of our common units, a unitholder should consult his tax advisor as to the consequences of such a gift.

 

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Allocations Between Transferors and Transferees

In general, our taxable income and losses will be determined annually, will be prorated on a monthly basis and will be subsequently apportioned among the unitholders in proportion to the number of units owned by each of them as of the opening of the applicable exchange on the first business day of the month, which we refer to in this prospectus as the “Allocation Date.” However, gain or loss realized on a sale or other disposition of our assets other than in the ordinary course of business will be allocated among the unitholders on the Allocation Date in the month in which that gain or loss is recognized. As a result, a unitholder transferring units may be allocated income, gain, loss and deduction realized after the date of transfer.

Although simplifying conventions are contemplated by the Code and most publicly traded partnerships use similar simplifying conventions, the use of this method may not be permitted under existing Treasury Regulations as there is no direct or indirect controlling authority on this issue. The U.S. Department of the Treasury and the IRS have issued proposed Treasury Regulations that provide a safe harbor pursuant to which a publicly traded partnership may use a similar monthly simplifying convention to allocate tax items among transferor and transferee unitholders, although such tax items must be prorated on a daily basis. Existing publicly traded partnerships are entitled to rely on these proposed Treasury Regulations; however, they are not binding on the IRS and are subject to change until final Treasury Regulations are issued. Accordingly, Latham & Watkins LLP is unable to opine on the validity of this method of allocating income and deductions between transferor and transferee unitholders because the issue has not been finally resolved by the IRS or the courts. If this method is not allowed under the Treasury Regulations, or only applies to transfers of less than all of the unitholder’s interest, our taxable income or losses might be reallocated among the unitholders. We are authorized to revise our method of allocation between transferor and transferee unitholders, as well as unitholders whose interests vary during a taxable year, to conform to a method permitted under future Treasury Regulations. A unitholder who owns units at any time during a quarter and who disposes of them prior to the record date set for a cash distribution for that quarter will be allocated items of our income, gain, loss and deductions attributable to that quarter but will not be entitled to receive that cash distribution.

Notification Requirements

A unitholder who sells any of his units is generally required to notify us in writing of that sale within 30 days after the sale (or, if earlier, January 15 of the year following the sale). A purchaser of units who purchases units from another unitholder is also generally required to notify us in writing of that purchase within 30 days after the purchase. Upon receiving such notifications, we are required to notify the IRS of that transaction and to furnish specified information to the transferor and transferee. Failure to notify us of a purchase may, in some cases, lead to the imposition of penalties. However, these reporting requirements do not apply to a sale by an individual who is a citizen of the U.S. and who effects the sale or exchange through a broker who will satisfy such requirements.

Constructive Termination

We will be considered to have technically terminated our partnership for federal income tax purposes if there is a sale or exchange of 50% or more of the total interests in our capital and profits within a twelve-month period. For purposes of determining whether the 50% threshold has been met, multiple sales of the same interest will be counted only once. Our technical termination would, among other things, result in the closing of our taxable year for all unitholders, which would result in us filing two tax returns (and our unitholders could receive two schedules K-1 if relief was not available, as described below) for one fiscal year and could result in a deferral of depreciation deductions allowable in computing our taxable income. In the case of a unitholder reporting on a taxable year other than a fiscal year ending December 31, the closing of our taxable year may also result in more than twelve months of our taxable income or loss being includable in his taxable income for the year of termination. Our termination currently would not affect our classification as a partnership for federal income tax purposes, but instead we would be treated as a new partnership for federal income tax purposes. If

 

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treated as a new partnership, we must make new tax elections, including a new election under Section 754 of the Code, and could be subject to penalties if we are unable to determine that a termination occurred. The IRS has recently announced a publicly traded partnership technical termination relief program whereby, if a publicly traded partnership that technically terminated requests publicly traded partnership technical termination relief and such relief is granted by the IRS, among other things, the partnership will only have to provide one Schedule K-1 to unitholders for the year notwithstanding two partnership tax years.

Uniformity of Common Units

Because we cannot match transferors and transferees of units, we must maintain uniformity of the economic and tax characteristics of the units to a purchaser of these units. In the absence of uniformity, we may be unable to completely comply with a number of federal income tax requirements, both statutory and regulatory. A lack of uniformity can result from a literal application of Treasury Regulation Section 1.167(c)-1(a)(6). Any non-uniformity could have a negative impact on the value of the units. Please read “—Tax Consequences of Common Unit Ownership—Section 754 Election.” We intend to depreciate the portion of a Section 743(b) adjustment attributable to unrealized appreciation in the value of Contributed Property, to the extent of any unamortized Book-Tax Disparity, using a rate of depreciation or amortization derived from the depreciation or amortization method and useful life applied to the property’s unamortized Book-Tax Disparity, or treat that portion as nonamortizable, to the extent attributable to property the common basis of which is not amortizable, consistent with the regulations under Section 743 of the Code, even though that position may be inconsistent with Treasury Regulation Section 1.167(c)-1(a)(6), which is not expected to directly apply to a material portion of our assets. Please read “—Tax Consequences of Common Unit Ownership—Section 754 Election.”

To the extent that the Section 743(b) adjustment is attributable to appreciation in value in excess of the unamortized Book-Tax Disparity, we will apply the rules described in the Treasury Regulations and legislative history. If we determine that this position cannot reasonably be taken, we may adopt a depreciation and amortization position under which all purchasers acquiring units in the same month would receive depreciation and amortization deductions, whether attributable to common basis or a Section 743(b) adjustment, based upon the same applicable rate as if they had purchased a direct interest in our assets. If this position is adopted, it may result in lower annual depreciation and amortization deductions than would otherwise be allowable to some unitholders and risk the loss of depreciation and amortization deductions not taken in the year that these deductions are otherwise allowable. This position will not be adopted if we determine that the loss of depreciation and amortization deductions will have a material adverse effect on the unitholders. If we choose not to utilize this aggregate method, we may use any other reasonable depreciation and amortization method to preserve the uniformity of the intrinsic tax characteristics of any units that would not have a material adverse effect on the unitholders. In either case, and as stated above under “—Tax Consequences of Common Unit Ownership—Section 754 Election,” Latham & Watkins LLP has not rendered an opinion with respect to these methods. Moreover, the IRS may challenge any method of depreciating the Section 743(b) adjustment described in this paragraph. If this challenge were sustained, the uniformity of units might be affected, and the gain from the sale of units might be increased without the benefit of additional deductions. Please read “—Disposition of Common Units—Recognition of Gain or Loss.

Tax-Exempt Organizations and Other Investors

Ownership of units by employee benefit plans, other tax-exempt organizations, non-resident aliens, foreign corporations and other foreign persons raises issues unique to those investors and, as described below to a limited extent, may have substantially adverse tax consequences to them. If you are a tax-exempt entity or a non-U.S. person, you should consult your tax advisor before investing in our common units. Employee benefit plans and most other organizations exempt from federal income tax, including individual retirement accounts and other retirement plans, are subject to federal income tax on unrelated business taxable income. Virtually all of our income allocated to a unitholder that is a tax-exempt organization will be unrelated business taxable income and will be taxable to it.

 

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Non-resident aliens and foreign corporations, trusts or estates that own units will be considered to be engaged in business in the U.S. because of the ownership of units. As a consequence, they will be required to file federal tax returns to report their share of our income, gain, loss or deduction and pay federal income tax at regular rates on their share of our net income or gain. Moreover, under rules applicable to publicly traded partnerships, our quarterly distribution to foreign unitholders will be subject to withholding at the highest applicable effective tax rate. Each foreign unitholder must obtain a taxpayer identification number from the IRS and submit that number to our transfer agent on a Form W-8BEN or applicable substitute form in order to obtain credit for these withholding taxes. A change in applicable law may require us to change these procedures.

In addition, because a foreign corporation that owns units will be treated as engaged in a U.S. trade or business, that corporation may be subject to the U.S. branch profits tax at a rate of 30.0%, in addition to regular federal income tax, on its share of our earnings and profits, as adjusted for changes in the foreign corporation’s “U.S. net equity,” that is effectively connected with the conduct of a U.S. trade or business. That tax may be reduced or eliminated by an income tax treaty between the U.S. and the country in which the foreign corporate unitholder is a “qualified resident.” In addition, this type of unitholder is subject to special information reporting requirements under Section 6038C of the Code.

A foreign unitholder who sells or otherwise disposes of a common unit will be subject to U.S. federal income tax on gain realized from the sale or disposition of that unit to the extent the gain is effectively connected with a U.S. trade or business of the foreign unitholder. Under a ruling published by the IRS, interpreting the scope of “effectively connected income,” a foreign unitholder would be considered to be engaged in a trade or business in the U.S. by virtue of the U.S. activities of the partnership, and part or all of that unitholder’s gain would be effectively connected with that unitholder’s indirect U.S. trade or business. Moreover, under the Foreign Investment in Real Property Tax Act, a foreign common unitholder generally will be subject to U.S. federal income tax upon the sale or disposition of a common unit if (i) he owned (directly or constructively applying certain attribution rules) more than 5.0% of our common units at any time during the five-year period ending on the date of such disposition and (ii) 50.0% or more of the fair market value of all of our assets consisted of U.S. real property interests at any time during the shorter of the period during which such unitholder held the common units or the five-year period ending on the date of disposition. Currently, more than 50.0% of our assets consist of U.S. real property interests and we do not expect that to change in the foreseeable future. Therefore, foreign unitholders may be subject to federal income tax on gain from the sale or disposition of their units.

Recent changes in law may affect certain foreign unitholders. Please read “—Administrative Matters—Additional Withholding Requirements.”

Administrative Matters

Information Returns and Audit Procedures

We intend to furnish to each unitholder, within 90 days after the close of each calendar year, specific tax information, including a Schedule K-1, which describes his share of our income, gain, loss and deduction for our preceding taxable year. In preparing this information, which will not be reviewed by counsel, we will take various accounting and reporting positions, some of which have been mentioned earlier, to determine each unitholder’s share of income, gain, loss and deduction. We cannot assure you that those positions will yield a result that conforms to the requirements of the Code, Treasury Regulations or administrative interpretations of the IRS. Neither we nor Latham & Watkins LLP can assure prospective unitholders that the IRS will not successfully contend in court that those positions are impermissible. Any challenge by the IRS could negatively affect the value of the units.

The IRS may audit our federal income tax information returns. Adjustments resulting from an IRS audit may require each unitholder to adjust a prior year’s tax liability, and possibly may result in an audit of his return. Any audit of a unitholder’s return could result in adjustments not related to our returns as well as those related to our returns.

 

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Partnerships generally are treated as separate entities for purposes of federal tax audits, judicial review of administrative adjustments by the IRS and tax settlement proceedings. The tax treatment of partnership items of income, gain, loss and deduction are determined in a partnership proceeding rather than in separate proceedings with the partners. The Code requires that one partner be designated as the “Tax Matters Partner” for these purposes. Our partnership agreement names our general partner as our Tax Matters Partner.

The Tax Matters Partner has made and will make some elections on our behalf and on behalf of unitholders. In addition, the Tax Matters Partner can extend the statute of limitations for assessment of tax deficiencies against unitholders for items in our returns. The Tax Matters Partner may bind a unitholder with less than a 1.0% profits interest in us to a settlement with the IRS unless that unitholder elects, by filing a statement with the IRS, not to give that authority to the Tax Matters Partner. The Tax Matters Partner may seek judicial review, by which all the unitholders are bound, of a final partnership administrative adjustment and, if the Tax Matters Partner fails to seek judicial review, judicial review may be sought by any unitholder having at least a 1.0% interest in profits or by any group of unitholders having in the aggregate at least a 5.0% interest in profits. However, only one action for judicial review will go forward, and each unitholder with an interest in the outcome may participate. The Tax Matters Partner may select the forum for judicial review, and if the Tax Matters Partner selects the Court of Federal Claims or a District Court, rather than the Tax Court, partners may be required to pay any deficiency asserted by the IRS before judicial review is available.

A unitholder must file a statement with the IRS identifying the treatment of any item on his federal income tax return that is not consistent with the treatment of the item on our return. Intentional or negligent disregard of this consistency requirement may subject a unitholder to substantial penalties.

Additional Withholding Requirements

Withholding taxes may apply to certain types of payments made to “foreign financial institutions” (as specially defined in the Code) and certain other non-U.S. entities. Specifically, a 30% withholding tax may be imposed on interest, dividends and other fixed or determinable annual or periodical gains, profits and income from sources within the United States (“FDAP Income”), or gross proceeds from the sale or other disposition of any property of a type which can produce interest or dividends from sources within the United States (“Gross Proceeds”) paid to a foreign financial institution or to a “non-financial foreign entity” (as specially defined in Code), unless (1) the foreign financial institution undertakes certain diligence and reporting, (2) the non-financial foreign entity either certifies it does not have any substantial U.S. owners or furnishes identifying information regarding each substantial U.S. owner or (3) the foreign financial institution or non-financial foreign entity otherwise qualifies for an exemption from these rules. If the payee is a foreign financial institution and is subject to the diligence and reporting requirements in clause (1) above, it must enter into an agreement with the U.S. Treasury requiring, among other things, that it undertake to identify accounts held by certain U.S. persons or U.S.-owned foreign entities, annually report certain information about such accounts, and withhold 30% on payments to noncompliant foreign financial institutions and certain other account holders.

These rules generally will apply to payments of FDAP Income made on or after January 1, 2014 and to payments of relevant Gross Proceeds made on or after January 1, 2017. Thus, to the extent we have FDAP Income or Gross Proceeds after these dates that are not treated as effectively connected with a U.S. trade or business (please read “—Tax-Exempt Organizations and Other Investors”), unitholders who are foreign financial institutions or certain other non-US entities may be subject to withholding on distributions they receive from us, or their distributive share of our income, pursuant to the rules described above.

Prospective investors should consult their own tax advisors regarding the potential application of these withholding provisions to their investment in our common units.

 

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Nominee Reporting

Persons who hold an interest in us as a nominee for another person are required to furnish to us:

 

   

the name, address and taxpayer identification number of the beneficial owner and the nominee;

 

   

whether the beneficial owner is:

 

   

a person that is not a U.S. person;

 

   

a foreign government, an international organization or any wholly owned agency or instrumentality of either of the foregoing; or

 

   

a tax-exempt entity;

 

   

the amount and description of units held, acquired or transferred for the beneficial owner; and

 

   

specific information including the dates of acquisitions and transfers, means of acquisitions and transfers, and acquisition cost for purchases, as well as the amount of net proceeds from dispositions.

Brokers and financial institutions are required to furnish additional information, including whether they are U.S. persons and specific information on units they acquire, hold or transfer for their own account. A penalty of $100 per failure, up to a maximum of $1,500,000 per calendar year, is imposed by the Code for failure to report that information to us. The nominee is required to supply the beneficial owner of the units with the information furnished to us.

Accuracy-Related Penalties

An additional tax equal to 20.0% of the amount of any portion of an underpayment of tax that is attributable to one or more specified causes, including negligence or disregard of rules or regulations, substantial understatements of income tax and substantial valuation misstatements, is imposed by the Code. No penalty will be imposed, however, for any portion of an underpayment if it is shown that there was a reasonable cause for that portion and that the taxpayer acted in good faith regarding that portion.

For individuals, a substantial understatement of income tax in any taxable year exists if the amount of the understatement exceeds the greater of 10.0% of the tax required to be shown on the return for the taxable year or $5,000 ($10,000 for most corporations). The amount of any understatement subject to penalty generally is reduced if any portion is attributable to a position adopted on the return:

 

   

for which there is, or was, “substantial authority”; or

 

   

as to which there is a reasonable basis and the pertinent facts of that position are disclosed on the return.

If any item of income, gain, loss or deduction included in the distributive shares of unitholders might result in that kind of an “understatement” of income for which no “substantial authority” exists, we must disclose the pertinent facts on our return. In addition, we will make a reasonable effort to furnish sufficient information for unitholders to make adequate disclosure on their returns and to take other actions as may be appropriate to permit unitholders to avoid liability for this penalty. More stringent rules apply to “tax shelters,” which we do not believe includes us, or any of our investments, plans or arrangements.

 

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A substantial valuation misstatement exists if (a) the value of any property, or the adjusted basis of any property, claimed on a tax return is 150.0% or more of the amount determined to be the correct amount of the valuation or adjusted basis, (b) the price for any property or services (or for the use of property) claimed on any such return with respect to any transaction between persons described in Code Section 482 is 200.0% or more (or 50.0% or less) of the amount determined under Section 482 to be the correct amount of such price, or (c) the net Code Section 482 transfer price adjustment for the taxable year exceeds the lesser of $5 million or 10.0% of the taxpayer’s gross receipts. No penalty is imposed unless the portion of the underpayment attributable to a substantial valuation misstatement exceeds $5,000 ($10,000 for most corporations). If the valuation claimed on a return is 200.0% or more than the correct valuation or certain other thresholds are met, the penalty imposed increases to 40.0%. We do not anticipate making any valuation misstatements.

In addition, the 20.0% accuracy-related penalty also applies to any portion of an underpayment of tax that is attributable to transactions lacking economic substance. To the extent that such transactions are not disclosed, the penalty imposed is increased to 40.0%. Additionally, there is no reasonable cause defense to the imposition of this penalty to such transactions.

Reportable Transactions

If we were to engage in a “reportable transaction,” we (and possibly you and others) would be required to make a detailed disclosure of the transaction to the IRS. A transaction may be a reportable transaction based upon any of several factors, including the fact that it is a type of tax avoidance transaction publicly identified by the IRS as a “listed transaction” or that it produces certain kinds of losses for partnerships, individuals, S corporations, and trusts in excess of $2.0 million in any single year, or $4.0 million in any combination of six successive tax years. Our participation in a reportable transaction could increase the likelihood that our federal income tax information return (and possibly your tax return) would be audited by the IRS. Please read “—Information Returns and Audit Procedures.”

Moreover, if we were to participate in a reportable transaction with a significant purpose to avoid or evade tax, or in any listed transaction, you may be subject to the following additional consequences:

 

   

accuracy-related penalties with a broader scope, significantly narrower exceptions, and potentially greater amounts than described above at “—Accuracy-Related Penalties;”

 

   

for those persons otherwise entitled to deduct interest on federal tax deficiencies, nondeductibility of interest on any resulting tax liability; and

 

   

in the case of a listed transaction, an extended statute of limitations.

We do not expect to engage in any “reportable transactions.”

Recent Legislative Developments

The present federal income tax treatment of publicly traded partnerships, including us, or an investment in our common units may be modified by administrative, legislative or judicial interpretation at any time. For example, from time to time, members of Congress propose and consider substantive changes to the existing federal income tax laws that affect publicly traded partnerships. Any modification to the federal income tax laws and interpretations thereof may or may not be retroactively applied and could make it more difficult or impossible to meet the exception for us to be treated as a partnership for federal income tax purposes. Please read “—Partnership Status.” We are unable to predict whether any such changes will ultimately be enacted. However, it is possible that a change in law could affect us, and any such changes could negatively impact the value of an investment in our common units.

 

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State, Local, Foreign and Other Tax Considerations

In addition to federal income taxes, you likely will be subject to other taxes, such as state, local and foreign income taxes, unincorporated business taxes, and estate, inheritance or intangible taxes that may be imposed by the various jurisdictions in which we do business or own property or in which you are a resident. Although an analysis of those various taxes is not presented here, each prospective unitholder should consider their potential impact on his investment in us. We will initially own property or do business in Texas. Texas imposes a franchise tax on corporations and other entities. We may also own property or do business in other jurisdictions in the future. Although you may not be required to file a return and pay taxes in some jurisdictions because your income from that jurisdiction falls below the filing and payment requirement, you will be required to file income tax returns and to pay income taxes in many of these jurisdictions in which we do business or own property and may be subject to penalties for failure to comply with those requirements. In some jurisdictions, tax losses may not produce a tax benefit in the year incurred and may not be available to offset income in subsequent taxable years. Some of the jurisdictions may require us, or we may elect, to withhold a percentage of income from amounts to be distributed to a unitholder who is not a resident of the jurisdiction. Withholding, the amount of which may be greater or less than a particular unitholder’s income tax liability to the jurisdiction, generally does not relieve a nonresident unitholder from the obligation to file an income tax return. Amounts withheld will be treated as if distributed to unitholders for purposes of determining the amounts distributed by us. Please read “—Tax Consequences of Common Unit Ownership—Entity-Level Collections.” Based on current law and our estimate of our future operations, our general partner anticipates that any amounts required to be withheld will not be material.

It is the responsibility of each unitholder to investigate the legal and tax consequences, under the laws of pertinent states, localities and foreign jurisdictions, of his investment in us. Accordingly, each prospective unitholder is urged to consult his own tax counsel or other advisor with regard to those matters. Further, it is the responsibility of each unitholder to file all state, local and foreign, as well as U.S. federal tax returns, that may be required of him. Latham & Watkins LLP has not rendered an opinion on the state, local or foreign tax consequences of an investment in us.

 

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INVESTMENT IN OCI PARTNERS LP BY EMPLOYEE BENEFIT PLANS

An investment in us by an employee benefit plan is subject to additional considerations because the investments of these plans are subject to the fiduciary responsibility and prohibited transaction provisions of ERISA and the restrictions imposed by Section 4975 of the Code and provisions under any federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of the Code or ERISA, collectively, “Similar Laws.” For these purposes the term “employee benefit plan” includes, but is not limited to, qualified pension, profit-sharing and stock bonus plans, Keogh plans, simplified employee pension plans and tax deferred annuities or IRAs or annuities established or maintained by an employer or employee organization, and entities whose underlying assets are considered to include “plan assets” of such plans, accounts and arrangements, collectively, “Employee Benefit Plans.” Among other things, consideration should be given to:

 

   

whether the investment is prudent under Section 404(a)(1)(B) of ERISA and any other applicable Similar Laws;

 

   

whether in making the investment, the plan will satisfy the diversification requirements of Section 404(a)(1)(C) of ERISA and any other applicable Similar Laws;

 

   

whether the investment will result in recognition of unrelated business taxable income by the plan and, if so, the potential after-tax investment return. Please read “Material U.S. Federal Income Tax Consequences—Tax-Exempt Organizations and Other Investors;” and

 

   

whether making such an investment will comply with the delegation of control and prohibited transaction provisions of ERISA, the Code and any other applicable Similar Laws.

The person with investment discretion with respect to the assets of an Employee Benefit Plan, often called a fiduciary, should determine whether an investment in us is authorized by the appropriate governing instrument and is a proper investment for the plan.

Section 406 of ERISA and Section 4975 of the Code prohibit Employee Benefit Plans from engaging, either directly or indirectly, in specified transactions involving “plan assets” with parties that, with respect to the Employee Benefit Plan, are “parties in interest” under ERISA or “disqualified persons” under the Code unless an exemption is available. A party in interest or disqualified person who engages in a non-exempt prohibited transaction may be subject to excise taxes and other penalties and liabilities under ERISA and the Code. In addition, the fiduciary of the ERISA plan that engaged in such a non-exempt prohibited transaction may be subject to penalties and liabilities under ERISA and the Code.

In addition to considering whether the purchase of common units is a prohibited transaction, a fiduciary should consider whether the Employee Benefit Plan will, by investing in us, be deemed to own an undivided interest in our assets, with the result that our general partner would also be a fiduciary of such Employee Benefit Plan and our operations would be subject to the regulatory restrictions of ERISA, including its prohibited transaction rules, as well as the prohibited transaction rules of the Code, ERISA and any other applicable Similar Laws.

The Department of Labor regulations and Section 3(42) of ERISA provide guidance with respect to whether, in certain circumstances, the assets of an entity in which Employee Benefit Plans acquire equity interests would be deemed “plan assets.” Under these rules, an entity’s assets would not be considered to be “plan assets” if, among other things:

 

  (a) the equity interests acquired by the Employee Benefit Plan are publicly offered securities—i.e., the equity interests are widely held by 100 or more investors independent of the issuer and each other, are freely transferable and are registered under certain provisions of the federal securities laws;

 

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  (b) the entity is an “operating company,”—i.e., it is primarily engaged in the production or sale of a product or service, other than the investment of capital, either directly or through a majority-owned subsidiary or subsidiaries; or

 

  (c) there is no significant investment by “benefit plan investors,” which is defined to mean that less than 25.0% of the value of each class of equity interest, disregarding any such interests held by our general partner, its affiliates and some other persons, is held generally by Employee Benefit Plans.

Our assets should not be considered “plan assets” under these regulations because it is expected that the investment will satisfy the requirements in (a) and (b) above. The foregoing discussion of issues arising for employee benefit plan investments under ERISA and the Code is general in nature and is not intended to be all inclusive, nor should it be construed as legal advice. In light of the serious penalties imposed on persons who engage in prohibited transactions or other violations, plan fiduciaries contemplating a purchase of common units should consult with their own counsel regarding the consequences under ERISA, the Code and other Similar Laws.

 

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UNDERWRITING

Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays Capital Inc. and Citigroup Global Markets Inc. are acting as representatives of each of the underwriters named below. Subject to the terms and conditions set forth in an underwriting agreement among us and the underwriters, we have agreed to sell to the underwriters, and each of the underwriters has agreed, severally and not jointly, to purchase from us, the number of common units set forth opposite its name below.

 

                           Underwriter    Number of
Common  Units

Merrill Lynch, Pierce, Fenner & Smith

                      Incorporated

  

Barclays Capital Inc.

  

Citigroup Global Markets Inc.

  

                     Total

  
  

 

Subject to the terms and conditions set forth in the underwriting agreement, the underwriters have agreed, severally and not jointly, to purchase all of the common units sold under the underwriting agreement if any of these common units are purchased. If an underwriter defaults, the underwriting agreement provides that the purchase commitments of the nondefaulting underwriters may be increased or the underwriting agreement may be terminated.

We, our general partner and certain of our affiliates have agreed to indemnify the underwriters against certain liabilities, including liabilities under the Securities Act, or to contribute to payments the underwriters may be required to make in respect of those liabilities.

The underwriters are offering the common units, subject to prior sale, when, as and if issued to and accepted by them, subject to approval of legal matters by their counsel, including the validity of the common units, and other conditions contained in the underwriting agreement, such as the receipt by the underwriters of officer’s certificates and legal opinions. The underwriters reserve the right to withdraw, cancel or modify offers to the public and to reject orders in whole or in part.

Commissions and Discounts

The representatives have advised us that the underwriters propose initially to offer the common units to the public at the public offering price set forth on the cover page of this prospectus and to dealers at that price less a concession not in excess of $              per common unit. After the initial offering, the public offering price, concession or any other term of the offering may be changed.

The following table shows the public offering price, underwriting discount and proceeds before expenses to us. The information assumes either no exercise or full exercise by the underwriters of their option to purchase additional common units.

 

    

Per Common Unit

    

Without Option

    

With Option

 

Public offering price

   $         $         $     

Underwriting discount (1)

   $         $         $     

Proceeds, before expenses, to us (1)

   $         $         $     

 

(1) Excludes a structuring fee equal to      % of the gross proceeds from this offering payable to Merrill Lynch, Pierce, Fenner & Smith Incorporated.

The expenses of the offering, not including the underwriting discount or the structuring fee, are estimated at $             and are payable by us. We will pay a structuring fee equal to      % of the gross proceeds

 

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from this offering (including any proceeds from the exercise of the option of purchase additional common units) to Merrill Lynch, Pierce, Fenner & Smith Incorporated for the evaluation, analysis and structuring of our partnership.

Option to Purchase Additional Common Units

We have granted an option to the underwriters, exercisable for 30 days after the date of this prospectus, to purchase up to an additional              common units at the public offering price, less the underwriting discount. If the underwriters exercise this option, each will be obligated, subject to conditions contained in the underwriting agreement, to purchase a number of additional common units proportionate to that underwriter’s initial amount reflected in the above table.

No Sales of Similar Securities

We, our general partner, certain of our general partner’s executive officers and directors and certain of our affiliates have agreed not to sell or transfer any common units or securities convertible into, exchangeable for, exercisable for, or repayable with common units, for 180 days after the date of this prospectus without first obtaining the written consent of the representatives of the underwriters. Specifically, we and these other persons have agreed, with certain limited exceptions, not to directly or indirectly:

 

   

offer, pledge, sell or contract to sell any common units;

 

   

sell any option or contract to purchase any common units;

 

   

purchase any option or contract to sell any common units;

 

   

grant any option, right or warrant for the sale of any common units;

 

   

lend or otherwise dispose of or transfer any common units;

 

   

request or demand that we file a registration statement related to the common units; or

 

   

enter into any swap or other agreement that transfers, in whole or in part, the economic consequence of ownership of any common units whether any such swap or transaction is to be settled by delivery of common units or other securities, in cash or otherwise.

This lock-up provision applies to common units and to securities convertible into or exchangeable or exercisable for or repayable with common units. It also applies to common units owned now or acquired later by the person executing the agreement or for which the person executing the agreement later acquires the power of disposition.

Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays Capital Inc. and Citigroup Global Markets Inc. may, in their sole discretion and at any time or from time to time, release all or any portion of the common units or other securities subject to the lock-up agreements. Any determination to release any common units or other securities subject to the lock-up agreements would be based on a number of factors at the time of determination, which may include the market price of the common units, the liquidity of the trading market for the common units, general market conditions, the number of common units or other securities proposed to be sold or otherwise transferred and the timing, purpose and terms of the proposed sale or other transfer. Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays Capital Inc. and Citigroup Global Markets Inc. do not have any present intention, agreements or understandings, implicit or explicit, to release any of the common units or other securities subject to the lock-up agreements prior to the expiration of the lock-up period described above.

 

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New York Stock Exchange Listing

We intend to apply to list our common units on the NYSE under the symbol “OCIP.”

Before this offering, there has been no public market for our common units. The initial public offering price will be determined through negotiations between us and the representatives. In addition to prevailing market conditions, the factors to be considered in determining the initial public offering price are

 

   

the valuation multiples of publicly traded companies that the representatives believe to be comparable to us;

 

   

our financial information;

 

   

the history of, and the prospects for, our partnership and the industry in which we compete;

 

   

an assessment of our management, its past and present operations, and the prospects for, and timing of, our future revenues;

 

   

the present state of our development;

 

   

the recent market prices of, and demand for, publicly traded equity securities of generally comparable companies; and

 

   

the above factors in relation to market values and various valuation measures of other companies engaged in activities similar to ours.

An active trading market for the common units may not develop. It is also possible that after the offering the common units will not trade in the public market at or above the initial public offering price.

The underwriters do not expect to sell more than 5% of the common units in the aggregate to accounts over which they exercise discretionary authority.

Price Stabilization, Short Positions and Penalty Bids

Until the distribution of the common units is completed, SEC rules may limit underwriters and selling group members from bidding for and purchasing our common units. However, the representatives may engage in transactions that stabilize the price of the common units, such as bids or purchases to peg, fix or maintain that price.

In connection with the offering, the underwriters may purchase and sell our common units in the open market. These transactions may include short sales, purchases on the open market to cover positions created by short sales and stabilizing transactions. Short sales involve the sale by the underwriters of a greater number of common units than they are required to purchase in the offering. “Covered” short sales are sales made in an amount not greater than the underwriters’ option to purchase additional common units described above. The underwriters may close out any covered short position by either exercising their option to purchase additional common units or purchasing common units in the open market. In determining the source of common units to close out the covered short position, the underwriters will consider, among other things, the price of common units available for purchase in the open market as compared to the price at which they may purchase common units through the option granted to them. “Naked” short sales are sales in excess of such option. The underwriters must close out any naked short position by purchasing common units in the open market. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of our common units in the open market after pricing that could adversely affect investors who purchase in the offering. Stabilizing transactions consist of various bids for or purchases of common units made by the underwriters in the open market prior to the completion of the offering.

 

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The underwriters may also impose a penalty bid. This occurs when a particular underwriter repays to the underwriters a portion of the underwriting discount received by it because the representatives have repurchased common units sold by or for the account of such underwriter in stabilizing or short covering transactions.

Similar to other purchase transactions, the underwriters’ purchases to cover the syndicate short sales may have the effect of raising or maintaining the market price of our common units or preventing or retarding a decline in the market price of our common units. As a result, the price of our common units may be higher than the price that might otherwise exist in the open market. The underwriters may conduct these transactions on the NYSE, in the over-the-counter market or otherwise.

Neither we nor any of the underwriters make any representation or prediction as to the direction or magnitude of any effect that the transactions described above may have on the price of our common units. In addition, neither we nor any of the underwriters make any representation that the representatives will engage in these transactions or that these transactions, once commenced, will not be discontinued without notice.

Electronic Distribution

In connection with the offering, certain of the underwriters or securities dealers may distribute prospectuses by electronic means, such as e-mail.

Conflicts of Interest

Because the Financial Industry Regulatory Authority (“FINRA”) views the common units offered hereby as interests in a direct participation program, this offering is being made in compliance with Rule 2310 of the FINRA Rules. Investor suitability with respect to the common units should be judged similarly to the suitability with respect to other securities that are listed for trading on a national securities exchange.

Other Relationships

Some of the underwriters and their affiliates have engaged in, and may in the future engage in, investment banking and other commercial dealings in the ordinary course of business with us or our affiliates. They have received, or may in the future receive, customary fees and commissions for these transactions.

OCIB intends to use a portion of the net proceeds in connection with this offering to repay amounts outstanding under the Term B-1 Loan, as described in “Use of Proceeds.” Affiliates of each of Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays Capital Inc. and Citigroup Global Markets Inc. are lenders under the Term B-1 Loan and, accordingly, may receive a portion of the distributions made to OCIB in connection with this offering. As of June 30, 2013, OCIB has outstanding borrowings of $41,666,666.67 under the Term B-1 Loan to each of Bank of America, N.A., an affiliate of Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays Bank plc, an affiliate of Barclays Capital Inc., and Citibank, N.A., an affiliate of Citigroup Global Markets Inc. As described under “Use of Proceeds,” we intend to use a portion of the net proceeds from this offering to repay in full and terminate all $125.0 million of outstanding borrowings under our Term B-1 Loan. In addition, affiliates of each of Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays Capital Inc. and Citigroup Global Markets Inc. are lenders under the Term B-2 Loan. As of June 30, 2013, OCIB has outstanding borrowings of $78,333,333.33 under the Term B-2 Loan to each of Bank of America, N.A., an affiliate of Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays Bank plc, an affiliate of Barclays Capital Inc., and Citibank, N.A., an affiliate of Citigroup Global Markets Inc. OCIB intends to enter into the new Term Loan B with a syndicate of institutional lenders and investors, for which Bank of America, N.A. will serve as administrative agent, to repay borrowings under the Term B-2 Loan. Affiliates of certain of the other underwriters may be lenders under the new Term Loan B. Please read “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Credit Facilities.”

 

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In addition, in the ordinary course of their business activities, the underwriters and their affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities) and financial instruments (including bank loans) for their own account and for the accounts of their customers. Such investments and securities activities may involve securities and/or instruments of ours or our affiliates. The underwriters and their affiliates may also make investment recommendations and/or publish or express independent research views in respect of such securities or financial instruments and may hold, or recommend to clients that they acquire, long and/or short positions in such securities and instruments.

Directed Unit Program

At our request, the underwriters have reserved for sale at the initial public offering price, up to     % of the common units offered hereby for sale at the initial public offering price to persons who are directors, officers and employees of our general partner through a directed unit program. If these persons purchase reserved common units, this will reduce the number of common units available for sale to the general public. Any reserved common units which are not so purchased will be offered by the underwriters to the general public on the same terms as the other common units offered hereby.

Certain of our general partner’s officers, directors and employees who purchase units through the directed unit program will be subject to the 180-day lock-up provision described above under the caption “—No Sales of Similar Securities.”

Selling Restrictions

Notice to Prospective Investors in the European Economic Area

This prospectus has been prepared on the basis that the transactions contemplated by this prospectus in any Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”) (other than Germany) will be made pursuant to an exemption under the Prospectus Directive from the requirement to publish a prospectus for offers of securities. Accordingly, any person making or intending to make any offer in that Relevant Member State of the securities which are the subject of the transactions contemplated by this prospectus, may only do so in circumstances in which no obligation arises for us or any of the underwriters to publish a prospectus pursuant to Article 3 of the Prospectus Directive in relation to such offer. We have not authorized and do not authorize the making of any offer of securities or any invitation relating thereto in circumstances in which an obligation arises for us or any of the underwriters to publish a prospectus for such offer or invitation.

In relation to each Relevant Member State, other than Germany, with effect from and including the date on which the Prospectus Directive is implemented in that relevant member state (the “Relevant Implementation Date”), no offer to the public of common units has been or will be made in that Relevant Member State other than:

 

   

to any legal entity which is a qualified investor as defined in the Prospectus Directive (“Qualified Investors”);

 

   

to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than Qualified Investors), as permitted under the Prospectus Directive, subject to obtaining the prior consent of representatives; or

 

   

in any other circumstances falling within Article 3(2) of the Prospectus Directive;

provided that no such offer of securities shall require us or any underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive.

 

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For purposes of this provision, the expression an “offer to the public” in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the securities to be offered so as to enable an investor to decide to purchase or subscribe for the securities, as the expression may be further defined in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State, and the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in each Relevant Member State. The expression “2010 PD Amending Directive” means Directive 2010/73/EU.

We have not authorized and do not authorize the making of any offer of securities through any financial intermediary on their behalf, other than offers made by the underwriters with a view to the final placement of the securities as contemplated in this prospectus. Accordingly, no purchaser of the securities, other than the underwriters, is authorized to make any further offer of the securities on behalf of us or the underwriters.

Notice to Prospective Investors in the United Kingdom

We may constitute a “collective investment scheme” as defined by section 235 of the Financial Services and Markets Act 2000 (“FSMA”) that is not a “recognized collective investment scheme” for the purposes of FSMA (“CIS”), and that has not been authorized or otherwise approved. As an unregulated scheme, it cannot be marketed in the United Kingdom to the general public, except in accordance with FSMA. This prospectus is only being distributed in the United Kingdom to, and is only directed at:

(i) investment professionals falling within the description of persons in Article 14(5) of the Financial Services and Markets Act 2000 (Promotion of Collective Investment Schemes) Order 2001, as amended (the “CIS Promotion Order”), or Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, as amended (the “Financial Promotion Order”); or

(ii) high net worth companies and other persons falling within Article 22(2)(a) to (d) of the CIS Promotion Order or Article 49(2)(a) to (d) of the Financial Promotion Order; or

(iii) to any other person to whom it may otherwise lawfully be made (all such persons together being referred to as “relevant persons”).

The common units are only available to, and any invitation, offer or agreement to subscribe, purchase or otherwise acquire such common units will be engaged in only with, relevant persons. Any person who is not a relevant person should not act or rely on this prospectus or any of its contents.

An invitation or inducement to engage in investment activity (within the meaning of Section 21 of FSMA) in connection with the issue or sale of any common units which are the subject of the offering contemplated by this prospectus will only be communicated or caused to be communicated in circumstances in which Section 21(1) of FSMA does not apply to us

Notice to Prospective Investors in Switzerland

This prospectus is being communicated in Switzerland to a small number of selected investors only. Each copy of this prospectus is addressed to a specifically named recipient and may not be copied, reproduced, distributed or passed on to third parties. The common units are not being offered to the public in Switzerland, and neither this prospectus nor any other offering materials relating to the common units may be distributed in connection with any such public offering.

We have not been registered with the Swiss Financial Market Supervisory Authority FINMA as a foreign collective investment scheme pursuant to Article 120 of the Collective Investment Schemes Act of

 

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June 23, 2006 (the “CISA”). Accordingly, the common units may not be offered to the public in or from Switzerland, and neither this prospectus nor any other offering materials relating to the common units may be made available through a public offering in or from Switzerland. The common units may only be offered and this prospectus may only be distributed in or from Switzerland by way of private placement exclusively to qualified investors (as this term is defined in the CISA and its implementing ordinance).

Notice to Prospective Investors in Germany

This document has not been prepared in accordance with the requirements for a securities or sales prospectus under the German Securities Prospectus Act (Wertpapierprospektgesetz), the German Sales Prospectus Act (Verkaufsprospektgesetz), or the German Investment Act (Investmentgesetz). Neither the German Federal Financial Services Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht—BaFin) nor any other German authority has been notified of the intention to distribute the common units in Germany. Consequently, the common units may not be distributed in Germany by way of public offering, public advertisement or in any similar manner and this document and any other document relating to the offering, as well as information or statements contained therein, may not be supplied to the public in Germany or used in connection with any offer for subscription of the common units to the public in Germany or any other means of public marketing. The common units are being offered and sold in Germany only to qualified investors which are referred to in Section 3 paragraph 2 no. 1, in connection with Section 2 no. 6, of the German Securities Prospectus Act, Section 2 no. 4 of the German Asset Investment Act, and in Section 2 paragraph 11 sentence 2 no. 1 of the German Investment Act. This document is strictly for use of the person who has received it. It may not be forwarded to other persons or published in Germany.

The offering does not constitute an offer to sell or the solicitation or an offer to buy the common units in any circumstances in which such offer or solicitation is unlawful.

Notice to Prospective Investors in the Netherlands

The common units may not be offered or sold, directly or indirectly, in the Netherlands, other than to qualified investors (gekwalificeerde beleggers) within the meaning of Article 1:1 of the Dutch Financial Supervision Act (Wet op het financieel toezicht).

 

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LEGAL MATTERS

The validity of the common units and certain other legal matters will be passed upon for us by Latham & Watkins LLP, Houston, Texas. Certain tax and other legal matters will be passed upon for us by Latham & Watkins LLP, Houston, Texas. Certain legal matters in connection with our common units offered hereby will be passed upon for the underwriters by Andrews Kurth LLP, Houston, Texas.

EXPERTS

The financial statements of OCI Beaumont LLC as of December 31, 2012 and 2011, and for each of the years in the two-year period ended December 31, 2012 have been included herein (and in the registration statement) in reliance upon the report of KPMG LLP, independent registered public accounting firm, appearing elsewhere herein, and upon the authority of said firm as experts in accounting and auditing.

WHERE YOU CAN FIND ADDITIONAL INFORMATION

We have filed with the SEC a registration statement on Form S-l relating to the common units offered by this prospectus. This prospectus, which constitutes a part of the registration statement, does not contain all of the information set forth in the registration statement. For further information regarding us and the common units offered by this prospectus, we refer you to the full registration statement, including its exhibits and schedules, filed under the Securities Act. The registration statement, of which this prospectus constitutes a part, including its exhibits and schedules, may be inspected and copied at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Copies of the materials may also be obtained from the SEC at prescribed rates by writing to the SEC’s Public Reference Room. You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC maintains a website at http://www.sec.gov that contains reports, information statements and other information regarding issuers that file electronically with the SEC. Our registration statement, of which this prospectus constitutes a part, can be downloaded from the SEC’s website.

After the completion of this offering, we will file with or furnish to the SEC periodic reports and other information. These reports and other information may be inspected and copied at the Public Reference Room maintained by the SEC or obtained from the SEC’s website as provided above. Our website address is www.                    .com , and we intend to make our periodic reports and other information filed with or furnished to the SEC available, free of charge, through our website, as soon as reasonably practicable after those reports and other information are electronically filed with or furnished to the SEC. Information on our website or any other website is not incorporated by reference into this prospectus and does not constitute a part of this prospectus.

We intend to furnish or make available to our unitholders annual reports containing our audited financial statements prepared in accordance with GAAP. We also intend to furnish or make available to our unitholders quarterly reports containing our unaudited interim financial information, including the information required by Form 10-Q, for the first three fiscal quarters of each fiscal year.

 

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FORWARD-LOOKING STATEMENTS

This prospectus contains forward-looking statements. Statements that are predictive in nature, that depend upon or refer to future events or conditions or that include the words “will,” “believe,” “expect,” “anticipate,” “intend,” “estimate” and other expressions that are predictions of or indicate future events and trends and that do not relate to historical matters identify forward-looking statements. Our forward-looking statements include statements about our business strategy, our industry, our future profitability, our expected capital expenditures (including environmental expenditures) and the impact of such expenditures on our performance, the costs of operating as a publicly traded partnership and our capital programs. All statements herein about our forecast of cash available for distribution and our forecasted results for the twelve months ending September 30, 2014 and for the three months ending December 31, 2014 constitute forward-looking statements. These statements involve known and unknown risks, uncertainties and other factors, including the factors described under “Risk Factors,” that may cause our actual results and performance to be materially different from any future results or performance expressed or implied by these forward-looking statements. Such risks and uncertainties include, among other things:

 

   

our ability to make cash distributions on the common units;

 

   

the volatile nature of our business and the variable nature of our distributions;

 

   

the ability of our general partner to modify or revoke our distribution policy at any time;

 

   

our ability to forecast our future financial condition or results of operations and our future revenues and expenses;

 

   

our reliance on a single facility for conducting our operations;

 

   

our limited operating history;

 

   

potential operating hazards from accidents, fire, severe weather, floods or other natural disasters;

 

   

our reliance on insurance policies that may not fully cover an accident or event that causes significant damage to our facility or causes extended business interruption;

 

   

our lack of contracts that provide for minimum commitments from our customers;

 

   

the cyclical nature of our business;

 

   

expected demand for methanol, ammonia and their derivatives;

 

   

expected methanol, ammonia and energy prices;

 

   

anticipated production rates at our plant;

 

   

our reliance on natural gas delivered to us by our suppliers, including DCP Midstream and Kinder Morgan;

 

   

expected levels, timing and availability of economically priced natural gas supply to our plant;

 

   

expected operating costs, including natural gas and other feedstock costs and logistics costs;

 

   

expected new methanol supply or restart of idled capacity and timing for start-up of new or idled production facilities;

 

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shutdowns (either temporary or permanent) or restarts of existing methanol and ammonia supplies (including our own facility), including, without limitation, the timing and length of planned maintenance outages;

 

   

our expected capital expenditures;

 

   

the impact of regulatory developments on the demand for our products;

 

   

global and regional economic activity (including industrial production levels);

 

   

a decrease in ethanol production;

 

   

intense competition from other methanol and ammonia producers, including recent announcements by our competitors of their intentions to relocate, restart or construct methanol plants in the Texas Gulf Coast region;

 

   

the dependence of our operations on a few third-party suppliers, including providers of transportation services and equipment;

 

   

the risk associated with governmental policies affecting the agricultural industry;

 

   

the hazardous nature of our products, potential liability for accidents involving our products that cause interruption to our business, severe damage to property or injury to the environment and human health and potential increased costs relating to the transport of our products;

 

   

our potential inability to obtain or renew permits;

 

   

existing and proposed environmental laws and regulations, including those relating to climate change, alternative energy or fuel sources, and on the end-use and application of our products;

 

   

new regulations concerning the transportation of hazardous chemicals, risks of terrorism and the security of chemical manufacturing facilities;

 

   

our lack of asset and geographic diversification;

 

   

our dependence on significant customers;

 

   

our ability to comply with employee safety laws and regulations;

 

   

the success of our debottlenecking project;

 

   

our potential inability to successfully implement our business strategies, including the completion of significant capital programs;

 

   

additional risks, compliance costs and liabilities from expansions or acquisitions;

 

   

our reliance on our senior management team;

 

   

the potential shortage of skilled labor or loss of key personnel;

 

   

our indebtedness could adversely affect our financial condition;

 

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our ability to service our indebtedness;

 

   

restrictions in our debt agreements;

 

   

potential increases in costs and distraction of management resulting from the requirements of being a publicly traded partnership;

 

   

exemptions we will rely on in connection with NYSE corporate governance requirements;

 

   

risks relating to our relationships with OCI or its affiliates;

 

   

control of our general partner by OCI;

 

   

the conflicts of interest faced by our senior management team, which operates both us and our general partner;

 

   

limitations on the fiduciary duties owed by our general partner to us and our limited partners which are included in the partnership agreement; and

 

   

changes in our treatment as a partnership for U.S. federal income or state tax purposes.

You should not place undue reliance on our forward-looking statements. Although forward-looking statements reflect our good faith beliefs, forward-looking statements involve known and unknown risks, uncertainties and other factors, which may cause our actual results, performance or achievements to differ materially from anticipated future results, performance or achievements expressed or implied by such forward-looking statements. We undertake no obligation to publicly update or revise any forward-looking statement, whether as a result of new information, future events, changed circumstances or otherwise, unless required by law.

 

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INDEX TO FINANCIAL STATEMENTS

 

OCI Partners LP   

Unaudited Pro Forma Condensed Financial Statements

  

Introduction

     F-2   

Unaudited Pro Forma Condensed Balance Sheet as of March 31, 2013

     F-3   

Unaudited Pro Forma Condensed Statement of Operations for the Twelve Months Ended March 31, 2013

     F-5   

Unaudited Pro Forma Condensed Statement of Operations for the Three Months Ended March 31, 2013

     F-6   

Unaudited Pro Forma Condensed Statement of Operations for the Three Months Ended March 31, 2012

     F-7   

Unaudited Pro Forma Condensed Statement of Operations for the Year Ended December 31, 2012

     F-8   

Notes to the Unaudited Pro Forma Condensed Financial Statements

     F-9   
OCI Beaumont LLC   

Historical Financial Statements

  

Unaudited Condensed Balance Sheets as of March 31, 2013 and December 31, 2012

     F-12   

Unaudited Condensed Statements of Operations for the Three-Month Periods Ended March  31, 2013 and 2012

     F-13   

Unaudited Condensed Statements of Member’s Equity for the Three-Month Periods Ended March  31, 2013 and 2012

     F-14   

Unaudited Condensed Statements of Cash Flows for the Three-Month Periods Ended March  31, 2013 and 2012

     F-15   

Notes to Unaudited Condensed Financial Statements

     F-16   

Report of Independent Registered Public Accounting Firm

     F-22   

Balance Sheets as of December 31, 2012 and 2011

     F-23   

Statements of Operations for the Years Ended December 31, 2012 and 2011

     F-24   

Statements of Member’s Equity for the Years Ended December 31, 2012 and 2011

     F-25   

Statements of Cash Flows for the Years Ended December 31, 2012 and 2011

     F-26   

Notes to Financial Statements

     F-27   
OCI Partners LP   

Historical Balance Sheet

  

Unaudited Balance Sheet as of March 31, 2013

     F-36   

Note to Balance Sheet

     F-37   

 

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UNAUDITED PRO FORMA CONDENSED FINANCIAL STATEMENTS

Introduction

The unaudited pro forma condensed financial statements of OCI Partners LP (the “Partnership”) have been derived from the audited historical and unaudited historical financial statements of OCI Beaumont LLC (“OCIB”) included elsewhere in this prospectus.

The unaudited pro forma condensed balance sheet as of March 31, 2013 and the unaudited pro forma condensed statements of operations for the twelve months ended March 31, 2013, the three months ended March 31, 2013 and 2012, and the year ended December 31, 2012 have been adjusted to give effect to the transactions described in Note 1 to the unaudited pro forma condensed financial statements (the “Transactions”). The historical financial statements have been adjusted in the unaudited pro forma condensed financial statements to give pro forma effect to events that are (1) directly attributable to the Transactions, (2) factually supportable, and (3) with respect to the statements of operations, expected to have a continuing impact on the combined results.

The unaudited pro forma condensed statement of operations for the twelve months ended March 31, 2013 is calculated as follows: (i) the unaudited condensed statement of operations for the twelve months ended December 31, 2012; plus (ii) the unaudited condensed statement of operations for the three months ended March 31, 2013; less (iii) the unaudited condensed statement of operations for the three months ended March 31, 2012.

The unaudited pro forma condensed financial statements are not necessarily indicative of the results that we would have achieved had the Transactions described herein actually taken place at the dates indicated, and do not purport to be indicative of future financial position or operating results. The unaudited pro forma condensed financial statements should be read in conjunction with the audited and unaudited financial statements of OCIB, the related notes and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included elsewhere in this prospectus.

The pro forma adjustments are based on available information and certain assumptions that we believe are reasonable. The pro forma adjustments and certain assumptions are described in the accompanying notes.

The accompanying notes are an integral part of these unaudited pro forma condensed financial statements.

 

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OCI PARTNERS LP

UNAUDITED PRO FORMA CONDENSED

BALANCE SHEET

AS OF MARCH 31, 2013

 

     Historical
as of
March 31, 2013
    Pro Forma
Adjustments
for Planned
and
Completed
Transactions
(Note 3)
    Pro Forma
as of
March 31, 2013
Excluding Sources
and Uses of
IPO Proceeds
    Pro Forma
Adjustments for
Sources and
Uses of IPO
Proceeds
(Note 3)
    Pro Forma
as of
March 31, 2013
 
           (in thousands)        
Assets       

Current assets:

          

Cash and cash equivalents

   $ 19,403      $ (19,403 (d)       (2,788     480,000    (f)     $ 159,618   
       (1,250 (a)         (30,000 (g)    
       (988 (a)         (2,500 (g)    
       2,225    (b)         (160,094 (f)    
       (2,775 (c)         (125,000 (f)    

Restricted cash

     282        (282 (d)       —            —     

Accounts receivable

     55,488        (55,488 (e)       —            —     

Inventories

     4,579        —          4,579        —          4,579   

Prepaid expenses – related party

     10,388        —          10,388        (10,388 (f)       —     

Other current assets and prepaid expenses

     1,776        (250 (a)       1,526        —          1,526   
       425    (b)        
       (425 (c)        
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total current assets

     91,916        (78,211     13,705        152,018        165,723   

Property, plant, and equipment, net

     328,495        —          328,495        —          328,495   

Other non-current assets

     —          425    (c)       425        —          425   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total assets

   $ 420,411        (77,786     342,625      $ 152,018      $ 494,643   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Liabilities and Member’s Equity / Partners’ Capital

          

Current liabilities:

          

Accounts payable

     15,255        —         15,255        —          15,255   

Accounts payable – related party

     2,726        —         2,726        —          2,726   

Other payables and accruals

     2,006        —         2,006        —          2,006   

Credit facility

     125,000        (125,000 (a)       —         —          —     

Current portion of long-term debt

     —          125,000    (a)       126,100        (123,750 (f)       2,350   
       (1,250 (a)        
       2,350    (c)        
       235,000    (b)        
       (2,350 (b)        
       (232,650 (c)        

Accrued interest

     988        (988 (a)       —          —          —     

Other current liabilities

     2,372        —          2,372        —          2,372   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total current liabilities

     148,347        112        148,459        (123,750     24,709   

Debt – related party

     170,482        —         170,482        (170,482 (f)       —     

Long-term debt

     —          232,650    (c)       230,300               230,300   
       (2,350 (c)        

Accrued interest – related party

     —          —         —          —          —     
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total liabilities

     318,829        230,412        549,241        (294,232     255,009   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

F-3


Table of Contents
Index to Financial Statements
     Historical
as of
March 31, 2013
    Pro Forma
Adjustments
for Planned
and
Completed
Transactions
(Note 3)
    Pro Forma
as of
March 31, 2013
Excluding Sources
and Uses of
IPO Proceeds
    Pro Forma
Adjustments for
Sources and
Uses of IPO
Proceeds
(Note 3)
    Pro Forma
as of
March 31, 2013
 
           (in thousands)        

Historical member’s equity:

          

Member’s capital

     4,000        (19,403 (d)       (301,173     (4,000 (h)       —     
       (282 (d)         305,173   (h)    
       (55,488 (e)        
       (230,000 (b)        

Retained earnings

     97,582        (2,350 (c)       94,557        (1,250 (f)       —     
       (425 ) (c)         (93,307 (h)    
       (250 ) (a)        
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total member’s equity

     101,582        (308,198     (206,616     206,616        —     
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Pro Forma Partners’ Capital

          

Member’s equity / partners’ capital:

          

Capital held by public:

          

Common units issued and outstanding

     —          —          —          480,000   (f)       447,500   
           (30,000 (g)    
           (2,500 (g)    

Capital held by OCI USA:

          

Common units issued and outstanding

     —          —          —          93,307   (h)       (207,866
           (305,173 (h)    
           4,000   (h)    
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total liabilities and member’s equity / partners’ capital

   $ 420,411      $ (77,786   $ 342,625      $ 152,018      $ 494,643   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

The accompanying notes are an integral part of these unaudited pro forma condensed financial statements.

 

F-4


Table of Contents
Index to Financial Statements

OCI PARTNERS LP

UNAUDITED PRO FORMA CONDENSED

STATEMENT OF OPERATIONS

FOR THE TWELVE MONTHS ENDED MARCH 31, 2013

 

     Historical
Twelve Months Ended
March 31, 2013
     Pro Forma
Adjustments
(Note 4)
    Pro Forma Twelve
Months Ended
March 31, 2013
 
     (in thousands)  

Revenues

   $ 310,298       $ —       $ 310,298   

Cost of goods sold (exclusive of depreciation)

     162,088         —         162,088   

Depreciation expense

     15,901         —         15,901   

Selling, general, and administrative expense

     19,599         (4,599 (c)       15,000   
  

 

 

    

 

 

   

 

 

 

Income (loss) from operations before interest expense, other income and income tax expense

     112,710         4,599        117,309   

Interest expense

     7,977         (7,977 (a)       10,936   
        10,936  (b)    

Interest expense – related party

     10,880         (10,880 (a)       200   
        200  (d)    

Other income

     52         —         52   
  

 

 

    

 

 

   

 

 

 

Income before tax expense

     93,905         12,320        106,225   
  

 

 

    

 

 

   

 

 

 

Income tax expense

     1,475         —         1,475   
  

 

 

    

 

 

   

 

 

 

Net income

   $ 92,430       $ 12,320      $ 104,750   
  

 

 

    

 

 

   

 

 

 
Common unitholders’ interest in net income
Income per common unit (basic and diluted)
Weighted average number of common units outstanding
(basic and diluted)
       

The accompanying notes are an integral part of these unaudited pro forma condensed financial statements.

 

F-5


Table of Contents
Index to Financial Statements

OCI PARTNERS LP

UNAUDITED PRO FORMA CONDENSED

STATEMENT OF OPERATIONS

FOR THE THREE MONTHS ENDED MARCH 31, 2013

 

    

Historical
Three Months Ended
March 31, 2013

    

Pro Forma
Adjustments
(Note 4)

   

Pro Forma Three
Months Ended
March 31, 2013

 
     (in thousands)  

Revenues

   $ 112,161       $ —        $ 112,161   

Cost of goods sold (exclusive of depreciation)

     45,952         —          45,952   

Depreciation expense

     5,512         —          5,512   

Selling, general, and administrative expense

     8,098         (4,348 )  (c)       3,750   
  

 

 

    

 

 

   

 

 

 

Income (loss) from operations before interest expense, other income and income tax expense

     52,599         4,348        56,947   

Interest expense

     2,259         (2,259 )  (a)       2,688   
        2,688  (b)    

Interest expense – related party

     4,411         (4,411 )  (a)       50   
        50  (d)    

Other income

     9         —          9   
  

 

 

    

 

 

   

 

 

 

Income before tax expense

     45,938         8,280        54,218   
  

 

 

    

 

 

   

 

 

 

Income tax expense

     474         —          474   
  

 

 

    

 

 

   

 

 

 

Net income

   $ 45,464       $ 8,280      $ 53,744   
  

 

 

    

 

 

   

 

 

 
Common unitholders’ interest in net income
Income per common unit (basic and diluted)
Weighted average number of common units outstanding
(basic and diluted)
       

The accompanying notes are an integral part of these unaudited pro forma condensed financial statements.

 

F-6


Table of Contents
Index to Financial Statements

OCI PARTNERS LP

UNAUDITED PRO FORMA CONDENSED

STATEMENT OF OPERATIONS

FOR THE THREE MONTHS ENDED MARCH 31, 2012

 

     Historical
Three Months Ended
March 31, 2012
     Pro Forma
Adjustments
(Note 4)
    Pro Forma
Three Months Ended
March 31, 2012
 
     (in thousands)  

Revenues

   $ 26,492       $ —        $ 26,492   

Cost of goods sold (exclusive of depreciation)

     17,294         —          17,294   

Depreciation expense

     966         —          966   

Selling, general, and administrative expense

     3,479         271  (c)       3,750   
  

 

 

    

 

 

   

 

 

 

Income (loss) from operations before interest expense, other income and income tax expense

     4,753         (271     4,482   

Interest expense

     —           2,714  (b)       2,714   

Interest expense – related party

     —           50  (d)       50   

Other income

     159        
—  
  
    159   
  

 

 

    

 

 

   

 

 

 

Income before tax expense

     4,912         (3,035     1,877   
  

 

 

    

 

 

   

 

 

 

Income tax expense

     47         —          47   
  

 

 

    

 

 

   

 

 

 

Net income

   $ 4,865       $ (3,035   $ 1,830   
  

 

 

    

 

 

   

 

 

 

Common unitholders’ interest in net income
Income per common unit (basic and diluted)
Weighted average number of common units outstanding
(basic and diluted)

       

The accompanying notes are an integral part of these unaudited pro forma condensed financial statements.

 

F-7


Table of Contents
Index to Financial Statements

OCI PARTNERS LP

UNAUDITED PRO FORMA CONDENSED

STATEMENT OF OPERATIONS

FOR THE YEAR ENDED DECEMBER 31, 2012

 

     Historical
Year Ended
December 31, 2012
     Pro Forma
Adjustments
(Note 4)
    Pro Forma
Year Ended
December 31, 2012
 
     (in thousands)  

Revenues

   $ 224,629       $ —        $ 224,629   

Cost of goods sold (exclusive of depreciation)

     133,430         —          133,430   

Depreciation expense

     11,355         —          11,355   

Selling, general, and administrative expense

     14,980         20  (c)       15,000   
  

 

 

    

 

 

   

 

 

 

Income (loss) from operations before interest expense, other income and income tax expense

     64,864         (20     64,844   

Interest expense

     5,718         (5,718 )  (a)       10,962   
        10,962  (b)    

Interest expense – related party

     6,469         (6,469 )  (a)       200   
        200  (d)    

Other income

     202         —          202   
  

 

 

    

 

 

   

 

 

 

Income before tax expense

     52,879         1,005        53,884   
  

 

 

    

 

 

   

 

 

 

Income tax expense

     1,048         —          1,048   
  

 

 

    

 

 

   

 

 

 

Net income

   $ 51,831       $ 1,005      $ 52,836   
  

 

 

    

 

 

   

 

 

 
Common unitholders’ interest in net income
Income per common unit (basic and diluted)
Weighted average number of common units outstanding
(basic and diluted)
       

 

 

The accompanying notes are an integral part of these unaudited pro forma condensed financial statements.

 

F-8


Table of Contents
Index to Financial Statements

OCI PARTNERS LP

NOTES TO THE UNAUDITED PRO FORMA

CONDENSED FINANCIAL STATEMENTS

(1) Organization and Basis of Presentation

The unaudited pro forma condensed financial statements have been derived from the audited and unaudited historical financial statements of OCIB. After the Transactions described herein take place, OCIB will become a wholly-owned subsidiary of the Partnership.

The unaudited pro forma condensed financial statements are not necessarily indicative of the results that the Partnership would have achieved had the Transactions described herein actually taken place at the dates indicated, and do not purport to be indicative of future financial position or operating results.

The unaudited pro forma condensed financial statements should be read in conjunction with the historical financial statements of OCIB, the related notes and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included elsewhere in this prospectus.

The pro forma adjustments have been prepared as if the Transactions described below had taken place on (i) March 31, 2013 in the case of the unaudited pro forma condensed balance sheet, (ii) as of April 1, 2012 in the case of the unaudited pro forma condensed statement of operations for the twelve months ended March 31, 2013 and (iii) as of January 1, 2012, in the case of the unaudited pro forma condensed statements of operations for the three months ended March 31, 2013 and 2012 and the year ended December 31, 2012.

The unaudited pro forma condensed financial statements reflect the following transactions:

 

   

OCI USA Inc. (“OCI USA”) and OCI GP LLC (the “GP”) form the Partnership on February 7, 2013 whereby the GP contributes $0 for a non-economic general partner interest and OCI USA contributes $1,000 in exchange for a 100% limited partner interest.

 

   

OCIB enters into and borrows on a $360.0 million Term Loan credit agreement in May 2013 consisting of two tranches as follows:

 

   

Term B-1 Loan of $125.0 million which is utilized to repay existing external debt of $125.0 million and

 

   

Term B-2 Loan of $235.0 million, of which $230.0 million is distributed to OCI USA, which contains a 1% discount and $0.4 million used to pay debt issuance costs.

 

   

OCIB enters into a new intercompany revolving credit facility with a borrowing capacity of $40.0 million with a fixed interest rate of 5.5% and a 0.5% commitment fee on the unused amount. OCIB does not intend to draw on the intercompany revolving credit facility.

 

   

OCIB repays the aforementioned $235.0 million Term B-2 Loan with the proceeds from a new Term Loan B in the principal amount of $235.0 million during the three months ended September 30, 2013.

 

   

OCIB contributes all of its existing employees to the GP and contributes its New York office lease to OCI USA. The GP will burden the Partnership with selling, general and administrative costs in the future through the omnibus agreement.

 

   

OCIB distributes all cash, restricted cash and accounts receivable to OCI USA.

 

   

OCI USA contributes its member interests in OCIB to the Partnership in exchange for                  common units representing limited partner interests and the public contributes $480.0 million ($450.0 million net of the underwriters’ discount and structuring fee of $30.0 million) in exchange for                  common units.

 

F-9


Table of Contents
Index to Financial Statements
   

The Partnership pays transaction expenses of approximately $2.5 million.

 

   

The Partnership contributes $     of the IPO proceeds to OCIB and OCIB, in turn:

 

   

Utilizes $170.5 million to repay intercompany debt owed to OCI Fertilizer International B.V.,

 

   

Utilizes $125.0 million to repay the Term B-1 Loan, and

 

   

Utilizes the remaining IPO proceeds to pay a portion of the costs of our debottlenecking project and other budgeted capital projects incurred after the completion of the IPO; and

 

   

Utilizes the remaining IPO proceeds, if any, for general partnership purposes, including working capital.

 

   

The Partnership redeems the limited partner interests issued to OCI USA in connection with the formation of the Partnership for $1,000.

Upon the closing of the Partnership’s initial public offering, the Partnership anticipates incurring incremental general and administrative expenses as a result of being a publicly traded limited partnership, such as costs associated with SEC reporting requirements, tax return and Schedule K-1 preparation and distribution, Sarbanes-Oxley Act compliance, listing its common units on the NYSE, independent auditor fees, legal fees, investor relations costs, registrar and transfer agent fees, directors and officers insurance and director compensation. The Partnership estimates that this incremental general and administrative expense will be approximately $4.0 million per year. The Partnership’s unaudited pro forma condensed financial statements do not reflect this incremental expense. See “Unaudited Pro Forma Cash Available for Distribution” beginning on page 57 where this incremental expense is reflected.

(2) Partner Interest

Following this offering, the Partnership will have two types of partner interests outstanding:

 

   

common units representing limited partner interests of the Partnership, of which      will be sold in this offering to the public, assuming the underwriters do not exercise their option to purchase additional common units, and, accordingly, that the              common units that could be purchased by the underwriter pursuant to such option will instead be issued to OCI USA at the expiration of the option period, and      common units will be held by OCI USA; and

 

   

a non-economic general partner interest, which is not entitled to any distributions, will be held by the GP.

(3) Pro Forma Condensed Balance Sheet Adjustments and Assumptions

 

  (a) Reflects the repayment in full of borrowings under OCIB’s previous credit agreement of $125.0 million, including accrued interest of $0.1 million and write-off of the unamortized debt discount of $0.3 million, with the proceeds from the Term B-1 Loan in the principal amount of $125.0 million, with a 1% debt discount. This results in a reduction of cash for the difference between loan proceeds received of $123.8 million and repayment of the full amount of $125.0 million for the previous credit agreement.

 

  (b) Reflects the proceeds from the Term B-2 Loan in the principal amount of $235.0 million, with a 1% debt discount and $0.4 million debt issuance costs, of which $230.0 million is distributed to OCI USA. The remaining loan proceeds of $2.2 million are recorded to cash.

 

  (c) Reflects the repayment in full of the Term B-2 Loan in the amount of $235.0 million and write-off of the unamortized debt discount of $2.4 million, with the proceeds from the new Term Loan B, with a maturity of 6.5 years, in the principal amount of $235.0 million with a 1% debt discount, $0.4 million debt issuance costs and 1% of principal reflected as current. This results in a reduction of cash for the difference between loan proceeds received of $232.2 million and repayment of the full amount of $235.0 million for the Term B-2 Loan.

 

F-10


Table of Contents
Index to Financial Statements
  (d) Reflects the distribution of all of OCIB’s historical cash and restricted cash to OCI USA.

 

  (e) Reflects the distribution of all of OCIB’s historical accounts receivable to OCI USA.

 

  (f) Reflects the issuance by the Partnership of          common units to the public at an initial offering price of $         per common unit resulting in aggregate gross proceeds of $480.0 million. The proceeds will be used to repay OCIB’s historical intercompany loan of $170.5 million and the Term B-1 Loan of $125.0 million, including prepaid interest of $10.4 million and write-off of unamortized discount of $1.3 million. The reduction to cash of $160.1 million is for the difference between the intercompany loan repayment and the amount eliminated from prepaid interest expense.

 

  (g) Reflects the payment of underwriting discount of $30.0 million, including a structuring fee, and other estimated offering expenses of $2.5 million for a total of $32.5 million which will be allocated to the newly issued public common units.

 

  (h) Reflects the conversion of historical retained earnings and member’s equity to common units held by OCI and its affiliates.

(4) Pro Forma Condensed Statement of Operations Adjustments and Assumptions

 

  (a) Reflects the elimination of historical interest expense related to OCIB’s historical third party and related party debt.

 

  (b) Reflects the adjustment to interest expense for OCIB’s new Term Loan B with a principal amount of $235.0 million, maturing in 6.5 years, required quarterly principal payments of 0.25% of the outstanding balance (equating to 1% annually), an assumed annual interest rate of 4.5% resulting in an annual interest expense of approximately $11.0 million, which also includes approximately $0.4 million and $0.1 million for the amortization of the 1% debt discount and debt issuance costs, respectively. A 0.125% change in interest rate under the new Term Loan B would change pro forma interest expense by approximately $0.3 million.

 

  (c) Reflects the net impact for the elimination of historical selling, general and administrative expenses and the adjustment to record the annual $15.0 million service charge allocated to the Partnership from OCI USA. This amount excludes the $4.0 million of estimated incremental general and administrative expenses that the Partnership expects to incur as a result of being a publicly traded partnership.

 

  (d) Reflects the adjustment to interest expense-related party for OCIB’s new intercompany revolving credit facility with a borrowing capacity of $40.0 million and a 0.5% commitment fee on the unused amount. OCIB has no current expectation of drawing on the intercompany revolving credit facility.

(5) Pro Forma Net Income per Unit

Basic pro forma net income per unit is determined by dividing the pro forma net income that would have been allocated, in accordance with the provisions of the Partnership’s partnership agreement, to the common unitholders, by the number of common units expected to be outstanding at the completion of this offering. For purposes of this calculation, the Partnership assumed that pro forma distributions were equal to pro forma net income and that the number of units outstanding was          common units. All common units were assumed to have been outstanding since April 1, 2012 for the twelve months ended March 31, 2013 and since January 1, 2012 for the three months ended March 31, 2013 and 2012 and the year ended December 31, 2012. For purposes of this calculation, the Partnership assumed that basic and diluted pro forma net income per unit are equivalent as there are not expected to be any dilutive units at the date of closing of the initial public offering of the common units of the Partnership. See Footnote 1 to the interim financial statements as of March 31, 2013 at F-9 for further discussion on SAB 1.B.3 pro forma per unit calculations and disclosures.

 

F-11


Table of Contents
Index to Financial Statements

OCI BEAUMONT LLC

Condensed Balance Sheets

March 31, 2013 and December 31, 2012

(Unaudited)

(Dollars in thousands)

 

    

Supplemental
Unaudited
Pro Forma
March 31,
2013

   

March 31,
2013

    

December 31,
2012

 

Assets

  

Current assets:

       

Cash and cash equivalents

   $ —        $ 19,403       $ 41,708   

Restricted cash

     —          282         282   

Accounts receivable

     —          55,488         28,099   

Inventories

     4,579        4,579         4,430   

Prepaid Interest – related party

     10,388        10,388         —     

Other assets and prepaid expenses

     1,776        1,776         1,496   
  

 

 

   

 

 

    

 

 

 

Total current assets

     16,743        91,916         76,015   

Property, plant, and equipment, net of accumulated depreciation of $16,867 and $11,355, respectively

     328,495        328,495         329,330   
  

 

 

   

 

 

    

 

 

 

Total assets

   $ 345,238      $ 420,411       $ 405,345   
  

 

 

   

 

 

    

 

 

 

Liabilities and Member’s Equity

  

Current liabilities:

       

Accounts payable

   $ 15,255      $ 15,255       $ 18,691   

Accounts payable – related party

     2,726        2,726         4,016   

Other payables and accruals

     2,006        2,006         6,365   

Credit facility

     125,000        125,000         125,000   

Distribution payable to OCI USA Inc. 

     230,000        —           —     

Accrued interest

     988        988         1,019   

Other current liabilities

     2,372        2,372         3,453   
  

 

 

   

 

 

    

 

 

 

Total current liabilities

     378,347        148,347         158,544   

Debt – related party

     170,482        170,482         170,482   

Accrued interest – related party

     —          —           20,201   
  

 

 

   

 

 

    

 

 

 

Total liabilities

     548,829        318,829         349,227   
  

 

 

   

 

 

    

 

 

 

Member’s equity:

       

Member’s capital

     4,000        4,000         4,000   

Retained earnings (deficit)

     (207,591     97,582         52,118   
  

 

 

   

 

 

    

 

 

 

Total member’s equity (deficit)

     (203,591     101,582         56,118   
  

 

 

   

 

 

    

 

 

 

Total liabilities and member’s equity (deficit)

   $ 345,238      $ 420,411       $ 405,345   
  

 

 

   

 

 

    

 

 

 

See accompanying notes to unaudited financial statements.

 

F-12


Table of Contents
Index to Financial Statements

OCI BEAUMONT LLC

Condensed Statements of Operations

Three-month periods ended March 31, 2013 and March 31, 2012

(Unaudited)

(Dollars in thousands)

 

    

2013

    

2012

 

Revenues

   $ 112,161       $ 26,492   

Cost of goods sold (exclusive of depreciation)

     45,952         17,294   

Depreciation expense

     5,512         966   

Selling, general, and administrative expenses

     8,098         3,479   
  

 

 

    

 

 

 

Income from operations before interest expense, other income and income tax expense

     52,599         4,753   

Interest expense

     2,259         —     

Interest expense – related party

     4,411         —     

Other income

     9         159   
  

 

 

    

 

 

 

Income (loss) from operations before tax expense

     45,938         4,912   

Income tax expense

     474         47   
  

 

 

    

 

 

 

Net income (loss)

   $ 45,464       $ 4,865   
  

 

 

    

 

 

 

Unaudited pro forma basic earnings per common unit (Note 1)

Unaudited pro forma diluted earnings per common unit (Note 1)

See accompanying notes to unaudited financial statements.

 

F-13


Table of Contents
Index to Financial Statements

OCI BEAUMONT LLC

Condensed Statements of Member’s Equity

Three-month periods ended March 31, 2013 and March 31, 2012

(Unaudited)

(Dollars in thousands)

 

    

Member’s
capital

    

Retained earnings
(deficit)

    

Total
member’s
equity

 

Balances as of December 31, 2011

   $ 4,000       $ 287       $ 4,287   

Net income

     —           4,865         4,865   
  

 

 

    

 

 

    

 

 

 

Balances as of March 31, 2012

     4,000         5,152         9,152   
  

 

 

    

 

 

    

 

 

 

Balances as of December 31, 2012

     4,000         52,118         56,118   

Net income

     —           45,464         45,464   
  

 

 

    

 

 

    

 

 

 

Balances as of March 31, 2013

   $ 4,000       $ 97,582       $ 101,582   
  

 

 

    

 

 

    

 

 

 

See accompanying notes to unaudited financial statements.

 

F-14


Table of Contents
Index to Financial Statements

OCI BEAUMONT LLC

Condensed Statements of Cash Flows

Three-month periods ended March 31, 2013 and March 31, 2012

(Unaudited)

(Dollars in thousands)

 

    

2013

   

2012

 

Cash flows from operating activities:

    

Net income (loss)

   $ 45,464      $ 4,865   

Adjustments to reconcile net income (loss) to net cash used in operating activities:

    

Depreciation expense

     5,512        966   

Amortization of debt issuance costs

     750        —     

Decrease (increase) in:

    

Accounts receivable

     (27,389     (8,187

Inventories

     (149     (5,913

Prepaid interest – related party

     (10,388     —     

Other current assets and prepaid expenses

     (1,030     (308

Increase (decrease) in:

    

Accounts payable

     (3,697     3,137   

Accounts payable – related party

     (1,290     26   

Other payables, accruals, and current liabilities

     (3,375     572   

Accrued interest

     (31     —     

Accrued interest – related party

     (20,201     —     
  

 

 

   

 

 

 

Net cash used in operating activities

     (15,824     (4,842
  

 

 

   

 

 

 

Cash flows from investing activities:

    

Purchase of property, plant, and equipment

     (6,481     (83,752
  

 

 

   

 

 

 

Net cash used in investing activities

     (6,481     (83,752
  

 

 

   

 

 

 

Cash flows from financing activities:

    

Proceeds from borrowings – related party

     —          91,000   
  

 

 

   

 

 

 

Net cash provided by financing activities

     —          91,000   
  

 

 

   

 

 

 

Net (decrease) increase in cash and cash equivalents

     (22,305     2,406   

Cash and cash equivalents, beginning of period

     41,708        1,034   
  

 

 

   

 

 

 

Cash and cash equivalents, end of period

   $ 19,403      $ 3,440   
  

 

 

   

 

 

 

Supplemental disclosures:

    

Cash paid during the period for interest, net of amount capitalized-related party

   $ 35,000      $ —     

Cash paid during the period for interest, net of amount capitalized

     1,538        —     

Supplemental non-cash disclosures:

    

Accruals of property, plant and equipment purchases

   $ 312      $ 3,896   

Capitalized interest – related party

     —          4,171   

See accompanying notes to unaudited financial statements.

 

F-15


Table of Contents
Index to Financial Statements

OCI BEAUMONT LLC

Notes to Unaudited

Condensed Financial Statements

March 31, 2013

(Dollars in thousands)

 

(1) Description of Business

OCI Beaumont LLC (the Company) is a Texas Limited Liability Company formed on December 10, 2010 as the acquisition vehicle to purchase the manufacturing facility and related assets offered for sale by Eastman Chemical Company on May 5, 2011 (the Acquisition Date) for $26,500 (the Asset Acquisition). In addition, on June 21, 2012, the Company changed its legal name from Pandora Methanol LLC to OCI Beaumont LLC.

The Company funded the purchase and subsequent construction of the facility through intercompany loans from its parent as well as a loan from a third party financial institution (See note 4). The assets purchased had not been operating since December 2004, and therefore, the Company commenced a rehabilitation and renovation program at the facility shortly following the Acquisition Date. The assets purchased are located in the Gulf Coast region of the United States near Beaumont, Texas, and the Company commenced its full operations during August 2012. The Company produces and sells methanol and anhydrous ammonia. In addition, the Company has a pipeline connection to adjacent customers and port access with dedicated methanol and ammonia import/export jetties, allowing it to ship both products along the Gulf Coast.

The Company is a wholly owned subsidiary of OCI USA Inc. (formerly, Albiorix Inc.), a Delaware corporation, which is an indirect wholly owned subsidiary of OCI Fertilizer International B.V., a Dutch private limited liability company. OCI Fertilizer International B.V. is an indirect wholly owned subsidiary of OCI N.V., a Dutch public limited liability company, which is the ultimate parent for a group of related entities. OCI N.V., through its subsidiaries, is a global nitrogen-based fertilizer producer and engineering and construction contractor. OCI N.V. is listed on the NYSE Euronext Amsterdam and trades under the symbol “OCI”.

As of March 31, 2013, the Company had approximately $56,000 of net working capital deficit. This amount includes $125,000 of short-term borrowings from a syndicate of lenders, including Credit Agricole Corporate and Investment Bank, as facility agent (the Credit Facility) due July 24, 2013 (note 4b). The Company also had a negative cash flows from operations during the three months ended March 31, 2013 primarily due to the payment of the related party accrued interest during March 2013 (see note 4a). OCI N.V. (or one or more of its subsidiaries) has the intent, ability, and is committed to continue to provide financial support to the Company sufficient for the Company, over at least the next twelve months, to satisfy all liabilities, obligations, and debt service requirements of the Company, on a timely basis, which the Company might be unable to satisfy as they become due. OCI N.V. (or one or more of its subsidiaries) has no restrictions to provide such support. In addition and as of March 31, 2013, the Company was obligated to OCI N.V. (through one or more of its subsidiaries) for certain loans, management fees, and accrued interest amounts. OCI N.V. (or one or more of its subsidiaries) will not require the repayment of these amounts or any portion thereof, including interest, or any other loans or management fees, including interest, which OCI N.V. (or one or more of its subsidiaries) may provide to the Company during the year ending December 31, 2013, prior to their stated maturity.

 

F-16


Table of Contents
Index to Financial Statements

OCI BEAUMONT LLC

Notes to Unaudited

Condensed Financial Statements

March 31, 2013

(Dollars in thousands)

 

Use of Estimates

The preparation of financial statements in conformity with U.S. generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Significant items subject to such estimates and assumptions include the useful lives of property, plant, and equipment, environmental liabilities, and other contingencies.

Supplemental Pro Forma Information (Unaudited)

Staff Accounting Bulletin 1.B.3 requires that certain distributions to owners prior to or concurrent with an initial public offering to be considered as distributions in contemplation of that offering. Prior to the completion of the Company’s proposed initial public offering, the Company will distribute approximately $305,173 to OCI USA Inc. in the form of cash of approximately $249,685 and accounts receivable of approximately $55,488. The supplemental pro forma balance sheet as of March 31, 2013, gives pro forma effect to this distribution as well as the distribution of all cash, restricted cash and accounts receivable as though it had been declared and was payable as of that date.

Unaudited basic and diluted pro forma earnings per common unit assumed              common units were outstanding for the three-month period ended March 31, 2013. The              common units are the number of common units that we would have been required to issue to fund the aforementioned distribution to OCI USA Inc. The number of common units that we would have been required to issue to fund the aforementioned distribution was calculated by dividing the total $305,173 distribution in excess of earnings by the issuance price of $                . There were no potential common units outstanding to be considered in the pro forma diluted earnings per unit calculation.

New Accounting Pronouncements and Adoption of Accounting Standards

The Company has implemented all new accounting pronouncements that are in effect and that management believes would materially impact the Company’s financial statements. Management does not believe that there are any other new accounting pronouncements that have been issued that may have a material impact on the Company’s financial position or results of operations.

 

(2) Inventories

Below is a summary of inventory balances by product

 

     As of  
    

March 31,
2013

    

December 31,
2012

 

Ammonia

   $ 2,519       $ 877   

Methanol

     2,060         3,553   
  

 

 

    

 

 

 

Total

   $ 4,579       $ 4,430   
  

 

 

    

 

 

 

 

F-17


Table of Contents
Index to Financial Statements

OCI BEAUMONT LLC

Notes to Unaudited

Condensed Financial Statements

March 31, 2013

(Dollars in thousands)

 

(3) Property, Plant, and Equipment

 

     As of  
    

March 31,
2013

    

December 31,
2012

 

Property, plant and equipment consisted of the following:

     

Land

   $ 1,479       $ 1,479   

Buildings

     5,035         5,035   

Plant and equipment

     326,646         323,718   

Vehicles

     63         63   

Construction in progress

     12,139         10,390   
  

 

 

    

 

 

 
     345,362         340,685   

Less accumulated depreciation

     16,867         11,355   
  

 

 

    

 

 

 

Total

   $ 328,495       $ 329,330   
  

 

 

    

 

 

 

 

(4) Debt

 

  (a) Debt – Related Party

The Company has related party debt agreements with OCI Fertilizer International B.V., which consist of the following as of March 31, 2013 and 2012:

 

   

March 31,
2013

   

Interest rate

 

Interest rate
as of
March 31, 2013

   

Maturity date

Facility loan I

  $ 40,000      9.25% + LIBOR     9.45   August 1, 2014

Facility loan II

    100,000      9.25% + LIBOR     9.45      August 1, 2014

Facility loan III

    30,482      9.25% + LIBOR     9.45      December 31, 2014
 

 

 

       

Total

  $ 170,482         
 

 

 

       
   

December 31,
2012

   

Interest rate

 

Interest rate
as of
December 31, 2012

   

Maturity date

Facility loan I

  $ 40,000      9.25% + LIBOR     9.46   August 1, 2014

Facility loan II

    100,000      9.25% + LIBOR     9.46      August 1, 2014

Facility loan III

    30,482      9.25% + LIBOR     9.46      December 31, 2014
 

 

 

       

Total

  $ 170,482         
 

 

 

       

As of March 31, 2013, the borrowing capacity under the facility loans I, II, and III was $40,000, $100,000, and $50,000, respectively. The principal and interest for all related party loans are due at maturity.

The facility loan I agreement was amended on June 26, 2012 to extend the maturity date from December 31, 2012 (the original maturity date) to August 1, 2014. As such and in accordance with ASC 470, Debt , the Company classified the facility loan I as a long-term liability as of December 31, 2012.

 

F-18


Table of Contents
Index to Financial Statements

OCI BEAUMONT LLC

Notes to Unaudited

Condensed Financial Statements

March 31, 2013

(Dollars in thousands)

 

On April 26, 2012, the Company entered into a term loan facility agreement with a syndicate of lenders, including Credit Agricole Corporate and Investment Bank, as facility agent (the Credit Facility), and borrowed $125,000 under the Credit Facility. On April 30, 2012, the Company utilized the borrowings under the Credit Facility to repay in full and terminate all of the $92,500 of debt outstanding under its related party term loan and revolving loan.

The Company paid $35,000 in March, 2013 to the holding entity to settle the balance of accrued interest on the related party loans including a $10,400 prepaid interest amount.

 

  (b) Debt – External Party

On April 26, 2012, the Company entered into the Credit Facility and borrowed $125,000 under the facility.

 

   

March 31,
2013

   

Interest rate

   

Interest rate
as of
March 31,
2013

   

Maturity date

Credit Facility

  $ 125,000        4.50% + LIBOR        4.83   April 25, 2013
 

 

 

       

Total

  $ 125,000         
 

 

 

       

 

   

December 31,
2012

   

Interest rate

 

Interest rate
as of
December 31,
2012

   

Maturity date

Credit Facility

  $ 125,000      4.50% + LIBOR     4.82   April 25, 2013
 

 

 

       

Total

  $ 125,000         
 

 

 

       

The Company can extend the maturity date of the Credit Facility no later than 60 days prior to original maturity date of the Credit Facility (April 25, 2013). The Credit Facility is guaranteed by Orascom Construction Industries S.A.E., a subsidiary of OCI N.V., with a pledge of 100% of the Company’s limited liability company interests. The Credit Facility contains various restrictive, nonfinancial covenants, which include, among others, reporting requirements, maintenance of specified insurance coverage, compliance of applicable laws and regulations, and maximum annual capital expenditures. The Credit Facility does not contain any financial covenants. The Company paid $1,537 of interest during the period ended March 31, 2013. In addition, the Company fully refinanced all of the $125,000 in outstanding debt under the Credit Facility during the second quarter of 2013 (see note 8).

The Company incurred $3,000 of debt issuance costs related to the Credit Facility during 2012. The debt issuance costs related to investment banking fees, legal, and other professional fees directly associated with entering into the Credit Facility. The Company recorded the debt issuance costs in other assets in the accompanying balance sheets and is amortizing them over the term of the Credit Facility. The amortization of the debt issuance costs was $750 for the period ended March 31, 2013 and is presented as a component of interest expense in the accompanying statements of operations.

 

F-19


Table of Contents
Index to Financial Statements

OCI BEAUMONT LLC

Notes to Unaudited

Condensed Financial Statements

March 31, 2013

(Dollars in thousands)

 

(5) Related Party

During the periods ended March 31, 2013 and 2012, the Company had related party transactions with OCI Fertilizer International B.V. related to management support fees of $2,313 and $1,004, respectively, which are recorded in selling general and administrative expense in the accompanying statements of operations. As indicated in note 4(a), the Company also has related party debt as of March 31, 2013 and December 31, 2012. No other related party transactions occurred during the periods ended March 31, 2013 and 2012.

 

(6) Significant Customers

During the three months ended March 31, 2013, the following customers accounted for 10% or more of the Company’s revenues:

 

Customer name

  

Percentage of the
three-month
period ended
March 31, 2013
revenues

 

Transammonia

     15.1

Rentech

     17.9

Methanex

     35.5

Koch

     21.3

The loss of any or more the Company’s significant customers noted above may have a material adverse effect on the Company’s future results of operations.

 

(7) Legal Proceedings

The Company is involved in various claims and/or legal actions from time to time arising in the ordinary course of business. In the opinion of management, the ultimate disposition of these matters will not have a material adverse effect on the Company’s financial position, results of operations, or liquidity. The Company’s facilities could be subject to potential environmental liabilities primarily relating to contamination caused by current and/or former operations at those facilities. Some environmental laws could impose on the Company the entire costs of cleanup regardless of fault, legality of the original disposal, or ownership of the disposal site. In some cases, the governmental entity with jurisdiction could seek an assessment for damage to the natural resources caused by contamination from those sites. The Company had no operating expenditures for environmental fines, penalties, or government-imposed remedial or corrective actions during the period ended March 31, 2013.

 

(8) Fair Value Measurement

The Company’s receivables and payables are short-term nature and therefore, the carrying value approximates their respective fair values as of March 31, 2013. Debt accrues interest at a variable rate, and as such, the fair value approximates its carrying value as of March 31, 2013.

 

F-20


Table of Contents
Index to Financial Statements

OCI BEAUMONT LLC

Notes to Unaudited

Condensed Financial Statements

March 31, 2013

(Dollars in thousands)

 

(9) Correction of Immaterial Errors

During 2013, the Company identified errors associated with a debit balance in the condensed financial statement caption “Accounts payable” that should have been written off as of and for the period ended March 31, 2013. Consequently, the Company has corrected immaterial errors in the accompanying condensed financial statements as of and for the period ended March 31, 2013 by increasing “Accounts payable” by $11,732, decreasing beginning of the period “Retained earnings (deficit)” by $8,947, and increasing “Cost of goods sold (exclusive of depreciation)” by $2,785. The Company has also corrected the immaterial errors in the accompanying condensed financial statements for the period ended March 31, 2012 by decreasing “Cost of goods sold (exclusive of depreciation)” by $2,613. The correction of these errors did not have a net impact on the statement of cash flows and is not material to the Company’s previously reported condensed financial statements as of and for the periods ended March 31, 2013 and 2012.

 

(10) Subsequent Events

On February 22, 2013, the Company obtained the approval from the Credit Facility lenders to amend the definition of the “Extension” in the Credit Facility agreement. On April 23, 2013, the Company obtained the approval from the Credit Facility lenders to extend the maturity date to July 24, 2013 (90 days from the original maturity date).

On May 17, 2013, OCIB terminated a consulting contract which accounted for approximately $1.8 million of selling, general and administrative expenses during the three month period ended March 31, 2013.

On May 21, 2013, OCIB entered into a $360,000 senior secured term loan credit facility with a group of lenders and Bank of America, N.A., as administrative agent. The term loan facility is comprised of two term loans in the amounts of $125,000 (the “Term B-1 Loan”) and $235,000 (the “Term B-2 Loan”), respectively. Borrowings under the term loan facility are unconditionally guaranteed by OCI USA Inc. The Term B-1 Loan matures on the earlier of the consummation of the initial public offering of OCI Partners LP and December 31, 2013. The Term B-2 Loan matures on the earliest of (i) December 31, 2013, (ii) the consummation of the initial public offering of OCI Partners LP or (iii) the incurrence of new term loan financing. All of the $125,000 of proceeds from the Term B-1 Loan were used to fully refinance the Credit Facility. Approximately $230,000 of proceeds from the Term B-2 Loan were distributed to the sole member of the Company and approximately $2,800 of proceeds from the Term B-2 Loan were used to pay for bank fees, accrued interest and legal fees associated with the term loan facility. The remaining proceeds of approximately $2,200 from the Term B-2 Loan were recorded to cash.

The Company has evaluated significant events and transactions that have occurred from the balance sheet date through June 14, 2013 and has determined that there were no other events or transactions other than those disclosed above that would require recognition and/or disclosure in the Company’s condensed financial statements as of and for the periods ended March 31, 2013 and 2012.

 

F-21


Table of Contents
Index to Financial Statements

Report of Independent Registered Public Accounting Firm

The Board of Directors and Member

OCI Beaumont LLC:

We have audited the accompanying balance sheets of OCI Beaumont LLC (formerly, Pandora Methanol LLC) as of December 31, 2012 and 2011, and the related statements of operations, member’s equity, and cash flows for each of the years in the two-year period ended December 31, 2012. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of OCI Beaumont LLC (formerly, Pandora Methanol LLC) as of December 31, 2012 and 2011, and the results of its operations and its cash flows for each of the years in the two-year period ended December 31, 2012, in conformity with U.S. generally accepted accounting principles.

/s/ KPMG LLP

Houston, Texas

May 16, 2013

 

F-22


Table of Contents
Index to Financial Statements

OCI BEAUMONT LLC

Balance Sheets

December 31, 2012 and 2011

(Dollars in thousands)

 

    

2012

    

2011

 
Assets      

Current assets:

     

Cash and cash equivalents

   $ 41,708       $ 1,034   

Restricted cash

     282         —     

Accounts receivable

     28,099         —     

Inventories

     4,430         4,893   

Other current assets and prepaid expenses

     1,496         869   
  

 

 

    

 

 

 

Total current assets

     76,015         6,796   

Property, plant, and equipment, net of accumulated depreciation of $11,355 and $0, respectively

     329,330         147,886   
  

 

 

    

 

 

 

Total assets

   $ 405,345       $ 154,682   
  

 

 

    

 

 

 
Liabilities and Member’s Equity      

Current liabilities:

     

Accounts payable

   $ 18,691       $ 14,210   

Accounts payable – related party

     4,016         223   

Other payables and accruals

     6,365         —     

Credit facility

     125,000         —     

Accrued interest

     1,019         —     

Other current liabilities

     3,453         —     
  

 

 

    

 

 

 

Total current liabilities

     158,544         14,433   

Debt – related party

     170,482         132,500   

Accrued interest – related party

     20,201         3,462   
  

 

 

    

 

 

 

Total liabilities

     349,227         150,395   
  

 

 

    

 

 

 

Member’s equity:

     

Member’s capital

     4,000         4,000   

Retained earnings

     52,118         287   
  

 

 

    

 

 

 

Total member’s equity

     56,118         4,287   
  

 

 

    

 

 

 

Total liabilities and member’s equity

   $ 405,345       $ 154,682   
  

 

 

    

 

 

 

See accompanying notes to financial statements.

 

F-23


Table of Contents
Index to Financial Statements

OCI BEAUMONT LLC

Statements of Operations

Years ended December 31, 2012 and 2011

(Dollars in thousands)

 

    

2012

    

2011

 

Revenues

   $ 224,629       $ —     

Cost of goods sold (exclusive of depreciation)

     133,430         —     

Depreciation expense

     11,355         —     

Selling, general, and administrative expenses

     14,980         236   
  

 

 

    

 

 

 

Income (loss) from operations before interest expense, other income and income tax expense

     64,864         (236

Interest expense

     5,718         —     

Interest expense – related party

     6,469         —     

Other income

     202         523   
  

 

 

    

 

 

 

Income before tax expense

     52,879         287   
  

 

 

    

 

 

 

Income tax expense

     1,048         —     
  

 

 

    

 

 

 

Net income

   $ 51,831       $ 287   
  

 

 

    

 

 

 

See accompanying notes to financial statements.

 

F-24


Table of Contents
Index to Financial Statements

OCI BEAUMONT LLC

Statements of Member’s Equity

Years ended December 31, 2012 and 2011

(Dollars in thousands)

 

    

Member’s
capital

    

Retained earnings

    

Total
member’s
equity

 

Balances as of January 1, 2011

   $ —         $ —         $ —     

Capital contributions

     4,000         —           4,000   

Net income

     —           287         287   
  

 

 

    

 

 

    

 

 

 

Balances as of December 31, 2011

     4,000         287         4,287   

Capital contributions

     —           —           —     

Net income

     —           51,831         51,831   
  

 

 

    

 

 

    

 

 

 

Balances as of December 31, 2012

   $ 4,000       $ 52,118       $ 56,118   
  

 

 

    

 

 

    

 

 

 

See accompanying notes to financial statements.

 

F-25


Table of Contents
Index to Financial Statements

OCI BEAUMONT LLC

Statements of Cash Flows

Years ended December 31, 2012 and 2011

(Dollars in thousands)

 

    

2012

   

2011

 

Cash flows from operating activities:

    

Net income

   $ 51,831      $ 287   

Adjustments to reconcile net income to net cash provided by (used in) operating activities:

    

Depreciation expense

     11,355        —     

Amortization of debt issuance costs

     2,000        —     

Decrease (increase) in:

    

Restricted cash

     (282     —     

Accounts receivable

     (28,099     —     

Inventories

     463        (4,893

Other current assets and prepaid expenses

     373        (869

Increase (decrease) in:

    

Accounts payable

     18,691        —     

Accounts payable – related party

     3,793        223   

Other payables, accruals, and current liabilities

     7,703        —     

Accrued interest

     360        —     

Accrued interest – related party

     6,469        —     
  

 

 

   

 

 

 

Net cash provided by (used in) operating activities

     74,657        (5,252
  

 

 

   

 

 

 

Cash flows from investing activities:

    

Purchase of property, plant, and equipment

     (193,965     (103,714

Acquisition of the assets (note 3)

     —          (26,500
  

 

 

   

 

 

 

Net cash used in investing activities

     (193,965     (130,214
  

 

 

   

 

 

 

Cash flows from financing activities:

    

Proceeds from borrowings on credit facility

     125,000        —     

Proceeds from borrowings – related party

     132,482        132,500   

Repayment of debt – related party

     (94,500     —     

Cash contributions by member

     —          4,000   

Debt issuance costs

     (3,000     —     
  

 

 

   

 

 

 

Net cash provided by financing activities

     159,982        136,500   
  

 

 

   

 

 

 

Net increase in cash and cash equivalents

     40,674        1,034   

Cash and cash equivalents, beginning of year

     1,034        —     
  

 

 

   

 

 

 

Cash and cash equivalents, end of year

   $ 41,708      $ 1,034   
  

 

 

   

 

 

 

Supplemental cash disclosures:

    

Cash paid during the year for income taxes

   $ —        $ —     

Cash paid during the year for interest, net of amount capitalized

     2,699        —     

Supplemental noncash disclosures:

    

Accruals of property, plant, and equipment purchases

   $ 2,115      $ 14,210   

Capitalized interest

     659        —     

Capitalized interest – related party

     10,270        3,462   

 

See accompanying notes to financial statements

 

F-26


Table of Contents
Index to Financial Statements

OCI BEAUMONT LLC

Notes to Financial Statements

December 31, 2012 and 2011

(Dollars in thousands)

 

(1) Description of Business

OCI Beaumont LLC (the Company) is a Texas Limited Liability Company formed on December 10, 2010 as the acquisition vehicle to purchase the manufacturing facility offered for sale by Eastman Chemical Company on May 5, 2011 (the Acquisition Date) for $26,500 (the Asset Acquisition) (note 3). In addition, on June 21, 2012, the Company changed its legal name from Pandora Methanol LLC to OCI Beaumont LLC.

The Company funded the purchase and subsequent construction of the facility through intercompany loans from its parent as well as a loan from a third–party financial institution (note 6). The assets purchased had not been operating since December 2004, and therefore, the Company commenced a rehabilitation and renovation program at the facility shortly following the Acquisition Date. The assets purchased are located in the Gulf Coast region of the United States near Beaumont, Texas, and the Company commenced its full operations during August 2012. The Company produces and sells methanol and anhydrous ammonia. In addition, the Company has a pipeline connection to adjacent customers and port access with dedicated methanol and ammonia import/export jetties, allowing it to ship both products along the Gulf Coast.

The Company is a wholly owned subsidiary of OCI USA Inc. (formerly, Albiorix Inc.), a Delaware corporation, which is an indirect wholly owned subsidiary of OCI Fertilizer International B.V., a Dutch private limited liability company. OCI Fertilizer International B.V. is an indirect wholly owned subsidiary of OCI N.V., a Dutch public limited liability company, which is the ultimate parent for a group of related entities. OCI N.V., through its subsidiaries, is a global nitrogen-based fertilizer producer and engineering and construction contractor. OCI N.V. is listed on the NYSE Euronext Amsterdam and trades under the symbol “OCI.”

As of December 31, 2012, the Company had approximately $83,000 of net working capital deficit. This amount includes $125,000 of short-term borrowings from a syndicate of lenders, including Credit Agricole Corporate and Investment Bank, as facility agent (the Credit Facility) due July 24, 2013 (note 6). OCI N.V. (or one or more of its subsidiaries) has the intent, ability, and is committed to continue to provide financial support to the Company sufficient for the Company, over at least the next twelve months, to satisfy all liabilities, obligations, and debt service requirements of the Company, on a timely basis, which the Company might be unable to satisfy as they become due. OCI N.V. (or one or more of its subsidiaries) has no restrictions to provide such support. In addition and as of December 31, 2012, the Company was obligated to OCI N.V. (through one or more of its subsidiaries) for certain loans, management fees, and accrued interest amounts. OCI N.V. (or one or more of its subsidiaries) will not require the repayment of these amounts or any portion thereof, including interest, or any other loans or management fees, including interest, which OCI N.V. (or one or more of its subsidiaries) may provide to the Company during the year ending December 31, 2013, prior to their stated maturity.

 

(2) Summary of Significant Accounting Policies

 

  (a) Use of Estimates

The preparation of financial statements in conformity with U.S. generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of

 

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Table of Contents
Index to Financial Statements

OCI BEAUMONT LLC

Notes to Financial Statements

December 31, 2012 and 2011

(Dollars in thousands)

 

the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Significant items subject to such estimates and assumptions include the useful lives of property, plant, and equipment, the valuation of property, plant, and equipment, environmental liabilities, and other contingencies.

 

  (b) Cash and Cash Equivalents

Cash and cash equivalents consist of balances held in the Company’s bank accounts less outstanding payments.

 

  (c) Trade Accounts Receivable

Trade accounts receivable are recorded at the invoiced amount and do not bear interest. Amounts collected on trade accounts receivable are included in net cash provided by operating activities in the statements of cash flows. The Company maintains a customer specific allowance for doubtful accounts for estimated losses inherent in its accounts receivable portfolio. In establishing the required allowance, management considers customers’ financial condition, the amount of receivables in dispute, the current receivables aging, and current payment patterns. The Company reviews its allowance for doubtful accounts monthly. Past–due balances over 90 days and over a specified amount are reviewed individually for collectability. All other balances are reviewed on a pooled basis for collectability. Account balances are charged off against the allowance after all means of collection have been exhausted and the potential for recovery is considered remote. There was no bad debt write-offs during the years ended December 31, 2012 and 2011. The Company does not have any off-balance-sheet credit exposure related to its customers.

During the year ended December 31, 2012, the following customers accounted for 10% or more of the Company’s revenues:

 

Customer name

   Percentage of
2012 revenues
 

Arkema, Inc.

     10

Koch Nitrogen International, Sarl.

     12   

Methanex Methanol Company, LLC

     11   

Transammonia

     51   

The loss of any one or more the Company’s significant customers noted above may have a material adverse effect on the Company’s future results of operations.

 

  (d) Inventories

Inventories are stated at the lower of cost or market, using standard cost method for finished goods, work in process, and raw materials. The cost of all inventories is determined based on the first-in, first-out (FIFO) method. Standard cost includes raw materials and manufacturing overhead based on normal capacity. The Company records variances, abnormal amounts of idle facility expense, freight, handling costs, and wasted material (spoilage) as current period charges. The Company’s raw materials are consumed immediately upon delivery.

 

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Table of Contents
Index to Financial Statements

OCI BEAUMONT LLC

Notes to Financial Statements

December 31, 2012 and 2011

(Dollars in thousands)

 

  (e) Revenue Recognition

The Company recognizes revenue when products are shipped and the customer takes ownership and assumes risk of loss, collection of the relevant receivable is probable, persuasive evidence of an arrangement exists, and the sales price is fixed or determinable. Revenue for barge sales is recognized when risk and title to the product transfer to the customer, which occurs at the time shipment is made (free on board shipping point). Revenue for pipeline sales is recognized when risk and title to the product transfer to the customer, which occurs at the time when meter ticket delivery is received (free on board shipping destination). Shipping and other transportation costs charged to buyers are excluded from revenues and are accounted for on a net basis in cost of goods sold (exclusive of depreciation).

Below is a summary of revenues by product for the year ended December 31, 2012:

 

    

2012

 

Ammonia

   $ 128,954   

Methanol

     95,675   
  

 

 

 

Total

   $ 224,629   
  

 

 

 

 

  (f) Property, Plant, and Equipment

Property, plant, and equipment are stated at cost. Depreciation on plant and equipment is calculated on the straight-line method over the estimated useful lives of the assets. The estimated useful life of machinery, equipment, and buildings is 15 years, while the estimated useful lives of furniture, office equipment, and vehicles are 5 years. In the accompanying statements of operations, the Company’s policy is to exclude depreciation expense from cost of sales. Total depreciation expense for the year ended December 31, 2012 was $11,355. As of December 31, 2011, the Company’s assets were still under construction, and therefore, the assets were not ready for their intended use. As such, no depreciation expense was recorded for the year ended December 31, 2011.

 

  (g) Major Maintenance Activities

The Company incurs maintenance costs on its major equipment. Repair and maintenance costs are expensed as incurred. For the years ended December 31, 2012 and 2011, we expensed approximately $7,531 and $4, respectively, of repair and maintenance costs. Major capital expenditures that extend the life, increase the capacity, or improve the safety or efficiency of the asset are capitalized and amortized over the period of expected benefits.

 

  (h) Income Taxes

The Company is a Texas Limited Liability Company with disregarded tax status (i.e., nontaxable pass-through entity) for U.S. federal income tax purposes and, therefore, is not subject to U.S. federal income taxes; however, the Company is subject to Texas Margin Taxes. As of and for the year ended December 31, 2012, the Company recorded Texas Margin Taxes of $1,048 in income tax expense in the accompanying statements of operations and in other current liabilities in the accompanying balance sheets. Since the Company did not operate for the year ended December 31, 2011, no Texas Margin Taxes were recorded.

 

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Index to Financial Statements

OCI BEAUMONT LLC

Notes to Financial Statements

December 31, 2012 and 2011

(Dollars in thousands)

 

  (i) Commitments and Contingencies

Liabilities for loss contingencies, including environmental remediation costs not within the scope of Financial Accounting Standards Board (FASB) Accounting Standards Codification (ASC) Topic 410, Asset Retirement and Environmental Obligations , arising from claims, assessments, litigation, fines, and penalties and other sources, are recorded when it is probable that a liability has been incurred and the amount of the assessment and/or remediation can be reasonably estimated.

Legal costs incurred in connection with loss contingencies are expensed as incurred.

Accruals for estimated losses from environmental remediation obligations generally are recognized no later than completion of the remedial feasibility study. Such accruals are adjusted as further information develops or circumstances change. Costs of expected future expenditures for environment remediation obligations are not discounted to their present value. As of December 31, 2012 and 2011, the Company had no environmental remediation obligations.

 

  (j) Long-Lived Assets

Long-lived assets, such as property, plant, and equipment, are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. If circumstances require a long-lived asset or asset group be tested for possible impairment, the Company first compares undiscounted cash flows expected to be generated by that asset or asset group to its carrying value. If the carrying value of the long-lived asset or asset group is not recoverable on an undiscounted cash flow basis, an impairment is recognized to the extent that the carrying value exceeds its fair value. Fair value is determined through various valuation techniques including discounted cash flow models, quoted market values, and third-party independent appraisals, as considered necessary. No events or changes in circumstances occurred during the years ended December 31, 2012 and 2011 that indicated the carrying amount of an asset may not be recoverable.

 

  (k) Capitalized Interest

The Company’s policy is to capitalize interest costs incurred on indebtedness during the construction of major projects. A reconciliation of total interest costs to interest expense as reported in the statements of operations for 2012 and 2011 is as follows:

 

    

2012

    

2011

 

Interest cost capitalized

   $ 659       $ —     

Interest cost capitalized – related party

     10,270         3,462   

Interest cost charged to income (i)

     5,718         —     

Interest cost charged to income – related party

     6,469         —     
  

 

 

    

 

 

 

Total interest cost

   $ 23,116       $ 3,462   
  

 

 

    

 

 

 

 

  (i) Includes $2,000 of amortized debt issuance costs (note 6(b)).

 

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Index to Financial Statements

OCI BEAUMONT LLC

Notes to Financial Statements

December 31, 2012 and 2011

(Dollars in thousands)

 

  (l) Asset Retirement Obligation

The Company recognizes the fair value of the liability for an asset retirement obligation in the period in which it is incurred. Upon initial recognition of a liability for an asset retirement obligation, the Company will capitalize the asset retirement cost by increasing the carrying amount of the related long-lived asset by the same amount as the liability. The liability is accreted to its present value each period, while the capitalized cost is depreciated over the useful life of the related asset. Retirement obligations associated with long-lived assets are those for which a legal obligation exists under enacted laws, statutes, or written or oral contracts, including obligations arising under the doctrine of promissory estoppel.

The Company owns the land, assets, and facilities related to its business; however, management does not believe that the Company has any legal and/or constructive obligations for asset retirement obligations as of December 31, 2012 and 2011.

 

  (m) Fair Value Measurement

The Company’s receivables and payables are short–term nature and therefore, the carrying value approximates their respective fair values as of December 31, 2012 and 2011. Debt accrues interest at a variable rate, and as such, the fair value approximates its carrying value as of December 31, 2012 and 2011.

 

(3) Asset Acquisition

On the Acquisition Date, the Company purchased the manufacturing facility offered for sale by Eastman Chemical Company in the Asset Acquisition for $26,500. The Company funded the purchase and subsequent construction activities of the facility through intercompany related–party loans from OCI Fertilizer International B.V. as well as a Credit Facility agreement with syndicate of lenders. See note 6.

The assets purchased had not been operating since December 2004, and therefore, the Company commenced a rehabilitation and renovation program at the facility shortly following the Acquisition Date. The Asset Acquisition has been accounted for in accordance with FASB ASC Topic 805, Business Combinations . Accordingly, management evaluated whether the Asset Acquisition is a business combination based on the definition of a business in accordance with FASB ASC Topic 805. Management concluded that the Asset Acquisition does not constitute a business primarily based on the fact that the assets purchased are the only inputs acquired and no processes and/or outputs were acquired. As such, the Asset Acquisition was accounted for as an asset acquisition. Accordingly, the total purchase price represents the value of the manufacturing facility acquired in connection with the Asset Acquisition. The Company did not acquire any working capital, contracts, employees, intellectual properties, and/or intangible assets as part of the Asset Acquisition. The Company also did not assume any liabilities as part of the Asset Acquisition.

In connection with the Asset Acquisition, the Company incurred costs related to advisory, legal, valuation, and other professional consulting fees, which were expensed and are included within selling, general, and administrative expenses in the statements of operations for the year ended December 31, 2011. No such costs were incurred for the year ended December 31, 2012.

 

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Index to Financial Statements

OCI BEAUMONT LLC

Notes to Financial Statements

December 31, 2012 and 2011

(Dollars in thousands)

 

(4) Property, Plant, and Equipment

 

    

2012

    

2011

 

Land

   $ 1,479       $ 1,479   

Buildings

     5,035         5,035   

Plant and equipment

     323,718         45,615   

Vehicles

     63         63   

Construction in progress

     10,390         95,694   
  

 

 

    

 

 

 
     340,685         147,886   

Less accumulated depreciation

     11,355         —     
  

 

 

    

 

 

 
   $ 329,330       $ 147,886   
  

 

 

    

 

 

 

As of December 31, 2011, the Company’s assets were not ready for their intended use. As such, no depreciation expense was recorded for the year ended December 31, 2011.

 

(5) Inventories

As of December 31, 2012 and 2011, all the Company’s inventories consisted of finished goods, and the Company had no raw materials and/or work in progress inventories. As of December 31, 2011, the Company’s inventories consisted of finished goods purchased from third parties and finished goods produced by the Company for testing purposes. As of December 31, 2012, the Company’s inventories consisted of finished goods produced by the Company from normal production. Below is a summary of inventories balances by product as of December 31, 2012 and 2011:

 

    

2012

    

2011

 

Ammonia

   $ 877       $ 2,251   

Methanol

     3,553         2,642   
  

 

 

    

 

 

 

Total

   $ 4,430       $ 4,893   
  

 

 

    

 

 

 

 

(6) Debt

 

  (a) Debt – Related Party

The Company has related–party debt agreements with OCI Fertilizer International B.V., which consist of the following as of December 31, 2012 and 2011:

 

   

December 31,
2012

   

Interest rate

 

Interest rate

as of

December 31, 2012

   

Maturity date

Facility loan I

  $ 40,000      9.25% + LIBOR     9.46   August 1, 2014

Facility loan II

    100,000      9.25% + LIBOR     9.46      August 1, 2014

Facility loan III

    30,482      9.25% + LIBOR     9.46      December 31, 2014
 

 

 

       

Total

  $ 170,482         
 

 

 

       

 

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Index to Financial Statements

OCI BEAUMONT LLC

Notes to Financial Statements

December 31, 2012 and 2011

(Dollars in thousands)

 

   

December 31,
2011

   

Interest rate

 

Interest rate

as of

December 31, 2011

   

Maturity date

Term loan

  $ 57,500      7.00%     7.00   July 4, 2016

Revolving loan

    35,000      9.25% + LIBOR     9.50      May 12, 2012

Facility loan I

    40,000      9.25% + LIBOR     9.50      August 1, 2014
 

 

 

       

Total

  $ 132,500         
 

 

 

       

During 2012, the Company borrowed funds under the facility loans II and III. As of December 31, 2012, the borrowing capacity under the facility loans I, II, and III was $40,000, $100,000, and $50,000, respectively. The principal and interest for all related–party loans are due at maturity.

The maturity of the revolving loan is one year from the date of the agreement (May 12, 2011) or a later date to be agreed upon with the lender, which is May 12, 2012 as of December 31, 2011. The facility loan I agreement was amended on June 26, 2012 to extend the maturity date from December 31, 2012 (the original maturity date) to August 1, 2014. As such and in accordance with FASB ASC 470, Debt , the Company classified the facility loan I as a long-term liability as of December 31, 2011.

On April 26, 2012, the Company entered into a term loan facility agreement with a syndicate of lenders, including Credit Agricole Corporate and Investment Bank, as facility agent (the Credit Facility), and borrowed $125,000 under the Credit Facility. On April 30, 2012, the Company utilized the borrowings under the Credit Facility to repay in full and terminate all of the $92,500 of debt outstanding under its related–party term loan and revolving loan. As such and in accordance with FASB ASC 470, the Company classified the related–party revolving loan as a long-term liability as of December 31, 2011.

 

  (b) Debt – External Party

On April 26, 2012, the Company entered into the Credit Facility and borrowed $125,000 under the facility.

 

   

December 31,
2012

   

Interest rate

   

Interest rate
as of
December 31,
2012

   

Maturity date

 

Credit Facility

  $ 125,000        4.50% + LIBOR        4.82%        April 25, 2013   
 

 

 

       

Total

  $ 125,000         
 

 

 

       

The Company can extend the maturity date of the Credit Facility no later than 60 days prior to original maturity date of the Credit Facility (April 25, 2013). See note 9. The Credit Facility is guaranteed by Orascom Construction Industries S.A.E., a subsidiary of OCI N.V., with a pledge of 100% of the Company’s limited liability company interests. The Credit Facility contains various restrictive, nonfinancial covenants, which include, among others, reporting requirements, maintenance of specified insurance coverage, compliance of applicable laws and regulations, and maximum annual capital expenditures. The Credit Facility does not contain any financial covenants. The Company paid $3,358 of interest during the year ended December 31, 2012.

 

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Index to Financial Statements

OCI BEAUMONT LLC

Notes to Financial Statements

December 31, 2012 and 2011

(Dollars in thousands)

 

The Company incurred $3,000 of debt issuance costs related to the Credit Facility during 2012. The debt issuance costs related to investment banking fees, legal, and other professional fees directly associated with entering into the Credit Facility. The Company recorded the debt issuance costs in other assets in the accompanying balance sheets and is amortizing them over the term of the Credit Facility. The amortization of the debt issuance costs was $2,000 for the year ended December 31, 2012 and is presented as a component of interest expense in the accompanying statements of operations.

 

(7) Correction of Immaterial Errors

In 2013, the Company identified errors associated with the classification of an advance payment made to a contractor during 2011 for future capital expenditures. Consequently, we have corrected immaterial errors in the accompanying balance sheet as of December 31, 2011 by decreasing “Other current assets and prepaid expenses” by $10,000 and increasing “Property, plant and equipment” by $10,000 and in the accompanying statement of cash flows for the year ended December 31, 2011 by decreasing cash flows used in operating activities by $10,000 and increasing cash flows used in investing activities by $10,000. The correction of these errors does not impact the net change in cash and cash equivalents, has no impact on net income and is not material to our previously reported balance sheet or statement of cash flows.

In addition and during 2013, the Company identified errors associated with a debit balance in the financial statement caption “Accounts payable” that should have been written off as of and for the year ended December 31, 2012. Consequently, the Company has corrected immaterial errors in the accompanying financial statements as of and for the year ended December 31, 2012 by increasing “Accounts payable” by $8,947 and increasing “Cost of goods sold (exclusive of depreciation)” by $8,947. The correction of these errors did not have a net impact on the statement of cash flows and is not material to the Company’s previously reported financial statements as of and for the year ended December 31, 2012.

 

(8) Related–Party

During the years ended December 31, 2012 and 2011, the Company had related–party transactions with OCI Fertilizer International B.V. related to management support fees of $4,016 and $223, respectively, which are recorded in general and administrative expense in the accompanying statements of operations. As indicated in note 6(a), the Company also has related–party debt as of December 31, 2012 and 2011. No other related–party transactions occurred during the years ended December 31, 2012 and 2011.

 

(9) New Accounting Pronouncements

Future Adoption of Accounting Standards

The following new accounting pronouncements have been issued, but have not yet been adopted as of December 31, 2012:

In December 2011, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) No. 2011-11, “Balance Sheet (Topic 210): Disclosures about Offsetting Assets and Liabilities” (ASU 2011-11). This newly issued accounting standard requires an entity to disclose both gross and net information about instruments and transactions eligible for offset in the statement of

 

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Index to Financial Statements

OCI BEAUMONT LLC

Notes to Financial Statements

December 31, 2012 and 2011

(Dollars in thousands)

 

financial position as well as instruments and transactions executed under a master netting or similar arrangement and was issued to enable users of financial statements to understand the effects or potential effects of those arrangements on its financial position. This ASU is required to be applied retrospectively and is effective for fiscal years, and interim periods within those years, beginning on or after January 1, 2013. As this accounting standard only requires enhanced disclosure, the adoption of this standard is not expected to have a material impact on our financial position or results of operations.

 

(10) Legal Proceedings

The Company is involved in various claims and/or legal actions from time to time arising in the ordinary course of business. In the opinion of management, the ultimate disposition of these matters will not have a material adverse effect on the Company’s financial position, results of operations, or liquidity. The Company’s facilities could be subject to potential environmental liabilities primarily relating to contamination caused by current and/or former operations at those facilities. Some environmental laws could impose on the Company the entire costs of cleanup regardless of fault, legality of the original disposal, or ownership of the disposal site. In some cases, the governmental entity with jurisdiction could seek an assessment for damage to the natural resources caused by contamination from those sites. The Company had no operating expenditures for environmental fines, penalties, or government-imposed remedial or corrective actions during the years ended December 31, 2012 and 2011.

 

(11) Subsequent Events

On February 22, 2013, the Company obtained the approval from the Credit Facility lenders to amend the definition of the “Extension” in the Credit Facility agreement. On April 23, 2013, the Company obtained the approval from the Credit Facility lenders to extend the maturity date to July 24, 2013 (90 days from the original maturity date).

The Company has evaluated significant events and transactions that have occurred from the balance sheet date through May 16, 2013 and has determined that there were no other events or transactions other than those disclosed above that would require recognition and/or disclosure in the Company’s financial statements as of and for the years ended December 31, 2012 and 2011.

 

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Index to Financial Statements

OCI PARTNERS LP

BALANCE SHEET

AS OF MARCH 31, 2013

(IN ACTUAL DOLLARS)

 

     As of
March 31, 2013
 
     (unaudited)  

Assets

  

Cash

   $ 1,000   
  

 

 

 

Total Assets

   $ 1,000   
  

 

 

 

Partner’s capital

   $ 1,000   
  

 

 

 

The accompanying note is an integral part of this balance sheet.

 

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Index to Financial Statements

OCI Partners LP

Note to Balance Sheet

March 31, 2013

(1) Nature of Operations

OCI Partners LP (the “Partnership”) is a Delaware limited partnership formed on February 7, 2013 to own and operate a recently upgraded methanol and anhydrous ammonia production facility that is strategically located on the U.S. Gulf Coast near Beaumont, Texas.

The Partnership intends to offer common units to the public, representing limited partnership interests, pursuant to a public offering and to concurrently issue common units, representing additional limited partnership interests in the Partnership to OCI USA, an affiliate of the Partnership.

OCI GP LLC, as the general partner and for a non-economic general partner interest, contributed $0, and OCI USA, as an affiliate of the Partnership, contributed $1,000, all in the form of cash, to the Partnership on March 31, 2013. As of June 14, 2013 there have been no other transactions involving the Partnership.

 

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APPENDIX A

FORM OF

FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP

OF

OCI PARTNERS LP

[ To be filed by amendment. ]

 

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Index to Financial Statements

APPENDIX B

GLOSSARY OF SELECTED TERMS

The following are definitions of certain terms used in this prospectus.

 

Blue Johnson

Blue, Johnson & Associates, Inc.

 

Corn Belt

The states of Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missouri, Nebraska, North Dakota, Ohio, South Dakota and Wisconsin.

 

DME

Dimethyl ether, a clean-burning fuel typically produced from methanol that can be easily stored and transported, and which can be used for household cooking and heating.

 

ethanol

A clear, colorless, flammable oxygenated hydrocarbon. Ethanol typically is produced chemically from ethylene, or biologically from fermentation of various sugars from carbohydrates found in agricultural crops and cellulosic residues from crops or wood. It is used in the United States as a gasoline octane enhancer and oxygenate.

 

feedstock

The term feedstock refers generally to any raw material constituting a primary input for an industrial process. Natural gas constitutes our primary feedstock for the production of both methanol and ammonia.

 

greenfield

Greenfield refers to an undeveloped site; a greenfield project is thus one where there has been no prior development or exploitation.

 

Henry Hub

Henry Hub is a distribution hub on the natural gas pipeline system in the south central United States. It connects several natural gas pipelines and lends its name to the pricing point for natural gas futures contracts traded on the NYMEX. Spot and future prices set at Henry Hub are widely seen to be the primary price set for the North American natural gas market.

 

Jim Jordan

Jim Jordan and Associates, LP.

 

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metric ton

One metric ton is equal to 1,000 kilograms, or approximately 2,205 pounds.

 

midstream

The midstream sector of the petroleum industry involves the transportation, storage, and wholesale marketing of crude or refined petroleum products. Hydrocarbons are commonly transported by pipeline, barge, rail or truck.

 

MMBtu

One million British thermal units: a measure of energy. One Btu of heat is required to raise the temperature of one pound of water by one degree Fahrenheit.

 

MMscf

One million scf, a measure of volume.

 

MTBE

Methyl tertiary butyl ether, or MTBE, is a chemical compound manufactured by the chemical reaction of methanol and isobutylene. It is a source of octane and is almost exclusively used as a fuel additive in motor gasoline. MTBE is one of a group of chemicals commonly known as “oxygenates” because they raise the oxygen content of gasoline. MTBE is a volatile, flammable and colorless liquid that dissolves easily in water.

 

MTG

Methanol-to-gasoline, a term encompassing various technological processes whereby methanol is converted into synthetic gasoline.

 

MTO

Methanol-to-olefins, a term encompassing various technological processes whereby methanol is converted into olefins for the production of packaging, textiles, plastic parts and containers and automotive components.

 

nameplate capacity

The normal maximum output of a generating source.

 

naphtha

A flammable oil containing various hydrocarbons, obtained by the dry distillation of organic substances such as coal.

 

netback

Netback prices at the production facility are based on the price of the product at its destination less all cost involved in transporting the product to its destination.

 

NYMEX

New York Mercantile Exchange.

 

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olefin

Olefins can be produced from various feedstocks, including naphtha, liquefied petroleum gas, ethane and methanol, and are the basic building blocks used to make many plastics.

 

scf

Standard cubic feet, a measure of volume.

 

spot market

A market in which commodities are bought and sold for cash and delivered immediately.

 

synthesis gas

A mixture of gases (largely hydrogen and nitrogen) that results from heating natural gas in the presence of steam. Also known as syngas.

 

Tcf

One trillion cubic feet.

 

turnaround

A periodically required standard procedure to refurbish and maintain a facility that involves the shutdown and inspection of major processing units.

 

utilization rate

Total production in a period divided by nameplate capacity for that period.

 

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Index to Financial Statements

 

 

Through and including             , 2013 (the 25th day after the date of this prospectus), federal securities laws may require all dealers that effect transactions in these securities, whether or not participating in this offering, to deliver a prospectus. This requirement is in addition to a dealer’s obligation to deliver a prospectus when acting as an underwriter and with respect to an unsold allotment or subscription.

LOGO

                          Common Units

Representing Limited Partner Interests

OCI Partners LP

 

 

PROSPECTUS

 

 

BofA Merrill Lynch

Barclays

Citigroup

 

                    , 2013

 

 

 

 


Table of Contents
Index to Financial Statements

Part II

Information Not Required in Prospectus

 

Item 13. Other Expenses of Issuance and Distribution

Set forth below are the expenses (other than the underwriting discount and structuring fees) expected to be incurred in connection with the issuance and distribution of the securities registered hereby. With the exception of the SEC registration fee, the FINRA filing fee and the NYSE listing fee, the amounts set forth below are estimates.

 

SEC registration fee

   $  65,472   

FINRA filing fee

     72,500   

NYSE listing fee

     *   

Printing and engraving expenses

     *   

Fees and expenses of legal counsel

     *   

Accounting fees and expenses

     *   

Transfer agent and registrar fees

     *   

Miscellaneous

     *   
  

 

 

 

Total

   $ *   
  

 

 

 

 

* To be filed by amendment.

 

Item 14. Indemnification of Directors and Officers

The section of the prospectus entitled “The Partnership Agreement—Indemnification” discloses that we will generally indemnify officers, directors and affiliates of the general partner to the fullest extent permitted by the law against all losses, claims, damages or similar events and is incorporated herein by this reference. Reference is also made to the Underwriting Agreement to be filed as an exhibit to this registration statement in which OCI Partners LP and certain of its affiliates will agree to indemnify the underwriters against certain liabilities, including liabilities under the Securities Act, and to contribute to payments that may be required to be made in respect of these liabilities. Subject to any terms, conditions or restrictions set forth in the partnership agreement, Section 17-108 of the Delaware Act empowers a Delaware limited partnership to indemnify and hold harmless any partner or other persons from and against all claims and demands whatsoever.

 

Item 15. Recent Sales of Unregistered Securities

On February 7, 2013, in connection with the formation of the partnership, OCI Partners LP issued to (i) OCI GP LLC a non-economic general partner interest in the partnership for $0 and (ii) OCI USA Inc., an indirect, wholly owned subsidiary of OCI N.V., a 100% limited partner interest in the partnership for $1,000 in an offering exempt from registration under Section 4(2) of the Securities Act. There have been no other sales of unregistered securities within the past three years.

 

Item 16. Exhibits

The following documents are filed as exhibits to this registration statement:

 

Exhibit
Number

  

Description

  1.1*    Form of Underwriting Agreement (including form of Lock-up Agreement)
  3.1†    Certificate of Limited Partnership of OCI Partners LP
  3.2†    Certificate of Amendment to Certificate of Limited Partnership of OCI Partners LP

 

II-1


Table of Contents
Index to Financial Statements

Exhibit
Number

  

Description

  3.3*    Form of Amended and Restated Agreement of Limited Partnership of OCI Partners LP (included as Appendix A to the Prospectus)
  5.1*    Opinion of Latham & Watkins LLP as to the legality of the securities being registered
  8.1*    Opinion of Latham & Watkins LLP relating to tax matters
10.1*    Form of Contribution, Conveyance and Assumption Agreement
10.2    Term Loan Credit Agreement, dated as of May 21, 2013, among OCI Beaumont LLC, as borrower, OCI USA Inc., as guarantor, various lenders, Barclays Bank PLC, as syndication agent, Citibank, N.A., as documentation agent, and Bank of America, N.A., as administrative agent.
10.3*    Form of Intercompany Revolving Credit Facility
10.4    Beaumont Fertilizer Plant Contract Agreement for Methanol and Ammonia Debottlenecking and Plant Turnaround, dated June 5, 2013, between OCI Beaumont LLC and Orascom E&C USA Inc.
10.5*    Form of Omnibus Agreement
10.6*    Form of OCI Partners LP 2013 Long-Term Incentive Plan
10.7*    Form of Non-Employee Director Compensation Policy
10.8*    Term Loan B Credit Agreement
21.1†    List of Subsidiaries of OCI Partners LP
23.1    Consent of KPMG LLP
23.2*    Consent of Latham & Watkins LLP (contained in Exhibit 5.1)
23.3*    Consent of Latham & Watkins LLP (contained in Exhibit 8.1)
23.4†    Consent of Jim Jordan and Associates, LP
23.5†    Consent of Blue, Johnson & Associates, Inc.
23.6†    Consent of Director Nominee
24.1†    Powers of Attorney (contained on the signature page to this Registration Statement)

 

* To be filed by amendment.
Previously filed.

 

Item 17. Undertakings

The undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

II-2


Table of Contents
Index to Financial Statements

The undersigned registrant hereby undertakes that,

(1) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.

(2) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(3) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.

(4) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

(a) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

(b) If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use;

(c) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;

(d) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and

(e) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

 

II-3


Table of Contents
Index to Financial Statements

The undersigned registrant undertakes to send to each common unitholder, at least on an annual basis, a detailed statement of any transactions with OCI GP LLC, our general partner, or its affiliates and of fees, commissions, compensation and other benefits paid, or accrued to OCI GP LLC or its affiliates for the fiscal year completed, showing the amount paid or accrued to each recipient and the services performed.

The registrant undertakes to provide to the common unitholders the financial statements required by Form 10-K for the first full fiscal year of operations of the registrant.

 

II-4


Table of Contents
Index to Financial Statements

Signatures

Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Nederland, State of Texas, on July 22, 2013.

 

OCI Partners LP
BY:    

OCI GP LLC,

its General Partner

BY:    

/s/ Frank Bakker

  Frank Bakker
  President and Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities indicated on July 22, 2013.

 

Signature

 

Title

  President, Chief Executive Officer and

/s/ Frank Bakker

  Director
Frank Bakker   (Principal Executive Officer)
  Vice President and

*

  Chief Financial Officer
Fady Kiama   (Principal Financial Officer and
  Principal Accounting Officer)

*

  Chairman of the Board of Directors
Michael L. Bennett  

*

  Director
Nassef Sawiris  

*

  Director
Renso Zwiers  

 

* Frank Bakker hereby signs this Amendment No. 1 to the Registration Statement on behalf of the indicated persons for whom he is attorney-in-fact on July 22, 2013, pursuant to powers of attorney previously filed as Exhibit 24.1 to the Registration Statement on Form S-1 of OCI Partners LP filed with the Securities and Exchange Commission on June 14, 2013.

 

By:   /s/ Frank Bakker
  Attorney-in-fact
  Dated: July 22, 2013


Table of Contents
Index to Financial Statements

Exhibit Index

 

Exhibit
Number

  

Description

  1.1*    Form of Underwriting Agreement (including form of Lock-up Agreement)
  3.1†    Certificate of Limited Partnership of OCI Partners LP
  3.2†    Certificate of Amendment to Certificate of Limited Partnership of OCI Partners LP
  3.3*    Form of Amended and Restated Agreement of Limited Partnership of OCI Partners LP (included as Appendix A to the Prospectus)
  5.1*    Opinion of Latham & Watkins LLP as to the legality of the securities being registered
  8.1*    Opinion of Latham & Watkins LLP relating to tax matters
10.1*    Form of Contribution, Conveyance and Assumption Agreement
10.2   

Term Loan Credit Agreement, dated as of May 21, 2013, among OCI Beaumont LLC, as borrower, OCI USA Inc., as guarantor, various lenders, Barclays Bank PLC, as syndication agent, Citibank, N.A., as documentation agent, and Bank of America, N.A., as administrative agent.

10.3*    Form of Intercompany Revolving Credit Facility
10.4   

Beaumont Fertilizer Plant Contract Agreement for Methanol and Ammonia Debottlenecking and Plant Turnaround, dated June 5, 2013, between OCI Beaumont LLC and Orascom E&C USA Inc.

10.5*    Form of Omnibus Agreement
10.6*    Form of OCI Partners LP 2013 Long-Term Incentive Plan
10.7*    Form of Non-Employee Director Compensation Policy
10.8*    Term Loan B Credit Agreement
21.1†    List of Subsidiaries of OCI Partners LP
23.1    Consent of KPMG LLP
23.2*    Consent of Latham & Watkins LLP (contained in Exhibit 5.1)
23.3*    Consent of Latham & Watkins LLP (contained in Exhibit 8.1)
23.4†    Consent of Jim Jordan and Associates, LP
23.5†    Consent of Blue, Johnson & Associates, Inc.
23.6†    Consent of Director Nominee
24.1†    Powers of Attorney (contained on the signature page to this Registration Statement)

 

* To be filed by amendment.
Previously filed.

Exhibit 10.2

EXECUTION VERSION

 

 

 

Deal CUSIP Number: 67081YAA4

Term Loan B-1 CUSIP Number: 67081YAB2

Term Loan B-2 CUSIP Number: 67081YAC0

TERM LOAN CREDIT AGREEMENT

among

OCI BEAUMONT LLC,

as BORROWER,

OCI USA INC.,

as HOLDINGS,

VARIOUS LENDERS

BARCLAYS BANK PLC,

as SYNDICATION AGENT

CITIBANK, N.A.,

as DOCUMENTATION AGENT

and

BANK OF AMERICA, N.A.,

as ADMINISTRATIVE AGENT

 

 

Dated as of May 21, 2013

BANK OF AMERICA, N.A.,

BARCLAYS BANK PLC,

CITIGROUP GLOBAL MARKETS INC., and

as JOINT LEAD ARRANGERS and JOINT BOOKRUNNERS

 

 

 


TABLE OF CONTENTS

 

     Page  

SECTION 1. DEFINITIONS AND ACCOUNTING TERMS

     1   

1.01 Defined Terms

     1   

1.02 Terms Generally

     19   

SECTION 2. AMOUNT AND TERMS OF CREDIT

     19   

2.01 The Commitments

     19   

2.02 Minimum Amount of Each Borrowing

     20   

2.03 Notice of Borrowing

     20   

2.04 Disbursement of Funds

     20   

2.05 Notes

     20   

2.06 Interest Rate Conversions

     21   

2.07 Pro Rata Borrowings

     22   

2.08 Interest

     22   

2.09 Interest Periods

     22   

2.10 Increased Costs, Illegality, etc.

     23   

2.11 Compensation

     25   

2.12 Change of Lending Office

     25   

2.13 Replacement of Lenders

     25   

SECTION 3. [RESERVED]

     26   

SECTION 4. FEES; REDUCTIONS OF COMMITMENT

     26   

4.01 Fees

     26   

4.02 Mandatory Reduction of Commitments

     26   

SECTION 5. PREPAYMENTS; PAYMENTS; TAXES

     26   

5.01 Voluntary Prepayments

     26   

5.02 Mandatory Repayments

     27   

5.03 Method and Place of Payment

     28   

5.04 Net Payments

     28   

SECTION 6. CONDITIONS PRECEDENT TO CREDIT EVENTS ON THE CLOSING DATE

     30   

6.01 Closing Date; Credit Documents; Notes

     30   

6.02 Officer’s Certificate

     30   

6.03 Opinions of Counsel

     30   

6.04 Corporate Documents; Proceedings, etc.

     30   

6.05 Termination of Existing Credit Agreement

     30   

6.06 Termination of Ground Leases

     31   

6.07 No Default

     31   

6.08 [Reserved]

     31   

6.09 Security Agreements

     31   

6.10 Intercompany Subordination Agreement

     31   

6.11 [Reserved]

     31   

6.12 [Reserved]

     31   

6.13 Financial Statements

     31   

6.14 Solvency Certificate

     32   

6.15 Fees, etc.

     32   

6.16 Representation and Warranties

     32   

6.17 Patriot Act

     32   

6.18 Borrowing Notice

     32   

6.19 Insurance Certificates and Letter of Undertaking

     32   

 

-i-


     Page  

SECTION 7. [RESERVED]

     32   

SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS

     32   

8.01 Organizational Status

     32   

8.02 Power and Authority

     32   

8.03 No Violation

     33   

8.04 Approvals

     33   

8.05 Financial Statements; Financial Condition

     33   

8.06 Litigation

     33   

8.07 True and Complete Disclosure

     33   

8.08 Use of Proceeds; Margin Regulations

     34   

8.09 Tax Returns and Payments

     34   

8.10 ERISA

     34   

8.11 The Security Documents

     35   

8.12 Properties

     35   

8.13 Capitalization

     36   

8.14 Subsidiaries

     36   

8.15 Compliance with Statutes; Anti-Money Laundering and Economic Sanctions Laws; FCPA

     36   

8.16 Investment Company Act

     37   

8.17 Environmental Matters

     37   

8.18 Labor Relations

     37   

8.19 Intellectual Property

     37   

8.20 Legal Names; Type of Organization (and Whether a Registered Organization); Jurisdiction of Organization; etc.

     37   

SECTION 9. AFFIRMATIVE COVENANTS

     38   

9.01 Information Covenants

     38   

9.02 Books, Records and Inspections

     39   

9.03 Maintenance of Property; Insurance

     40   

9.04 Existence; Franchises

     41   

9.05 Compliance with Statutes, etc.

     41   

9.06 Compliance with Environmental Laws

     41   

9.07 ERISA

     41   

9.08 End of Fiscal Years; Fiscal Quarters

     42   

9.09 Performance of Obligations

     42   

9.10 Payment of Taxes

     42   

9.11 Use of Proceeds

     42   

9.12 Additional Security; Further Assurances; etc.

     42   

9.13 Post-Closing Actions

     43   

9.14 [Reserved]

     43   

9.15 Credit Ratings

     43   

SECTION 10. NEGATIVE COVENANTS

     43   

10.01 Liens

     44   

10.02 Fundamental Changes

     46   

10.03 Dividends

     46   

10.04 Indebtedness

     47   

10.05 Advances, Investments and Loans

     48   

10.06 Transactions with Affiliates

     49   

10.07 Modifications of Certificate of Incorporation, By-Laws and Certain Other Agreements, etc.

     49   

10.08 Limitation on Creation of Subsidiaries

     49   

10.09 Business

     49   

10.10 Asset Sales

     50   

10.11 Financial Covenant

     51   

10.12 Capital Expenditures

     51   

 

-ii-


     Page  

SECTION 11. EVENTS OF DEFAULT

     51   

11.01 Payments

     51   

11.02 Representations, etc.

     51   

11.03 Covenants

     51   

11.04 Default Under Other Agreements

     51   

11.05 Bankruptcy, etc.

     51   

11.06 ERISA

     52   

11.07 Credit Documents

     52   

11.08 Guaranties

     52   

11.09 Judgments

     52   

11.10 Change of Control

     52   

11.11 Casualty or Condemnation

     52   

11.12 Abandonment of Operations

     52   

SECTION 12. THE ADMINISTRATIVE AGENT

     53   

12.01 Appointment and Authorization

     53   

12.02 Rights as a Lender

     54   

12.03 Exculpatory Provisions

     54   

12.04 Reliance by Administrative Agent

     55   

12.05 Delegation of Duties

     55   

12.06 Resignation of Administrative Agent

     55   

12.07 Non-Reliance on Administrative Agent and Other Lenders

     55   

12.08 No Other Duties, Etc.

     56   

12.09 Administrative Agent May File Proofs of Claim

     56   

12.10 Collateral Matters and Guaranty Matters

     56   

12.11 Withholding Taxes

     57   

12.12 Indemnification by the Lenders

     57   

12.13 Designated Interest Rate Protection Agreements and Designated Treasury Services Agreements

     57   

SECTION 13. MISCELLANEOUS

     58   

13.01 Payment of Expenses, etc.

     58   

13.02 Right of Setoff

     59   

13.03 Notices

     59   

13.04 Benefit of Agreement; Assignments; Participations, etc.

     60   

13.05 No Waiver; Remedies Cumulative

     62   

13.06 Payments Pro Rata

     62   

13.07 Calculations; Computations

     63   

13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL

     64   

13.09 Counterparts

     65   

13.10 [Reserved]

     65   

13.11 Headings Descriptive

     65   

13.12 Amendment or Waiver; etc.

     65   

13.13 Survival

     67   

13.14 Domicile of Term Loans

     67   

13.15 Register

     67   

13.16 Confidentiality

     67   

13.17 USA Patriot Act Notice

     68   

13.18 Electronic Execution of Assignments and Certain Other Documents

     68   

13.19 [Reserved]

     68   

13.20 No Advisory or Fiduciary Responsibility

     68   

13.21 MLP Set-Up Transactions

     69   

13.22 Separate Tranches

     69   

 

-iii-


     Page  

SECTION 14. HOLDINGS GUARANTY

     69   

14.01 The Guaranty

     69   

14.02 Bankruptcy

     69   

14.03 Nature of Liability

     69   

14.04 Independent Obligation

     70   

14.05 Authorization

     70   

14.06 Reliance

     71   

14.07 Subordination

     71   

14.08 Waiver

     71   

14.09 Maximum Liability

     71   

14.10 Payments

     72   

 

-iv-


SCHEDULE 2.01    Commitments
SCHEDULE 8.18    Labor Matters
SCHEDULE 9.13    Post-Closing Actions
SCHEDULE 10.01(iii)    Existing Liens
SCHEDULE 10.04(v)    Existing Indebtedness
SCHEDULE 13.03    Lender Addresses
EXHIBIT A-1    Form of Notice of Borrowing
EXHIBIT A-2    Form of Notice of Conversion/Continuation
EXHIBIT B-1    Form of Term B-1 Note
EXHIBIT B-2    Form of Term B-2 Note
EXHIBIT C-1, 2, 3 & 4    Form of U.S. Tax Compliance Certificates
EXHIBIT D    Form of Officers’ Certificate
EXHIBIT E    Form of Security Agreement
EXHIBIT F    Form of Solvency Certificate
EXHIBIT G    Form of Compliance Certificate
EXHIBIT H    Form of Assignment and Assumption Agreement
EXHIBIT I    Form of Perfection Certificate

 

-v-


THIS TERM LOAN CREDIT AGREEMENT, dated as of May 21, 2013, among OCI USA INC. (“ Holdings ”), OCI BEAUMONT LLC (the “ Borrower ”), the Lenders party hereto from time to time, BARCLAYS BANK PLC, as Syndication Agent (the “ Syndication Agent ”), CITIBANK, N.A., as Documentation Agent (the “ Documentation Agent ”), and BANK OF AMERICA, N.A., as the Administrative Agent (the “ Administrative Agent ”). All capitalized terms used herein and defined in Section 1 are used herein as therein defined.

W I T N E S S E T H :

WHEREAS, the Borrower has requested that the Lenders under the Term B-1 Facility make Term B-1 Loans hereunder in the amount of $125,000,000 on the Closing Date, and the Borrower will use the proceeds of such borrowings to consummate the Refinancing (as defined below) and to pay fees and expenses in connection therewith.

WHEREAS, the Borrower has requested that the Lenders under the Term B-2 Facility make Term B-2 Loans hereunder in the amount of $235,000,000 on the Closing Date, and the Borrower will use the proceeds of such borrowings to directly or indirectly make the Shareholder Payment (as defined below), to pay fees and expenses in connection therewith and for general corporate purposes.

WHEREAS, the Lenders have indicated their willingness to lend on the terms and subject to the conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

Section 1. Definitions and Accounting Terms .

1.01 Defined Terms . As used in this Agreement, the following terms shall have the following meanings:

Additional Security Documents ” shall have the meaning provided in Section 9.12(a) .

Administrative Agent ” shall mean Bank of America, N.A., in its capacity as Administrative Agent for the Lenders hereunder, and shall include any successor to the Administrative Agent appointed pursuant to Section 12.06 .

Affiliate ” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person. A Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other Person, whether through the ownership of voting securities, by contract or otherwise; provided , however , that neither the Administrative Agent nor any Lender (nor any Affiliate thereof) shall be considered an Affiliate of the Borrower as a result of this Agreement, the extensions of credit hereunder or its actions in connection therewith.

Agents ” shall mean the Administrative Agent, the Collateral Agent and any other agent with respect to the Credit Documents, including, without limitation, the Joint Lead Arrangers, the Syndication Agent and the Documentation Agent.

Agreement ” shall mean this Term Loan Credit Agreement, as modified, supplemented, amended, restated (including any amendment and restatement hereof), extended or renewed from time to time.

Applicable Margin ” shall mean a percentage per annum equal to, (i) in the case of Term B-1 Loans maintained as (a) Base Rate Term Loans, 3.00% and (b) LIBO Rate Term Loans, 4.00% and (ii) in the case of Term B-2 Loans maintained as (a) Base Rate Term Loans, 2.50% and (b) LIBO Rate Term Loans, 3.50%.


Asset Sale ” shall mean any sale, transfer or other disposition by the Borrower to any Person (including by way of redemption by such Person) of any asset (including, without limitation, any capital stock or other securities of, or Equity Interests in, another Person).

Assignment and Assumption Agreement ” shall mean an Assignment and Assumption Agreement substantially in the form of Exhibit H (appropriately completed) or such other form as shall be acceptable to the Administrative Agent.

Bankruptcy Code ” shall have the meaning provided in Section 11.05 .

Base Rate ” shall mean for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America, N.A. as its “prime rate,” and (c) the LIBO Rate plus 1.00%. The “prime rate” is a rate set by Bank of America, N.A. based upon various factors including Bank of America, N.A.’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by Bank of America, N.A. shall take effect at the opening of business on the day specified in the public announcement of such change.

Base Rate Term Loan ” shall mean each Term Loan which is designated or deemed designated as a Base Rate Term Loan by the Borrower at the time of the incurrence thereof or conversion thereto.

Borrower ” shall have the meaning provided in the first paragraph of this Agreement.

Borrower Materials ” shall have the meaning provided in Section 9.01 .

Borrowing ” shall mean the borrowing of the same Type of Term Loan pursuant to a single Tranche by the Borrower, as the case may be, from all the Lenders having Commitments with respect to such Tranche on a given date (or resulting from a conversion or conversions on such date), having in the case of LIBO Rate Term Loans, the same Interest Period; provided that Base Rate Term Loans incurred pursuant to Section 2.10(b) shall be considered part of the related Borrowing of LIBO Rate Term Loans.

Business Day ” shall mean (i) for all purposes other than as covered by clause (ii) below, any day except Saturday, Sunday and any day which shall be in New York City a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close and (ii) with respect to all notices and determinations in connection with LIBO Rate Term Loans, any day which is a Business Day described in clause (i) above and which is also a day for trading by and between banks in the London interbank Eurodollar market.

Capital Assets ” shall mean, with respect to any person, all equipment, fixed assets and Real Property or improvements of such person, or replacements or substitutions therefor or additions thereto, that, in accordance with GAAP, have been or should be reflected as additions to property, plant or equipment on the balance sheet of such person.

Capital Expenditures ” shall mean all expenditures made directly or indirectly by Borrower and its Subsidiaries for Capital Assets (whether paid in cash or other consideration, financed by the incurrence of Indebtedness or accrued as a liability). For purposes of this definition, the purchase price of equipment or other fixed assets that are purchased simultaneously with the trade-in of existing assets or with Net Cash Proceeds shall be included in Capital Expenditures only to the extent of the gross amount by which such purchase price exceeds the credit granted by the seller of such assets for the assets being traded in at such time or the amount of such Net Cash Proceeds, as the case may be.

Capitalized Lease Obligations ” shall mean, with respect to any Person, all rental obligations of such Person which, under U.S. GAAP, are or will be required to be capitalized on the books of such Person, in each case taken at the amount thereof accounted for as indebtedness in accordance with U.S. GAAP.

 

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Cash Equivalents ” shall mean:

(i) United States dollars, pounds sterling, euros, the national currency of any participating member state of the European Union;

(ii) readily marketable direct obligations of any member of the European Union whose currency is the Euro, Switzerland, or Japan, or any agency or instrumentality thereof or obligations unconditionally guaranteed by the full faith and credit of such country, and, at the time of acquisition thereof, having a credit rating of at least AA- (or the equivalent grade) by Moody’s or Aa3 by S&P;

(iii) marketable general obligations issued by any state of the United States or any political subdivision thereof or any instrumentality thereof that are guaranteed by the full faith and credit of such state, and, at the time of acquisition thereof, having a credit rating of at least AA- (or the equivalent grade) by Moody’s or Aa3 by S&P;

(iv) securities or any other evidence of Indebtedness or readily marketable direct obligations issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality of the United States government ( provided that the full faith and credit of the United States is pledged in support of those securities), in such case having maturities of not more than twelve months from the date of acquisition;

(v) certificates of deposit and eurodollar time deposits with maturities of twelve months or less from the date of acquisition, bankers’ acceptances with maturities not exceeding twelve months and overnight bank deposits, in each case, with any Lender party to this Agreement or any commercial bank or trust company having, or which is the principal banking subsidiary of a bank holding company having, a long-term unsecured debt rating of at least “A” or the equivalent thereof from S&P or “A2” or the equivalent thereof from Moody’s;

(vi) repurchase obligations with a term of not more than thirty days for underlying securities of the types described in clauses (iv) and (v) above entered into with any financial institution meeting the qualifications specified in clause (v) above;

(vii) commercial paper having one of the two highest ratings obtainable from Moody’s or S&P and, in each case, maturing within twelve months after the date of acquisition; and

(viii) money market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (i) through (vii) of this definition.

Casualty Event ” shall mean any involuntary loss of title, any involuntary loss of, damage to or any destruction of, or any condemnation or other taking (including by any Governmental Authority) of, any property of Holdings or Borrower. “Casualty Event” shall include but not be limited to any taking of all or any part of any Real Property of any Person or any part thereof, in or by condemnation or other eminent domain proceedings pursuant to any Requirement of Law or any deed in lieu thereof, or by reason of the temporary requisition of the use or occupancy of all or any part of any Real Property of any Person or any part thereof by any Governmental Authority, civil or military, or any settlement in lieu thereof.

CERCLA ” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as the same has been amended and may hereafter be amended from time to time, 42 U.S.C. § 9601 et seq .

Change of Control ” shall mean, at any time and for any reason whatsoever, (a) Holdings shall fail to directly or indirectly own 100% on a fully diluted basis of the Borrower’s Equity Interests, (b) OCI N.V. shall fail to directly or indirectly own 100% on a fully diluted basis of Holdings’ Equity Interests, or (c) a “change of control” or similar event shall occur as provided in any other debt instrument of a Credit Party, in each case, with an aggregate principal amount in excess of the Threshold Amount.

 

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Closing Date ” shall mean May 21, 2013.

Closing Fee ” shall have the meaning provided in Section 4.01(a) .

Code ” shall mean the Internal Revenue Code of 1986, as amended from time to time.

Collateral ” shall mean all property (whether real, personal or otherwise) with respect to which any security interests have been granted (or purported to be granted) pursuant to any Security Document (including any Additional Security Documents) or will be granted in accordance with Sections 9.12 or 9.13 , including, without limitation, all collateral as described in the Security Agreement, and all Mortgaged Properties granted or purported to be granted pursuant to any Security Document.

Collateral Agent ” shall mean the Administrative Agent acting as collateral agent for the Guaranteed Creditors pursuant to the Security Documents.

Commitment ” shall mean the Term Loan Commitments of any Lender.

Commodity Exchange Act ” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq .), as amended from time to time, and any successor statute.

Consolidated Depreciation and Amortization Expense ” shall mean, with respect to any Person, for any period, the total amount of depreciation and amortization expense, including (i) amortization of deferred financing fees, (ii) amortization of unrecognized prior service costs and actuarial gains and losses related to pensions and other post-employment benefits and (iii) amortization of intangibles (including goodwill and organizational costs) (excluding any such adjustment to the extent that it represents an accrual of or reserve for cash expenditures in any future period except to the extent such adjustment is subsequently reversed), in each case of such Person and its Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with U.S. GAAP.

Consolidated EBITDA ” shall mean, for any period, (w) Consolidated Net Income for such period; plus

(x) all of the following, in each case as determined without duplication in accordance with Section 13.07(a) and to the extent considered in calculating Consolidated Net Income for such period:

(i) Interest Expense;

(ii) provision for taxes based on income or profits or capital (or any alternative tax in lieu thereof), including, without limitation, federal, foreign, state, franchise and similar taxes and foreign withholding taxes of the Borrower and its Subsidiaries paid or accrued during such period, including without duplication (A) payments made pursuant to any tax sharing agreements or arrangements among the Borrower, its Subsidiaries and any Parent Company (so long as such tax sharing payments are attributable to the income of the Borrower and its Subsidiaries) and (B) an amount equal to the tax distributions actually made to Holdings or any Parent Company in respect of such period in accordance with Section 10.03 as though such amounts had been paid as taxes based on income or profits or capital directly by the Borrower and its Subsidiaries for such period and (C) any taxes or estimated taxes netted from addbacks to Consolidated Net Income pursuant to clauses (ii), (iv) or (v) thereof;

(iii) Consolidated Depreciation and Amortization Expense of such Person for such period;

(iv) any up-front fees, transaction costs, commissions, expenses, premiums or charges related to any equity offering, permitted investment, acquisition, disposal or incurrence, repayment, amendment or modification of Indebtedness permitted by this Agreement (whether or not successful) and up-front or financing fees, transaction costs, commissions, expenses, premiums or charges related to the Transaction and any nonrecurring merger or business acquisition transaction costs incurred during such period (in each case whether or not successful); and

 

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(v) all non-cash charges and non-cash losses which were included in arriving at Consolidated Net Income for such period (excluding any such non-cash charges or non-cash losses to the extent that they represent an accrual or reserve for potential cash charges or losses in any future period or amortization of a prepaid cash charge or loss that was paid in a prior period);

minus all non-cash gains to the extent included in Consolidated Net Income for such period (excluding any non-cash gains to the extent it represents the reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period);

provided that, notwithstanding the foregoing, to the extent that any non-cash charge added back to Consolidated Net Income pursuant to any of the foregoing provisions for any period shall become a cash event during any subsequent period, the amount thereof shall be deducted from Consolidated Net Income in determining Consolidated EBITDA for such subsequent period.

Consolidated Net Income ” shall mean, for any period, the net income (or loss) of the Borrower and its Subsidiaries for such period, determined on a consolidated basis (after any deduction for minority interests), provided that:

(i) in determining Consolidated Net Income, the net income (or loss) of any other Person which is not a Subsidiary of the Borrower or is accounted for by the Borrower by the equity method of accounting shall be included (x) in the case of net income, only to the extent of the payment of dividends, distributions or other payment that are actually paid in cash (or to the extent converted into cash) by such other Person to the Borrower or a Subsidiary thereof during such period, or (y) in the case of net loss, only to the extent of any losses actually funded (through Investments or otherwise) by the Borrower or a Subsidiary thereof during such period;

(ii) any net after-tax effect (using a reasonable estimate based on applicable tax rates) of extraordinary, non-recurring or unusual gains or losses (including as they relate to floods, droughts and similar naturally occurring and unusual weather events) (less all fees and expenses relating thereto) or expenses (including relating to any reconstruction, recommissioning or reconfiguration of fixed assets for alternate uses) shall be excluded;

(iii) the net income or loss for such period shall not include the cumulative effect of a change in accounting principles during such period, whether effected through a cumulative effect adjustment or a retroactive application, in each case in accordance with U.S. GAAP;

(iv) any effects of purchase accounting (including the effects of such adjustments pushed down to such Person and its Subsidiaries) in component amounts required or permitted by U.S. GAAP, resulting from the application of purchase accounting in relation to any Investment that is consummated after the Closing Date, or the amortization or write-up, writedown or write-off of any amounts thereof, net of taxes, shall be excluded;

(v) any net after-tax effect (using a reasonable estimate based on applicable tax rates) of any impairment charge or asset write-off, write-up or write-down, in each case pursuant to U.S. GAAP, shall be excluded; and

(vi) any adjustments attributable to foreign currency translations, including those relating to mark-to-market of Indebtedness denominated in foreign currencies resulting from the application of U.S. GAAP, including ASC No. 830, shall be excluded.

 

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Contingent Obligation ” shall mean, as to any Person, any obligation of such Person as a result of such Person being a general partner of any other Person, unless the underlying obligation is expressly made non-recourse as to such general partner, and any obligation of such Person guaranteeing or intended to guarantee any Indebtedness (“ primary obligations ”) of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, including, without limitation, any such obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (x) for the purchase or payment of any such primary obligation or (y) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided , however , that the term Contingent Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.

Credit Documents ” shall mean this Agreement and, after the execution and delivery thereof pursuant to the terms of this Agreement, each Note and each Security Document.

Credit Event ” shall mean the making of any Term Loan.

Credit Party ” shall mean Holdings, the Borrower and any other entity that becomes a Guarantor hereunder in connection with a MLP Set-Up Transaction, if any.

Default ” shall mean any event, act or condition which with notice or lapse of time, or both, would constitute an Event of Default.

Designated Interest Rate Protection Agreement ” shall mean each Interest Rate Protection Agreement entered into by the Borrower with a Guaranteed Creditor.

Designated Jurisdiction ” shall mean any country or territory to the extent that such country or territory itself is the subject of any Sanction.

Designated Treasury Services Agreement ” shall mean each Treasury Services Agreement entered into by the Borrower with a Guaranteed Creditor.

Dividend ” shall mean, with respect to any Person, that such Person has declared or paid a dividend, distribution or returned any equity capital to its stockholders, partners or members or authorized or made any other distribution, payment or delivery of property (other than common equity of such Person) or cash to its stockholders, partners or members as such, or redeemed, retired, purchased or otherwise acquired, directly or indirectly, for a consideration any shares of any class of its capital stock or any partnership or membership interests outstanding on or after the Closing Date (or any options or warrants issued by such Person with respect to its Equity Interests), or set aside any funds for any of the foregoing purposes; provided that the transfer by Borrower to Holdings of employees or certain lease agreements shall not constitute a Dividend for purposes of this Agreement.

Documentation Agent ” shall have the meaning provided in the first paragraph to this Agreement.

Dodd-Frank and Basel III ” shall have the meaning set forth in Section 2.10(d) .

Economic Sanctions Laws ” shall mean any and all laws, judgments, orders, executive orders, decrees, ordinances, rules, regulations, statutes, case law or treaties applicable to a Credit Party or its Affiliates relating to economic sanctions and terrorism financing, including any applicable provisions of the Trading with the Enemy Act (50 U.S.C. App. §§ 5(b) and 16, as amended), the International Emergency Economic Powers Act, (50 U.S.C. §§ 1701-1706, as amended) and Executive Order 13224 (effective September 24, 2001), as amended.

 

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Eligible Transferee ” shall mean and include a commercial bank, an insurance company, a finance company, a financial institution, any fund that invests in loans or any other “accredited investor” (as defined in Regulation D of the Securities Act) (other than a natural person) but in any event excluding Holdings and the Borrower and their respective Affiliates.

Embargoed Person ” shall mean any party that (i) is publicly identified on the most current list of “Specially Designated Nationals and Blocked Persons” published by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or (ii) resides, is organized or chartered, or has a place of business in a country or territory that is the subject of OFAC sanctions programs.

Environment ” shall mean ambient air, indoor air, surface water, groundwater, drinking water, land surface and sub-surface strata and natural resources such as wetlands, flora and fauna.

Environmental Claims ” shall mean any and all administrative, regulatory or judicial actions, suits, demands, demand letters, directives, claims, liens, notices of noncompliance or violation, investigations and/or proceedings relating in any way to any Environmental Law or any permit issued, or any approval given, under any such Environmental Law (hereafter, “ Claims ”), including, without limitation, (a) any and all Claims by any Governmental Authority for enforcement, investigation, cleanup, removal, response, remedial or other actions or damages pursuant to any Environmental Law, and (b) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief arising out of or relating to an alleged injury or threat of injury to human health, safety or the Environment due to the presence of Hazardous Materials, including any Release or threat of Release of any Hazardous Materials.

Environmental Law ” shall mean any applicable Federal, state, provincial, foreign or local statute, law, rule, regulation, ordinance, code, binding guideline and rule of common law, now or hereafter in effect and in each case as amended, and any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, relating to pollution or protection of the Environment, occupational health or safety or Hazardous Materials, including, without limitation, CERCLA; the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. ; the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq .; the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq .; the Clean Air Act, 42 U.S.C. § 7401 et seq .; the Safe Drinking Water Act, 42 U.S.C. § 3803 et seq .; the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq .; the Emergency Planning and the Community Right-to-Know Act of 1986, 42 U.S.C. § 11001 et seq .; the Hazardous Material Transportation Act, 49 U.S.C. § 1801 et seq .; the Clean Water Act, 33 U.S.C. § 1251 et seq .; and any state, provincial and local or foreign counterparts or equivalents, in each case as amended from time to time.

Equity Interests ” of any Person shall mean any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any preferred stock, any limited or general partnership interest and any limited liability company membership interest.

ERISA ” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and, unless the context indicates otherwise, the regulations promulgated and rulings issued thereunder. Section references to ERISA are to ERISA, as in effect at the date of this Agreement, as amended from time to time, and any successor Section thereto.

ERISA Affiliate ” shall mean each person (as defined in Section 3(9) of ERISA) which together with the Borrower would be deemed to be a “single employer” within the meaning of Section 414(b) or (c) of the Code and solely with respect to Section 412 of the Code, Sections 414(b), (c), (m) or (o) of the Code.

ERISA Event ” shall mean (a) any “reportable event,” as defined in Section 4043 of ERISA or the regulations issued thereunder, but excluding any event for which the 30-day notice period is waived with respect to a Plan, (b) any failure to make a required contribution to any Plan that would result in the imposition of a Lien or other encumbrance or the failure to satisfy the minimum funding standards set forth in Sections 412 or 430 of the Code or Sections 302 or 303 of ERISA, or the arising of such a Lien or encumbrance, with respect to a Plan, (c) the incurrence by the Borrower or an ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan or the withdrawal or partial withdrawal (including under Section 4062(e) of ERISA) of the

 

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Borrower or an ERISA Affiliate from any Plan or Multiemployer Plan, (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 of ERISA, or the receipt by the Borrower or an ERISA Affiliate from the PBGC or a plan administrator of any notice of intent to terminate any Plan or Multiemployer Plan or to appoint a trustee to administer any Plan, (e) the adoption of any amendment to a Plan that would require the provision of security pursuant to the Code, ERISA or other applicable law, (f) the receipt by the Borrower or an ERISA Affiliate of any notice concerning statutory liability arising from the withdrawal or partial withdrawal of the Borrower or an ERISA Affiliate from a Multiemployer Plan or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, (g) the occurrence of any non-exempt “prohibited transaction” (within the meaning of Section 406 of ERISA or Section 4975 of the Code) with respect to which the Borrower is a “disqualified person” (within the meaning of Section 4975 of the Code) or with respect to which the Borrower could reasonably be expected to have liability, (h) the occurrence of any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of any Plan or the appointment of a trustee to administer any Plan, (i) the filing of any request for or receipt of a minimum funding waiver under Section 412(c) of the Code with respect to any Plan or Multiemployer Plan, (j) a determination that any Plan is in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code), (k) the receipt by the Borrower or any ERISA Affiliate of any notice, that a Multiemployer Plan is, or is expected to be, in endangered or critical status under Section 305 of ERISA or, (l) any other extraordinary event or condition with respect to a Plan or Multiemployer Plan which could reasonably be expected to result in a Lien or any acceleration of any statutory requirement to fund all or a substantial portion of the unfunded accrued benefit liabilities of such plan.

Event of Default ” shall have the meaning provided in Section 11 .

Excluded Property ” shall have the meaning set forth in the Security Agreement.

Excluded Swap Obligation ” shall mean, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guaranty or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes illegal.

Excluded Taxes ” shall mean, with respect to the Administrative Agent, any Lender, or any other recipient of any payment to be made by or on account of any obligation of any Credit Party under any Credit Document, (a) income Taxes imposed on (or measured by) its net income and franchise (and similar) Taxes imposed on it in lieu of income Taxes, as a result of such recipient being organized or having its principal office or applicable lending office in such jurisdiction (or any political subdivision thereof) or as a result of any other present or former connection between such recipient and the jurisdiction imposing such Tax (other than a connection arising from such Administrative Agent, Lender or other recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Term Loan or Credit Document), (b) any branch profits Taxes under Section 884(a) of the Code or any similar Tax imposed by any jurisdiction described in clause (a) above, (c) in the case of a Lender (other than an assignee pursuant to a request by the Borrower under Section 2.13 ), (i) any U.S. federal withholding Tax that is imposed on amounts payable to such Lender at the time such Lender becomes a party to this Agreement (or designates a new lending office), except to the extent that such recipient (or its assignor, if any) was entitled, immediately prior to the time of designation of a new lending office (or assignment), to receive additional amounts from the Credit Parties with respect to such withholding tax pursuant to Section 5.04(a) or (ii) any withholding Tax that is attributable to such recipient’s failure to comply with Section 5.04(b) or Section 5.04(c) , (d) any U.S. federal withholding Taxes imposed under FATCA and (e) U.S. federal backup withholding Taxes imposed pursuant to Code Section 3406.

Existing Credit Agreement ” shall mean the Facility Agreement, dated as of April 26, 2012, among the Borrower (f/k/a Pandora Methanol, LLC), certain lenders party thereto and Crédit Agricole Corporate and Investment Bank, as the Facility Agent and Security Agent (as amended, restated or otherwise modified from time to time prior to the Closing Date).

 

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Existing Indebtedness ” shall have the meaning provided in Section 10.04(v) .

FATCA ” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above).

FCPA ” shall have the meaning provided in Section 8.15(f) .

Federal Funds Rate ” shall mean, for any period, a fluctuating interest rate equal for each day during such period to the weighted average of the rates on overnight Federal Funds transactions with members of the Federal Reserve System arranged by Federal Funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal Funds brokers of recognized standing selected by the Administrative Agent.

Fees ” shall mean all amounts payable pursuant to or referred to in Section 4.01 .

Flood Insurance Laws ” shall mean, collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statue thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto and (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto.

Governmental Authority ” shall mean the government of the United States of America, any other nation or any political subdivision thereof, whether state, provincial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

Guaranteed Creditors ” shall mean and include (x) each of the Administrative Agent, the Collateral Agent, the other Agents and the Lenders and (y) with respect to a Designated Interest Rate Protection Agreement or Designated Treasury Services Agreement, the Administrative Agent, any Lender and any Affiliate of the Administrative Agent or any Lender (even if the Administrative Agent or such Lender subsequently ceases to be the Administrative Agent or a Lender under this Agreement for any reason) so long as the Administrative Agent, such Lender or such Affiliate served such purposes at the time of entry into a particular Designated Interest Rate Protection Agreement or Designated Treasury Services Agreement.

Guarantor ” shall mean Holdings and any Subsidiary of Holdings that becomes a Guarantor hereunder in connection with a MLP Set-Up Transaction, if any.

Guaranty ” shall mean the Holdings Guaranty and any other guarantee by any Person who becomes a Guarantor hereunder.

Hazardous Materials ” shall mean (a) any petroleum or petroleum products, radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde foam insulation, dielectric fluid containing levels of polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of “hazardous substances,” “hazardous waste,” “hazardous materials,” “extremely hazardous substances,” “restricted hazardous waste,” “toxic substances,” “toxic pollutants,” “contaminants,” or “pollutants,” or words of similar import, under any Environmental Law; and (c) any other chemical, material or substance regulated under any Environmental Law.

 

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Hedging Agreement ” shall mean any foreign exchange contracts, currency swap agreements, commodity agreements or other similar arrangements, or arrangements designed to protect against fluctuations in currency values or commodity prices.

Hedging Obligations ” shall mean, with respect to any Person, the obligations of such Person under any Interest Rate Protection Agreement or Hedging Agreement.

Holdings ” shall have the meaning provided in the first paragraph of this Agreement.

Holdings Guaranty ” shall mean the guaranty of Holdings pursuant to Section 14 .

Indebtedness ” shall mean, as to any Person, without duplication, (i) all indebtedness (including principal, interest, fees and charges) of such Person (A) for borrowed money or (B) for the deferred purchase price of property or services, (ii) the maximum amount available to be drawn under all letters of credit, bankers’ acceptances and similar obligations issued for the account of such Person and all unpaid drawings in respect of such letters of credit, bankers’ acceptances and similar obligations, (iii) all Indebtedness of the types described in clause (i), (ii), (iv), (v), (vi) or (vii) of this definition secured by any Lien on any property owned by such Person, whether or not such Indebtedness has been assumed by such Person ( provided that, if the Person has not assumed or otherwise become liable in respect of such Indebtedness, such Indebtedness shall be deemed to be in an amount equal to the lesser of (x) the aggregate unpaid amount of Indebtedness secured by such Lien and (y) the fair market value of the property to which such Lien relates as determined in good faith by such Person), (iv) the aggregate amount of all Capitalized Lease Obligations of such Person, (v) all Contingent Obligations of such Person, (vi) all obligations under any Interest Rate Protection Agreement, any Hedging Agreement, any Treasury Services Agreement or under any similar type of agreement and (vii) all Off-Balance Sheet Liabilities of such Person. Notwithstanding the foregoing, Indebtedness shall not include (a) trade payables and accrued expenses incurred by any Person in accordance with customary practices and in the ordinary course of business of such Person or (b) earn-outs and other contingent payments in respect of acquisitions except to the extent that the liability on account of any such earn-outs or contingent payment becomes fixed and is required by U.S. GAAP to be reflected as a liability on the consolidated balance sheet of the Borrower.

Indemnified Person ” shall have the meaning provided in Section 13.01 .

Indemnified Taxes ” shall mean all Taxes other than (i) Excluded Taxes imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Credit Document and (ii) Other Taxes.

Intellectual Property ” shall have the meaning provided in Section 8.19 .

Intercompany Subordination Agreement ” shall mean the Intercompany Subordination Agreement, dated as of the Closing Date, by and among the Borrower and OCI Fertilizer International B.V.

Interest Determination Date ” shall mean, with respect to any LIBO Rate Term Loan, the second Business Day prior to the commencement of any Interest Period relating to such LIBO Rate Term Loan.

Interest Expense ” shall mean the aggregate consolidated interest expense (net of interest income) of the Borrower in respect of Indebtedness determined on a consolidated basis in accordance with U.S. GAAP, including amortization or original issue discount on any Indebtedness and amortization of all fees payable in connection with the incurrence of such Indebtedness, including, without limitation, the interest portion of any deferred payment obligation and the interest component of any Capitalized Lease Obligations, and, to the extent not included in such interest expense, any losses on Hedging Obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, net of interest income and gains on such Hedging Obligations, and costs of surety bonds in connection with financing activities.

Interest Period ” shall have the meaning provided in Section 2.09 .

 

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Interest Rate Protection Agreement ” shall mean any interest rate swap agreement, interest rate cap agreement, interest collar agreement, interest rate hedging agreement or other similar agreement or arrangement.

Investments ” shall have the meaning provided in Section 10.05 .

Joint Lead Arrangers ” shall have the meaning provided on the cover of this Agreement.

Latest Maturity Date ” shall mean December 31, 2013.

Lender ” shall mean each financial institution listed on Schedule 2.01 , as well as any Person that becomes a “Lender” hereunder pursuant to Section 2.13 or 13.04(b) .

LIBO Rate ” shall mean

(a) for any Interest Period with respect to a LIBO Rate Term Loan, the rate per annum equal to (i) the British Bankers Association LIBOR Rate or the successor thereto if the British Bankers Association is no longer making a LIBOR rate available (“ LIBOR ”), as published by Reuters (or such other commercially available source providing quotations of LIBOR as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two London Banking Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period or (ii) if such rate is not available at such time for any reason, then the “LIBO Rate” for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the LIBO Rate Term Loan being made, continued or converted by Bank of America, N.A. and with a term equivalent to such Interest Period would be offered by Bank of America, N.A.’s London Branch to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two London Banking Days prior to the commencement of such Interest Period; and

(b) for any interest calculation with respect to a Base Rate Term Loan on any date, the rate per annum equal to (i) LIBOR, at approximately 11:00 a.m., London time determined two London Banking Days prior to such date for Dollar deposits being delivered in the London interbank market for a term of one month commencing that day or (ii) if such published rate is not available at such time for any reason, the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the date of determination in same day funds in the approximate amount of the Base Rate Term Loan being made or maintained and with a term equal to one month would be offered by Bank of America, N.A.’s London Branch to major banks in the London interbank Eurodollar market at their request at the date and time of determination.

LIBO Rate Term Loan ” shall mean each Term Loan designated as such by the Borrower at the time of the incurrence thereof or conversion thereto.

Lien ” shall mean any mortgage, pledge, hypothecation, collateral assignment, security deposit arrangement, encumbrance, deemed or statutory trust, security conveyance, lien (statutory or other), preference, priority or other security agreement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, and any lease having substantially the same effect as any of the foregoing).

Location ” of any Person shall mean such Person’s “location” as determined pursuant to Section 9-307 of the Uniform Commercial Code of the State of New York.

London Banking Day ” shall mean any day on which banks are open for dealings in dollar deposits in the London interbank market.

 

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Majority Lenders ” of any Tranche shall mean those Lenders which would constitute the Required Lenders under, and as defined in, this Agreement if all outstanding Obligations of the other Tranches under this Agreement were repaid in full and all Commitments with respect thereto were terminated.

Margin Stock ” shall have the meaning provided in Regulation U.

Material Adverse Effect ” shall mean (i) a material adverse change in or effect on the general affairs, financial position or results of operations of the Borrower or the Plant or (ii) a material adverse effect (x) on the rights or remedies, taken as a whole, of the Lenders or the Administrative Agent hereunder or under any other Credit Document or (y) on the ability of the Credit Parties, taken as a whole, to perform their payment obligations to the Lenders or the Administrative Agent hereunder or under any other Credit Document.

Maturity Date ” shall mean (a) with respect to any Term B-1 Loans, the earlier of the consummation of a Qualified MLP IPO and the Latest Maturity Date and (b) with respect to any Term B-2 Loans, the earliest of (x) the Latest Maturity Date, (y) the consummation of a Qualified MLP IPO and (z) the incurrence of a Permanent Term Loan.

Minimum Borrowing Amount ” shall mean $1,000,000.

MLP ” shall mean the master limited partnership to be formed directly or indirectly by Holdings which MLP shall directly or indirectly own 100% of the Equity Interests of the Borrower.

MLP Set-Up Transactions ” shall mean (a) investments, distributions, dispositions, transfers, payments, reorganizations, entity formations and other activities or transactions (including entering into contracts) necessary or beneficial to facilitate a Qualified MLP IPO, so long as, after giving effect thereto, the security interest of the Lenders in the Collateral, taken as a whole, is not materially impaired (as determined by the Borrower in good faith), and (b) the Qualified MLP IPO, subject to Section 5.02(a).

Moody’s ” shall mean Moody’s Investors Service, Inc.

Mortgage ” shall mean a mortgage, debenture, leasehold mortgage, deed of trust, deed of immovable hypothec, leasehold deed of trust, deed to secure debt, leasehold deed to secure debt or similar security instrument in form and substance reasonably satisfactory to the Administrative Agent, in favor of the Collateral Agent for the benefit of the Guaranteed Creditors, as the same may be amended, modified, restated and/or supplemented from time to time.

Mortgaged Property ” shall mean (i) the Plant, (ii) the Option Parcel and (iii) each parcel of Real Property (other than Excluded Property) hereafter acquired or leased by any Credit Party.

Multiemployer Plan ” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA and subject to Title IV of ERISA under which the Borrower has any obligation or liability, including on account of an ERISA Affiliate.

NAIC ” shall mean the National Association of Insurance Commissioners.

Net Cash Proceeds ” shall mean, with respect to any Recovery Event, an amount in cash equal to the gross cash proceeds (net of reasonable costs, expenses and any taxes incurred in connection with such Recovery Event) received by the respective Person in connection with such Recovery Event.

Net Debt Proceeds ” shall mean, with respect to any incurrence of Indebtedness for borrowed money, the gross cash proceeds (net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith) received by the respective Person from such incurrence.

 

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Net IPO Proceeds ” shall mean, with respect to the Qualified MLP IPO, the gross cash proceeds (net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith) received by the respective Person from such issuance.

Note ” shall mean each Term B-1 Note and Term B-2 Note.

Notice of Borrowing ” shall have the meaning provided in Section 2.03 .

Notice of Conversion/Continuation ” shall have the meaning provided in Section 2.06 .

Notice Office ” shall mean (i) for credit notices, the office of the Administrative Agent located at 222 Broadway, New York, NY 10038, Attention: Niyati Jhaveri, Telephone No. (646) 556-0326, Facsimile No. (212) 548-0740, E-Mail: niyati2.jhaveri@baml.com and (ii) for operational notices, the office of the Administrative Agent located at 901 Main Street, Dallas, TX 75202, Attention: Eldred Sholars, Telephone No.: 972-338-3811, Facsimile No. 214-290-9485, E-Mail: eldred.sholars@baml.com; or such other office or person as the Administrative Agent may hereafter designate in writing as such to the other parties hereto.

Obligations ” shall mean (x) all now existing or hereafter arising debts, obligations, covenants, and duties of payment or performance of every kind, matured or unmatured, direct or contingent, owing, arising, due, or payable to any Lender, Agent or Indemnified Person by any Credit Party arising out of this Agreement or any other Credit Document, including, without limitation, all obligations to repay principal or interest (including obligations which but for the automatic stay under Section 362(a) of the Bankruptcy Code would become due and including interest at the rate provided for herein accruing during the pendency of any bankruptcy, insolvency, receivership or similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Term Loans, and to pay interest, fees, costs, charges, expenses, professional fees, and all sums chargeable to the Borrower or any Credit Party or for which the Borrower or any Credit Party is liable as indemnitor under the Credit Documents, whether or not evidenced by any note or other instrument and (y) liabilities and indebtedness of Holdings or the Borrower owing under any Designated Interest Rate Protection Agreement or Designated Treasury Services Agreement (other than Excluded Swap Obligations), if any, whether now in existence or hereafter arising (including obligations which but for the automatic stay under Section 362(a) of the Bankruptcy Code would become due and including interest accruing during the pendency of any bankruptcy, insolvency, receivership or similar proceeding, regardless of whether allowed or allowable in such proceeding), and the due performance and compliance with all terms, conditions and agreements contained therein. Notwithstanding anything to the contrary contained above, (x) obligations of any Credit Party under any Designated Interest Rate Protection Agreement or Designated Treasury Services Agreement shall be secured and guaranteed pursuant to the Credit Documents only to the extent that, and for so long as, the other Obligations are so secured and guaranteed and (y) any release of Collateral or Guarantors effected in the manner permitted by this Agreement shall not require the consent of holders of obligations under Designated Interest Rate Protection Agreement or Designated Treasury Services Agreement.

OFAC ” shall have the meaning set forth in the definition of “Embargoed Person.”

Off-Balance Sheet Liabilities ” of any Person shall mean (i) any repurchase obligation or liability of such Person with respect to accounts or notes receivable sold by such Person, (ii) any liability of such Person under any Sale-Leaseback Transactions that do not create a liability on the balance sheet of such Person, (iii) any obligation under a Synthetic Lease or (iv) any obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance sheet of such Person.

Option Parcel ” shall mean all right, title and interest of any Credit Party pursuant to that certain Option Agreement dated as of March 20, 2013 by and among QuanTexas Energy LLC, the Borrower and Texas Regional Title LLC, as the same may be amended, supplemented or otherwise modified from time to time.

Other Taxes ” shall mean any and all present or future stamp, court or documentary, intangible, recording, filing or property Taxes or similar Taxes arising from any payment made under, from the execution, delivery, registration, performance or enforcement of, from the receipt or perfection of a security interest under, or otherwise

 

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with respect to, any Credit Document except any such Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.13 ) that are imposed as a result of any present or former connection between the relevant Lender and the jurisdiction imposing such Tax (other than a connection arising from such Lender having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Term Loan or Credit Document.

Parent Company ” shall mean any direct or indirect parent company of the Borrower.

Participant Register ” shall have the meaning provided in Section 13.04(a) .

Patriot Act ” shall have the meaning provided in Section 13.17 .

Payment Office ” shall mean the office of the Administrative Agent set forth in Schedule 13.03 or such other office as the Administrative Agent may hereafter designate in writing as such to the other parties hereto.

PBGC ” shall mean the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.

Perfection Certificate ” shall mean a certificate in the form of Exhibit I or any other form approved by the Collateral Agent.

Permanent Term Loan ” shall mean the incurrence of a senior secured term loan credit facility by any Credit Party the proceeds of which shall be applied in accordance with Section 5.02(c) .

Permitted Collateral Liens ” shall mean (a) in the case of Collateral other than Mortgaged Property, Permitted Liens and (b) in the case of Mortgaged Property, the Liens described in clauses (i), (ii), (iii), (iv), (v), (viii), (x), (xi), (xiii), (xiv), (xvi) and (xix) of Section 10.01 ; provided , however , that upon the date of delivery of any Mortgage pursuant to Sections 9.12 or 9.13 hereof, with respect to any Liens referred to in said clauses (i)  and (ii)  encumbering the applicable Mortgaged Property, the Borrower shall bond over or take any other action necessary or required by the title company to delete any exception to title relating to overdue Taxes or mechanics’, materialmen’s or other similar liens.

Permitted Encumbrance ” shall mean, with respect to any Mortgaged Property, such exceptions to title as are set forth in the mortgagee title insurance policy delivered with respect thereto, all of which exceptions must be acceptable to the Administrative Agent in its reasonable discretion.

Permitted Liens ” shall have the meaning provided in Section 10.01 .

Person ” shall mean any individual, partnership, joint venture, firm, corporation, company, association, limited liability company, trust or other enterprise or any government or political subdivision or any agency, department or instrumentality thereof.

Plan ” shall mean any pension plan as defined in Section 3(2) of ERISA other than a Multiemployer Plan, which is maintained or contributed to by (or to which there is an obligation to contribute of) Holdings or a Subsidiary of Holdings or with respect to which Holdings or a Subsidiary of Holdings, has, or may have, any liability, including, for greater certainty, liability arising from an ERISA Affiliate.

Plant ” shall mean all Real Property and PP&E comprising the OCI Beaumont Facility located in Nederland, Texas.

Platform ” shall have the meaning provided in Section 9.01 .

PP&E ” shall mean all personal property and equipment of the Borrower owned and used in connection with its operations.

 

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Prime Rate ” shall mean the rate which the Administrative Agent announces from time to time as its prime lending rate, the Prime Rate to change when and as such prime lending rate changes. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer by the Administrative Agent, which may make commercial loans or other loans at rates of interest at, above or below the Prime Rate.

Qualified MLP IPO ” shall mean an initial offer and sale of common units of the MLP in an underwritten public offering for cash pursuant to a registration statement that has been declared effective by the SEC pursuant to the Securities Act (other than a registration statement on Form S-4 or Form S-8 or otherwise relating to Equity Interests of the MLP issuable under any employee benefit plan); provided , however , that immediately after such offering, the MLP is treated as a partnership for U.S. federal income tax purposes and qualifies for the exception contained in Section 7704(c) of the Code for partnerships with “qualifying income” (as defined in Section 7704(d) of the Code).

Quarterly Payment Date ” shall mean the last Business Day of June, September, and December, 2013.

Real Property ” of any Person shall mean, collectively, the right, title and interest of such Person (including any leasehold, easement, mineral or other estate) in and to any and all land, improvements and fixtures owned, leased or operated by such Person, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, all general intangibles and contract rights and other property and rights incidental to the ownership, lease or operation thereof.

Recovery Event ” shall mean the receipt by the Borrower of any cash insurance proceeds or condemnation awards payable (i) by reason of any Casualty Event (but not by reason of any loss of revenues or interruption of business or operations caused thereby) and (ii) under any policy of insurance required to be maintained under Section 9.03 (but not by reason of any loss of revenues or interruption of business or operations caused thereby), in each case to the extent such proceeds or awards do not constitute reimbursement or compensation for amounts previously paid by the Borrower in respect of any such event.

Refinancing ” shall mean the repayment of all of the outstanding indebtedness (and termination of all commitments) under the Existing Credit Agreement as provided in Section 6.05 .

Register ” shall have the meaning provided in Section 13.15 .

Regulation D ” shall mean Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof establishing reserve requirements.

Regulation T ” shall mean Regulation T of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof.

Regulation U ” shall mean Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof.

Regulation X ” shall mean Regulation X of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof.

Related Parties ” shall mean, with respect to any Person, such Person’s Affiliates and the partners, members, managers, directors, officers, employees, agents, trustees and advisors of such Person and of such Person’s Affiliates.

Release ” shall mean actively or passively disposing, discharging, injecting, spilling, pumping, leaking, leaching, dumping, emitting, escaping, emptying, pouring, seeping, migrating or the like, into, through or upon the Environment or within, from or into any building, structure, facility or fixture.

Replaced Lender ” shall have the meaning provided in Section 2.13 .

 

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Replacement Lender ” shall have the meaning provided in Section 2.13 .

Required Lenders ” shall mean Lenders, the sum of whose outstanding principal of Term Loans as of any date of determination represent greater than 50% of the sum of all outstanding principal of Term Loans at such time.

Requirement of Law ” shall mean, with respect to any Person, (i) the charter, articles or certificate of organization or incorporation and bylaws or other organizational or governing documents of such Person and (ii) any statute, law, treaty, rule, regulation, order, ordinance, decree, writ, injunction or determination of any arbitrator or court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

Responsible Officer ” shall mean, with respect to any Person, its chief executive officer, president, or any vice president, managing director, treasurer, controller or other officer of such Person having substantially the same authority and responsibility; provided that, with respect to compliance with financial covenants, “Responsible Officer” means the chief financial officer, treasurer or controller of Holdings or the Borrower, or any other officer of Holdings or the Borrower having substantially the same authority and responsibility; provided further that solely for purposes of notices given pursuant to Article II, “Responsible Officer” shall also mean any other officer of the applicable Credit Party so designated by any of the foregoing officers in a notice to the Administrative Agent.

Returns ” shall have the meaning provided in Section 8.09 .

S&P ” shall mean Standard & Poor’s Ratings Services, a division of the McGraw Hill Company, Inc., and any successor owner of such division.

Sale-Leaseback Transaction ” shall mean any arrangements with any Person providing for the leasing by Holdings or the Borrower of real or personal property which has been or is to be sold or transferred by Holdings or the Borrower to such Person or to any other Person to whom funds have been or are to be advanced by such Person in connection therewith.

Sanction(s) ” shall mean any international economic sanction administered or enforced by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority.

SEC ” shall have the meaning provided in Section 9.01(g) .

Section 9.01 Financials ” shall mean the quarterly and monthly financial statements required to be delivered pursuant to Sections 9.01(a) and (c) .

Securities Act ” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

Securities Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

Security Agreement ” shall have the meaning provided in Section 6.09 .

Security Agreement Collateral ” shall have the meaning provided in Section 6.09 .

Security Document ” shall mean and include each of the Security Agreement, each Mortgage and, after the execution and delivery thereof, each Additional Security Document and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Collateral Agent for the benefit of the Guaranteed Creditors.

 

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Shareholder Payment ” shall mean the payment of a dividend or distribution and/or the making of or the repayment of shareholder loans to the direct or indirect Equity Holders of the Borrower on or promptly after the Closing Date in an aggregate amount not to exceed $230,000,000.

Similar Business ” shall mean any business and any services, activities or businesses incidental, or reasonably related or similar to, or complementary to any line of business engaged in by the Borrower on the Closing Date or any business activity that is a reasonable extension, development or expansion thereof or ancillary thereto.

Solvent ” and “ Solvency ” shall mean, with respect to any Person on any date of determination, that on such date (a) the sum of the debt (including contingent liabilities) of such Person does not exceed the fair value of the present assets of such Person; (b) the capital of such Person is not unreasonably small in relation to the business of such Person contemplated as of such date; and (c) such Person does not intend to incur, or believe that it will incur, debts (including current obligations and contingent liabilities) beyond its ability to pay such debts as they mature in the ordinary course of business. For the purposes hereof, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

Subsidiary ” shall mean, as to any Person, (i) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such Person and/or one or more Subsidiaries of such Person and (ii) any partnership, limited liability company, association, joint venture or other entity in which such Person and/or one or more Subsidiaries of such Person has more than a 50% Equity Interest at the time.

Survey ” shall have the meaning provided in Section 9.13(d) .

Syndication Agent ” shall have the meaning provided in the first paragraph to this Agreement.

Swap Obligation ” shall mean, with respect to each Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

Synthetic Lease ” shall mean a lease transaction under which the parties intend that (i) the lease will be treated as an “operating lease” by the lessee and (ii) the lessee will be entitled to various tax and other benefits ordinarily available to owners (as opposed to lessees) of like property.

Taxes ” shall mean any and all present or future taxes, levies, imposts, duties, deductions, charges, fees, assessments, liabilities or withholdings imposed by any Governmental Authority, including interest, penalties and additions to tax with respect thereto.

Term B-1 Facility ” shall mean the facility in respect of the Term B-1 Loans.

Term B-1 Loan Commitment ” shall mean, for each Lender, the amount set forth opposite such Lender’s name in Schedule 2.01 directly below the column entitled “Term B-1 Loan Commitment,” as the same may be terminated pursuant to Sections 4.02 and/or 11 .

Term B-1 Loans ” shall mean the term loans made on the Closing Date pursuant to Section 2.01(a) .

Term B-1 Note ” shall have the meaning assigned to such term in Section 2.05(a) .

Term B-2 Facility ” shall mean the facility in respect of the Term B-2 Loans.

 

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Term B-2 Loan Commitment ” shall mean, for each Lender, the amount set forth opposite such Lender’s name in Schedule 2.01 directly below the column entitled “Term B-2 Loan Commitment,” as the same may be terminated pursuant to Sections 4.02 and/or 11 .

Term B-2 Loans ” shall mean the term loans made on the Closing Date pursuant to Section 2.01(b) .

Term B-2 Note ” shall have the meaning assigned to such term in Section 2.05(a) .

Term Loan Commitment ” shall mean, for each Lender, its Term B-1 Loan Commitment and Term B-2 Loan Commitment, collectively.

Term Loans ” shall mean the Term B-1 Loans and the Term B-2 Loans, collectively.

Threshold Amount ” shall mean $5,000,000.

Total Term Loan Commitment ” shall mean, at any time, the sum of the Term Loan Commitments of each of the Lenders at such time.

Tranche ” shall mean the respective facilities and commitments utilized in making Term Loans hereunder including (i) the Term B-1 Facility and (ii) the Term B-2 Facility.

Transaction ” shall mean, collectively, (i) the consummation of the Refinancing, (ii) the Shareholder Payment, (iii) the funding of the Term Loans and (iv) the payment of all Transaction Costs.

Transaction Costs ” shall mean the fees, premiums and expenses payable by Holdings or the Borrower in connection with the transactions described in clauses (i) through (iii) of the definition of “Transaction.”

Treasury Services Agreement ” shall mean any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.

Type ” shall mean the type of Term Loan determined with regard to the interest option applicable thereto, i.e ., whether a Base Rate Term Loan or a LIBO Rate Term Loan.

UCC ” shall mean the Uniform Commercial Code as from time to time in effect in the relevant jurisdiction.

Unfunded Pension Liability ” of any Plan shall mean the amount, if any, by which the value of the accumulated plan benefits under the Plan determined on a plan termination basis in accordance with actuarial assumptions at such time consistent with those prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds the fair market value of all plan assets of such Plan.

United States ” and “ U.S. ” shall each mean the United States of America.

U.S. Dollars ” and the sign “ $ ” shall each mean freely transferable lawful money (expressed in dollars) of the United States.

U.S. GAAP ” shall mean generally accepted accounting principles in the United States of America as in effect from time to time; provided that determinations made pursuant to this Agreement in accordance with U.S. GAAP are subject (to the extent provided therein) to Section 13.07(a) .

U.S. Tax Compliance Certificate ” shall have the meaning provided in Section 5.04(c) .

Water Rights ” shall mean water rights of every kind and nature which shall include but not be limited to claims, decrees, applications, permits, licenses, storage rights, ditches and ditch rights, riparian and littoral rights, and all shares of stock and memberships in any canal, irrigation or other water company and including, without limitation, those water rights identified in the Mortgages and incorporated herein by reference, in each case, as amended, amended and restated, supplemented, renewed or otherwise modified from time to time in accordance with the provisions of the Mortgages.

 

 

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Weighted Average Life to Maturity ” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing (i) the then outstanding principal amount of such Indebtedness into (ii) the sum of the products obtained by multiplying (x) the amount of each then remaining installment or other required scheduled payments of principal, including payment at final maturity, in respect thereof, by (y) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment.

1.02 Terms Generally . The definitions in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall”; and the words “asset” and “property” shall be construed as having the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. The words “herein,” “hereof’ and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision of this Agreement unless the context shall otherwise require. All references herein to Articles, Sections, paragraphs, clauses, subclauses, Exhibits and Schedules shall be deemed references to Articles, Sections, paragraphs, clauses and subclauses of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require. Unless otherwise expressly provided herein, (a) all references to documents, instruments and other agreements (including the Credit Documents and organizational documents) shall be deemed to include all subsequent amendments, restatements, amendments and restatements, supplements and other modifications thereto, but only to the extent that such amendments, restatements, amendments and restatements, supplements and other modifications are not prohibited by any Credit Document and (b) references to any law, statute, rule or regulation shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such law. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

Section 2. Amount and Terms of Credit .

2.01 The Commitments .

(a) Subject to and upon the terms and conditions set forth herein, each Lender with a Term B-1 Loan Commitment severally agrees to make a Term B-1 Loan or Term B-1 Loans to the Borrower, which Term B-1 Loans (i) shall be incurred by the Borrower pursuant to a single drawing on the Closing Date, (ii) shall be denominated in U.S. Dollars, (iii) shall except as hereinafter provided, at the option of the Borrower, be incurred and maintained as, and/or converted into, one or more Borrowings of Base Rate Term Loans or LIBO Rate Term Loans, provided that except as otherwise specifically provided in Section 2.10(b) , all Term B-1 Loans comprising the same Borrowing shall at all times be of the same Type, and (iv) shall be made by each such Lender in that aggregate principal amount which does not exceed the Term B-1 Loan Commitment of such Lender on the Closing Date (before giving effect to the termination thereof pursuant to Section 4.02(a) ). Once repaid or prepaid, Term B-1 Loans may not be reborrowed.

(b) Subject to and upon the terms and conditions set forth herein, each Lender with a Term B-2 Loan Commitment severally agrees to make a Term B-2 Loan or Term B-2 Loans to the Borrower, which Term B-2 Loans (i) shall be incurred by the Borrower pursuant to a single drawing on the Closing Date, (ii) shall be denominated in U.S. Dollars, (iii) shall except as hereinafter provided, at the option of the Borrower, be incurred and maintained as, and/or converted into, one or more Borrowings of Base Rate Term Loans or LIBO Rate Term Loans, provided that except as otherwise specifically provided in Section 2.10(b) , all Term B-2 Loans comprising the same Borrowing shall at all times be of the same Type, and (iv) shall be made by each such Lender in that aggregate principal amount which does not exceed the Term B-2 Loan Commitment of such Lender on the Closing Date (before giving effect to the termination thereof pursuant to Section 4.02(a) ). Once repaid or prepaid, Term B-2 Loans may not be reborrowed.

 

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2.02 Minimum Amount of Each Borrowing . The aggregate principal amount of each Borrowing of Term Loans under any Tranche shall not be less than the Minimum Borrowing Amount. More than one Borrowing may occur on the same date, but at no time shall there be outstanding more than ten (10) Borrowings of LIBO Rate Term Loans in the aggregate for all Tranches of Term Loans.

2.03 Notice of Borrowing . Whenever the Borrower desires to make a Borrowing of Term Loans under any Tranche hereunder, the Borrower shall give the Administrative Agent at its Notice Office at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) of each Base Rate Term Loan of such Tranche to be made hereunder and at least three Business Days’ prior written notice (or telephonic notice promptly confirmed in writing) of each LIBO Rate Term Loan of such Tranche to be made hereunder, provided that (in each case) any such notice shall be deemed to have been given on a certain day only if given before 12:00 Noon (New York City time) on such day (or such later time as the Administrative Agent shall agree in its sole and absolute discretion). Each such notice (each, a “ Notice of Borrowing ”), except as otherwise expressly provided in Section 2.11 , shall be irrevocable and shall be in writing, or by telephone promptly confirmed in writing by or on behalf of the Borrower, in the form of Exhibit A-1 , appropriately completed to specify: (i) the aggregate principal amount of the Term Loans of such Tranche to be made pursuant to such Borrowing, (ii) the date of such Borrowing (which shall be a Business Day), (iii) whether the Term Loans being made pursuant to such Borrowing are to be initially maintained as Base Rate Term Loans or LIBO Rate Term Loans and (iv) in the case of LIBO Rate Term Loans, the Interest Period to be initially applicable thereto. The Administrative Agent shall promptly give each Lender under such Tranche which is required to make Term Loans of such Tranche specified in the respective Notice of Borrowing, notice of such proposed Borrowing, of such Lender’s proportionate share thereof (determined in accordance with Section 2.07 ) and of the other matters required by the immediately preceding sentence to be specified in the Notice of Borrowing.

2.04 Disbursement of Funds . No later than 1:00 P.M. (New York City time) on the date specified in each Notice of Borrowing, each Lender with a Commitment of the relevant Tranche will make available its pro rata portion (determined in accordance with Section 2.07 ) of each such Borrowing requested to be made on such date. All such amounts will be made available in U.S. Dollars and in immediately available funds at the Payment Office, and the Administrative Agent will make available to the Borrower at the Payment Office the aggregate of the amounts so made available by the Lenders. Unless the Administrative Agent shall have been notified by any Lender prior to the date of any Borrowing that such Lender does not intend to make available to the Administrative Agent such Lender’s portion of any Borrowing to be made on such date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such date of Borrowing and the Administrative Agent may (but shall not be obligated to), in reliance upon such assumption, make available to the Borrower a corresponding amount. If such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the Borrower and the Borrower shall immediately pay such corresponding amount to the Administrative Agent. The Administrative Agent also shall be entitled to recover on demand from such Lender or the Borrower interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to the Borrower until the date such corresponding amount is recovered by the Administrative Agent, at a rate per annum equal to (i) if recovered from such Lender, the overnight Federal Funds Rate for the first three days and at the interest rate otherwise applicable to such Term Loans for each day thereafter and (ii) if recovered from the Borrower, the rate of interest applicable to the relevant Borrowing, as determined pursuant to Section 2.08 . Nothing in this Section 2.04 shall be deemed to relieve any Lender from its obligation to make Term Loans hereunder or to prejudice any rights which the Borrower may have against any Lender as a result of any failure by such Lender to make Term Loans hereunder.

2.05 Notes .

(a) The Borrower’s obligation to pay the principal of, and interest on, the Term Loans made by each Lender shall be evidenced in the Register maintained by the Administrative Agent pursuant to Section 13.15 and shall, if requested by such Lender, also be evidenced (i) in the case of an Term B-1 Loan, by a promissory note duly executed and delivered by the Borrower substantially in the form of Exhibit B-1 , with blanks appropriately completed in conformity herewith (each, a “ Term B-1 Note ” and, collectively, the “ Term B-1 Notes ”), and (ii) in the case of a Term B-2 Loan, by a promissory note duly executed and delivered by the Borrower substantially in the form of Exhibit B-2 , with blanks appropriately completed in conformity herewith (each, a “ Term B-2 Note ” and, collectively, the “ Term B-2 Notes ”).

 

 

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(b) The Term B-1 Note issued to each requesting Lender with outstanding Term B-1 Loans shall (i) be executed by the Borrower, (ii) be payable to such Lender or its registered assigns and be dated the Closing Date (or, if issued after the Closing Date, be dated the date of issuance thereof), (iii) be in a stated principal amount equal to the Term B-1 Loans made by such Lender on the Closing Date (or, if issued after the Closing Date, be in a stated principal amount equal to the outstanding Term B-1 Loans of such Lender at such time) and be payable in the outstanding principal amount of Term B-1 Loans evidenced thereby, (iv) mature on the Maturity Date for Term B-1 Loans, (v) bear interest as provided in the appropriate clause of Section 2.08 in respect of the Base Rate Term Loans and LIBO Rate Term Loans, as the case may be, evidenced thereby, (vi) be subject to voluntary prepayment as provided in Section 5.01 , and mandatory repayment as provided in Section 5.02 , and (vii) be entitled to the benefits of this Agreement and the other Credit Documents.

(c) The Term B-2 Note issued to each requesting Lender with outstanding Term B-2 Loans shall (i) be executed by the Borrower, (ii) be payable to such Lender or its registered assigns and be dated the Closing Date (or, if issued after the Closing Date, be dated the date of issuance thereof), (iii) be in a stated principal amount equal to the Term B-2 Loans made by such Lender on the Closing Date (or, if issued after the Closing Date, be in a stated principal amount equal to the outstanding Term B-2 Loans of such Lender at such time) and be payable in the outstanding principal amount of Term B-2 Loans evidenced thereby, (iv) mature on the Maturity Date for Term B-2 Loans, (v) bear interest as provided in the appropriate clause of Section 2.08 in respect of the Base Rate Term Loans and LIBO Rate Term Loans, as the case may be, evidenced thereby, (vi) be subject to voluntary prepayment as provided in Section 5.01 , and mandatory repayment as provided in Section 5.02 , and (vii) be entitled to the benefits of this Agreement and the other Credit Documents.

(d) Each Lender will note on its internal records the amount of each Term Loan under each Tranche made by it and each payment in respect thereof and prior to any transfer of any of its Notes will endorse on the reverse side thereof the outstanding principal amount of Term Loans of the applicable Tranche evidenced thereby. Failure to make any such notation or any error in such notation shall not affect the Borrower’s obligations in respect of such Term Loans.

(e) Notwithstanding anything to the contrary contained above in this Section 2.05 or elsewhere in this Agreement, Notes shall only be delivered to Lenders which at any time specifically request the delivery of such Notes. No failure of any Lender to request or obtain a Note evidencing its Term Loans to the Borrower shall affect or in any manner impair the obligations of the Borrower to pay the Term Loans (and all related Obligations) incurred by the Borrower which would otherwise be evidenced thereby in accordance with the requirements of this Agreement, and shall not in any way affect the security or guaranties therefor provided pursuant to the various Credit Documents. Any Lender which does not have a Note evidencing its outstanding Term Loans shall in no event be required to make the notations otherwise described in the preceding clause (d). At any time when any Lender requests the delivery of a Note to evidence any of its Term Loans under any applicable Tranche, the Borrower shall promptly execute and deliver to the respective Lender the requested Note in the appropriate amount or amounts to evidence such Term Loans of such Tranche.

2.06 Interest Rate Conversions . The Borrower shall have the option to convert, on any Business Day, all or a portion equal to at least the Minimum Borrowing Amount of the outstanding principal amount of Term Loans of a given Tranche made pursuant to one or more Borrowings of one or more Types of Term Loans, into a Borrowing (of the same Tranche) of another Type of Term Loan, provided that (i) except as otherwise provided in Section 2.11 , (x) LIBO Rate Term Loans may be converted into Base Rate Term Loans only on the last day of an Interest Period applicable to the Term Loans being converted and no such partial conversion of LIBO Rate Term Loans, as the case may be, shall reduce the outstanding principal amount of such LIBO Rate Term Loans, made pursuant to a single Borrowing to less than the Minimum Borrowing Amount applicable thereto, (ii) unless the Required Lenders otherwise agree, Base Rate Term Loans may only be converted into LIBO Rate Term Loans if no Event of Default is in existence on the date of the conversion, and (iii) no conversion pursuant to this Section 2.06 shall result in a greater number of Borrowings of LIBO Rate Term Loans than is permitted under Section 2.02 . Such conversion shall be effected by the Borrower by giving the Administrative Agent at the Notice Office prior to

 

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12:00 Noon (New York City time) at least three Business Days’ prior notice (each, a “ Notice of Conversion/Continuation ”) in the form of Exhibit A-2 , appropriately completed to specify the Term Loans of a given Tranche to be so converted, the Borrowing or Borrowings pursuant to which such Term Loans were incurred and, if to be converted into LIBO Rate Term Loans, the Interest Period to be initially applicable thereto. The Administrative Agent shall give each Lender prompt notice of any such proposed conversion affecting any of its Term Loans.

2.07 Pro Rata Borrowings . All Borrowings of each applicable Tranche of Term Loans under this Agreement shall be incurred from the Lenders under such Tranche pro rata on the basis of such Lenders’ Term Loan Commitments under such Tranche. No Lender shall be responsible for any default by any other Lender of its obligation to make Term Loans hereunder, and each Lender shall be obligated to make the Term Loans provided to be made by it hereunder, regardless of the failure of any other Lender to make its Term Loans hereunder.

2.08 Interest .

(a) The Borrower agrees to pay interest in respect of the unpaid principal amount of each Base Rate Term Loan (including with respect to any LIBO Rate Term Loan converted into a Base Rate Term Loan pursuant to Section 2.06 or 2.09 ) made to the Borrower hereunder under a given Tranche from the date of Borrowing thereof (or, in the circumstances described in the immediately preceding parenthetical, from the date of conversion of the respective LIBO Rate Term Loan into a Base Rate Term Loan) until the earlier of (i) the maturity thereof (whether by acceleration or otherwise) and (ii) the conversion of such Base Rate Term Loan to a LIBO Rate Term Loan pursuant to Section 2.06 or 2.09 , as applicable, at a rate per annum which shall be equal to the sum of the Applicable Margin plus the Base Rate, as in effect from time to time.

(b) The Borrower agrees, to pay interest in respect of the unpaid principal amount of each LIBO Rate Term Loan made to the Borrower under a given Tranche from the date of Borrowing thereof until the earlier of (i) the maturity thereof (whether by acceleration or otherwise) and (ii) the conversion of such LIBO Rate Term Loan to a Base Rate Term Loan pursuant to Section 2.06 , 2.09 or 2.10 , as applicable, at a rate per annum which shall, during each Interest Period applicable thereto, be equal to the sum of the Applicable Margin plus the applicable LIBO Rate for such Interest Period.

(c) Overdue principal and, to the extent permitted by law, overdue interest in respect of each Term Loan and any other overdue amount payable hereunder shall, in each case, bear interest at a rate per annum equal to (i) for Base Rate Term Loans and associated interest, 2% per annum in excess of the Applicable Margin for Base Rate Term Loans plus the Base Rate, (ii) for LIBO Rate Term Loans and associated interest, 2% per annum in excess of the Applicable Margin for LIBO Rate Term Loans plus the LIBO Rate and (iii) with respect to fees and all other amounts, 2% per annum in excess of the Applicable Margin for Base Rate Term Loans plus the Base Rate, each as in effect from time to time, in each case with such interest to be payable on demand.

(d) Accrued (and theretofore unpaid) interest shall be calculated daily and payable (i) in respect of each Base Rate Term Loan, quarterly in arrears on each Quarterly Payment Date, (ii) in respect of each LIBO Rate Term Loan, on (x) the date of any conversion thereof into a Base Rate Term Loan, pursuant to Sections 2.06 , 2.09 or 2.10(b) , as applicable (on the amount converted) and (y) the last day of each Interest Period applicable thereto and (iii) in respect of each Term Loan, on (x) the date of any prepayment or repayment thereof (on the amount prepaid or repaid), (y) at maturity (whether by acceleration or otherwise) and (z) after such maturity, on demand.

(e) Upon each Interest Determination Date, the Administrative Agent shall determine the LIBO Rate for each Interest Period applicable to the respective LIBO Rate Term Loans and shall promptly notify the Borrower and the Lenders thereof. Each such determination shall, absent manifest error, be final and conclusive and binding on all parties hereto.

2.09 Interest Periods . At the time the Borrower gives any Notice of Borrowing under a given Tranche or Notice of Conversion/Continuation in respect of the making of, or conversion into, any LIBO Rate Term Loan (in the case of the initial Interest Period applicable thereto) or prior to 12:00 Noon (New York City time) on the third Business Day prior to the expiration of an Interest Period applicable to such LIBO Rate Term Loan (in the case of any subsequent Interest Period), the Borrower shall have the right to elect the interest period (each, an “ Interest Period ”) applicable to such LIBO Rate Term Loan, which Interest Period shall, at the option of the Borrower be a one, two or three month period; provided that (in each case):

 

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(i) all LIBO Rate Term Loans comprising a Borrowing shall at all times have the same Interest Period;

(ii) the initial Interest Period for any LIBO Rate Term Loan shall commence on the date of Borrowing of such LIBO Rate Term Loan (including, in the case of LIBO Rate Term Loans, the date of any conversion thereto from a Borrowing of Base Rate Term Loans) and each Interest Period occurring thereafter in respect of such LIBO Rate Term Loan shall commence on the day on which the next preceding Interest Period applicable thereto expires;

(iii) if any Interest Period for a LIBO Rate Term Loan begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period, such Interest Period shall end on the last Business Day of such calendar month;

(iv) if any Interest Period for a LIBO Rate Term Loan would otherwise expire on a day which is not a Business Day, such Interest Period shall expire on the next succeeding Business Day; provided , however , that if any Interest Period for a LIBO Rate Term Loan would otherwise expire on a day which is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the next preceding Business Day;

(v) unless the Required Lenders otherwise agree, no Interest Period for a LIBO Rate Term Loan may be selected at any time when a Default or an Event of Default is then in existence; and

(vi) no Interest Period in respect of any Borrowing of any Tranche of Term Loans shall be selected which extends beyond the Maturity Date therefor.

With respect to any LIBO Rate Term Loans, at the end of any Interest Period applicable to a Borrowing thereof, the Borrower may elect to split the respective Borrowing of a single Type under a single Tranche into two or more Borrowings of different Types under such Tranche or combine two or more Borrowings under a single Tranche into a single Borrowing of the same Type under such Tranche, in each case, by having the Borrower give notice thereof together with its election of one or more Interest Periods, in each case so long as each resulting Borrowing (x) has an Interest Period which complies with the foregoing requirements of this Section 2.09 , (y) has a principal amount which is not less than the Minimum Borrowing Amount applicable to Borrowings of the respective Type and Tranche, and (z) does not cause a violation of the requirements of Section 2.02 . If by 12:00 Noon (New York City time) on the third Business Day prior to the expiration of any Interest Period applicable to a Borrowing of LIBO Rate Term Loans, the Borrower has failed to elect, or is not permitted to elect, a new Interest Period to be applicable to such LIBO Rate, the Borrower shall be deemed to have elected in the case of LIBO Rate Term Loans, to convert such LIBO Rate Term Loans into Base Rate Term Loans with such conversion to be effective as of the expiration date of such current Interest Period.

2.10 Increased Costs, Illegality, etc .

(a) In the event that any Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):

(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBO Rate;

(ii) at any time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any LIBO Rate Term Loan because of any change since the Closing Date in any applicable law or governmental rule, regulation, order, guideline or request

 

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(whether or not having the force of law) or in the official interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, official guideline or request, such as, but not limited to: (A) any additional Tax imposed on any Lender (except Indemnified Taxes or Other Taxes indemnified under Section 5.04 or any Excluded Taxes) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBO Rate; or

(iii) at any time, that the making or continuance of any LIBO Rate Term Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the Closing Date which materially and adversely affects the interbank Eurodollar market;

then, and in any such event, such Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the Borrower and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, LIBO Rate Term Loans shall no longer be available until such time as the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by the Borrower with respect to LIBO Rate Term Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower, agrees to pay to such Lender, upon such Lender’s written request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its sole discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice setting forth the additional amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, shall be submitted to the Borrower by such Lender and shall, absent manifest error, be final and conclusive and binding on all the parties hereto), (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 2.10(b) as promptly as possible and, in any event, within the time period required by law.

(b) At any time that any LIBO Rate Term Loan is affected by the circumstances described in Section 2.10(a)(ii) , the Borrower may, and in the case of a LIBO Rate Term Loan affected by the circumstances described in Section 2.10(a)(iii) , the Borrower shall, either (x) if the affected LIBO Rate Term Loan is then being made initially or pursuant to a conversion, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 2.10(a)(ii) or (iii)  or (y) if the affected LIBO Rate Term Loan is then outstanding, upon at least three Business Days’ written notice to the Administrative Agent, require the affected Lender to convert such LIBO Rate Term Loan into a Base Rate Term Loan, provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 2.10(b) .

(c) If any Lender determines that after the Closing Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy or liquidity requirements, or any change in interpretation or administration thereof by the NAIC or any Governmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Lender or any corporation controlling such Lender based on the existence of such Lender’s Commitments hereunder or its obligations hereunder, then the Borrower, agrees to pay to such Lender, upon its written demand therefor, such additional amounts as shall be required to compensate such Lender or such other corporation for the increased cost to such Lender or such other corporation or the reduction in the rate of return to such Lender or such other corporation as a result of such increase of capital or liquidity requirements. In determining such additional amounts, each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Lender’s determination of compensation owing under this Section 2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 2.10(c) , will give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts.

 

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(d) Notwithstanding anything in this Agreement to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III ((x) and (y) collectively referred to as “ Dodd-Frank and Basel III ”), shall be deemed to be a change after the Closing Date in a Requirement of Law or government rule, regulation or order, regardless of the date enacted, adopted, issued or implemented (including for purposes of this Section 2.10 ).

2.11 Compensation . The Borrower, agrees to compensate each Lender, upon its written request (which request shall set forth in reasonable detail the basis for requesting such compensation and the calculation of the amount of such compensation), for all losses, expenses and liabilities (including, without limitation, any loss, expense or liability incurred by reason of the liquidation or reemployment of deposits or other funds required by such Lender to fund its LIBO Rate Term Loans but excluding loss of anticipated profits) which such Lender may sustain: (i) if for any reason (other than a default by such Lender or the Administrative Agent) a Borrowing of, or conversion from or into, LIBO Rate Term Loans does not occur on a date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or not withdrawn by such Borrower or deemed withdrawn pursuant to Section 2.10(a) ); (ii) if any prepayment or repayment (including any prepayment or repayment made pursuant to Section 5.01 , Section 5.02 or as a result of an acceleration of the Term Loans pursuant to Section 11 ) or conversion of any of its LIBO Rate Term Loans occurs on a date which is not the last day of an Interest Period with respect thereto; (iii) if any prepayment of any LIBO Rate Term Loans is not made on any date specified in a notice of prepayment given by the Borrower; or (iv) as a consequence of (x) any other default by the Borrower to repay LIBO Rate Term Loans when required by the terms of this Agreement or any Note held by such Lender or (y) any election made pursuant to Section 2.10(b).

2.12 Change of Lending Office . Each Lender agrees that on the occurrence of any event giving rise to the operation of Section 2.10(a)(ii) or (iii) , Section 2.10(c) or Section 5.04 with respect to such Lender, it will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Term Loans affected by such event, provided that such designation is made on such terms that such Lender and its lending office suffer no economic, legal or regulatory disadvantage, with the object of avoiding the consequence of the event giving rise to the operation of such Section. Nothing in this Section 2.12 shall affect or postpone any of the obligations of the Borrower or the right of any Lender provided in Sections 2.10 and 5.04 .

2.13 Replacement of Lenders . (x) Upon the occurrence of an event giving rise to the operation of Section 2.10(a)(ii) or (iii) , Section 2.10(c) or Section 5.04 with respect to such Lender or (y) in the case of a refusal by a Lender to consent to certain proposed changes, waivers, discharges or terminations with respect to this Agreement which have been approved by the Required Lenders or the Majority Lenders of a given Tranche, as applicable, as (and to the extent) provided in Section 13.12(b) , the Borrower shall have the right, if no Event of Default then exists (or, in the case of preceding clause (y), will exist immediately after giving effect to such replacement), to replace such Lender (the “ Replaced Lender ”) under the applicable Tranches with one or more other Eligible Transferees (collectively, the “ Replacement Lender ”) and each of whom shall be required to be reasonably acceptable to the Administrative Agent (to the extent the Administrative Agent’s consent would be required for an assignment to such Replacement Lender pursuant to Section 13.04 ); provided that (i) at the time of any replacement pursuant to this Section 2.13 , the Replacement Lender shall enter into one or more Assignment and Assumption Agreements pursuant to Section 13.04(b) (and with all fees payable pursuant to said Section 13.04(b) to be paid by the Borrower and/or the Replacement Lender (as may be agreed to at such time among the Borrower and the Replacement Lender)) pursuant to which the Replacement Lender shall acquire all of the Commitments and outstanding Term Loans under the applicable Tranches of, the Replaced Lender and, in connection therewith, shall pay to (x) the Replaced Lender in respect thereof an amount equal to the sum of (I) an amount equal to the principal of, and all accrued interest on, all outstanding Term Loans under the applicable Tranches of the respective Replaced Lender under each Tranche with respect to which such Replaced Lender is being replaced and (II) an amount equal to all accrued, but theretofore unpaid, Fees owing to the Replaced Lender pursuant to Section 4.01 and (ii) all obligations of the Borrower due and owing to the Replaced Lender at such time (other than those specifically described in clause (i) above in respect of which the assignment purchase price has been, or is concurrently being, paid) shall be paid in full to such Replaced Lender concurrently with such replacement. Upon receipt by the

 

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Replaced Lender of all amounts required to be paid to it pursuant to this Section 2.13 , the Administrative Agent shall be entitled (but not obligated) and authorized to execute an Assignment and Assumption Agreement on behalf of such Replaced Lender, and any such Assignment and Assumption Agreement so executed by the Administrative Agent and the Replacement Lender shall be effective for purposes of this Section 2.13 and Section 13.04 . Upon the execution of the respective Assignment and Assumption Agreement, the payment of amounts referred to in clauses (i) and (ii) above, recordation of the assignment on the Register pursuant to Section 13.15 and, if so requested by the Replacement Lender, delivery to the Replacement Lender of the appropriate Note or Notes executed by the Borrower, the Replacement Lender shall become a Lender hereunder and the Replaced Lender shall cease to constitute a Lender hereunder, except with respect to indemnification provisions under this Agreement (including, without limitation, Sections 2.10 , 2.11 , 5.04 , 12.07 and 13.01 ), which shall survive as to such Replaced Lender. In connection with any replacement of Lenders pursuant to, and as contemplated by, this Section 2.13 , the Borrower hereby irrevocably authorizes Holdings to take all necessary action, in the name of such Borrower, as described above in this Section 2.13 in order to effect the replacement of the respective Lender or Lenders in accordance with the preceding provisions of this Section 2.13.

Section 3. [ Reserved ].

Section 4. Fees; Reductions of Commitment .

4.01 Fees .

(a) The Borrower agrees to pay on the Closing Date to each Lender party to this Agreement on the Closing Date, as fee compensation for the funding of such Lender’s Term Loan, a closing fee (the “ Closing Fee ”) in an amount equal to 1.00% of the stated principal amount of such Lender’s Term Loan under each Tranche, payable to such Lender from the proceeds of its Term Loans as and when funded on the Closing Date. Such Closing Fee will be in all respects fully earned, due and payable on the Closing Date and non-refundable and non-creditable thereafter.

(b) The Borrower agrees to pay to the Administrative Agent such fees as may be agreed to in writing from time to time by Holdings or the Borrower and the Administrative Agent.

4.02 Mandatory Reduction of Commitments .

(a) The Term B-1 Loan Commitments and the Term B-2 Loan Commitments shall terminate in their entirety on the Closing Date (after giving effect to the incurrence of Term Loans on such date).

(b) Each reduction to the Total Term Loan Commitment under a given Tranche pursuant to this Section 4.02 as provided above (or pursuant to Section 5.02 ) shall be applied proportionately to reduce the Term Loan Commitment under such Tranche, as the case may be, of each Lender with such a Commitment under such Tranche.

Section 5. Prepayments; Payments; Taxes .

5.01 Voluntary Prepayments .

(a) The Borrower shall have the right to prepay the Term Loans of a given Tranche, without premium or penalty, in whole or in part at any time and from time to time on the following terms and conditions: (i) the Borrower shall give the Administrative Agent at its Notice Office written notice (or telephonic notice promptly confirmed in writing) of its intent to prepay the Term Loans of a given Tranche, the amount of the Term Loans to be prepaid, the Types of Term Loans to be repaid and, in the case of LIBO Rate Term Loans, the specific Borrowing or Borrowings pursuant to which made, which notice shall be given by the Borrower (x) prior to 12:00 Noon (New York City time) at least one Business Day prior to the date of such prepayment in the case of Term Loans maintained as Base Rate Term Loans and (y) prior to 12:00 Noon (New York City time) at least three Business Days prior to the date of such prepayment in the case of LIBO Rate Term Loans (or, in the case of clause (x) and (y), such shorter period as the Administrative Agent shall agree in its sole and absolute discretion), and be promptly

 

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transmitted by the Administrative Agent to each of the Lenders; (ii) each partial prepayment of Term Loans pursuant to this Section 5.01(a) shall be in an aggregate principal amount of at least $1,000,000 or such lesser amount as is acceptable to the Administrative Agent, provided that if any partial prepayment of LIBO Rate Term Loans made pursuant to any Borrowing shall reduce the outstanding principal amount of LIBO Rate Term Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount applicable thereto, then if such Borrowing is a Borrowing of LIBO Rate Term Loans, such Borrowing shall automatically be converted into a Borrowing of Base Rate Term Loans and any election of an Interest Period with respect thereto given by the Borrower shall have no force or effect; and (iii) each prepayment pursuant to this Section 5.01(a) in respect of any Term Loans of a given Tranche made pursuant to a Borrowing shall be applied pro rata among such Term Loans of such Tranche. Notwithstanding anything to the contrary contained in this Agreement, any such notice of prepayment pursuant to this Section 5.01(a) , if such prepayment would have resulted in a refinancing of all of the Term Loans and Commitments of a given Tranche, may state that it is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Borrower (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.

(b) [Reserved].

5.02 Mandatory Repayments .

(a) In addition to any other mandatory repayments pursuant to this Section 5.02 , concurrently upon the receipt of any cash proceeds from a Qualified MLP IPO, an amount equal to 100% of the Net IPO Proceeds therefrom shall be applied as a mandatory prepayment in accordance with the requirements of Section 5.02(h) ; provided that such proceeds shall be applied first to repay the outstanding principal amount of Term B-1 Loans (and accrued interest thereon) in their entirety and thereafter to the outstanding principal amount of Term B-2 Loans (and accrued interest thereon).

(b) [Reserved].

(c) In addition to any other mandatory repayments pursuant to this Section 5.02 , concurrently upon the receipt of any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Section (iv) ), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(h) ; provided that such proceeds shall be applied first to repay the outstanding principal amount of Term B-2 Loans (and accrued interest thereon) in their entirety and thereafter to the outstanding principal amount of Term B-1 Loans (and accrued interest thereon).

(d) [Reserved].

(e) [Reserved].

(f) In addition to any other mandatory repayments pursuant to this Section 5.02 , within 10 days following each date on or after the Closing Date upon which the Borrower receives any cash proceeds from any Recovery Event, an amount equal to 100% of the Net Cash Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Section 5.02(h) ; provided that such proceeds shall be applied first to repay the outstanding principal amount of Term B-2 Loans (and accrued interest thereon) in their entirety and thereafter to the Term B-1 Loans; provided further , however , with respect to no more than $15,000,000 in the aggregate of such Net Cash Proceeds received by the Borrower in any fiscal year of the Borrower, such Net Cash Proceeds shall not give rise to a mandatory repayment to the extent that no Event of Default then exists; provided further that following the repayment in full of the Term B-2 Loans, the Borrower may elect, in lieu of applying such Net Cash Proceeds to repay Term B-1 Loans, to deposit all such Net Cash Proceeds in a segregated account of the Borrower over which the Administrative Agent has been granted control as collateral for all remaining Obligations.

(g) [Reserved].

 

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(h) With respect to each repayment of Term Loans required by this Section 5.02 , the Borrower may designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of LIBO Rate Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such LIBO Rate Term Loans were made, provided that: (i) repayments of LIBO Rate Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such LIBO Rate Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.

(i) In addition to any other mandatory repayments pursuant to this Section 5.02 , all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.

5.03 Method and Place of Payment . Except as otherwise specifically provided herein, all payments under this Agreement and under any Note, in each case under a given Tranche, shall be made to the Administrative Agent or the account of the Lender or Lenders entitled thereto not later than 12:00 Noon (New York City time) on the date when due and shall be made in U.S. Dollars in immediately available funds at the Payment Office of the Administrative Agent. Whenever any payment to be made hereunder or under any Note shall be stated to be due on a day which is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest shall be payable at the applicable rate during such extension.

5.04 Net Payments .

(a) All payments made by or on account of any Credit Party under any Credit Document shall be made free and clear of, and without deduction or withholding for, any Taxes, except as required by applicable law. If any Taxes are required to be withheld or deducted from such payments, then the Credit Parties jointly and severally agree that (i) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased as necessary so that after making all required deductions or withholding (including deduction or withholdings applicable to additional sums payable under this Section 5.04 ), the Administrative Agent or Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law. The Credit Parties will furnish to the Administrative Agent within 45 days after the date the payment by any of them of any Indemnified Taxes or Other Taxes is due pursuant to applicable law certified copies of tax receipts evidencing such payment by the applicable Credit Party. The Credit Parties jointly and severally agree to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other Taxes (including any Indemnified Taxes or Other Taxes imposed on amounts payable under this Section 5.04 ) payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted from a payment to the Administrative Agent or such Lender, and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the Administrative Agent or a Lender (or by the Administrative Agent on behalf of a Lender), shall be conclusive absent manifest error.

(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduce rate of, withholding Tax. In addition, each Lender shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such other documentation prescribed by applicable law or reasonably requested by the

 

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Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 5.04(c) ) expired, obsolete or inaccurate in any respect, deliver promptly to the Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrower or the Administrative Agent) or promptly notify the Borrower and the Administrative Agent in writing of its inability to do so.

(c) Without limiting the generality of the foregoing: (x) Each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the Borrower and the Administrative Agent on or prior to the Closing Date or, in the case of a Lender that is a Lender to the Borrower and that is an assignee or transferee of an interest under this Agreement pursuant to Section 2.13 or 13.04(b) (unless the relevant Lender was already a Lender hereunder immediately prior to such assignment or transfer), on the date of such assignment or transfer to such Lender, (i) two accurate and complete signed copies of Internal Revenue Service Form W-8BEN (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or Form W-8ECI (or successor form), or (ii) in the case of a Lender claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest,” a certificate substantially in the form of Exhibit C-1 , C-2 , C-3 or C-4 (any such certificate, a “ U.S. Tax Compliance Certificate ”) and two accurate and complete signed copies of Internal Revenue Service Form W-8BEN (or successor form) certifying to such Lender’s entitlement as of such date to a complete exemption from U.S. withholding tax with respect to payments of interest to be made under this Agreement and under any Note, or (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, U.S. Tax Compliance Certificate, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 5.04(c) if such beneficial owner were a Lender ( provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption), the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such partner(s); or (iv) two accurate and complete signed copies of any other form prescribed by applicable U.S. federal income tax laws (including the Treasury regulations) as a basis for claiming a complete exemption from, or a reduction in, United States federal withholding Tax; (y) Each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the Borrower and the Administrative Agent, at the times specified in Section 5.04(b) , two accurate and complete signed copies of Internal Revenue Service Form W-9, or any successor form that such Person is entitled to provide at such time, in order to qualify for an exemption from United States federal back-up withholding requirements; and (z) if any payment made to a Lender under any Credit Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Sections 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent, at the time or times prescribed by applicable law and at such time or times reasonably requested by the Borrower or the Administrative Agent, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower or the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender’s obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from such payment. Solely for purposes of this Section 5.04(c)(z) , “FATCA” shall include any amendment made to FATCA after the Closing Date.

Notwithstanding any other provision of this Section 5.04 , a Lender shall not be required to deliver any form that such Lender is not legally eligible to deliver.

(d) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 5.04(a) , it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 5.04(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses, including any Taxes, of the

 

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Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 5.04(d) , in no event will the Administrative Agent or any Lender be required to pay any amount to any Credit Party pursuant to this Section 5.04(d) to the extent that such payment would place the Administrative Agent or such Lender in a less favorable position (on a net after-Tax basis) than such party would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid. Nothing in this Section 5.04(d) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.

Section 6. Conditions Precedent to Credit Events on the Closing Date . The obligation of each Lender to make Term Loans on the Closing Date, is subject at the time of the making of such Term Loans to the satisfaction or waiver of the following conditions:

6.01 Closing Date; Credit Documents; Notes . On or prior to the Closing Date, Holdings, the Borrower, the Administrative Agent and each of the Lenders on the date hereof shall have signed a counterpart of this Agreement (whether the same or different counterparts) and shall have delivered (by electronic transmission or otherwise) the same to the Administrative Agent or, in the case of the Lenders, shall have given to the Administrative Agent telephonic (confirmed in writing), written or facsimile notice (actually received) at such office that the same has been signed and mailed to it.

6.02 Officer’s Certificate . On the Closing Date, the Administrative Agent shall have received a certificate, dated the Closing Date and signed on behalf of the Borrower (and not in any individual capacity) by a Responsible Officer of the Borrower, certifying on behalf of the Borrower that the conditions in Sections 6.07 and 6.16 have been satisfied on such date.

6.03 Opinions of Counsel . On the Closing Date, the Administrative Agent shall have received from Latham & Watkins LLP, special counsel to the Credit Parties, an opinion addressed to the Administrative Agent and each of the Lenders and dated the Closing Date in form and substance reasonably satisfactory to the Administrative Agent.

6.04 Corporate Documents; Proceedings, etc .

(a) On the Closing Date, the Administrative Agent shall have received a certificate from each Credit Party, dated the Closing Date, signed by a Responsible Officer of such Credit Party, and attested to by the Secretary or any Assistant Secretary of such Credit Party, in the form of Exhibit D with appropriate insertions, together with copies of the certificate or articles of incorporation and by-laws (or equivalent organizational documents), as applicable, of such Credit Party and the resolutions of such Credit Party referred to in such certificate, and each of the foregoing shall be in form and substance reasonably satisfactory to the Administrative Agent.

(b) On the Closing Date, the Administrative Agent shall have received good standing certificates and bring-down telegrams or facsimiles, if any, for the Credit Parties which the Administrative Agent reasonably may have requested, certified by proper governmental authorities.

6.05 Termination of Existing Credit Agreement . The Borrower shall have repaid in full all Indebtedness outstanding under the Existing Credit Agreement, together with all accrued but unpaid interest, fees and other amounts owning thereunder (other than contingent indemnification obligations not yet due and payable) and (i) all commitments to lend or make other extensions of credit thereunder shall have been terminated and (ii) all Liens securing the Indebtedness and other obligations thereunder created pursuant to the security documentation relating thereto shall have been terminated and released (or arrangements therefor reasonably satisfactory to the Administrative Agent shall have been made), and the Administrative Agent shall have received all such releases as may have been reasonably requested by the Administrative Agent, which releases shall be in form and substance

 

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reasonably satisfactory to Administrative Agent, including, without limiting the foregoing, (a) proper termination statements (Form UCC-3 or the appropriate equivalent) for filing under the UCC or equivalent statute or regulation of each jurisdiction where a financing statement or application for registration (Form UCC-1 or the appropriate equivalent) was filed with respect to the Borrower in connection with the security interests created with respect to the Existing Credit Agreement and (b) terminations or reassignments of any security interest in, or Lien on, any patents, trademarks, copyrights, or similar interests of the Borrower.

6.06 Termination of Ground Leases . On the Closing Date, the Borrower shall have delivered to the Administrative Agent terminations of the existing ground leases affecting the Plant, in each case in form sufficient for the title company to remove any title exception with respect to such ground leases from the mortgagee title policy required to be delivered pursuant to Section 9.13 hereof.

6.07 No Default . No Default or Event of Default shall be caused upon the effectiveness of, and funding of, the Term Loans under this Agreement.

6.08 [Reserved] .

6.09 Security Agreements . On the Closing Date, (x) Holdings and the Borrower shall have duly authorized, executed and delivered the Security Agreement substantially in the form of Exhibit E (as amended, modified, restated and/or supplemented from time to time, the “ Security Agreement ”) covering all of Holdings’ and the Borrower’s present and future Collateral referred to therein (including, as applicable, by reference to the Perfection Certificate) (the “ Security Agreement Collateral ”) and (y) Borrower and Holdings shall have duly authorized, executed and delivered the Perfection Certificate and shall have delivered the following:

(i) proper financing statements (Form UCC-1 or the equivalent) authorized for filing under the UCC or other appropriate filing offices of each jurisdiction and, in the case of the Borrower, filings with the United States Patent and Trademark Office and United States Copyright Office, in each case, as may be reasonably necessary or desirable to perfect the security interests purported to be created by the Security Agreement and as set forth on Schedule 6 to the Perfection Certificate;

(ii) all stock certificates or Instruments (as defined in the Security Agreement), if any, representing or evidencing the Security Agreement Collateral (to the extent required by the Security Agreement) accompanied by instruments of transfer and stock powers undated and endorsed in blank; and

(iii) certified copies, each of a recent date, of (x) requests for information or copies (Form UCC-1), or equivalent reports as of a recent date, listing all effective financing statements that name Holdings or the Borrower as debtor and that are filed in the jurisdictions referred to in clause (i) above, together with copies of such other financing statements that name Holdings or the Borrower as debtor (none of which shall cover any of the Collateral except to the extent evidencing Permitted Liens or to the extent such financing statements will be terminated as contemplated by Section 6.05), (y) United States Patent and Trademark Office and United States Copyright Office searches reasonably requested by the Administrative Agent and (z) reports as of a recent date listing all effective tax and judgment liens with respect to Holdings or the Borrower in each jurisdiction as the Administrative Agent may reasonably require.

6.10 Intercompany Subordination Agreement . On the Closing Date, the Borrower shall have delivered to the Administrative Agent the Intercompany Subordination Agreement.

6.11 [Reserved] .

6.12 [Reserved] .

6.13 Financial Statements . On or prior to the Closing Date, the Agents and the Lenders shall have received audited financial statements for the year ended December 31, 2012.

 

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6.14 Solvency Certificate . On the Closing Date, the Administrative Agent shall have received a solvency certificate from the chief financial officer of Holdings as to the solvency of Holdings and the Borrower, taken as a whole, substantially in the form of Exhibit F .

6.15 Fees, etc . On the Closing Date, the Borrower shall have paid to the Agents and each Lender all costs, fees and expenses (including, without limitation, legal fees and expenses) and other compensation payable to the Agents or such Lender or otherwise payable in respect of the Transaction to the extent then due.

6.16 Representation and Warranties . All representations, warranties and agreements set forth in Section 8 hereof and elsewhere in the Credit Documents shall be true and correct in all material respects on the Closing Date (in each case, any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on the Closing Date).

6.17 Patriot Act . The Agents shall have received from the Credit Parties all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case to the extent requested in writing at least three Business Days prior to the Closing Date.

6.18 Borrowing Notice . Prior to the making of a Term Loan on the Closing Date, the Administrative Agent shall have received a Notice of Borrowing meeting the requirements of Section 2.03 .

6.19 Insurance Certificates and Letter of Undertaking . On or prior to the Closing Date, the Administrative Agent shall have received certificates of insurance, naming the Collateral Agent, on behalf of the Guaranteed Creditors, as an additional insured or loss payee, as the case may be, under all liability and property insurance policies required to be maintained pursuant to Section 9.03 and reasonably requested by the Administrative Agent (as well as evidence of business interruption, windstorm, liability, property, casualty and flood insurance policies).

Section 7. [Reserved] .

Section 8. Representations, Warranties and Agreements . In order to induce the Lenders to enter into this Agreement and to make the Term Loans, each of Holdings and the Borrower, as applicable, makes the following representations, warranties and agreements as of the Closing Date, in each case after giving effect to the Transaction.

8.01 Organizational Status . Each of Holdings and the Borrower (i) is a duly organized and validly existing corporation or limited liability company, as the case may be, in good standing under the laws of the jurisdiction of its organization, (ii) has the corporate or limited liability company power and authority, as the case may be, to own its property and assets and to transact the business in which it is engaged and presently proposes to engage and (iii) is, to the extent such concepts are applicable under the laws of the relevant jurisdiction, duly qualified and is authorized to do business and is in good standing in each jurisdiction where the ownership, leasing or operation of its property or the conduct of its business requires such qualifications except for failures to be so qualified which, individually and in the aggregate, have not had, and would not reasonably be expected to have, a Material Adverse Effect.

8.02 Power and Authority . Each Credit Party thereof has the corporate or limited liability company power and authority, as the case may be, to execute, deliver and perform the terms and provisions of each of the Credit Documents to which it is party and has taken all necessary corporate or limited liability company action, as the case may be, to authorize the execution, delivery and performance by it of each of such Credit Documents. Each Credit Party thereof has duly executed and delivered each of the Credit Documents to which it is party, and each of such Credit Documents constitutes its legal, valid and binding obligation enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law).

 

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8.03 No Violation . Neither the execution, delivery or performance by any Credit Party of the Credit Documents to which it is a party, nor compliance by it with the terms and provisions thereof, (i) will contravene any provision of any law, statute, rule or regulation or any order, writ, injunction or decree of any court or governmental instrumentality, (ii) will conflict with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien (except pursuant to the Security Documents) upon any of the property or assets of any Credit Party pursuant to the terms of, any indenture, mortgage, deed of trust, credit agreement or loan agreement, or any other material agreement, contract or instrument, in each case to which any Credit Party is a party or by which it or any of its property or assets is bound or to which it may be subject (except, in the case of preceding clauses (i) and (ii), other than in the case of any contravention, breach, default and/or conflict, that would not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect) or (iii) will violate any provision of the certificate or articles of incorporation, certificate of formation, limited liability company agreement or by-laws (or equivalent organizational documents), as applicable, of any Credit Party.

8.04 Approvals . No order, consent, approval, license, authorization or validation of, or filing, recording or registration with (except for (x) those that have otherwise been obtained or made on or prior to the Closing Date and which remain in full force and effect on the Closing Date and (y) filings which are necessary to perfect the security interests created under the Security Documents), or exemption by, any governmental or public body or authority, or any subdivision thereof, is required to be obtained or made by, or on behalf of, any Credit Party to authorize, or is required to be obtained or made by, or on behalf of, any Credit Party in connection with, the execution, delivery and performance of any Credit Document.

8.05 Financial Statements; Financial Condition .

(a) The consolidated balance sheets of the Borrower for each of the fiscal years ended December 31, 2011 and 2012, respectively, and the consolidated statements of operations and comprehensive income and cash flows of the Borrower for each such fiscal year present fairly in all material respects the consolidated financial position of the Borrower at the dates of such balance sheets and the consolidated results of the operations of the Borrower for the periods covered thereby. All of the foregoing historical financial statements have been audited by KPMG LLP and prepared in accordance with U.S. GAAP consistently applied.

(b) On and as of the Closing Date, after giving effect to the consummation of the Transaction, Holdings and its Subsidiaries, taken together on a consolidated basis, are Solvent.

(c) [Reserved].

(d) Since December 31, 2012 there has been no Material Adverse Effect, and there has been no change, event or occurrence that would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

8.06 Litigation . There are no actions, suits or proceedings pending or, to the knowledge of any Credit Party, threatened (i) with respect to the Refinancing or the Shareholder Payment or any Credit Document or (ii) that either individually or in the aggregate, have had, or would reasonably be expected to have, a Material Adverse Effect.

8.07 True and Complete Disclosure .

(a) All written information (taken as a whole) furnished by or on behalf of any Credit Party in writing to the Administrative Agent or any Lender (including, without limitation, all such written information contained in the Credit Documents) for purposes of or in connection with this Agreement, the other Credit Documents or any transaction contemplated herein or therein does not, and all other such written information (taken as a whole) hereafter furnished by or on behalf of any Credit Party in writing to the Administrative Agent or any Lender will not, on the date as of which such written information is dated or certified, contain any material misstatement of fact or omit to state any material fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such written information was provided.

 

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(b) Notwithstanding anything to the contrary in the foregoing clause (a) of this Section 8.07 , none of the Credit Parties makes any representation, warranty or covenant with respect to any information consisting of statements, estimates, forecasts and projections regarding the future performance of Holdings or the Borrower, or regarding the future condition of the industries in which they operate other than that such information has been (and in the case of such information furnished after the Closing Date, will be) prepared in good faith based upon assumptions believed to be reasonable at the time of preparation thereof.

8.08 Use of Proceeds; Margin Regulations .

(a) All proceeds of the Term B-1 Loans incurred on the Closing Date will be used by the Borrower to consummate the Refinancing and to pay fees and expenses in connection therewith. All proceeds of the Term B-2 Loans incurred on the Closing Date will be used by the Borrower to directly or indirectly make the Shareholder Payment, to pay fees and expenses in connection therewith and for working capital and general corporate purposes.

(b) [Reserved].

(c) No part of any Credit Event (or the proceeds thereof) will be used to purchase or carry any Margin Stock or to extend credit for the purpose of purchasing or carrying any Margin Stock. Neither the making of the Term Loans nor the use of the proceeds thereof nor the occurrence of any other Credit Event will violate the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System.

8.09 Tax Returns and Payments . Except as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, (i) the Borrower and Holdings have timely filed or caused to be timely filed with the appropriate taxing authority all Tax returns, statements, forms and reports for taxes (the “ Returns ”) required to be filed by, or with respect to the income, properties or operations of, the Borrower and/or Holdings, (ii) the Returns accurately reflect in all material respects all liability for Taxes of the Borrower and Holdings for the periods covered thereby, and (iii) the Borrower and Holdings have paid all Taxes payable by it (including in its capacity as withholding agent), other than those that are being contested in good faith by appropriate proceedings and fully provided for as a reserve on the financial statements of the Borrower and Holdings in accordance with U.S. GAAP. There is no material action, suit, proceeding, investigation, audit or claim now pending or, to the best knowledge of the Borrower or Holdings, threatened in writing by any authority regarding any Taxes relating to the Borrower or Holdings. As of the Closing Date, neither the Borrower nor Holdings have entered into an agreement or waiver that is still in effect or been requested in writing to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of Taxes of the Borrower or Holdings, or is aware of any circumstances that would cause the taxable years or other taxable periods of the Borrower or Holdings not to be subject to the normally applicable statute of limitations with respect to a material amount of Tax.

8.10 ERISA .

(a) No ERISA Event has occurred or is reasonably expected to occur that would reasonably be expected to result in a Material Adverse Effect. Each Plan is in compliance in form and operation with its terms and with the applicable provisions of ERISA, the Code and other applicable law, except for such non-compliance that would not reasonably be expected to have a Material Adverse Effect. Except as would not reasonably be expected to result in a Material Adverse Effect, each Plan (and each related trust, if any) which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service or is in the form of a prototype document that is the subject of a favorable opinion letter.

(b) There exists no Unfunded Pension Liability with respect to any Plan, except as would not reasonably be expected to have a Material Adverse Effect.

(c) If the Borrower and each ERISA Affiliate were to withdraw from all Multiemployer Plans in a complete withdrawal as of the date this assurance is given, the aggregate withdrawal liability that would be incurred would not reasonably be expected to have a Material Adverse Effect.

 

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(d) There are no actions, suits or claims pending against or involving a Plan (other than routine claims for benefits) or, to the knowledge of the Borrower, threatened, which would reasonably be expected to be asserted successfully against any Plan and, if so asserted successfully, would reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect.

(e) The Borrower and any ERISA Affiliate have made all contributions to or under each Plan and Multiemployer Plan required by law within the applicable time limits prescribed thereby, the terms of such Plan or Multiemployer Plan, respectively, or any contract or agreement requiring contributions to a Plan or Multiemployer Plan except where any failure to comply, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

8.11 The Security Documents .

(a) The provisions of the Security Agreement is effective to create in favor of the Collateral Agent for the benefit of the Guaranteed Creditors a legal, valid and enforceable security interest (except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)) in all right, title and interest of the Borrower and Holdings in the Security Agreement Collateral, and upon (i) the timely and proper filing of financing statements listing each applicable Credit Party, as a debtor, and the Collateral Agent, as secured party, in the secretary of state’s office (or other similar governmental entity) of the jurisdiction of organization of such Credit Party, (ii) sufficient identification of Commercial Tort Claims (as defined in the Security Agreement) constituting Collateral (as described in the Security Agreement), (iii) the recordation of the Grant of Security Interest in U.S. Patents, if applicable, and the Grant of Security Interest in U.S. Trademarks, if applicable, in the respective form attached to the Security Agreement, in each case in the United States Patent and Trademark Office, (iv) the Grant of Security Interest in U.S. Copyrights, if applicable, in the form attached to the Security Agreement with the United States Copyright Office and (v) upon the taking of possession or control by the Collateral Agent of the Security Agreement Collateral with respect to which a security interest may be perfected only by possession or control (which possession or control shall be given to the Collateral Agent to the extent possession or control by the Collateral Agent is required by the Security Agreement), the Collateral Agent, for the benefit of the Guaranteed Creditors, has (to the extent provided in and required by the Security Agreement) a fully perfected security interest in all right, title and interest in all of the Security Agreement Collateral, subject to no other Liens other than Permitted Liens, in each case, to the extent perfection can be accomplished under applicable law by the taking of the foregoing actions.

(b) [Reserved].

(c) Upon delivery in accordance with Section 9.12 or 9.13 as applicable, each Mortgage will create, as security for the obligations purported to be secured thereby, a valid and enforceable (except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)) and, upon recordation in the appropriate recording office, perfected security interest in and mortgage lien on the respective Mortgaged Property in favor of the Collateral Agent (or such other trustee as may be required or desired under local law) for the benefit of the Guaranteed Creditors, subject to no other Liens (other than Permitted Collateral Liens related thereto).

8.12 Properties . All Real Property owned, leased or otherwise held by any Credit Party as of the Closing Date, and the nature of the interest therein, is correctly set forth in Schedule 7 to the Perfection Certificate. The rights set forth in Schedule 7(c) to the Perfection Certificate as being held by the Credit Parties constitute all of the Water Rights necessary or incident to the use and operation of the Plant in the ordinary course of the business of the Credit Parties and the same are valid and existing Water Rights and there exist no unresolved objections or challenges pending against any of said Water Rights. The Borrower has good and marketable fee simple title or valid leasehold interests or easements or other limited property interests in the case of Real Property, and good and valid title in the case of personal property, to all material properties owned by it, including all material property reflected in the most recent historical balance sheets referred to in Section 8.05(a) (except as sold or otherwise disposed of since the date of such balance sheet in the ordinary course of business or as permitted by the terms of this Agreement), free and clear of all Liens, other than (i) in the case of Real Property, Permitted Collateral Liens and (ii) in the case of personal property, Permitted Liens.

 

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8.13 Capitalization . All outstanding membership interests of the Borrower have been duly and validly issued and are fully paid and non-assessable (other than any assessment on the members of the Borrower that may be imposed as a matter of law) and are owned by Holdings. The Borrower does not have outstanding any membership interests or other securities convertible into or exchangeable for its membership interests or any rights to subscribe for or to purchase, or any options for the purchase of, or any agreement providing for the issuance (contingent or otherwise) of, or any calls, commitments or claims of any character relating to, its membership interests.

8.14 Subsidiaries . On and as of the Closing Date and after giving effect to the consummation of the Transaction, (i) Holdings has no direct Subsidiaries other than the Borrower and other entities formed in connection with the MLP Set-Up Transactions and (ii) the Borrower has no Subsidiaries.

8.15 Compliance with Statutes; Anti-Money Laundering and Economic Sanctions Laws; FCPA .

(a) Each of Holdings and the Borrower is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business and the ownership of its property (including, without limitation, applicable statutes, regulations, orders and restrictions relating to environmental standards and controls), except such noncompliances as, individually and in the aggregate, have not had, and would not reasonably be expected to have, a Material Adverse Effect.

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

(c) No Credit Party and, to the knowledge of senior management of each Credit Party, none of its Affiliates and none of the respective officers, directors, brokers or agents of such Credit Party or such Affiliate that is acting or benefiting in any capacity in connection with the Term Loan is an Embargoed Person.

(d) Except as otherwise authorized by OFAC, no Credit Party and, to the knowledge of the executive management of each Credit Party, none of its Affiliates and none of the respective officers, directors, brokers or agents of such Credit Party or such Affiliate acting or benefiting in any capacity in connection with the Term Loan (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Embargoed Person, (ii) deals in, or otherwise engages in any transaction related to, any property or interests in property blocked pursuant to any applicable Economic Sanctions Laws or (iii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the applicable prohibitions set forth in any Economic Sanctions Laws.

(e) The Borrower and, to the knowledge of the Borrower, no director, officer, employee, agent, affiliate or representative thereof, is an individual or entity currently the subject of any Sanctions, nor is the Borrower located, organized or resident in a Designated Jurisdiction.

(f) Each Credit Party is in compliance in all material respects with the Foreign Corrupt Practices Act, 15 U.S.C.§§ 78dd-1, et seq. (“ FCPA ”), and any foreign counterpart thereto applicable to such Credit Party. To the knowledge of senior management of each Credit Party, no Credit Party has made a payment, offering, or promise to pay, or authorized the payment of, money or anything of value (a) in order to assist in obtaining or retaining business for or with, or directing business to, any foreign official, foreign political party, party official or candidate for foreign political office, (b) to a foreign official, foreign political party or party official or any candidate for foreign political office, and (c) with the intent to induce the recipient to misuse his or her official position to direct business wrongfully to such Credit Party or to any other Person, in violation of FCPA.

 

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8.16 Investment Company Act . Neither Holdings nor the Borrower is an “investment company” within the meaning of the Investment Company Act of 1940, as amended, required to be registered as such.

8.17 Environmental Matters . Except for any matters that would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect:

(a) the Borrower is in compliance with all Environmental Laws and the requirements of any permits issued under such Environmental Laws;

(b) there are no pending or, to the knowledge of any Credit Party, threatened Environmental Claims against the Borrower nor any Real Property owned, leased or operated by the Borrower (including any such claim arising out of the ownership, lease or operation by the Borrower of any Real Property formerly owned, leased or operated by the Borrower);

(c) there are no facts, circumstances, conditions or occurrences with respect to the business or operations of the Borrower, or any Real Property owned, leased or operated by the Borrower (including any Real Property formerly owned, leased or operated by the Borrower) that would be reasonably expected (i) to form the basis of an Environmental Claim against the Borrower or (ii) to cause any Real Property owned, leased or operated by the Borrower to be subject to any restrictions on the ownership, lease, occupancy or transferability of such Real Property by the Borrower under any Environmental Law;

(d) Hazardous Materials have not at any time been generated, used, treated or stored on, or transported to or from, or Released on or from, any Real Property owned, leased or operated by the Borrower where such generation, use, treatment, storage, transportation or Release has (i) violated or would be reasonably expected to violate any Environmental Law, (ii) give rise to an Environmental Claim or (iii) give rise to liability under any Environmental Law.

8.18 Labor Relations . Except as set forth in Schedule 8.18 and except to the extent the same has not, either individually or in the aggregate, had and would not reasonably be expected to have a Material Adverse Effect, (a) there are no strikes, lockouts, slowdowns or other labor disputes pending against the Borrower or, to the knowledge of each Credit Party, threatened against the Borrower, (b) to the knowledge of each Credit Party, there are no questions concerning union representation with respect to the Borrower, (c) the hours worked by and payments made to employees of the Borrower have not been in violation of the Fair Labor Standards Act or any other applicable Federal, state, local, or foreign law dealing with such matters and (d) to the knowledge of each Credit Party, no wage and hour department investigation has been made of the Borrower.

8.19 Intellectual Property . The Borrower owns or has the right to use all the patents, trademarks, domain names, service marks, trade names, copyrights, inventions, trade secrets, formulas, proprietary information and know-how of any type, whether or not written (including, but not limited to, rights in computer programs and databases) (collectively, “ Intellectual Property ”), necessary for the present conduct of its respective business, without any known conflict with the Intellectual Property rights of others, except for such failures to own or have the right to use and/or conflicts as have not had, and would not reasonably be expected to have, a Material Adverse Effect.

8.20 Legal Names; Type of Organization (and Whether a Registered Organization); Jurisdiction of Organization; etc . Schedules 1 and 2 of the Perfection Certificate contain for each Credit Party, as of the Closing Date, (i) the exact legal name of such Credit Party, (ii) the type of organization of such Credit Party, (iii) whether or not such Credit Party is a registered organization, (iv) the jurisdiction of organization of such Credit Party, (v) such Credit Party’s Location, (vi) any corporate or organizational names such Credit Party has had in the last five years, together with the date of the relevant change and (vii) the organizational identification number (if any) of such Credit Party.

 

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Section 9. Affirmative Covenants . The Borrower hereby covenants and agrees that on and after the Closing Date and until the Term Loans (in each case together with interest thereon), Fees and all other Obligations (other than any indemnification obligations arising hereunder which are not then due and payable and obligations in respect of Designated Interest Rate Protection Agreements or Designated Treasury Services Agreements) incurred hereunder and thereunder, are paid in full:

9.01 Information Covenants . The Borrower will furnish to the Administrative Agent for distribution to each Lender:

(a) Quarterly Financial Statements . Within 45 days after the close of each of the first three quarterly accounting periods in each fiscal year of the Borrower the consolidated balance sheet of the Borrower as at the end of such quarterly accounting period and the related consolidated statements of operations and income and member’s equity and statement of cash flows for such quarterly accounting period and for the elapsed portion of the fiscal year ended with the last day of such quarterly accounting period, all of which shall be certified by the chief financial officer of the Borrower that they fairly present in all material respects in accordance with U.S. GAAP the financial condition of the Borrower as of the dates indicated and the results of their operations for the periods indicated, subject to normal year-end audit adjustments and the absence of footnotes. If the Borrower has filed (within the time period required above) a Form 10-Q with the SEC for any fiscal quarter described above, then to the extent that such quarterly report on Form 10-Q contains any of the foregoing items, the Lenders shall accept such Form 10-Q in lieu of such items.

(b) [ Reserved ].

(c) Monthly Financial Statements . Within 20 days after the end of each of the first two months of each fiscal quarter, beginning with the month ending May 31, 2013, the consolidated balance sheet of Borrower as of the end of each such month and the related consolidated statement of income of the Borrower for such month and for the then elapsed portion of the fiscal year, as prepared by management.

(d) [ Reserved ].

(e) Officer’s Certificates . At the time of the delivery of the Section 9.01 Financials, a compliance certificate from a Responsible Officer of the Borrower substantially in the form of Exhibit G , certifying on behalf of the Borrower that, to such Responsible Officer’s knowledge after due inquiry, no Default or Event of Default has occurred and is continuing or, if any Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof.

(f) Notice of Default, Litigation and Material Adverse Effect . Promptly after any officer of the Borrower obtains knowledge thereof, notice of (i) the occurrence of any event which constitutes a Default or an Event of Default or any default or event of default under any debt instrument in excess of the Threshold Amount, (ii) any litigation or governmental investigation or proceeding pending against Holdings or the Borrower (x) which, either individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect or (y) with respect to any Credit Document, (iii) any Casualty Event involving Collateral with a fair market value in excess of $1,000,000 or (iv) any other event, change or circumstance that has had, or would reasonably be expected to have, a Material Adverse Effect.

(g) Other Reports and Filings . Promptly after the filing or delivery thereof, copies of all financial information, proxy materials and reports, if any, which Holdings or the Borrower shall publicly file with the Securities and Exchange Commission or any successor thereto (the “ SEC ”).

(h) Environmental Matters . Promptly after any officer of the Borrower obtains knowledge thereof, notice of one or more of the following environmental matters to the extent that such environmental matters, either individually or when aggregated with all other such environmental matters, would reasonably be expected to have a Material Adverse Effect:

 

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(i) any pending or threatened Environmental Claim against the Borrower or any Real Property owned, leased or operated by the Borrower;

(ii) any condition or occurrence on or arising from any Real Property owned, leased or operated by the Borrower that (a) results in noncompliance by the Borrower with any Environmental Law or (b) would reasonably be expected to form the basis of an Environmental Claim against the Borrower or any such Real Property;

(iii) any condition or occurrence on any Real Property owned, leased or operated by the Borrower that could reasonably be expected to cause such Real Property to be subject to any restrictions on the ownership, lease, occupancy, use or transferability by the Borrower of such Real Property under any Environmental Law; and

(iv) the taking of any removal or remedial action in response to the actual or alleged presence of any Hazardous Material on any Real Property owned, leased or operated by the Borrower as required by any Environmental Law or any Governmental Authority and all notices received by the Borrower from any Governmental Authority under, or pursuant to, CERCLA which identify the Borrower as a potentially responsible party for remediation costs or which otherwise notify the Borrower of potential liability under CERCLA.

All such notices shall describe in reasonable detail the nature of the claim, investigation, condition, occurrence or removal or remedial action and the Borrower’s response thereto.

(i) [ Reserved] .

(j) [ Reserved] .

(k) Other Information . From time to time, such other information or documents (financial or otherwise) with respect to Holdings or the Borrower as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request.

The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “ Borrower Materials ”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “ Platform ”) and (b) certain of the Lenders (each, a “ Public Lender ”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws ( provided , however , that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 13.16 ); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.”

9.02 Books, Records and Inspections .

(a) The Borrower will keep proper books of record and accounts in which full, true and correct entries in conformity with U.S. GAAP and all Requirements of Law shall be made of all dealings and transactions in relation to its business and activities. The Borrower will permit officers and designated representatives of the

 

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Administrative Agent or any Lender to visit and inspect, under guidance of officers of the Borrower, any of the properties of the Borrower and to examine the books of account of the Borrower and discuss the affairs, finances and accounts of the Borrower with, and be advised as to the same by, its and their officers and independent accountants, all upon reasonable prior notice and at such reasonable times and intervals and to such reasonable extent as the Administrative Agent or any such Lender may reasonably request; provided that the Administrative Agent shall give the Borrower an opportunity to participate in any discussions with its accountants; provided further that in the absence of the existence of an Event of Default, (i) only the Administrative Agent on behalf of the Lenders may exercise the rights of the Administrative Agent and the Lenders under this Section 9.02 and (ii) the Administrative Agent shall not exercise its inspection rights under this Section 9.02 more often than two times during any fiscal year and only one such time shall be at the Borrower’s expense; provided , further , however , that when an Event of Default exists, the Administrative Agent or any Lender and their respective designees may do any of the foregoing at the expense of the Borrower at any time during normal business hours and upon reasonable advance notice.

9.03 Maintenance of Property; Insurance .

(a) The Borrower will (i) keep all tangible property necessary to the business of the Borrower in good working order and condition, ordinary wear and tear, casualty and condemnation excepted, (ii) maintain with financially sound and reputable insurance companies insurance on all such property and against all such risks as is consistent and in accordance with industry practice for companies similarly situated owning similar properties and engaged in similar businesses as the Borrower, which, for the avoidance of doubt, shall include business interruption, windstorm, liability and property insurance policies and (iii) furnish to the Administrative Agent, upon its request therefor, full information as to the insurance carried. The provisions of this Section 9.03 shall be deemed supplemental to, but not duplicative of, the provisions of any Security Documents that require the maintenance of insurance.

(b) If at any time the improvements on a Mortgaged Property are located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a special flood hazard area with respect to which flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect or any successor act thereto), then the Borrower shall, or shall cause the applicable Credit Party to maintain, with a financially sound and reputable insurer, flood insurance in an amount and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and deliver to the Administrative Agent evidence of such insurance in form and substance reasonably acceptable to the Administrative Agent.

(c) The Borrower will at all times keep its property insured in favor of the Collateral Agent, and all policies or certificates (or certified copies thereof) with respect to such insurance (and any other insurance maintained by the Borrower) (i) shall be endorsed to the Collateral Agent’s reasonable satisfaction for the benefit of the Collateral Agent (including, without limitation, by naming the Collateral Agent as loss payee and/or additional insured) and (ii) if agreed by the insurer (which agreement the Borrower shall use commercially reasonable efforts to obtain), shall state that such insurance policies shall not be canceled without at least 30 days’ prior written notice thereof (or, with respect to non-payment of premiums, 10 days’ prior written notice) by the respective insurer to the Collateral Agent; provided , that the requirements of this Section 9.03(c) shall not apply to (x) insurance policies covering (1) directors and officers, fiduciary or other professional liability, (2) employment practices liability, (3) workers compensation liability, (4) automobile and aviation liability, (5) health, medical, dental and life insurance, and (6) such other insurance policies and programs as the Collateral Agent may approve; and (y) self-insurance programs.

(d) If the Borrower shall fail to maintain insurance in accordance with this Section 9.03 , or the Borrower shall fail to so endorse and deposit all policies or certificates with respect thereto, after any applicable grace period, the Administrative Agent shall have the right (but shall be under no obligation) to procure such insurance, and the Credit Parties jointly and severally agree to reimburse the Administrative Agent for all reasonable costs and expenses of procuring such insurance.

 

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9.04 Existence; Franchises . The Borrower will do or cause to be done, all things necessary to preserve and keep in full force and effect its existence, rights, franchises, licenses, permits, leases, easements and Intellectual Property, in each case to the extent material; provided , however , that nothing in this Section 9.04 shall prevent (i) the abandonment by the Borrower of any rights, franchises, licenses, permits, leases, easements or Intellectual Property that the Borrower reasonably determines are no longer material to the operations of the Borrower, (ii) the withdrawal by the Borrower of its qualification as a foreign limited liability company in any jurisdiction if such withdrawal would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or (iii) the Transactions, the MLP Set-Up Transactions or the Qualified MLP IPO.

9.05 Compliance with Statutes, etc . The Borrower will comply with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business and the ownership of its property (including ERISA and applicable statutes, regulations, orders and restrictions relating to environmental standards and controls), except such noncompliances as would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

9.06 Compliance with Environmental Laws .

(a) The Borrower will comply with all Environmental Laws and permits applicable to, or required by, the ownership, lease or use of Real Property now or hereafter owned, leased or operated by the Borrower, except such noncompliances as would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and will promptly pay or cause to be paid all costs and expenses incurred in connection with such compliance, and will keep or cause to be kept all such Real Property free and clear of any Liens imposed pursuant to such Environmental Laws (other than Liens imposed on leased Real Property resulting from the acts or omissions of the owner of such leased Real Property or of other tenants of such leased Real Property who are not within the control of the Borrower). Except as have not had, and would not reasonably be expected to have, a Material Adverse Effect, the Borrower will not generate, use, treat, store, Release or dispose of, or permit the generation, use, treatment, storage, Release or disposal of Hazardous Materials on, at, under, about or within any Real Property now or hereafter owned, leased or operated by the Borrower or transport or permit the transportation of Hazardous Materials to or from any such Real Property, except for Hazardous Materials generated, used, treated, stored, Released or disposed of on, at, under, about or within any such Real Property or transported to or from such Real Property in compliance with Environmental Laws.

(b) (i) After the receipt by the Administrative Agent or any Lender of any notice of the type described in Section 9.01(h) , (ii) at any time that the Borrower is not in compliance with Section 9.06(a) or (iii) at any time when an Event of Default is in existence, the Credit Parties will (in each case) jointly and severally provide, at the written request of the Administrative Agent, an environmental assessment report concerning any Mortgaged Property owned, leased or operated by the Borrower (in the event of (i) or (ii) that is the subject of or could reasonably be expected to be the subject of such notice or noncompliance), prepared by an environmental consulting firm reasonably approved by the Administrative Agent, indicating the nature and scope of such environmental matter(s) and the reasonable worst case cost of addressing the matter(s) in accordance with Environmental Law. If the Credit Parties fail to provide the same within 30 days after such request was made, the Administrative Agent may order the same, the reasonable cost of which shall be borne (jointly and severally) by the Borrower, and the Credit Parties shall grant and hereby grant to the Administrative Agent and the Lenders and their respective agents access to such Mortgaged Property and specifically grant the Administrative Agent and the Lenders an irrevocable non-exclusive license to undertake such an assessment at any reasonable time upon reasonable notice to the Borrower, all at the sole expense of the Credit Parties (who shall be jointly and severally liable therefor).

9.07 ERISA . As soon as possible and, in any event, within ten (10) Business Days after the Borrower knows of the occurrence of any of the following, the Borrower will deliver to the Administrative Agent a certificate of the Borrower setting forth the full details as to such occurrence and the action, if any, that the Borrower or an ERISA Affiliate is required or proposes to take, together with any notices required or proposed to be given or filed by the Borrower, the Plan administrator or such ERISA Affiliate to or with the PBGC or any other Governmental Authority or a Plan participant and any notices received by the Borrower or such ERISA Affiliate from the PBGC or any other Governmental Authority or a Plan participant with respect thereto: that (a) an ERISA Event has occurred that is reasonably expected to result in a Material Adverse Effect; (b) there has been an increase in Unfunded Pension Liabilities since the date the representations hereunder are given, or from any prior notice, as applicable, in either case, which is reasonably expected to result in a Material Adverse Effect; (c) there has been an increase in the estimated withdrawal liability under Section 4201 of ERISA, if the Borrower and the ERISA Affiliates were to

 

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withdraw completely from any and all Multiemployer Plans which is reasonably expected to result in a Material Adverse Effect or (d) the Borrower or any ERISA Affiliate adopts, or commences contributions to, any Plan subject to Section 412 of the Code, or adopts any amendment to a Plan subject to Section 412 of the Code which is reasonably expected to result in a Material Adverse Effect. The Borrower will also deliver to the Administrative Agent, upon request by the Administrative Agent, a complete copy of the most recent annual report (on Internal Revenue Service Form 5500-series, including, to the extent required, the related financial and actuarial statements and opinions and other supporting statements, certifications, schedules and information) filed with the Internal Revenue Service or other Governmental Authority of each Plan that is maintained or sponsored by the Borrower.

9.08 End of Fiscal Years; Fiscal Quarters . The Borrower will cause (i) each of its fiscal years to end on December 31 of each year and (ii) each of its fiscal quarters to end on March 31, June 30, September 30 and December 31 of each year.

9.09 Performance of Obligations . The Borrower will perform all of its obligations under the terms of each mortgage, indenture, security agreement, loan agreement or credit agreement and each other agreement, contract, lease, easement or instrument by which it is bound, except such non-performances as, individually and in the aggregate, have not had, and would not reasonably be expected to have, a Material Adverse Effect.

9.10 Payment of Taxes . The Borrower and Holdings each will pay and discharge all material Taxes imposed upon it (including in its capacity as withholding agent) or upon its income or profits or upon any properties owned by it or leased (if payment of Taxes is required by the applicable lease agreement) to it, prior to the date on which penalties attach thereto, and all material lawful claims which, if unpaid, might become a Lien or charge upon any properties of the Borrower or Holdings not otherwise permitted under Section 10.01(i) ; provided that neither the Borrower nor Holdings shall be required to pay any such Tax which is being contested in good faith and by appropriate proceedings if it has maintained adequate reserves with respect thereto in accordance with U.S. GAAP.

9.11 Use of Proceeds . The Borrower will use the proceeds of each Tranche of the Term Loans only as provided in Section 8.08.

9.12 Additional Security; Further Assurances; etc .

(a) Each of Holdings and the Borrower will and will cause each of the Credit Parties to grant to the Collateral Agent for the benefit of the Guaranteed Creditors security interests and Mortgages in such assets and properties of Holdings, the Borrower and each other Credit Party as are not covered by the Security Documents to which it is a party on the Closing Date and as may be reasonably requested from time to time by the Administrative Agent or the Required Lenders (collectively, as may be amended, modified or supplemented from time to time, the “ Additional Security Documents ”), in each case, except for those assets and properties expressly excluded pursuant to the Security Documents (including in respect of Excluded Property (as defined in the Security Agreement). All such security interests and Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and (subject to exceptions as are reasonably acceptable to the Administrative Agent and solely to the extent required by the applicable Security Documents) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to promptly take) valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law), subject to no other Liens except for Permitted Collateral Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the Administrative Agent and solely to the extent required by the applicable Security Documents) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents and all Taxes, fees and other charges payable in connection therewith shall be paid in full.

(b) With respect to any person that is or becomes a Subsidiary of Holdings after the Closing Date that directly or indirectly owns any Equity Interests of the Borrower, including any MLP formed by Holdings in connection with any MLP Set-Up Transaction, Holdings will (i) deliver to the Collateral Agent, on the date of formation of such Subsidiary, the certificates, if any, representing all of the Equity Interests of such Subsidiary,

 

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together with undated stock powers or other appropriate transfers duly executed in blank, (ii) cause such Subsidiary, on or prior to the date of its formation, to (A) execute and deliver a Guaranty in form and substance reasonably acceptable to the Administrative Agent to become a Guarantor, (B) execute and deliver a joinder agreement to the Security Agreement in form and substance reasonably acceptable to the Administrative Agent to become a grantor thereunder and pledge all of the Equity Interests held by it, including 100% of the Equity Interests of the Borrower, and (C) take all actions reasonably necessary or advisable to cause the Lien created by the Security Agreement to be duly perfected to the extent required by the Security Agreement in accordance with all applicable requirements of law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the request of the Administrative Agent, deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Lenders, of counsel to the Credit Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonable request.

(c) Each Credit Party will, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly (but in any event within the time periods set forth in Section 9.13 or such longer period as the Administrative Agent may reasonable agree), upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents, including “Life-of-Loan” flood hazard determinations and if applicable, executed Notices to Borrower and evidence of flood insurance, mortgagee title policies, surveys, opinions of counsel, or otherwise deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Collateral Liens or as otherwise permitted by the applicable Security Document.

(d) [Reserved].

(e) Each Credit Party agrees that each action required by clauses (a), (b) and (c) of this Section 9.12 shall be completed as soon as reasonably practicable, but in no event later than 90 days (10 days in the case of clause (b)) after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent or the Required Lenders (or such longer period as the Administrative Agent shall otherwise agree), as the case may be; provided that, in no event will Holdings or the Borrower or any other Credit Party be required to take any action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12 .

9.13 Post-Closing Actions . Holdings and the Borrower each agrees that it will complete each of the actions described on Schedule 9.13 as soon as commercially reasonable and by no later than the date set forth in Schedule 9.13 with respect to such action or such later date as the Administrative Agent may reasonably agree. 1

9.14 [Reserved] .

9.15 Credit Ratings . After acquiring the following credit ratings from S&P and Moody’s as required by Section 9.13 , the Borrower shall use commercially reasonable efforts to maintain a corporate credit rating from S&P and a corporate family rating from Moody’s, in each case, with respect to the Borrower, and a credit rating from S&P and Moody’s with respect to the Indebtedness incurred pursuant to this Agreement, in all cases, but not a specific rating.

Section 10. Negative Covenants . The Borrower (and in the case of Section 10.09(b) , Holdings, and any Subsidiary of Holdings that becomes a Guarantor hereunder in connection with a MLP Set-Up Transaction and that is a direct or indirect owner of any Equity Interests in the Borrower ) hereby covenants and agrees that on and after the Closing Date and until the Term Loans (in each case, together with interest thereon), Fees and all other Obligations (other than any indemnification obligations arising hereunder which are not then due and payable and obligations in respect of Designated Interest Rate Protection Agreements or Designated Treasury Services Agreements) incurred hereunder and thereunder, are paid in full:

 

 

1   Schedule to include, among other things, (i) engagement letters from S&P and Moody’s for corporate credit rating and public credit rating for the Term Facility within 30 days after close and (ii) subject to completion of diligence, post-closing real estate.

 

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10.01 Liens . The Borrower will not create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets (real or personal, tangible or intangible) of the Borrower, whether now owned or hereafter acquired, or sell accounts receivable with recourse to the Borrower or authorize the filing of any financing statement under the UCC with respect to any Lien or any other similar notice of any Lien under any similar recording or notice statute; provided that the provisions of this Section 10.01 shall not prevent the creation, incurrence, assumption or existence of, or any filing in respect of, the following (Liens described below are herein referred to as “ Permitted Liens ”):

(i) Liens for Taxes, assessments or governmental charges or levies not overdue or Liens for Taxes being contested in good faith and by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the property or assets and for which adequate reserves have been established in accordance with U.S. GAAP;

(ii) Liens in respect of property or assets of the Borrower imposed by law, which were incurred in the ordinary course of business and do not secure Indebtedness for borrowed money, such as carriers’, warehousemen’s, contractors’, materialmen’s and mechanics’ liens and other similar Liens arising in the ordinary course of business, and which are being contested in good faith by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the property or assets and for which adequate reserves have been established in accordance with U.S. GAAP;

(iii) Liens in existence on the Closing Date which are listed, and the property subject thereto described, in Schedule 10.01(iii) , plus modifications, renewals, replacements, refinancings and extensions of such Liens, provided that (x) the aggregate principal amount of the Indebtedness, if any, secured by such Liens does not increase from that amount outstanding at the time of any such modification, refinancing, renewal, replacement or extension, plus accrued and unpaid interest and cash fees and expenses (including premium) incurred in connection with such modification, refinancing, renewal, replacement or extension and (y) any such modification, refinancing, renewal, replacement or extension does not encumber any additional assets or properties of the Borrower (other than after-acquired property that is affixed or incorporated into the property encumbered by such Lien on the Closing Date and the proceeds and products thereof) unless such Lien is permitted under the other provisions of this Section 10.01 ;

(iv) Liens created pursuant to the Credit Documents;

(v) Leases, subleases, licenses or sublicenses (including licenses or sublicenses of Intellectual Property) under which the applicable Credit Party is the lessor, sublessor, licensor or sublicensor, granted to other Persons (i) not materially interfering with the conduct of the business of the Borrower, (ii) not materially impairing the value or marketability of any Real Property affected thereby and (iii), in the case of Real Property, subordinate in all respects to the Liens of the Security Documents;

(vi) Liens upon assets of the Borrower subject to Capitalized Lease Obligations to the extent such Capitalized Lease Obligations are permitted by Section 10.04(iii) , provided that (x) such Liens serve only to secure the payment of Indebtedness and/or other monetary obligations arising under such Capitalized Lease Obligation and (y) the Lien encumbering the asset or assets giving rise to such Capitalized Lease Obligation does not encumber any asset of the Borrower other than the proceeds of the assets giving rise to such Capitalized Lease Obligations;

(vii) Liens placed upon equipment, machinery or other fixed assets acquired or constructed after the Closing Date and used in the ordinary course of business of the Borrower and placed at the time of the acquisition or construction thereof by the Borrower or within 270 days thereafter to secure Indebtedness incurred to pay all or a portion of the purchase or construction price thereof or to secure Indebtedness incurred solely for the purpose of financing the acquisition or construction of any such equipment, machinery or other fixed assets or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount, provided that (x) the Indebtedness secured by such Liens is permitted by Section

 

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10.04(iii) and (y) in all events, the Lien encumbering the equipment, machinery or other fixed assets so acquired or constructed does not encumber any other asset of the Borrower; provided that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender on customary terms;

(viii) easements, rights-of-way, restrictions (including zoning restrictions), encroachments, protrusions and other similar charges or encumbrances and minor title deficiencies with respect to the Real Property owned, leased or operated by the Borrower, which in the aggregate do not materially interfere with the conduct of the business of the Borrower or materially impair the value or marketability of such Real Property;

(ix) Liens arising from precautionary UCC or other similar financing statement filings regarding operating leases or consignments entered into in the ordinary course of business;

(x) attachment and judgment Liens, to the extent and for so long as the underlying judgments and decrees do not constitute an Event of Default pursuant to Section 11.09 ;

(xi) statutory and common law landlords’ liens under leases to which the Borrower is a party as the tenant or lessee;

(xii) Liens (other than Liens imposed under ERISA) incurred in the ordinary course of business in connection with workers’ compensation claims, unemployment insurance and social security benefits and Liens securing the performance of bids, tenders, leases and contracts in the ordinary course of business, statutory obligations, surety, stay, customs or appeal bonds, performance bonds and other obligations of a like nature (including (i) those to secure health, safety and environmental obligations and (ii) those required or requested by any Governmental Authority other than letters of credit) incurred in the ordinary course of business;

(xiii) Permitted Encumbrances;

(xiv) Liens securing Indebtedness permitted under Section 10.04(iv) ; provided that such Liens may be secured equally and ratably with the Obligations pursuant to an intercreditor agreement on terms prevailing on the date thereof for similar agreements, as reasonably determined by the Administrative Agent;

(xv) deposits or pledges to secure bids, tenders, contracts (other than contracts for the repayment of borrowed money), leases, statutory obligations, surety, stay, customs and appeal bonds and other obligations of like nature (including (i) those to secure health, safety and environmental obligations and (ii) those required or requested by any Governmental Authority other than letters of credit), and as security for the payment of rent, in each case arising in the ordinary course of business;

(xvi) any interest or title of a lessor, sublessor, licensee, sublicensee, licensor or sublicensor under any lease, sublease, license or sublicense agreement (including software and other technology licenses) under which the applicable Credit Party is the lessee, tenant, sublessee, subtenant, licensee or sublicensee in the ordinary course of business;

(xvii) Liens (i) of a collection bank arising under Section 4-210 of the UCC on items in the course of collection, (ii) attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business and (iii) in favor of a banking or other financial institution arising as a matter of law or under customary general terms and conditions encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry;

 

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(xviii) Liens that are contractual rights of set-off relating to the establishment of depository relations with banks or other financial institutions not given in connection with the incurrence or issuance of Indebtedness;

(xix) (i) zoning, building, entitlement and other land use regulations by Governmental Authorities with which the normal operation of the business of the Borrower complies, and (ii) any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any Real Property that does not materially interfere with the ordinary conduct of the business of the Borrower; and

(xx) Liens not otherwise permitted by the foregoing clauses (i) through (xix), to the extent attaching to properties and assets with an aggregate fair market value not in excess of, and securing liabilities not in excess of $500,000 in the aggregate at any time outstanding.

In connection with the granting of Liens of the type described in this Section 10.01 by the Borrower, the Administrative Agent and the Collateral Agent shall, and shall be authorized to, take any actions deemed appropriate by it in connection therewith (including, without limitation, by executing appropriate lien releases or lien subordination agreements in favor of the holder or holders of such Liens, in either case solely with respect to the item or items of equipment or other assets subject to such Liens).

10.02 Fundamental Changes . The Borrower will not, merge, dissolve, liquidate, consolidate with or into another Person, wind-up or dissolve itself (or suffer any liquidation or dissolution).

10.03 Dividends . The Borrower will not authorize, declare or pay any Dividends with respect to the Borrower, except that:

(i) the Borrower may pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) to pay expenses incurred by Holdings or any other Parent Company in connection with the Permanent Term Loan;

(ii) the Borrower may pay cash Dividends or other distributions, or make loans or advances to, any Parent Company or the equity interest holders thereof in amounts required for any Parent Company or the equity interest holders thereof to pay, in each case without duplication:

(A) U.S. franchise Taxes (and other fees and expenses) required to maintain their corporate existence to the extent such Taxes, fees and expenses are reasonably attributable to the operations of the Borrower;

(B) with respect to any taxable year (or portion thereof) ending after the Closing Date with respect to which the Borrower is a partnership or disregarded entity for U.S. federal income tax purposes that is wholly-owned by any Parent Company that is a C corporation for U.S. federal and/or applicable state or local income tax purposes, an amount not to exceed the amount of any U.S. federal, state and/or local income Taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable been a stand-alone corporate taxpayer; and

(C) customary salary, bonus and other benefits payable to officers and employees of Holdings or any Parent Company to the extent such salaries, bonuses and other benefits are reasonably attributable to the ownership or operations of the Borrower in an aggregate amount not to exceed $10,000,000 after the Closing Date;

(iii) the Borrower may pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings or any Parent Company to pay general corporate operating and overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties) of Holdings or such Parent Company to the extent such costs and expenses are reasonably attributable to the ownership or operations of the Borrower;

 

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(iv) the Borrower may pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings or any Parent Company for the Shareholder Payment; and

(v) the Borrower may pay any Dividend in connection with the MLP Set-up Transactions paid no earlier than one Business Day prior to the consummation of the MLP IPO.

10.04 Indebtedness . The Borrower will not contract, create, incur, assume or suffer to exist any Indebtedness, except:

(i) Indebtedness incurred pursuant to this Agreement and the other Credit Documents;

(ii) Indebtedness under Interest Rate Protection Agreements entered into with respect to other Indebtedness permitted under this Section 10.04 so long as the entering into of such Interest Rate Protection Agreements are bona fide hedging activities and are not for speculative purposes;

(iii) Indebtedness of the Borrower evidenced by Capitalized Lease Obligations and purchase money Indebtedness (including obligations in respect of mortgages, industrial revenue bonds, industrial development bonds and similar financings) described in Section 10.01(vii) ; provided that in no event shall the aggregate principal amount of Capitalized Lease Obligations and the principal amount of all such Indebtedness incurred or assumed in each case after the Closing Date permitted by this clause (iii) exceed $5,000,000 at any one time outstanding;

(iv) Indebtedness under a Permanent Term Loan;

(v) Indebtedness outstanding on the Closing Date and listed on Schedule 10.04(v) (“ Existing Indebtedness ”) and any subsequent extension, renewal or refinancing thereof; provided that the aggregate principal amount of the Indebtedness to be extended, renewed or refinanced does not increase from that amount outstanding at the time of any such extension, renewal or refinancing, plus accrued and unpaid interest and cash fees and expenses (including premium) incurred in connection with such renewal, replacement or extension; provided , however , that such refinancing Indebtedness: (y) has a Weighted Average Life to Maturity at the time such refinancing Indebtedness is incurred which is not less than the remaining Weighted Average Life to Maturity of the Indebtedness being extended, renewed or refinanced; and (z) to the extent such refinancing Indebtedness extends, renews or refinances Indebtedness subordinated or pari passu to the Term Loans, such refinancing Indebtedness is subordinated or pari passu to the Term Loans at least to the same extent as the Indebtedness being extended, renewed or refinanced;

(vi) Investments permitted under Section 10.05 to the extent constituting Indebtedness;

(vii) Indebtedness incurred in the ordinary course of business in respect of netting services, overdraft protections, employee credit card programs, automatic clearinghouse arrangements and other similar services in connection with cash management and deposit accounts and Indebtedness in connection with the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, including in each case, obligations under any Treasury Services Agreements;

(viii) Indebtedness in respect of Hedging Agreements so long as the entering into of such Hedging Agreements are bona fide hedging activities and are not for speculative purposes;

(ix) Contingent Obligations for customs, stay, performance, appeal, judgment, replevin and similar bonds and suretyship arrangements, and completion guarantees and other obligations of a like nature, all in the ordinary course of business;

 

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(x) Contingent Obligations to insurers required in connection with worker’s compensation and other insurance coverage incurred in the ordinary course of business;

(xi) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within two Business Days of its incurrence;

(xii) (x) severance, pension and health and welfare retirement benefits or the equivalent thereof to current and former employees of the Borrower incurred in the ordinary course of business, and (y) Indebtedness representing deferred compensation or stock-based compensation to employees of the Borrower;

(xiii) additional Indebtedness of the Borrower not to exceed $500,000 in aggregate principal amount outstanding at any time; and

(xiv) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (i) through (xiii) above.

10.05 Advances, Investments and Loans . The Borrower will not, directly or indirectly, lend money or credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any other Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash Equivalents (each of the foregoing, an “ Investment ” and, collectively, “ Investments ” and with the value of each Investment being measured at the time made and without giving effect to subsequent changes in value or any write-ups, write-downs or write-offs thereof but giving effect to any cash return or cash distributions received by the Borrower with respect thereto), other than:

(i) Investments in Cash Equivalents;

(ii) guarantees or indemnities arising under the Credit Documents or the Permanent Term Loan (provided such guarantees shall be on a pari passu basis herewith);

(iii) intercompany loans to and other investments in Holdings in lieu of dividends otherwise permitted in connection with Section 10.03 ;

(iv) Investments in connection with the MLP Set-Up Transactions, including Equity Interests held by the Credit Parties other than the Borrower in entities formed to effectuate the Qualified MLP IPO;

(v) [Reserved];

(vi) the Borrower may acquire and hold accounts receivable owing to any of them, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms of the Borrower;

(vii) the Borrower may enter into Interest Rate Protection Agreements to the extent permitted by Section 10.04(ii) , and Hedging Agreements to the extent permitted by Section 10.04(ix);

(viii) extensions of trade credit may be made in the ordinary course of business (including advances made to distributors consistent with past practice), Investments received in satisfaction or partial satisfaction of previously extended trade credit from financially troubled account debtors, Investments consisting of prepayments to suppliers made in the ordinary course of business and loans or advances made to distributors in the ordinary course of business;

(ix) Investments in deposit accounts or securities accounts opened in the ordinary course of business;

 

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(x) Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business;

(xi) Investments in the ordinary course of business consisting of UCC Article 3 endorsements for collection or deposit;

(xii) the licensing, sublicensing or contribution of intellectual property rights pursuant to arrangements with Persons other than the Borrower in the ordinary course of business for fair market value, as determined by the Borrower in good faith;

(xiii) to the extent that they constitute Investments, purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property, in each case, in the ordinary course of business;

(xiv) loans and advances by the Borrower to officers, directors and employees of the Borrower in connection with relocations and other ordinary course of business purposes (including travel and entertainment expenses) in an aggregate amount outstanding not to exceed $500,000; and

(xv) additional Investments of the Borrower not to exceed $500,000 in aggregate principal amount outstanding at any time.

10.06 Transactions with Affiliates . The Borrower will not enter into any transaction or series of related transactions with any Affiliate of the Borrower, other than (i) in connection with the MLP Set-Up Transactions, (ii) to the extent not otherwise prohibited by this Agreement, transactions between or among Holdings and the Borrower, and (iii) on terms and conditions not less favorable to the Borrower as would reasonably be obtained by the Borrower at that time in a comparable arm’s-length transaction with a Person other than an Affiliate.

10.07 Modifications of Certificate of Incorporation, By-Laws and Certain Other Agreements, etc . The Borrower will not amend, modify or change its certificate or articles of incorporation (including, without limitation, by the filing or modification of any certificate or articles of designation), certificate of formation, limited liability company agreement or by-laws (or the equivalent organizational documents), as applicable, or any agreement entered into by it with respect to its Equity Interests, or enter into any new agreement with respect to its Equity Interests, unless such amendment, modification, change or other action contemplated by this Section 10.07 could not reasonably be expected to be adverse in any material respect to the interests of the Lenders.

10.08 Limitation on Creation of Subsidiaries . The Borrower will not create any Subsidiaries or acquire any Equity Interests in any Person.

10.09 Business .

(a) The Borrower will not permit at any time the business activities conducted by the Borrower to be materially different from the business activities conducted by the Borrower on the Closing Date and Similar Business.

(b) Holdings, and any Subsidiary of Holdings that becomes a Guarantor hereunder in connection with a MLP Set-Up Transaction and that is an owner of the Borrower, will not engage in any business other than its ownership of the capital stock of, and the management of, the Borrower (and other entities formed to effectuate the Qualified MLP IPO) and activities incidental thereto; provided that Holdings or any such Subsidiary may engage in those activities that are incidental to (i) the maintenance of its corporate existence in compliance with applicable law, (ii) legal, tax and accounting matters in connection with any of the foregoing or following activities, (iii) the entering into, and performing its obligations under this Agreement or any Permanent Term Loan, (iv) the issuance, sale or repurchase of its Equity Interests and the receipt of capital contributions, (v) the making of dividends or distributions on its Equity Interests, (vi) the filing of registration statements, and compliance with applicable reporting and other obligations, under federal, state or other securities laws, (vii) the listing of its equity securities and compliance with applicable reporting and other obligations in connection therewith, (viii) the retention of (and

 

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the entry into, and exercise of rights and performance of obligations in respect of, contracts and agreements with) transfer agents, private placement agents, underwriters, counsel, accountants and other advisors and consultants, (ix) the performance of obligations under and compliance with its certificate of incorporation and by-laws, or any applicable law, ordinance, regulation, rule, order, judgment, decree or permit, (x) the incurrence and payment of its operating and business expenses and any taxes for which it may be liable (including reimbursement to Affiliates for such expenses paid on its behalf), (xi) the consummation of the Transaction, (xii) the MLP Set-Up Transactions, and (xiii) the making of loans to or other Investments in, or incurrence of Indebtedness from, the Borrower, as and to the extent not prohibited by this Agreement.

(c) The Borrower will not directly or indirectly, use the proceeds of any Term Loan, or lend, contribute or otherwise make available such proceeds to any joint venture partner or other individual or entity, to fund any activities of or business with any individual or entity, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will result in a violation by any individual or entity (including any individual or entity participating in the transaction, whether as Lender, Agent, or otherwise) of Sanctions.

10.10 Asset Sales . The Borrower shall not effect any Asset Sale, other than:

(i) the disposition of Cash Equivalents in a transaction not prohibited by this Agreement;

(ii) dispositions consisting of Liens, Investments, or Dividends otherwise permitted hereunder;

(iii) the sale or discount, in each case in the ordinary course of business, of accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;

(iv) licenses, sublicenses, leases or subleases (including of Intellectual Property) under which the applicable Credit Party is the lessor, sublessor, licensor or sublicensor to other Persons (i) not materially interfering with the conduct of the business of the Borrower, (ii) not materially impairing the value or marketability of any Real Property affected thereby and (iii), in the case of Real Property, subordinate in all respects to the Liens of the Security Documents;

(v) sales or leases of (A) inventory, (B) goods held for sale and (C) immaterial assets in the ordinary course of business;

(vi) sales or other disposals of (i) outdated, obsolete, surplus or worn out property, in each case, in the ordinary course of business and (ii) property no longer used or useful in the conduct of the business of the Borrower;

(vii) transfers of property subject to condemnation proceedings upon the occurrence of the related Recovery Event;

(viii) abandonment of Intellectual Property rights in the ordinary course of business, which in the reasonable good faith determination of the Borrower are not material to the conduct of the business of the Borrower;

(ix) voluntary terminations of or unwinding of Interest Rate Protection Agreements, Hedging Agreements and Treasury Services Agreements;

(x) sales, dispositions or contributions of property other than cash and Cash Equivalents between Credit Parties in connection with the MLP Set-Up Transactions; and

(xi) additional Asset Sales involving assets with a fair market value not to exceed $1,000,000 in the aggregate from and after the Closing Date.

 

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10.11 Financial Covenant . The Borrower will not permit Consolidated EBITDA for any period of three consecutive calendar months (beginning with the three consecutive calendar months ended May 31, 2013) for which management reports have been delivered to be less than $45,000,000.

10.12 Capital Expenditures . The Borrower will not permit the aggregate amount of Capital Expenditures made following the Closing Date to exceed $70,000,000.

Section 11. Events of Default . Upon the occurrence of any of the following specified events (each, an “ Event of Default ”):

11.01 Payments . Any Credit Party shall (i) default in the payment when due of any principal of any Term Loan or any Note or (ii) default, and such default shall continue unremedied for five or more Business Days, in the payment when due of any interest on any Term Loan or Note, or any Fees or any other amounts owing hereunder or under any other Credit Document; or

11.02 Representations, etc . Any representation, warranty or statement made or deemed made by any Credit Party herein or in any other Credit Document or in any certificate delivered to the Administrative Agent, the Collateral Agent or any Lender pursuant hereto or thereto shall prove to be untrue in any material respect on the date as of which made or deemed made; or

11.03 Covenants . Holdings or the Borrower shall (i) default in the due performance or observance by it of any term, covenant or agreement contained in Section 9.01(f)(i) , 9.04 (as to the Borrower), 9.08 , 9.11 , 9.13 or Section 10 or (ii) default in the due performance or observance by it of any other term, covenant or agreement contained in this Agreement or in any other Credit Document (other than those set forth in Sections 11.01 and 11.02 ), and such default shall continue unremedied for a period of 30 days after written notice thereof to the defaulting party by the Administrative Agent or the Required Lenders; or

11.04 Default Under Other Agreements . (i) Holdings or the Borrower shall (x) default in any payment of any Indebtedness (other than the Obligations) beyond the period of grace, if any, provided in an instrument or agreement under which such Indebtedness was created or (y) default in the observance or performance of any agreement or condition relating to any Indebtedness (other than the Obligations) or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause (determined without regard to whether any notice is required), any such Indebtedness to become due prior to its stated maturity, or (ii) any Indebtedness (other than the Obligations) of Holdings or the Borrower shall be declared to be (or shall become) due and payable, or required to be prepaid other than by a regularly scheduled required prepayment, prior to the stated maturity thereof, provided that (A) it shall not be a Default or an Event of Default under this Section 11.04 unless the aggregate principal amount of all Indebtedness as described in preceding clauses (i) and (ii) is at least equal to the Threshold Amount and (B) the preceding clause (ii) shall not apply to Indebtedness that becomes due as a result of a voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is otherwise permitted hereunder and such Indebtedness is promptly paid; or

11.05 Bankruptcy, etc . Holdings or the Borrower shall commence a voluntary case concerning itself under Title 11 of the United States Code entitled “Bankruptcy,” as now or hereafter in effect, or any successor thereto (the “ Bankruptcy Code ”); or an involuntary case is commenced against Holdings or the Borrower, and the petition is not controverted within 21 days, or is not dismissed within 60 days, after commencement of the case; or a custodian (as defined in the Bankruptcy Code), receiver, receiver-manager, trustee, monitor is appointed for, or takes charge of, all or substantially all of the property of Holdings or the Borrower, or Holdings or the Borrower commences any other proceeding under any reorganization, bankruptcy, insolvency, arrangement, winding-up, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to Holdings or the Borrower, or there is commenced against Holdings or the Borrower any such proceeding which remains undismissed for a period of 60 days, or Holdings or the Borrower is adjudicated insolvent or bankrupt; or any order of relief or other order approving any such case or proceeding is entered; or Holdings or the Borrower suffers any appointment of any custodian, receiver, receiver-manager, trustee, monitor or the like for it or any substantial part of its property to continue undischarged or unstayed for a period of 60 days; or Holdings or the Borrower makes a general assignment for the benefit of creditors; or any corporate, limited liability company or similar action is taken by the Borrower for the purpose of effecting any of the foregoing; or

 

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11.06 ERISA . (a) An ERISA Event has occurred with respect to a Plan or Multiemployer Plan which has resulted or would reasonably be expected to result in a Material Adverse Effect; (b) there is or arises Unfunded Pension Liability which has resulted or would reasonably be expected to result in a Material Adverse Effect or (c) there is or arises any potential withdrawal liability under Section 4201 of ERISA, if the Borrower or any ERISA Affiliate was to withdraw completely from any and all Multiemployer Plans which has resulted or would reasonably be expected to result in a Material Adverse Effect; or

11.07 Credit Documents . Any of the Credit Documents shall cease to be in full force and effect, or in the case of Security Documents, shall cease to give the Collateral Agent, for the benefit of the Guaranteed Creditors the Liens, rights, powers and privileges purported to be created thereby (including, without limitation (to the extent provided therein), a perfected security interest in, and Lien on, all of the Collateral (other than Collateral with an aggregate fair market value not in excess of the Threshold Amount), in favor of the Collateral Agent superior to and prior to the rights of all third Persons (except as permitted by the Security Documents), and subject to no other Liens except Permitted Collateral Liens, in each case, except as otherwise expressly permitted in this Agreement; or

11.08 Guaranties . Any Guaranty or any provision thereof shall cease to be in full force or effect as to any Guarantor, or any Guarantor or any Person acting for or on behalf of such Guarantor shall deny or disaffirm such Guarantor’s obligations under the Guaranty to which it is a party or any Guarantor shall default in the due performance or observance of any term, covenant or agreement on its part to be performed or observed pursuant to the Guaranty to which it is a party; or

11.09 Judgments . One or more judgments or decrees shall be entered against any Credit Party involving in the aggregate for all Credit Parties a liability or liabilities (not paid or fully covered by a reputable and solvent insurance company with respect to judgments for the payment of money) and such judgments and decrees either shall be final and non-appealable or shall not be vacated, discharged or stayed or bonded pending appeal for any period of 60 consecutive days, and the aggregate amount of all such judgments and decrees (to the extent not paid or fully covered by such insurance company) equals or exceeds the Threshold Amount; or

11.10 Change of Control . A Change of Control shall occur; or

11.11 Casualty or Condemnation . A Casualty Event involving all or substantially all of the Collateral shall occur; or

11.12 Abandonment of Operations . There shall occur the abandonment by the Borrower of all or substantially all of the operations of the Plant, other than in respect of any force majeure;

then and in any such event, and at any time thereafter, if any Event of Default shall then be continuing, the Administrative Agent, upon the written request of the Required Lenders, shall by written notice to the Borrower, take any or all of the following actions, without prejudice to the rights of the Administrative Agent, any Lender or the holder of any Note to enforce its claims against any Credit Party ( provided that, if an Event of Default specified in Section 11.05 shall occur with respect to any Credit Party, the result which would occur upon the giving of written notice by the Administrative Agent as specified in clauses (i) and (ii) below shall occur automatically without the giving of any such notice): (i) declare the Total Term Loan Commitment terminated, whereupon all Commitments of each Lender shall forthwith terminate immediately; (ii) declare the principal of and any accrued interest in respect of all Term Loans and the Notes and all Obligations owing hereunder and thereunder to be, whereupon the same shall become, forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Credit Party; (iii) enforce, as Collateral Agent, all of the Liens and security interests created pursuant to the Security Documents; and (iv) enforce each Guaranty.

 

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After the occurrence of any of the events described in clauses (i) through (iv) of the preceding paragraph, any amounts received on account of the Obligations shall be applied by the Administrative Agent in the following order:

First , to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Section 5 ) payable to the Administrative Agent in its capacity as such;

Second , to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including fees, charges and disbursements of counsel to the respective Lenders) arising under the Credit Documents and amounts payable under Section 5 , ratably among them in proportion to the respective amounts described in this clause Second payable to them;

Third , to payment of that portion of the Obligations constituting accrued and unpaid interest on the Term Loans under each Tranche, ratably among the Lenders in proportion to the respective amounts described in this clause Third held by them;

Fourth , to payment of that portion of the Obligations constituting unpaid principal of the Term Loans under each Tranche and Obligations then owing under Designated Interest Rate Protection Agreements and Designated Treasury Services Agreements, ratably among the Lenders and Guaranteed Creditors in proportion to the respective amounts described in this clause Fourth held by them;

Last , the balance, if any, after all of the Obligations have been paid in full, to the Borrower or as otherwise required by a Requirement of Law.

Notwithstanding the foregoing, Obligations arising under Designated Interest Rate Protection Agreements and Designated Treasury Services Agreements shall be excluded from the application described above if the Administrative Agent has not received written notice thereof, together with such supporting documentation as the Administrative Agent may request, from the applicable Guaranteed Creditor. Each Guaranteed Creditor not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Section 12 hereof for itself and its Affiliates as if a “Lender” party hereto.

Section 12. The Administrative Agent .

12.01 Appointment and Authorization .

(a) Each of the Lenders hereby irrevocably appoints Bank of America, N.A. to act on its behalf as the Administrative Agent hereunder and under the other Credit Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders, and neither the Borrower nor any other Credit Party shall have rights as a third party beneficiary of any of such provisions.

(b) The Administrative Agent shall also act as the “collateral agent” under the Credit Documents, and each of the Lenders (including in its capacity as a potential Guaranteed Creditor under a Designated Interest Rate Protection Agreement or Designated Treasury Services Agreement) hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any Credit Party to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 12.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all provisions of this Article XII and Article XIII (including Section 13.01 ,

 

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as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Credit Documents) as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent to execute any and all documents (including releases) with respect to the Collateral and the rights of the Guaranteed Creditors with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by any Administrative Agent shall bind the Lenders.

(c) The Lenders hereby authorize the Administrative Agent to enter into any intercreditor agreement or arrangement permitted under this Agreement and any such intercreditor agreement shall be binding upon the Lenders.

12.02 Rights as a Lender . The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.

12.03 Exculpatory Provisions . The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Credit Documents. Without limiting the generality of the foregoing, the Administrative Agent:

(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;

(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Credit Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Credit Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Credit Document or applicable law;

(c) shall not, except as expressly set forth herein and in the other Credit Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity;

(d) shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 11 and 13.12 ) or (ii) in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Administrative Agent by the Borrower or a Lender; and

(e) shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Credit Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Security Documents, (v) the value or the sufficiency of any Collateral, or (v) the satisfaction of any condition set forth in Article VI or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.

 

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12.04 Reliance by Administrative Agent . The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Term Loan, that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Term Loan. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

12.05 Delegation of Duties . The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Credit Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.

12.06 Resignation of Administrative Agent . The Administrative Agent may at any time give notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with the Borrower’s consent (other than during the existence of an Event of Default under Section 11.01 or 11.05 ), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, with the Borrower’s consent (other than during the existence of an Event of Default under Section 11.01 or 11.05 ), on behalf of the Lenders, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Credit Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders under any of the Credit Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (b) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Credit Documents ( if not already discharged therefrom as provided above in this Section). After the retiring Administrative Agent’s resignation hereunder and under the other Credit Documents, the provisions of this Article and Section 13.01 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.

12.07 Non-Reliance on Administrative Agent and Other Lenders . Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document or any related agreement or any document furnished hereunder or thereunder.

 

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12.08 No Other Duties, Etc .

Anything herein to the contrary notwithstanding, none of the Joint Lead Arrangers, Syndication Agent or Documentation Agent shall have any powers, duties or responsibilities under this Agreement or any of the other Credit Documents, except in its capacity, as applicable, as the Administrative Agent or a Lender hereunder.

12.09 Administrative Agent May File Proofs of Claim . In case of the pendency of any proceeding under any debtor relief law or any other judicial proceeding relative to any Credit Party, the Administrative Agent (irrespective of whether the principal of any Term Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise

(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Sections 4.01 and 13.01 ) allowed in such judicial proceeding; and

(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, if the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 4.01 and 13.01 .

Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender to authorize the Administrative Agent to vote in respect of the claim of any Lender or in any such proceeding.

12.10 Collateral Matters and Guaranty Matters .

Each of the Lenders (including in its capacity as a potential Guaranteed Creditor under a Designated Interest Rate Protection Agreement or Designated Treasury Services Agreement) irrevocably authorize the Administrative Agent, at its option and in its discretion,

(a) to release any Lien on any property granted to or held by the Administrative Agent under any Credit Document (i) upon termination of the Commitments and payment in full of all Obligations (other than (x) contingent indemnification obligations and (y) obligations and liabilities under Designated Interest Rate Protection Agreements and Designated Treasury Services Agreements), (ii) that is sold or to be sold as part of or in connection with any sale permitted hereunder or under any other Credit Document to a Person that is not a Credit Party, (iii) that constitutes “Excluded Property” (as such term is defined in the Security Agreement) or (iv) if approved, authorized or ratified in writing in accordance with Section 13.12 ;

(b) [Reserved]; and

 

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(c) to subordinate any Lien on any property granted to or held by the Administrative Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 10.01(vi) or (vii) .

Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property pursuant to this Section 12.10 . In each case as specified in this Section 12.10 , the Administrative Agent will (and each Lender (including in its capacity as a potential Guaranteed Creditor under a Designated Interest Rate Protection Agreement or Designated Treasury Services Agreement) irrevocably authorizes the Administrative Agent to), at the Borrower’s expense, execute and deliver to the applicable Credit Party such documents as such Credit Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Security Documents or to subordinate its interest in such item, in each case in accordance with the terms of the Credit Documents and this Section 12.10 .

12.11 Withholding Taxes . To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. If the Internal Revenue Service or any other authority of the United States or other jurisdiction asserts a claim that the Administrative Agent did not properly withhold Tax from amounts paid to or for the account of any Lender for any reason (including, without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding Tax ineffective), such Lender shall, within 10 days after written demand therefor, indemnify and hold harmless the Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed by the Borrower pursuant to Section 5.04 and without limiting or expanding the obligation of the Borrower to do so) for all amounts paid, directly or indirectly, by the Administrative Agent as Taxes or otherwise, together with all expenses incurred, including legal expenses and any other out-of-pocket expenses, whether or not such Tax was correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Credit Document against any amount due the Administrative Agent under this Section 12.11 . The agreements in this Section 12.11 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender and the repayment, satisfaction or discharge of all other Obligations.

12.12 Indemnification by the Lenders . To the extent that the Borrower for any reason fails to pay any amount required under Section 13.01(a) to be paid by it to the Administrative Agent (or any sub-agent thereof), or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent) or such Related Party, as the case may be, such Lender’s pro rata share (based on the amount of then outstanding Term Loans) of (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) in connection with such capacity. The obligations of the Lenders under this Section 12.12 are subject to the provisions of Section 5.04 .

12.13 Designated Interest Rate Protection Agreements and Designated Treasury Services Agreements . No Guaranteed Creditor that obtains the benefits of Section 11, any Guaranty or any Collateral by virtue of the provisions hereof or of any Guaranty or any Security Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Credit Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Credit Documents. Notwithstanding any other provision of this Section 12 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Designated Interest Rate Protection Agreements and Designated Treasury Services Agreements unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Guaranteed Creditor.

 

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Section 13. Miscellaneous .

13.01 Payment of Expenses, etc .

(a) The Credit Parties hereby jointly and severally agree to: (i) if the Closing Date occurs, pay all reasonable invoiced out-of-pocket costs and expenses of the Agents (including, without limitation, the reasonable fees and disbursements of Cahill Gordon & Reindel LLP and, if reasonably necessary, one local counsel in any relevant jurisdiction) in connection with the preparation, execution and delivery of this Agreement and the other Credit Documents and the documents and instruments referred to herein and therein, the administration hereof and thereof and any amendment, waiver or consent relating hereto or thereto (whether or not effective), and of the Agents and each Lender in connection with the enforcement of this Agreement and the other Credit Documents and the documents and instruments referred to herein and therein or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “work-out” or pursuant to any insolvency or bankruptcy proceedings; (ii) pay and hold each Agent and each Lender harmless from and against any and all Other Taxes with respect to the foregoing matters and save each Agent and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay or omission (other than to the extent attributable to such Agent, such Lender or Joint Lead Arranger) to pay such Other Taxes; and (iii) indemnify each Agent and each Lender and their respective Affiliates, and the officers, directors, employees, agents, and investment advisors of each of the foregoing (each, an “ Indemnified Person ”) from and hold each of them harmless against any and all liabilities, obligations (including removal or remedial actions), losses, damages, penalties, claims, actions, judgments, suits, costs, expenses and disbursements (including reasonable attorneys’ and consultants’ fees and disbursements) (but excluding Taxes other than Taxes that represent liabilities, obligations, losses, damages, penalties, actions, costs, expenses and disbursements arising from a non-Tax claim) incurred by, imposed on or assessed against any of them as a result of, or arising out of, or in any way related to, or by reason of, (a) any investigation, litigation or other proceeding (whether or not any Agent or any Lender is a party thereto and whether or not such investigation, litigation or other proceeding is brought by or on behalf of any Credit Party) related to the entering into and/or performance of this Agreement or any other Credit Document or the proceeds of any Term Loans hereunder or the consummation of the Transaction or any other transactions contemplated herein or in any other Credit Document or the exercise of any of their rights or remedies provided herein or in the other Credit Documents, or (b) the actual or alleged presence of Hazardous Materials in the Environment relating in any way to any Real Property owned, leased or operated, at any time, by the Borrower; the generation, storage, transportation, handling, Release or threat of Release of Hazardous Materials by the Borrower at any location, whether or not owned, leased or operated by the Borrower; the non-compliance by the Borrower with any Environmental Law (including applicable permits thereunder) applicable to any Real Property; or any Environmental Claim asserted against the Borrower or relating in any way to any Real Property at any time owned, leased or operated by the Borrower, including, in each case, without limitation, the reasonable fees and disbursements of counsel and other consultants incurred in connection with any such investigation, litigation or other proceeding (but excluding in each case any losses, liabilities, claims, damages or expenses (i) to the extent incurred by reason of the gross negligence, bad faith or willful misconduct of the applicable Indemnified Person or the directors, officers and employees of such Person, (ii) to the extent incurred by reason of any material breach of the obligations of such Indemnified Person under this Agreement or the other Credit Documents (in the case of each of preceding clauses (i) and (ii), as determined by a court of competent jurisdiction in a final and non-appealable decision) or (iii) that do not involve or arise from an act or omission by the Borrower or Guarantors or any of their respective affiliates and is brought by an Indemnified Person (other than claims against any Agent in its capacity as such or in its fulfilling such role. To the extent that the undertaking to indemnify, pay or hold harmless any Agent or any Lender or other Indemnified Person set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, the Credit Parties shall make the maximum contribution to the payment and satisfaction of each of the indemnified liabilities which is permissible under applicable law.

(b) No Agent or any Indemnified Person shall be responsible or liable to any Credit Party or any other Person for (x) any determination made by it pursuant to this Agreement or any other Credit Document in the absence of gross negligence, bad faith or willful misconduct on the part of such Indemnified Person (in each case, as determined by a court of competent jurisdiction in a final and non-appealable judgment), (y) any damages arising from the use by others of information or other materials obtained through electronic, telecommunications or other information transmission systems or (z) any indirect, special, exemplary, incidental, punitive or consequential damages (including, without limitation, any loss of profits, business or anticipated savings) which may be alleged as a result of this Agreement or any other Credit Document or the financing contemplated hereby.

 

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(c) To the fullest extent permitted by applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnified Person, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Credit Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Term Loan or the use of the proceeds thereof. No Indemnified Person referred to in subsection (a) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnified Person through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnified Person as determined by a final and nonappealable judgment of a court of competent jurisdiction. For the avoidance of doubt, this paragraph shall not limit the obligation of the Borrower to indemnify each Indemnified Person for any liabilities or damages incurred by such Indemnified Person that are asserted against such Indemnified Person by a third party that are payable by the Borrower pursuant to subsection (a) of this Section.

(d) The agreements in this Section shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations.

13.02 Right of Setoff . In addition to any rights now or hereafter granted under applicable law or otherwise, and not by way of limitation of any such rights, upon the occurrence and during the continuance of an Event of Default, the Administrative Agent and each Lender is hereby authorized at any time or from time to time, without presentment, demand, protest or other notice of any kind to any Credit Party or to any other Person, any such notice being hereby expressly waived, to set off and to appropriate and apply any and all deposits (general or special) (other than accounts used exclusively for payroll, payroll taxes, fiduciary and trust purposes, and employee benefits) and any other Indebtedness at any time held or owing by the Administrative Agent or such Lender (including, without limitation, by branches and agencies of the Administrative Agent or such Lender wherever located) to or for the credit or the account of the Borrower against and on account of the Obligations and liabilities of the Credit Parties to the Administrative Agent or such Lender under this Agreement or under any of the other Credit Documents, including, without limitation, all interests in Obligations purchased by such Lender pursuant to Section 13.06(b) , and all other claims of any nature or description arising out of or connected with this Agreement or any other Credit Document, irrespective of whether or not the Administrative Agent or such Lender shall have made any demand hereunder and although said Obligations, liabilities or claims, or any of them, shall be contingent or unmatured.

13.03 Notices .

(a) Except as otherwise expressly provided herein, all notices and other communications provided for hereunder shall be in writing (including facsimile) and mailed, faxed or delivered: if to any Credit Party, c/o OCI Beaumont LLC, P.O. Box 1647, 5470 N. Twin City Hwy., Nederland, Texas 77627, Attention: Contracts Manager; Facsimile No.: (832) 747-9969; with a copy to Capital Corporate Services, 800 Brazos, Suite 400, Austin, TX 78701; with an additional copy to Orascom Construction Industries, Group Corporate Treasury, 2005A Corniche El Nil, Nile City South Tower, Cairo, Egypt, 11221, Attention: Dalia Khorshid / Hussein Marei; Facsimile No.: +202 2461 9409; and if to the Administrative Agent, at the Notice Office; or, as to any Credit Party or the Administrative Agent, at such other address as shall be designated by such party in a written notice to the other parties hereto and, as to each Lender, at such other address as shall be designated by such Lender in a written notice to the Borrower and the Administrative Agent. All such notices and communications shall, when mailed, faxed or sent by overnight courier, be effective when deposited in the mails, delivered to overnight courier, as the case may be, or sent by facsimile, except that notices and communications to the Administrative Agent and the Borrower shall not be effective until received by the Administrative Agent or the Borrower, as the case may be.

 

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(b) Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Section 2 unless otherwise agreed by the Administrative Agent and the applicable Lender. Each of the Administrative Agent, the Borrower or Holdings may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.

(c) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS (AS DEFINED HEREIN) OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any Affiliate, officer, director, employee, agent or investment advisor of any of the foregoing (collectively, the “ Agent Parties ”) have any liability to Holdings, the Borrower, any Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided , however , that in no event shall any Agent Party have any liability to Holdings, the Borrower, any Lender or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).

13.04 Benefit of Agreement; Assignments; Participations, etc .

(a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided , however , that the Borrower may not assign or transfer any of its rights, obligations or interest hereunder without the prior written consent of the Administrative Agent and Lenders and, provided , further , that, although any Lender may transfer, assign or grant participation in its rights hereunder, such Lender shall remain a “Lender” for all purposes hereunder (and may not transfer or assign all or any portion of its Commitments hereunder except as provided in Sections 2.13 and 13.04(b) ) and the transferee, assignee or participant, as the case may be, shall not constitute a “ Lender ” hereunder and, provided , further , that no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) extend the final scheduled maturity of any Term Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant’s participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory repayment of any Term Loan shall not constitute a change in the terms of such participation, and that an increase in any Commitment (or the available portion thereof) or Term Loan shall be permitted without the consent of any participant if the participant’s participation is not increased as a result thereof), (ii) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement, (iii) modify any of the voting percentages set forth in Section 13.12 or the underlying definitions, (iv) except as otherwise expressly provided in the Security Documents, release all or substantially all of the Collateral under all the Security Documents supporting the Term Loans in which such participant is participating or (v) except as otherwise provided in the Credit Documents, release all or substantially all of the value of the Guaranty supporting the Loans in which such participant is participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant’s rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto). The Borrower agrees that each participant shall be entitled to the benefits of Sections 2.10 and 5.04 (subject to the limitations and requirements of such Sections) to the same extent as if it were a Lender and had acquired its interest by assignment; provided , however , that a participant shall not be entitled to receive any greater payment under Section 2.10 or Section 5.04 than the applicable Lender would have been entitled to receive with respect to the participation sold to such participant except to the extent such entitlement to a greater payment results from a change in law after the sale of the participation takes place. Each Lender that sells a participation shall, acting solely for this purpose as a non-

 

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fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and interest amounts) of each participant’s interest in the Term Loans or other obligations under the Credit Documents (the “ Participant Register ”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a participant’s interest in any Commitments, Term Loan, or its other obligations under any Credit Document) to any Person except to the extent that such disclosure is to a Governmental Authority and is necessary in connection with a Tax audit or other proceeding to establish that such Commitment, Term Loan or other obligation is in registered form under Section 5f.103-1(c) of the U.S. Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and the Borrower and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement, notwithstanding any notice to the contrary.

(b) Notwithstanding the foregoing, any Lender (or any Lender together with one or more other Lenders) may (x) assign all or a portion of its Commitments and related outstanding Obligations (or, if the Commitments with respect to the relevant Tranche have terminated, outstanding Obligations) hereunder to (i)(A) its parent company and/or any Affiliate of such Lender which is at least 50% owned by such Lender or its parent company or (B) to one or more other Lenders or any Affiliate of any such other Lender which is at least 50% owned by such other Lender or its parent company ( provided that any fund, managed account or other entity that invests in loans and is managed or advised by the same investment advisor/manager of another fund, managed account or other entity which is a Lender (or by an Affiliate of such investment advisor/manager) shall be treated as an Affiliate of such other Lender for the purposes of this subclause (x)(i)(B)) or (ii) in the case of any Lender that is a fund, managed account or other entity that invests in loans, any other fund, managed account or other entity that invests in loans and is managed or advised by the same investment advisor/manager of any Lender or by an Affiliate of such investment advisor/manager or (y) assign all, or if less than all, a portion equal to at least $5,000,000 (or such lesser amount as may be agreed to by the Administrative Agent and, so long as no Event of Default then exists under Section 11.01 or 11.05 , the Borrower, which consent shall not be unreasonably withheld or delayed) in the aggregate for the assigning Lender or assigning Lenders, of such Commitments and related outstanding Obligations (or, if the Commitments with respect to the relevant Tranche have terminated, outstanding Obligations) hereunder to one or more Eligible Transferees (treating any fund, managed account or other entity that invests in loans and any other fund, managed account or other entity that invests in loans and is managed or advised by the same investment advisor/manager of such fund, managed account or other entity or by an Affiliate of such investment advisor/manager as a single Eligible Transferee for all purposes including without limitation the assignment fee referenced below), each of which assignees shall become a party to this Agreement as a Lender by execution of an Assignment and Assumption Agreement, provided that (i) at such time, Schedule 2.01 shall be deemed modified to reflect the Commitments and/or outstanding Term Loans, as the case may be, of such new Lender and of the existing Lenders, (ii) upon the surrender of the relevant Notes by the assigning Lender (or, upon such assigning Lender’s indemnifying the Borrower for any lost Note pursuant to a customary indemnification agreement) new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender upon the request of such new Lender or assigning Lender, such new Notes to be in conformity with the requirements of Section 2.05 (with appropriate modifications) to the extent needed to reflect the revised Commitments and/or outstanding Term Loans, as the case may be, (iii) the consent of the Administrative Agent and, so long as no Event of Default then exists under Section 11.01 or 11.05 , the consent of the Borrower shall (in either case) be required in connection with any such assignment pursuant to clause (y) above (which consents, in any such case, shall not be unreasonably withheld or delayed); provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within 5 Business Days after having received notice thereof, (iv) the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500, which the Administrative Agent may waive in its sole discretion and (v) no such transfer or assignment shall be effective until recorded by the Administrative Agent on the Register pursuant to Section 13.15 . To the extent of any assignment pursuant to this Section 13.04(b) , the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments and outstanding Term Loans. At the time of each assignment pursuant to this Section 13.04(b) to a Person that is not already a Lender hereunder, such assignee shall provide to the Administrative Agent and the Borrower such Tax forms as are required to be provided under clauses (b) and (c) of Section 5.04 . To the extent that an assignment of all or any portion of a Lender’s Commitments and related outstanding Obligations pursuant to Section 2.13 or this Section 13.04(b) would, at the time of such assignment, result in increased costs under Section 2.10 or 5.04 from those being charged by the assigning Lender prior to such assignment, then the Borrower shall not

 

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be obligated to pay such increased costs (although the Borrower, in accordance with and pursuant to the other provisions of this Agreement, shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment).

(c) [Reserved].

(d) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

(e) Each Lender acknowledges and agrees to comply with the provisions of Section 13.04 applicable to it as a Lender hereunder.

(f) [Reserved].

(g) If the Borrower wishes to replace the Term Loans or Commitments with Term Loans or Commitments having different terms, it shall have the option, with the consent of the Administrative Agent and subject to at least three Business Days’ advance notice to the Lenders of such Term Loans or holding such Commitments, instead of prepaying the Term Loans or reducing or terminating the Commitments to be replaced, to (i) require such Lenders to assign such Term Loans or Commitments to the Administrative Agent or its designees and (ii) amend the terms thereof in accordance with Section 13.12 (with such replacement, if applicable, being deemed to have been made pursuant to Section 13.12 ). Pursuant to any such assignment, all Term Loans and Commitments to be replaced shall be purchased at par (allocated among the applicable Lenders in the same manner as would be required if such Term Loans were being optionally prepaid or such Commitments were being optionally reduced or terminated by the Borrower), accompanied by payment of any accrued interest and fees thereon and any amounts owing pursuant to Section 2.08 . By receiving such purchase price, the applicable Lenders shall automatically be deemed to have assigned such Term Loans or Commitments pursuant to the terms of an Assignment and Assumption Agreement, in the form of Exhibit H, and accordingly no other action by such Lenders shall be required in connection therewith. The provisions of this paragraph are intended to facilitate the maintenance of the perfection and priority of existing security interests in the Collateral during any such replacement.

13.05 No Waiver; Remedies Cumulative . No failure or delay on the part of the Administrative Agent, the Collateral Agent or any Lender in exercising any right, power or privilege hereunder or under any other Credit Document and no course of dealing between the Borrower or any other Credit Party and the Administrative Agent, the Collateral Agent or any Lender shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder or under any other Credit Document preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder or thereunder. The rights, powers and remedies herein or in any other Credit Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Collateral Agent or any Lender would otherwise have. No notice to or demand on any Credit Party in any case shall entitle any Credit Party to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the Administrative Agent, the Collateral Agent or any Lender to any other or further action in any circumstances without notice or demand.

13.06 Payments Pro Rata .

(a) The Administrative Agent agrees that promptly after its receipt of each payment from or on behalf of any Credit Party in respect of any Obligations of such Credit Party, it shall, except as otherwise provided in this Agreement (including payments to be made to one Tranche), distribute such payment to the Lenders under the applicable Tranche (other than any Lender that has consented in writing to waive its pro rata share of such payment) pro rata based upon their respective shares, if any, of the Obligations with respect to which such payment was received.

 

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(b) Each of the Lenders agrees that, if it should receive any amount hereunder (whether by voluntary payment, by realization upon security, by the exercise of the right of setoff or banker’s lien, by counterclaim or cross action, by the enforcement of any right under the Credit Documents, or otherwise) which is applicable to the payment of the principal of, or interest on, the Term Loans or Fees with respect to a given Tranche, of a sum which with respect to the related sum or sums received by other Lenders is in a greater proportion than the total of such Obligation then owed and due to such Lender bears to the total of such Obligation then owed and due to all of the Lenders under the applicable Tranche immediately prior to such receipt, then such Lender receiving such excess payment shall purchase for cash without recourse or warranty from the other Lenders an interest in the Obligations of the respective Credit Party to such Lenders in such amount as shall result in a proportional participation by all of the Lenders in such amount; provided that if all or any portion of such excess amount is thereafter recovered from such Lender, such purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest.

(c) Notwithstanding anything to the contrary contained herein, the provisions of the preceding Sections 13.06(a) and (b)  shall be subject to (x) the express provisions of this Agreement which permit disproportionate payments with respect to various of the Tranches as, and to the extent, provided herein, and (y) any other provisions which permit disproportionate payments with respect to the Term Loans as, and to the extent, provided therein.

13.07 Calculations; Computations .

(a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with U.S. GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto); provided that except as otherwise specifically provided herein, all computations of the Applicable Margin shall utilize U.S. GAAP and policies in conformity with those used to prepare the audited financial statements of the Borrower referred to in Section 8.05(a)(i) for the fiscal year of the Borrower ended December 31, 2012; provided further , that if the Borrower notifies the Administrative Agent that the Borrower wishes to amend any leverage calculation or any financial definition used therein to implement the effect of any change in U.S. GAAP or the application thereof occurring after the Closing Date on the operation thereof (or if the Administrative Agent notifies the Borrower that the Required Lenders wish to amend any leverage test or any financial definition used therein for such purpose), then the Borrower and the Administrative Agent shall negotiate in good faith to amend such leverage test or the definitions used therein (subject to the approval of the Required Lenders) to preserve the original intent thereof in light of such changes in U.S. GAAP; provided , further that all determinations made pursuant to any applicable leverage test or any financial definition used therein shall be determined on the basis of U.S. GAAP as applied and in effect immediately before the relevant change in U.S. GAAP or the application thereof became effective, until such leverage test or such financial definition is amended. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to Statement of Financial Accounting Standards 141R or ASC 805 (or any other financial accounting standard having a similar result or effect).

(b) All computations of interest (other than interest based on the Prime Rate) and other Fees hereunder shall be made on the basis of a year of 360 days for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or Fees are payable. All computations of interest based determined by reference to the Prime Rate shall be based on a 365-day or 366-day year, as the case may be.

(c) The calculation of any financial ratios under this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-down if there is no nearest number).

 

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13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL .

(a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS OTHERWISE PROVIDED IN THE RELEVANT SECURITY DOCUMENT, BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK; PROVIDED HOWEVER , NOTWITHSTANDING THE FOREGOING OR ANY OTHER PROVISION CONTAINED IN THIS AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS, THE LAWS OF THE STATE OF TEXAS SHALL GOVERN AS TO (I) WHETHER THE TRANSACTION EVIDENCED BY THIS AGREEMENT AND THE CREDIT DOCUMENTS TRANSFERS OR CREATES AN INTEREST IN TEXAS REAL PROPERTY FOR SECURITY PURPOSES OR OTHERWISE, (II) THE NATURE OF AN INTEREST IN TEXAS REAL PROPERTY THAT IS TRANSFERRED OR CREATED BY SUCH TRANSACTION, (III) THE METHOD FOR FORECLOSURE OF A LIEN ON ANY REAL PROPERTY SITUATED IN TEXAS SECURING PAYMENT OF THE OBLIGATIONS, (IV) THE NATURE OF AN INTEREST IN ANY SUCH REAL PROPERTY THAT RESULTS FROM FORECLOSURE OF ANY SUCH LIEN, (V) THE MANNER AND EFFECT OF RECORDING OR FAILING TO RECORD EVIDENCE OF SUCH TRANSACTION THAT TRANSFERS OR CREATES AN INTEREST IN ANY SUCH REAL PROPERTY AND (VI) THE PERFECTION, THE EFFECT OF PERFECTION OR NONPERFECTION, AND THE PRIORITY OF SECURITY INTERESTS IN AGRICULTURAL LIENS TO THE EXTENT REQUIRED UNDER SECTIONS 9.301 THROUGH 9.307 OF THE TEXAS BUSINESS & COMMERCE CODE (AS CONTEMPLATED IN SECTION 1.301(c) OF THE TEXAS BUSINESS & COMMERCE CODE). REAL PROPERTY SITUATED IN THE OUTER CONTINENTAL SHELF OR REAL PROPERTY (SUCH AS MINERAL LEASES) ARISING OUT OF REAL PROPERTY IN THE OUTER CONTINENTAL SHELF, WHICH REAL PROPERTY IN THE OUTER CONTINENTAL SHELF IS DEEMED ADJACENT TO THE STATE OF TEXAS PURSUANT TO THE OUTER CONTINENTAL SHELF LANDS ACT, SHALL BE DEEMED TEXAS REAL PROPERTY OR REAL PROPERTY SITUATED IN TEXAS FOR PURPOSES OF THIS SECTION 13.08.ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT (EXCEPT THAT, (X) IN THE CASE OF ANY MORTGAGE OR OTHER SECURITY DOCUMENT, PROCEEDINGS MAY ALSO BE BROUGHT BY THE ADMINISTRATIVE AGENT OR COLLATERAL AGENT IN THE STATE IN WHICH THE RELEVANT MORTGAGED PROPERTY OR COLLATERAL IS LOCATED OR ANY OTHER RELEVANT JURISDICTION AND (Y) IN THE CASE OF ANY BANKRUPTCY, INSOLVENCY OR SIMILAR PROCEEDINGS WITH RESPECT TO ANY CREDIT PARTY, ACTIONS OR PROCEEDINGS RELATED TO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS MAY BE BROUGHT IN SUCH COURT HOLDING SUCH BANKRUPTCY, INSOLVENCY OR SIMILAR PROCEEDINGS) SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT, EACH OF THE PARTIES HERETO OR THERETO HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH PARTY HERETO HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER IT, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENTS BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT SUCH COURTS LACK PERSONAL JURISDICTION OVER IT. EACH PARTY HERETO IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY, AS THE CASE MAY BE, AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH PARTY HERETO IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY OTHER SUCH PARTY IN ANY OTHER JURISDICTION.

 

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(b) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

13.09 Counterparts . This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. A set of counterparts executed by all the parties hereto shall be lodged with the Borrower and the Administrative Agent.

13.10 [Reserved] .

13.11 Headings Descriptive . The headings of the several Sections and subsections of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement.

13.12 Amendment or Waiver; etc .

(a) Neither this Agreement nor any other Credit Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the Credit Parties party hereto or thereto and the Required Lenders and acknowledged by the Administrative Agent (although additional parties may be added to (and annexes may be modified to reflect such additions) the Security Documents in accordance with the provisions hereof and thereof without the consent of the other Credit Parties party thereto or the Required Lenders), provided that no such change, waiver, discharge or termination shall (i) without the prior written consent of each Lender directly and adversely affected thereby, extend the final scheduled maturity of any Term Loan or Note, or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with applicability of any post-default increase in interest rates) or reduce or forgive the principal amount thereof, (ii) except as otherwise expressly provided in the Security Documents, release all or substantially all of the Collateral under all the Security Documents without the prior written consent of each Lender, (iii) except as otherwise provided in the Credit Documents, releases all or substantially all of the value of the Guaranty without the prior written consent of each Lender, (iv) amend, modify or waive any provision of this Section 13.12(a) or Section 13.06 , in each case, without the prior written consent of each Lender directly and adversely affected thereby, (v) reduce the percentage specified in the definition of Required Lenders without the prior written consent of each Lender directly and adversely affected thereby, or (vi) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement without the consent of each Lender; provided , further , that no such change, waiver, discharge or termination shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the Total Term Loan Commitment shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase of the Commitment of such Lender), (2) without the consent of each Agent adversely affected thereby, amend, modify or waive any provision of Section 12 or any other provision as same relates to the rights or obligations of such Agent, (3) without the consent of Collateral Agent, amend, modify or waive any provision relating to the rights or obligations of the Collateral Agent, (4) without the consent of the Majority Lenders of each Tranche which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Tranches, pursuant to Section 5.01 or 5.02 (although the Required Lenders may waive, in whole or in part, any such prepayment, repayment or commitment reduction, so long as the application, as amongst the various Tranches, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered) or (5) without the consent of the Majority Lenders of the respective Tranche affected thereby, amend the definition of Majority Lenders.

 

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(b) If, in connection with any proposed change, waiver, discharge or termination of any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to Section 13.12(a) , the consent of the Required Lenders or Majority Lenders of a given Tranche, as applicable, is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clauses (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders under a given Tranche with one or more Replacement Lenders pursuant to Section 2.13 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination or (B) terminate such non-consenting Lender’s Commitments and/or repay the outstanding Term Loans of each applicable Tranche of such Lender in accordance with Section 5.01(b) , provided that, unless the Commitments that are terminated, and Term Loans repaid, pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of outstanding Term Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B) the Required Lenders (determined after giving effect to the proposed action) or Majority Lenders of a given Tranche, as applicable, shall specifically consent thereto.

(c) Notwithstanding anything in this Section 13.12 to the contrary, in connection with the incurrence by any Credit Party thereof of additional Indebtedness, including pursuant to Section 10.04(iv) , the Lenders authorize the Administrative Agent and the Administrative Agent agrees to execute and deliver any amendments, amendments and restatements, re-statements or waivers of or supplements to or other modifications to, any Security Document, and to make or consent to any filings or take any other actions in connection therewith, including the entry into the intercreditor agreement referred to in Section 10.01(xiv) , as may be reasonably deemed by the Borrower to be necessary or reasonably desirable for any Lien on the assets of any Credit Party permitted to secure such additional Indebtedness to become a valid, perfected lien (with such priority as may be designated by the relevant Credit Party or Subsidiary, to the extent such priority is permitted by the Credit Documents) pursuant to the Security Document being so amended, amended and restated, restated, waived, supplemented or otherwise modified or otherwise.

(d) Notwithstanding anything to the contrary in clause (a) above of this Section 13.12 , this Agreement may be amended (or amended and restated) with the written consent of each Lender (unless at such time Term Loans are held by Lenders who are not affiliates of any Lead Arranger, in which case, the Required Lenders), the Administrative Agent and the Borrower, (x) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Credit Documents with the Term Loan and the accrued interest and fees in respect thereof and (y) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.

(e) Notwithstanding anything to the contrary herein, any fee letter may be amended, or rights and privileges thereunder waived, in a writing executed only by the parties thereto.

(f) Without the consent of any other person, the applicable Credit Party or Credit Parties and the Administrative Agent and/or Collateral Agent may (in its or their respective sole discretion, or shall, to the extent required by any Credit Document) enter into any amendment or waiver of any Credit Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Guarantee Creditors, or as required by local law to give effect to, or protect any security interest for the benefit of the Guaranteed Creditors, in any property or so that the security interests therein comply with applicable requirements of Law.

(g) Further, notwithstanding anything to the contrary contained in this Section 13.12 , if following the Closing Date, the Administrative Agent and any Credit Party shall have jointly identified an obvious error or any error or omission of a technical or immaterial nature, in each case, in any provision of the Credit Documents, then the Administrative Agent and the Credit Parties shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Credit Documents if the same is not objected to in writing by the Required Lenders within five (5) Business Days following receipt of notice thereof.

 

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13.13 Survival . All indemnities set forth herein including, without limitation, in Sections 2.10 , 2.11 , 5.04 , 12.07 and 13.01 shall survive the execution, delivery and termination of this Agreement and the Notes and the making and repayment of the Obligations.

13.14 Domicile of Term Loans . Each Lender may transfer and carry its Term Loans at, to or for the account of any office, Subsidiary or Affiliate of such Lender. Notwithstanding anything to the contrary contained herein, to the extent that a transfer of Term Loans pursuant to this Section 13.14 would, at the time of such transfer, result in increased costs under Section 2.10 , 2.11 or 5.04 from those being charged by the respective Lender prior to such transfer, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective transfer).

13.15 Register . The Borrower hereby designates the Administrative Agent to serve as its agent, solely for purposes of this Section 13.15 , to maintain a register (the “ Register ”) on which it will record the Commitments from time to time of each of the Lenders, the Term Loans made by each of the Lenders and each repayment in respect of the principal and interest amounts of the Term Loans of each Lender. Holdings, the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement (and the entries in the Register shall be conclusive for such purposes, absent manifest error), notwithstanding notice to the contrary. With respect to any Lender, the transfer of the Commitments of, and the principal (and interest) amounts of the Term Loans owing to, such Lender and the rights to the principal of, and interest on, any Term Loan made pursuant to such Commitments shall not be effective until such transfer is recorded on the Register maintained by the Administrative Agent with respect to ownership of such Commitments and Term Loans and prior to such recordation all amounts owing to the transferor with respect to such Commitments and Term Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Term Loans shall be recorded by the Administrative Agent on the Register upon and only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment and Assumption Agreement pursuant to Section 13.04(b) . Coincident with the delivery of such an Assignment and Assumption Agreement to the Administrative Agent for acceptance and registration of assignment or transfer of all or part of a Term Loan, or as soon thereafter as practicable, the assigning or transferor Lender shall surrender the Note (if any) evidencing such Term Loan, and thereupon one or more new Notes in the same aggregate principal amount shall be issued to the assigning or transferor Lender and/or the new Lender at the request of any such Lender.

13.16 Confidentiality .

(a) Subject to the provisions of clause (b) of this Section 13.16 , each Agent, Joint Lead Arranger, Syndication Agent, Documentation Agent and Lender agrees that it will use its commercially reasonable efforts not to disclose without the prior consent of the Borrower (other than to its employees, auditors, advisors or counsel or to another Lender if such Lender or such Lender’s holding or parent company in its sole discretion determines that any such party should have access to such information, provided such Persons shall be instructed to maintain the confidential nature of such information) any information with respect to the Borrower which is now or in the future furnished pursuant to this Agreement or any other Credit Document, provided that any Lender may disclose any such information (i) as has become generally available to the public other than by virtue of a breach of this Section 13.16(a) by such Lender, (ii) as may be required or appropriate in any report, statement or testimony submitted to any municipal, state or Federal regulatory body having or claiming to have jurisdiction over such Lender or to the Federal Reserve Board or the Federal Deposit Insurance Corporation or similar organizations (whether in the United States or elsewhere) or their successors, (iii) as may be required or appropriate in respect to any summons or subpoena or in connection with any litigation, (iv) in order to comply with any law, order, regulation or ruling applicable to such Lender, (v) to the Administrative Agent, the Collateral Agent or any other party hereto, (vi) to any prospective or actual direct or indirect contractual counterparty in any swap, hedge or similar agreement (or to any such contractual counterparty’s professional advisor), so long as such contractual counterparty (or such professional advisor) agrees to be bound by the provisions of this Section 13.16 (or language substantially similar to

 

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this Section 13.16(a) ), (vii) to any prospective or actual transferee, pledgee or participant in connection with any contemplated transfer, pledge or participation of any of the Notes or Commitments or any interest therein by such Lender, provided that such prospective transferee, pledge or participant agrees to be bound by the confidentiality provisions contained in this Section 13.16 (or language substantially similar to this Section 13.16(a) ), (viii) in connection with exercise of any remedies hereunder or under any other Credit Document or any action or proceeding relating to this Agreement or any other Credit Document or the enforcement of rights hereunder and thereunder; (ix) as has become available on a non-confidential basis from a source other than the Borrower, and (x) on a confidential basis to (a) any rating agency in connection with rating the Borrower or the credit facilities provided hereunder or (b) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder; provided , further , that, to the extent permitted pursuant to any applicable law, order, regulation or ruling, and other than in connection with credit and other bank examinations conducted in the ordinary course with respect to such Lender, in the case of any disclosure pursuant to the foregoing clauses (ii), (iii) or (iv), such Lender will use its commercially reasonable efforts to notify the Borrower in advance of such disclosure so as to afford the Borrower the opportunity to protect the confidentiality of the information proposed to be so disclosed.

(b) The Borrower hereby acknowledges and agrees that each Lender may share with any of its Affiliates, and such Affiliates may share with such Lender, any information related to Holdings or the Borrower (including, without limitation, any non-public customer information regarding the creditworthiness of Holdings or the Borrower), provided such Persons shall be subject to the provisions of this Section 13.16 to the same extent as such Lender.

13.17 USA Patriot Act Notice . Each Lender hereby notifies each Credit Party that pursuant to the requirements of the USA PATRIOT Act Title III of Pub. 107-56 (signed into law October 26, 2001 and amended on March 9, 2009) (the “ Patriot Act ”), it is required to obtain, verify, and record information that identifies Holdings and the Borrower, which information includes the name of each Credit Party and other information that will allow such Lender to identify the Credit Party in accordance with the Patriot Act, and each Credit Party agrees to provide such information from time to time to any Lender.

13.18 Electronic Execution of Assignments and Certain Other Documents . The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption Agreement or in any amendment or other modification hereof (including waivers and consents) shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

13.19 [Reserved] .

13.20 No Advisory or Fiduciary Responsibility . In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Credit Document), each of the Borrower and Holdings acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent, the Collateral Agent and the Joint Lead Arrangers are arm’s-length commercial transactions between the Borrower, Holdings and their respective Affiliates, on the one hand, and the Administrative Agent, the Collateral Agent and the Joint Lead Arrangers, on the other hand, (B) each of the Borrower and Holdings has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) each of the Borrower and Holdings is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Credit Documents; (ii) (A) the Administrative Agent, the Collateral Agent and the Joint Lead Arrangers each is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower and Holdings or any of their respective Affiliates, or any other Person and (B) none of the Administrative Agent, the Collateral Agent or the Joint Lead Arrangers has any obligation to the Borrower and Holdings or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Credit Documents; and (iii) the Administrative Agent, the

 

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Collateral Agent and the Joint Lead Arrangers and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and Holdings and their respective Affiliates, and none of the Administrative Agent, the Collateral Agent or the Joint Lead Arrangers has any obligation to disclose any of such interests to the Borrower and Holdings or any of their respective Affiliates. To the fullest extent permitted by law, each of the Borrower and Holdings hereby waives and releases any claims that it may have against the Administrative Agent, the Collateral Agent and the Joint Lead Arrangers with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

13.21 MLP Set-Up Transactions . Notwithstanding anything to the contrary in the Credit Documents, nothing therein shall prohibit the MLP Set-Up Transactions.

13.22 Separate Tranches . Notwithstanding anything to the contrary in the Credit Documents, the Agents, the Lenders and the Guaranteed Creditors hereby agree and acknowledge that the Term B-1 Facility and the Term B-2 Facility shall be deemed to be separate and distinct obligations of the Borrower and the Guarantors and separate facilities for purposes of the Credit Documents (it being understood that nothing in this Section 13.22 shall be deemed to affect any provisions which expressly apply to all Tranches of Term Loans), including the pari passu nature of security thereon.

Section 14. Holdings Guaranty .

14.01 The Guaranty . In order to induce the Agents, the Collateral Agent and the Lenders to enter into this Agreement and to extend credit hereunder, and to induce the other Guaranteed Creditors to enter into Designated Interest Rate Protection Agreements and Designated Treasury Services Agreements in recognition of the direct and indirect benefits to be received by Holdings from the proceeds of the Term Loans and the entering into of such Designated Interest Rate Protection Agreements and Designated Treasury Services Agreements, Holdings hereby agrees with the Guaranteed Creditors as follows: Holdings hereby unconditionally and irrevocably guarantees as primary obligor and not merely as surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of its Obligations to the Guaranteed Creditors. If any or all of the Obligations of Holdings to the Guaranteed Creditors becomes due and payable hereunder, Holdings, unconditionally and irrevocably, promises to pay such indebtedness to the Administrative Agent and/or the other Guaranteed Creditors, or order, on demand, together with any and all expenses which may be incurred by the Administrative Agent and the other Guaranteed Creditors in collecting any of the Obligations. This Holdings Guaranty is a guaranty of payment and not of collection. This Holdings Guaranty is a continuing one and all liabilities to which it applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon. If claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrower), then and in such event Holdings agrees that any such judgment, decree, order, settlement or compromise shall be binding upon Holdings, notwithstanding any revocation of this Holdings Guaranty or any other instrument evidencing any liability of any the Borrower, and Holdings shall be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.

14.02 Bankruptcy . Additionally, Holdings unconditionally and irrevocably guarantees the payment of any and all of its Obligations to the Guaranteed Creditors whether or not due or payable by the Borrower upon the occurrence of any of the events specified in Section 11.05 , and irrevocably and unconditionally promises to pay such indebtedness to the Guaranteed Creditors, or order, on demand, in lawful money of the United States.

14.03 Nature of Liability . The liability of Holdings hereunder is primary, absolute and unconditional, exclusive and independent of any security for or other guaranty of the Obligations, whether executed by any other guarantor or by any other party, and Holdings understands and agrees, to the fullest extent permitted under law, that the liability of Holdings hereunder shall not be affected or impaired by (a) any direction as to application of payment by the Borrower or by any other party, or (b) any other continuing or other guaranty, undertaking or maximum liability of a guarantor or of any other party as to the Obligations, or (c) any payment on or in reduction of any such other guaranty or undertaking (other than payment in cash of the Obligations), or (d) any dissolution, termination or

 

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increase, decrease or change in personnel by the Borrower, or (e) any payment made to any Guaranteed Creditor on the Obligations which any such Guaranteed Creditor repays to the Borrower pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding, and Holdings waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding, or (f) any action or inaction by the Guaranteed Creditors as contemplated in Section 14.05 , or (g) any invalidity, irregularity or enforceability of all or any part of the Obligations or of any security therefor.

14.04 Independent Obligation . The obligations of Holdings hereunder are independent of the obligations of any other guarantor, any other party or the Borrower, and a separate action or actions may be brought and prosecuted against Holdings whether or not action is brought against any other guarantor, any other party or the Borrower and whether or not any other guarantor, any other party or the Borrower be joined in any such action or actions. Holdings waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement thereof. Any payment by the Borrower or other circumstance which operates to toll any statute of limitations as to the Borrower shall operate to toll the statute of limitations as to Holdings.

14.05 Authorization . To the fullest extent permitted under law, Holdings authorizes the Guaranteed Creditors without notice or demand, and without affecting or impairing its liability hereunder, from time to time to:

(a) change the manner, place or terms of payment of, and/or change or extend the time of payment of, renew, increase, accelerate or alter, any of the Obligations (including any increase or decrease in the principal amount thereof or the rate of interest or fees thereon), any security therefor, or any liability incurred directly or indirectly in respect thereof, and this Holdings Guaranty shall apply to the Obligations as so changed, extended, renewed or altered;

(b) take and hold security for the payment of the Obligations and sell, exchange, release, impair, surrender, realize upon or otherwise deal with in any manner and in any order any property by whomsoever at any time pledged or mortgaged to secure, or howsoever securing, the Obligations or any liabilities (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and/or any offset there against;

(c) exercise or refrain from exercising any rights against the Borrower, any other Credit Party or others or otherwise act or refrain from acting;

(d) release or substitute any one or more endorsers, guarantors, the Borrower, other Credit Parties or other obligors;

(e) settle or compromise any of the Obligations, any security therefor or any liability (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of the Borrower to its creditors other than the Guaranteed Creditors;

(f) apply any sums by whomsoever paid or howsoever realized to any liability or liabilities of the Borrower to the Guaranteed Creditors regardless of what liability or liabilities of the Borrower remain unpaid;

(g) consent to or waive any breach of, or any act, omission or default under, this Agreement, any other Credit Document, any Designated Interest Rate Protection Agreement, any Designated Treasury Services Agreement or any of the instruments or agreements referred to herein or therein, or otherwise amend, modify or supplement this Agreement, any other Credit Document, any Designated Interest Rate Protection Agreement, any Designated Treasury Services Agreement or any of such other instruments or agreements; and/or

(h) take any other action which would, under otherwise applicable principles of common law, give rise to a legal or equitable discharge of Holdings from its liabilities under this Holdings Guaranty.

 

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14.06 Reliance . It is not necessary for any Guaranteed Creditor to inquire into the capacity or powers of the Borrower or the members, managers, officers, directors, partners or agents acting or purporting to act on its behalf, and any Obligations made or created in reliance upon the professed exercise of such powers shall be guaranteed hereunder.

14.07 Subordination . Any indebtedness of the Borrower now or hereafter owing to Holdings is hereby subordinated to the Obligations of the Borrower owing to the Guaranteed Creditors; and if the Administrative Agent so requests at a time when an Event of Default exists, all such indebtedness of the Borrower to Holdings shall be collected, enforced and received by Holdings for the benefit of the Guaranteed Creditors and be paid over to the Administrative Agent on behalf of the Guaranteed Creditors on account of the Obligations of the Borrower to the Guaranteed Creditors, but without affecting or impairing in any manner the liability of Holdings under the other provisions of this Holdings Guaranty. Without limiting the generality of the foregoing, Holdings hereby agrees with the Guaranteed Creditors that it will not exercise any right of subrogation which it may at any time otherwise have as a result of this Holdings Guaranty (whether contractual, under Section 509 of the Bankruptcy Code or otherwise) until all Obligations have been irrevocably paid in full in cash.

14.08 Waiver .

(a) Holdings waives (except as shall be required by applicable law and cannot be waived) any right to require any Guaranteed Creditor to (i) proceed against the Borrower, any other guarantor or any other party, (ii) proceed against or exhaust any security held from the Borrower, any other guarantor or any other party or (iii) pursue any other remedy in any Guaranteed Creditor’s power whatsoever. Holdings waives any defense (except as shall be required by applicable statute and cannot be waived) based on or arising out of (i) any defense of the Borrower, any other guarantor or any other party, other than payment of the Obligations to the extent of such payment, based on or arising out of the disability of the Borrower, any other guarantor or any other party, or the validity, legality or unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of the Borrower other than payment of the Obligations to the extent of such payment, (ii) non-perfection or release of collateral in secured transactions or (iii) any other circumstance that might constitute a defense of the Borrower or Holdings. The Guaranteed Creditors may, at their election, foreclose on any security held by the Administrative Agent, the Collateral Agent or any other Guaranteed Creditor by one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable (to the extent such sale is permitted by applicable law), or exercise any other right or remedy the Guaranteed Creditors may have against the Borrower or any other party, or any security, without affecting or impairing in any way the liability of Holdings hereunder except to the extent the Obligations have been paid. Holdings waives, to the fullest extent permitted under law, any defense arising out of any such election by the Guaranteed Creditors, even though such election operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of Holdings against the Borrower or any other party or any security.

(b) Holdings waives, to the fullest extent permitted under law, all presentments, demands for performance, protests and notices, including, without limitation, notices of nonperformance, notices of protest, notices of dishonor, notices of acceptance of this Holdings Guaranty, and notices of the existence, creation or incurring of new or additional Obligations. Holdings assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Obligations and the nature, scope and extent of the risks which Holdings assumes and incurs hereunder, and agrees that neither the Administrative Agent nor any of the other Guaranteed Creditors shall have any duty to advise Holdings of information known to them regarding such circumstances or risks.

14.09 Maximum Liability . It is the desire and intent of Holdings and the Guaranteed Creditors that this Holdings Guaranty shall be enforced against Holdings to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. If, however, and to the extent that, the obligations of Holdings under this Holdings Guaranty shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers), then the amount of Holdings’ obligations under this Holdings Guaranty shall be deemed to be reduced and Holdings shall pay the maximum amount of the Obligations which would be permissible under applicable law.

 

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14.10 Payments . All payments made by Holdings pursuant to this Section 14 will be made without setoff, counterclaim or other defense, and shall be subject to the provisions of Sections 5.03 and 5.04 .

*    *    *

 

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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Agreement as of the date first above written.

 

OCI USA INC.
By:   /s/ Kevin Struve
  Name: Kevin Struve
  Title: President and Secretary
OCI BEAUMONT LLC
By:   /s/ Frank Bakker
  Name: Frank Bakker
  Title: Vice President

[Signature Page 2013 OCI Term Loan Agreement]


BANK OF AMERICA, N.A.,
as Administrative Agent
By:   /s/ Edwin B. Cox, Jr.
  Name: Edwin B. Cox, Jr.
  Title: Managing Director

[Signature Page 2013 OCI Term Loan Agreement]


SCHEDULE 2.01

to the Credit Agreement

Commitments

 

Lender

   Term B-1 Loan      Term B-1 Loan
Applicable
Percentage
    Term B-2 Loan      Term B-2 Loan
Applicable
Percentage
 

BANK OF AMERICA, N.A.

   $ 41,666,666.67         33.33   $ 78,333,333.33         33.33

CITIBANK, N.A.

   $ 41,666,666.67         33.33   $ 78,333,333.33         33.33

BARCLAYS BANK PLC

   $ 41,666,666.67         33.33   $ 78,333,333.33         33.33

Total

   $ 125,000,000         100   $ 235,000,000         100


SCHEDULE 8.18

to the Credit Agreement

Labor Matters

None.


SCHEDULE 9.13

to the Credit Agreement

Post-Closing Actions

1. The Borrower shall deliver to the Collateral Agent each of the following items as soon as reasonably practicable and in any event by such date as may be necessary in order to cause the Mortgage referred to in clause (i)  below to be recorded in the recording office of the applicable political subdivision where any Mortgaged Property is situated (the “ Recording Office ”) within 30 days after the Closing Date (or such later date as the Administrative Agent may agree in its sole discretion):

(i) Mortgages; Fixture Filings . A Mortgage encumbering each parcel of Mortgaged Property of any Credit Party as of the Closing Date in favor of the Collateral Agent, for the benefit of the Guaranteed Creditors, duly executed and acknowledged by each Credit Party that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the Recording Office, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a Lien under applicable Requirements of Law, and such financing statements and other instruments as may be necessary to grant a mortgage Lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Administrative Agent;

(ii) Consents and Approvals . With respect to such Mortgaged Property, such consents, approvals, amendments (including, without limitation, a UCC-3 Amendment or Termination relating to that certain Financing Statement in favor of Air Liquide Large Industries U.S., L.P, as Secured Party filed for record on May 13, 2011 under County Clerk’s file No. 2011015924 of the official Public Records of Real Property of Jefferson County, Texas), supplements, estoppels (including, without limitation, an estoppel relating to that certain Leasehold Services Agreement by and between Lucite International, Inc. and OCI Beaumont LLC, as amended), tenant subordination agreements or other instruments (including, without limitation, a release of that certain Lien Affidavit filed for record on December 6, 2011 under County Clerk’s File No. 2011039435 of the official Public Records of Real Property of Jefferson County, Texas executed by Houston Creative Resource Group, Inc.) as may reasonably be deemed necessary by the Administrative Agent in order for the owner or holder of such Mortgaged Property to grant the Lien contemplated by the Mortgage with respect thereto;

(iii) Opinions . Legal opinions, addressed to the Collateral Agent and the Guaranteed Creditors, of (a) local counsel to the Credit Parties in each jurisdiction where the Mortgaged Property is located regarding the enforceability of each Mortgage and such other matters as may be reasonably requested by the Administrative Agent and (b) Latham & Watkins LLP regarding due authorization, execution and delivery of each Mortgage, in each case of clauses (a)  and (b)  above in form and substance reasonably satisfactory to the Administrative Agent;


(iv) Payment of Recording Fees and Costs . Evidence reasonably acceptable to the Administrative Agent of payment by the Borrower of all search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages required under this paragraph 1 .

2. The Borrower shall deliver to the Collateral Agent each of the following items within 90 days after the Closing Date (or such later date as the Administrative Agent may agree in its sole discretion):

(i) Amendments to Mortgages and Fixture Filings . To the extent reasonably requested by the Administrative Agent in order to create the Lien under applicable Requirements of Law in favor of the Collateral Agent, for the benefit of the Guaranteed Creditors encumbering all of the Mortgaged Property (in light of any additional assets, rights, encumbrances or other matters disclosed in the Surveys and/or the Mortgage Policies referred to in this paragraph 2 ), an additional Mortgage or an amendment to any Mortgage delivered pursuant to paragraph 1 above, duly executed and acknowledged by each Credit Party that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the Recording Office, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof, and such amendments to or additional financing statements and other instruments as may be necessary to grant a mortgage Lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Administrative Agent;

(ii) Consents and Approvals . With respect to such Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as may reasonably be deemed necessary by the Administrative Agent in order for the owner or holder of such Mortgaged Property to grant and/or amend, as applicable, the Lien contemplated by the Mortgage with respect thereto;

(iii) Title Insurance Policies . With respect to each Mortgage, a mortgagee title insurance policy or a binding commitment with respect thereto having the effect of a policy of title insurance with respect to each Mortgage, naming the Collateral Agent as the insured for the benefit of the Guaranteed Creditors, issued by Chicago Title Insurance Company, or a different nationally recognized title insurance company reasonably acceptable to the Administrative Agent, in form and substance and in an amount reasonably acceptable to the Administrative Agent insuring the Mortgage to be a valid and subsisting first-priority Lien on the property described therein, free and clear of all Liens other than Permitted Collateral Liens, which shall (A) to the extent reasonably necessary, include such reinsurance arrangements (with provisions for direct access, if reasonably necessary) as shall be reasonably acceptable to the Administrative Agent, (B) contain a “tie-in” or “cluster” endorsement, if available under applicable law ( i.e ., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount) and (C) have been supplemented by such endorsements (to the extent available) as shall be reasonably


requested by the Administrative Agent, including endorsements on matters relating to usury, first loss, last dollar, zoning and contiguity, doing business, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, address, separate tax lot and so-called comprehensive coverage over covenants and restrictions (each, a “ Mortgage Policy ”);

(iv) Survey . With respect to each parcel of Mortgaged Property, (a) a copy of an existing survey, together with an “affidavit of no change” satisfactory to the title insurance company and the Administrative Agent and sufficient to remove the standard survey exception and provide reasonable and customary survey related endorsements to the Mortgage Policy or (b) a survey otherwise satisfactory to the title insurance company to remove the standard survey exception and provide reasonable and customary survey related endorsements to the Mortgage Policy, as elected by the Administrative Agent in its reasonable discretion;

(v) Site Plan . A comprehensive site plan of the Plant, the Option Parcel and any appurtenant, beneficial or burdening easements, rights of way, and other rights or interests with respect to Real Property utilized in the operation of the Credit Parties’ business, in form and substance reasonably satisfactory to the Administrative Agent;

(vi) Zoning . With respect to each parcel of Mortgaged Property, a zoning report or other evidence of compliance with zoning and similar Requirements of Law in form and substance reasonably satisfactory to the Administrative Agent;

(vii) Flood Insurance Documentation . With respect to any parcel of improved Mortgaged Property, a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each applicable Credit Party) together with a copy of, or a certificate as to coverage under, and a declaration page relating to, the insurance policies required by Section 9.03 hereof (including, without limitation, flood insurance policies) and the applicable provisions of the Security Documents, each of which (i) shall be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payable or mortgagee endorsement (as applicable), (ii) shall name the Collateral Agent, on behalf of the Guaranteed Creditors, as additional insured, (iii) in the case of flood insurance, shall (a) identify the addresses of each property located in a special flood hazard area, (b) indicate the applicable flood zone designation, the flood insurance coverage and the deductible relating thereto and (c) provide that the insurer will give the Collateral Agent 45 days’ written notice of cancellation or non-renewal if permitted by applicable law and (iv) shall be otherwise in form and substance satisfactory to the Administrative Agent;

(viii) Leases . With respect to the Mortgaged Property, copies of all leases in which any Credit Party holds the lessor’s interest or other agreements relating to possessory interests, if any, which agreements shall be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably satisfactory to the Administrative Agent, and shall otherwise be acceptable to the Administrative Agent;


(ix) Opinions . With respect to any Mortgage (or amendment thereto) delivered pursuant to this paragraph 2 , legal opinions, addressed to the Collateral Agent and the Guaranteed Creditors, of (a) local counsel to the Credit Parties in each jurisdiction where the Mortgaged Property is located regarding the enforceability of each such Mortgage and/or amendment, as applicable, and such other matters as may be reasonably requested by the Administrative Agent and (b) Latham & Watkins LLP regarding due authorization, execution and delivery of such Mortgage and/or amendment, as applicable, in each case of clauses (a)  and (b)  above in form and substance reasonably satisfactory to the Administrative Agent;

(x) Perfection Certificate Supplement . A supplement to the Perfection Certificate required to be delivered on the Closing Date, which supplement reflects any applicable changes to Schedules 7(a), (b) and (c) thereof;

(xi) Affidavits and Other Information . With respect to each Mortgaged Prop-erty, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the title insurance company to issue the Mortgage Policies contemplated above; and

(xii) Payment of Title Fees and Premiums . Evidence reasonably acceptable to the Administrative Agent of payment by the Borrower of all Mortgage Policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the Mortgage Policies.

3. The Borrower shall deliver to the Collateral Agent each of the following items within 30 business days after the Closing Date (or such later date as the Administrative Agent may agree in its sole discretion):

(i) Rating Agency Engagement Letters . Engagement letters from S&P and Moody’s for corporate credit rating and public credit rating for the Term Facility.

4. The Borrower shall deliver to the Collateral Agent each of the following items within 14 days after the Closing Date (or such later date as the Administrative Agent may agree in its sole discretion):

(i) Insurance Certificate Endorsements . Endorsements of all insurance certificates that were delivered on the Closing Date naming the Collateral Agent as Mortgagee and Loss Payee or Additional Insured, as applicable, in form and substance reasonably acceptable to the Collateral Agent.


SCHEDULE 10.01(iii)

to the Credit Agreement

Existing Liens

 

  1. Lien securing the following Letter of Credit.

 

Holding Bank

   Applicant    Beneficiary    Effective Date      Expiration
Date
     Amount
(USD)
 

Citibank—USA

   OCI Beaumont LLC    Etoile 660
Madison LLC –
NY, USA
     8/17/2012         4/16/2020         282,300.00   

 

  2. Lien against Borrower in favor of Air Liquide Large Industries US LP, up to a value of $2,600,000.

 

  3. Lien against Borrower in favor of Houston Creative Resource Group, Inc.

 

  4. Lien against Borrower in favor of Ascentium Capital LLC.


SCHEDULE 10.04(v)

to the Credit Agreement

Existing Indebtedness (Including Letters of Credit)

Intercompany Notes

 

Lender

   Borrower    Principal Amount    Date of Loan
Agreement
   Interest Rate   Maturity
Date

OCI Fertilizer International B.V.

   Pandora
Methanol
LLC
   USD 30,482,800
of up to USD
50,000,000
   5/18/2012    One-month
Libor plus
9.25%
  12/31/2014

OCI Fertilizer International B.V.

   Pandora
Methanol
LLC
   USD 40,000,000    11/23/2011;
amendment
effective as of
6/22/2012
   One-month
Libor plus
9.25%
  8/1/2014

OCI Fertilizer International B.V.

   Pandora
Methanol
LLC
   USD 100,000,000    1/19/2012;
amendment
effective as of
6/22/2012
   One-month
Libor plus
9.25%
  8/1/2014

Letters of Credit

 

Holding Bank

   Applicant    Beneficiary    Effective
Date
     Expiration
Date
     Amount
(USD)
 

Citibank—USA

   OCI Beaumont
LLC
   Etoile 660
Madison LLC –
NY, USA
     8/17/2012         4/16/2020         282,300.00   


SCHEDULE 13.03

to the Credit Agreement

Lender Addresses

Administrative Agent

Administrative Agent’s Office (for payments and Requests for Credit Extensions):

Bank of America, N.A., as Administrative Agent

222 Broadway, New York, NY 10038

Attention:

Telephone:

Facsimile:

Electronic Mail:

Wire Instruction:

Bank of America, N.A., New York, NY

ABA #

Account No.:

Attention:

Ref:

Other Notices as Administrative Agent:

Bank of America, N.A., as Administrative Agent

901 Main Street, Dallas, TX 75202

Attention:

Telephone:

Facsimile:

Electronic Mail:


EXHIBIT A-1

FORM OF NOTICE OF BORROWING

[Date]

Bank of America, N.A., as Administrative Agent

(the “ Administrative Agent ”) for the Lenders

party to the Credit Agreement referred to below

Credit Services

222 Broadway

New York, NY 10038

Attention: Niyati Jhaveri

Ladies and Gentlemen:

The undersigned, OCI Beaumont LLC, a Texas limited liability company (the “ Borrower ”), refers to the Term Loan Credit Agreement, dated as of May 21, 2013 (as amended, restated, modified and/or supplemented from time to time, the “ Credit Agreement ,” the terms defined therein being used herein as therein defined), among the Borrower, OCI USA Inc., a Delaware corporation (“ Holdings ”), the lenders party thereto from time to time (the “ Lenders ”), Barclays Bank PLC, as Syndication Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as administrative agent (together with any successor administrative agent, the “ Administrative Agent ”); hereby gives you irrevocable notice pursuant to Section 2.03 of the Credit Agreement that the undersigned hereby requests a Borrowing under the Credit Agreement and sets forth below the information relating to such Borrowing (the “ Proposed Borrowing ”) as required by Section 2.03 of the Credit Agreement:

(i) The Business Day of the Proposed Borrowing is             ,             . 1

(ii) The aggregate principal amount of the Proposed Borrowing is $            .

(iii) The Term Loans to be made pursuant to the Proposed Borrowing shall be initially maintained as [Base Rate Term Loans] [LIBO Rate Term Loans].

(iv) [The initial Interest Period for the Proposed Borrowing is [one month] [two months] [three months]. 2

 

 

1   Shall be at least one Business Day in the case of Base Rate Term Loans and at least three Business Days in the case of LIBO Rate Term Loans, in each case, after the date hereof, provided that (in each case) any such notice shall be deemed to have been given on a certain day only if given before [12:00 Noon] (New York City time) on such day (or such later time as the Administrative Agent shall agree in its sole and absolute discretion).

 

Exhibit A-1-1


The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing:

(A) the representations and warranties contained in the Credit Agreement and the other Credit Documents are and will be true and correct in all material respects (in each case, any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such date), before and after giving effect to the Proposed Borrowing and to the application of the proceeds thereof, as though made on such date, unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date; and

(B) no Default or Event of Default has occurred and is continuing, or would result from such Proposed Borrowing or from the application of the proceeds thereof.

 

Very truly yours,
OCI BEAUMONT LLC
By:  
 

 

  Name:
  Title:

 

 

2   To be included for a Proposed Borrowing of LIBO Rate Term Loans.

 

Exhibit A-1-2


EXHIBIT A-2

FORM OF NOTICE OF CONVERSION/CONTINUATION

[Date]

Bank of America, N.A., as Administrative Agent

(the “ Administrative Agent ”) for the

Lenders party to the Credit Agreement referred to below

Credit Services

222 Broadway

New York, NY 10038

Attention: Niyati Jhaveri

Ladies and Gentlemen:

The undersigned, OCI Beaumont LLC, a Texas limited liability company (the “ Borrower ”), refers to the Term Loan Credit Agreement, dated as of May 21, 2013 (as amended, restated, modified and/or supplemented from time to time, the “ Credit Agreement ,” the terms defined therein being used herein as therein defined), among the Borrower, OCI USA Inc., a Delaware corporation (“ Holdings ”), the lenders party thereto from time to time (the “ Lenders ”), Barclays Bank PLC, as Syndication Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as administrative agent (together with any successor administrative agent, the “ Administrative Agent ”); hereby gives you irrevocable notice pursuant to Section 2.06 of the Credit Agreement that the undersigned hereby requests to [convert][continue] the Borrowing of Term Loans referred to below and sets forth below the information relating to such [conversion][continuation] (the “ Proposed [Conversion][Continuation] ”) as required by Section 2.06 of the Credit Agreement:

(i) The Proposed [Conversion][Continuation] relates to the Borrowing of Term Loans originally made on May [    ], 2013 (the “ Outstanding Borrowing ”) in the principal amount of $             and currently maintained as a Borrowing of [Base Rate Term Loans][LIBO Rate Term Loans with an Interest Period ending on            , 2013].

(ii) The Business Day of the Proposed [Conversion][Continuation] is             . 1

 

 

1   Shall be a Business Day at least three Business Days (or one Business Day in the case of a conversion into Base Rate Term Loans) after the date hereof, provided that such notice shall be deemed to have been given on a certain day only if given before [12:00 Noon] (New York City time) on such day.

 

Exhibit A-2-1


(iii) The Outstanding Borrowing shall be [continued as a Borrowing of [Base Rate Term Loans] [LIBO Rate Term Loans with an Interest Period ending on            ,             ]][converted into a Borrowing of [Base Rate Term Loans] [LIBO Rate Term Loans with an Interest Period ending on            ,             ]]. 2 3

[The undersigned hereby certifies that no Event of Default is in existence on the date of the Proposed Conversion]. 4

 

Very truly yours,
OCI BEAUMONT LLC
By:  
 

 

  Name:
  Title:

 

2   In the event that either (x) only a portion of the Outstanding Borrowing is to be so converted or continued or (y) the Outstanding Borrowing is to be divided into separate Borrowings with different Interest Periods, the Borrower should make appropriate modifications to this clause to reflect same.
3   To be included for a Proposed Conversion or Continuation.
4   In the case of a Proposed Conversion, insert this sentence only in the event that the conversion is from a Base Rate Term Loan to a LIBO Rate Term Loan.

 

Exhibit A-2-2


EXHIBIT B-1

FORM OF TERM B-1 NOTE

 

$                                         New York, New York
                         ,         

FOR VALUE RECEIVED, OCI BEAUMONT LLC, a Texas limited liability company (the “ Borrower ”) hereby promises to pay to [            ] (the “ Lender ”), in lawful money of the United States of America in immediately available funds, at the Payment Office (as defined in the Credit Agreement referred to below) located at [Bank of America, N.A., as Administrative Agent, Credit Services, 901 Main Street, Dallas, TX 75202, Attention: Eldred Sholars] on or before the Maturity Date for Term B-1 Loans (as defined in the Credit Agreement) the principal sum of                  DOLLARS ($            ) or, if less, the unpaid principal amount of all Term B-1 Loans made by the Lender pursuant to the Credit Agreement, payable at such times and in such amounts as are specified in the Credit Agreement.

The Borrower promises also to pay interest on the unpaid principal amount of each Term B-1 Loan made by the Lender in like money at said office from the date hereof until paid at the rates and at the times provided in Section 2.08 of the Credit Agreement.

This Note is one of the Term B-1 Notes referred to in the Term Loan Credit Agreement, dated as of May 21, 2013, among the Borrower, OCI USA Inc., a Delaware corporation (“ Holdings ”), the lenders party thereto from time to time (the “ Lenders ”), Barclays Bank PLC, as Syndication Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as administrative agent (together with any successor administrative agent, the “ Administrative Agent ”) (as amended, restated, modified and/or supplemented from time to time, the “ Credit Agreement ”) and is entitled to the benefits thereof and of the other Credit Documents (as defined in the Credit Agreement). This Note is secured by the Security Documents (as defined in the Credit Agreement) and is entitled to the benefits of the Guaranty (as defined in the Credit Agreement). As provided in the Credit Agreement, this Note is subject to voluntary prepayment and mandatory repayment prior to the Maturity Date, in whole or in part, and Term B-1 Loans may be converted from one Type (as defined in the Credit Agreement) into another Type to the extent provided in the Credit Agreement. This Note may only be transferred to the extent and in the manner set forth in the Credit Agreement.

In case an Event of Default (as defined in the Credit Agreement) shall occur and be continuing, the principal of and accrued interest on this Note may be declared to be due and payable in the manner and with the effect provided in the Credit Agreement.

The Borrower hereby waives presentment, demand, protest or notice of any kind in connection with this Note.

 

Exhibit B-1-1


THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.

 

OCI BEAUMONT LLC
By:  
 

 

  Name:
  Title:

 

Exhibit B-1-2


EXHIBIT B-2

FORM OF TERM B-2 NOTE

 

$                             New York, New York
                     ,         

FOR VALUE RECEIVED, OCI BEAUMONT LLC, a Texas limited liability company (the “ Borrower ”) hereby promises to pay to [            ] (the “ Lender ”), in lawful money of the United States of America in immediately available funds, at the Payment Office (as defined in the Credit Agreement referred to below) located at [Bank of America, N.A., as Administrative Agent, Credit Services, 901 Main Street, Dallas, TX 75202, Attention: Eldred Sholars] on or before the Maturity Date for Term B-2 Loans (as defined in the Credit Agreement) the principal sum of                      DOLLARS ($        ) or, if less, the unpaid principal amount of all Term B-2 Loans made by the Lender pursuant to the Credit Agreement, payable at such times and in such amounts as are specified in the Credit Agreement.

The Borrower promises also to pay interest on the unpaid principal amount of each Term B-2 Loan made by the Lender in like money at said office from the date hereof until paid at the rates and at the times provided in Section 2.08 of the Credit Agreement.

This Note is one of the Term B-2 Notes referred to in the Term Loan Credit Agreement, dated as of May 21, 2013, among the Borrower, OCI USA Inc., a Delaware corporation (“ Holdings ”), the lenders party thereto from time to time (the “ Lenders ”), Barclays Bank PLC, as Syndication Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as administrative agent (together with any successor administrative agent, the “ Administrative Agent ”) (as amended, restated, modified and/or supplemented from time to time, the “ Credit Agreement ”) and is entitled to the benefits thereof and of the other Credit Documents (as defined in the Credit Agreement). This Note is secured by the Security Documents (as defined in the Credit Agreement) and is entitled to the benefits of the Guaranty (as defined in the Credit Agreement). As provided in the Credit Agreement, this Note is subject to voluntary prepayment and mandatory repayment prior to the Maturity Date, in whole or in part, and Term B-2 Loans may be converted from one Type (as defined in the Credit Agreement) into another Type to the extent provided in the Credit Agreement. This Note may only be transferred to the extent and in the manner set forth in the Credit Agreement.

In case an Event of Default (as defined in the Credit Agreement) shall occur and be continuing, the principal of and accrued interest on this Note may be declared to be due and payable in the manner and with the effect provided in the Credit Agreement.

The Borrower hereby waives presentment, demand, protest or notice of any kind in connection with this Note.

 

Exhibit B-2-1


THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.

 

OCI BEAUMONT LLC

By:    
  Name:
  Title:

 

Exhibit B-2-2


EXHIBIT C-1

FORM OF

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Term Loan Credit Agreement dated as of May 21, 2013 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among OCI Beaumont LLC (the “ Borrower ”), OCI USA Inc. (“ Holdings ”), the lenders party thereto from time to time (the “ Lenders ”), Barclays Bank PLC, as Syndication Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as administrative agent (together with any successor administrative agent, the “ Administrative Agent ”). Capitalized terms used herein that are not defined herein shall have the meanings ascribed to them in the Credit Agreement.

Pursuant to the provisions of Section 5.04(c) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Term Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code and (v) no payments in connection with any Credit Document are effectively connected with the undersigned’s conduct of a U.S. trade or business.

The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, or if a lapse in time or change in circumstances renders the information on this certificate obsolete, expired or inaccurate, the undersigned shall promptly so inform the Borrower and the Administrative Agent in writing and deliver promptly to the Borrower and the Administrative Agent an updated certificate or promptly notify the Borrower and the Administrative Agent in writing of its inability to do so, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned or in either of the two calendar years preceding such payments, or at such times as are reasonably requested by the Borrower or the Administrative Agent.

 

[NAME OF LENDER]

By:

   
  Name:
  Title:

Date:                     , 20[    ]

 

Exhibit C-1-1


EXHIBIT C-2

FORM OF

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Term Loan Credit Agreement dated as of May 21, 2013 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among OCI Beaumont LLC (the “ Borrower ”), OCI USA Inc. (“ Holdings ”), the lenders party thereto from time to time (the “ Lenders ”), Barclays Bank PLC, as Syndication Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as administrative agent (together with any successor administrative agent, the “ Administrative Agent ”). Capitalized terms used herein that are not defined herein shall have the meanings ascribed to them in the Credit Agreement.

Pursuant to the provisions of Sections 5.04(c) and 13.04(a) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code and (v) no payments in connection with any Credit Document are effectively connected with the undersigned’s conduct of a U.S. trade or business.

The undersigned has furnished its participating Lender with a certificate of its non-U.S. person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, or if a lapse in time or change in circumstances renders the information on this certificate obsolete, expired or inaccurate, the undersigned shall promptly so inform such Lender in writing and deliver promptly to the Borrower and the Administrative Agent an updated certificate or promptly notify the Borrower and the Administrative Agent in writing of its inability to do so, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned or in either of the two calendar years preceding such payments, or at such times as are reasonably requested by the Borrower or the Administrative Agent.

 

[NAME OF PARTICIPANT]

By:

   
  Name:
  Title:

Date:                     , 20[    ]

 

Exhibit C-2-1


EXHIBIT C-3

FORM OF

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Term Loan Credit Agreement dated as of May 21, 2013 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among OCI Beaumont LLC (the “ Borrower ”), OCI USA Inc. (“ Holdings ”), the lenders party thereto from time to time (the “ Lenders ”), Barclays Bank PLC, as Syndication Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as administrative agent (together with any successor administrative agent, the “ Administrative Agent ”). Capitalized terms used herein that are not defined herein shall have the meanings ascribed to them in the Credit Agreement.

Pursuant to the provisions of Sections 5.04(c) and 13.04(a) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) neither the undersigned nor any of its direct or indirect partners/members is a bank within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code and (vi) no payments in connection with any Credit Document are effectively connected with the undersigned’s or its direct or indirect partners/members’ conduct of a U.S. trade or business.

The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) and IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, or if a lapse in time or change in circumstances renders the information on this certificate obsolete, expired or inaccurate, the undersigned shall promptly so inform such Lender in writing and deliver promptly to such Lender an updated certificate or promptly notify such Lender in writing of its inability to do so and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned or in either of the two calendar years preceding such payments, or at such times as are reasonably requested by such Lender.

 

[NAME OF PARTICIPANT]

By:

   
  Name:
  Title:

Date:                     , 20[    ]

 

Exhibit C-3-1


EXHIBIT C-4

FORM OF

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Term Loan Credit Agreement dated as of May 21, 2013 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among OCI Beaumont LLC (the “ Borrower ”), OCI USA Inc. (“ Holdings ”), the lenders party thereto from time to time (the “ Lenders ”), Barclays Bank PLC, as Syndication Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as administrative agent (together with any successor administrative agent, the “ Administrative Agent ”). Capitalized terms used herein that are not defined herein shall have the meanings ascribed to them in the Credit Agreement.

Pursuant to the provisions of Section 5.04(c) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Term Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Term Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) neither the undersigned nor any of its direct or indirect partners/members is a bank within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code, and (vi) no payments in connection with any Credit Document are effectively connected with the undersigned’s or its partners/members’ conduct of a U.S. trade or business.

The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) and IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, or if a lapse in time or change in circumstances renders the information on this certificate obsolete, expired or inaccurate, the undersigned shall promptly so inform the Borrower and the Administrative Agent in writing and deliver promptly to the Borrower and the Administrative Agent an updated certificate or promptly notify the Borrower and the Administrative Agent in writing of its inability to do so, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned or in either of the two calendar years preceding such payments, or at such times as are reasonably requested by the Borrower or the Administrative Agent.

 

[NAME OF LENDER]

By:

   
  Name:
  Title:

Date:                     , 20[    ]

 

Exhibit C-4-1


EXHIBIT D

FORM OF

OFFICER’S CERTIFICATE

May [    ], 2013

This Officer’s Certificate is furnished pursuant to Section 6.02 of that certain Term Loan Credit Agreement, dated as of May 21, 2013 (as amended, restated, supplemented or modified from time to time, the “ Credit Agreement ”), among OCI Beaumont LLC, a Texas limited liability company (the “ Borrower ”), OCI USA Inc., a Delaware corporation (“ Holdings ”), the lenders party thereto from time to time (the “ Lenders ”), Barclays Bank PLC, as Syndication Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as administrative agent (together with any successor administrative agent, the “ Administrative Agent ”). Unless otherwise defined herein, capitalized terms used in this Certificate shall have the meanings set forth in the Credit Agreement.

I, [            ], the [            ] of the Borrower, in that capacity only and not in my individual capacity (and without personal liability), DO HEREBY CERTIFY on behalf of the Borrower that all of the conditions set forth in Section 6.07 and Section 6.16 of the Credit Agreement have been satisfied as of the date hereof.

[Remainder of this page intentionally left blank]

 

Exhibit D-1


IN WITNESS WHEREOF, the undersigned has executed this Officer’s Certificate as of the date first set forth above.

 

OCI BEAUMONT LLC

By:

   
  Name: [                     ]
  Title:   [                     ]

 

Exhibit D-2


EXHIBIT E

FORM OF

SECURITY AGREEMENT


SECURITY AGREEMENT

This SECURITY AGREEMENT (this “ Agreement ”), dated as of May 21, 2013, among the Persons listed on the signature pages hereof as “Grantors” and those additional entities that hereafter become parties hereto by executing the form of Joinder attached hereto as Annex 1 (each, a “ Grantor ” and collectively, the “ Grantors ”), and BANK OF AMERICA, N.A. (“ Bank of America ”), in its capacity as collateral agent for the Secured Creditors (as defined below) (in such capacity, together with its successors and permitted assigns in such capacity, “ Agent ”).

W I T N E S S E T H:

WHEREAS , pursuant to that certain Term Loan Credit Agreement dated as of May 21, 2013 (as amended, restated, supplemented, or otherwise modified from time to time, the “ Credit Agreement ”) by and among OCI USA Inc., a Delaware corporation (“ Holdings ”), OCI Beaumont LLC, a Texas limited liability corporation (the “ Borrower ”), the lenders party thereto as “Lenders” (such Lenders, together with their respective successors and permitted assigns in such capacity, each, individually, a “ Lender ” and, collectively, the “ Lenders ”), and Agent, the Lenders have agreed to make certain financial accommodations available to the Borrower from time to time pursuant to the terms and conditions thereof; and

WHEREAS , Agent has agreed to act as agent for the benefit of the Secured Creditors in connection with the transactions contemplated by the Credit Agreement, this Agreement and the other Credit Documents; and

WHEREAS , in order to induce the Lenders to enter into the Credit Agreement and the other Credit Documents, and to induce the Secured Creditors to make financial accommodations to the Borrower as provided for in the Credit Agreement and the other Credit Documents and Designated Interest Rate Protection Agreements and Designated Treasury Services Agreements, Grantors have agreed to grant a continuing security interest in and to the Collateral (as herein defined) in order to secure the complete payment, observance and performance of, among other things, the Secured Obligations (as herein defined).

NOW, THEREFORE , for and in consideration of the recitals made above and other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

1. Defined Terms . All initially capitalized terms used herein (including in the preamble and recitals hereof) without definition shall have the meanings ascribed thereto in the Credit Agreement. Any terms (whether capitalized or lower case) used in this Agreement that are defined in the Code shall be construed and defined as set forth in the Code unless otherwise defined herein or in the Credit Agreement; provided , however , that to the extent that the Code is used to define any term used herein and if such term is defined differently in different Articles of the Code, the definition of such term contained in Article 9 of the Code shall govern. In addition to those terms defined elsewhere in this Agreement, as used in this Agreement, the following terms shall have the following meanings:

(a) “ Account Debtor ” means an account debtor (as that term is defined in the Code).

(b) “ Agent ” has the meaning specified therefor in the preamble to this Agreement.

(c) “ Agreement ” has the meaning specified therefor in the preamble to this Agreement.

(d) “ Books ” means books and records (including each Grantor’s Records indicating, summarizing, or evidencing such Grantor’s assets (including the Collateral) or liabilities, each Grantor’s Records relating to such Grantor’s business operations or financial condition, and each Grantor’s goods or General Intangibles related to such information).


(e) “ Borrower ” has the meaning specified therefor in the recitals to this Agreement.

(f) “ Chattel Paper ” means chattel paper (as that term is defined in the Code), and includes tangible chattel paper and electronic chattel paper.

(g) “ CFC ” means a Subsidiary of the Borrower that is a “controlled foreign corporation” within the meaning of Section 957 of the Internal Revenue Code of 1986, as amended from time to time.

(h) “ Code ” means the New York Uniform Commercial Code, as in effect from time to time; provided , however , that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection, priority, or remedies with respect to Agent’s Liens on any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “Code” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority, or remedies.

(i) “ Collateral ” has the meaning specified therefor in Section 2 .

(j) “ Commercial Tort Claims ” means commercial tort claims (as that term is defined in the Code), and includes those commercial tort claims with a value, in the aggregate, equal to or exceeding $2,500,000, listed on Schedule 12 of the Perfection Certificate.

(k) “ Copyrights ” means any and all rights in any works of authorship, including (i) copyrights and moral rights, (ii) copyright registrations and recordings thereof and all applications in connection therewith including those listed on Schedule 11(b) of the Perfection Certificate or the most recent Perfection Certificate Supplement, (iii) income, license fees, royalties, damages, and payments now and hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and payments for past, present, or future infringements thereof, (iv) the right to sue for past, present, and future infringements thereof, and (v) all of each Grantor’s rights corresponding thereto throughout the world.

(l) “ Copyright Security Agreement ” means each Copyright Security Agreement executed and delivered by Grantors, or any of them, and Agent, in substantially the form of Exhibit A .

(m) “ Credit Agreement ” has the meaning specified therefor in the recitals to this Agreement.

(n) “ Deposit Account ” means a deposit account (as that term is defined in the Code).

(o) “ Equipment ” means equipment (as that term is defined in the Code).

(p) “ Excluded Property ” has the meaning specified in Section 2 hereof.

(q) “ Fixtures ” means fixtures (as that term is defined in the Code).

(r) “ FSHCO ” means any Subsidiary substantially all the assets of which consist of Equity Interests in one or more Subsidiaries organized outside of the United States of America.

(s) “ General Intangibles ” means general intangibles (as that term is defined in the Code), and includes payment intangibles, contract rights, rights to payment, rights under Hedging Agreements, rights arising under common law, statutes, or regulations, choses or things in action, goodwill, Intellectual Property, Intellectual Property Licenses, purchase orders, customer lists, monies due or recoverable from pension funds,

 

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route lists, rights to payment and other rights under any royalty or licensing agreements, including Intellectual Property Licenses, infringement claims, pension plan refunds, pension plan refund claims, insurance premium rebates, tax refunds, and tax refund claims, interests in a partnership or limited liability company which do not constitute a security under Article 8 of the Code, and any other personal property other than Commercial Tort Claims, money, Accounts, Chattel Paper, Deposit Accounts, goods, Investment Related Property, Negotiable Collateral, and oil, gas, or other minerals before extraction.

(t) “ Grantor ” and “ Grantors ” have the respective meanings specified therefor in the preamble to this Agreement.

(u) “ Insolvency Proceeding ” means any proceeding commenced by or against any Person under any provision of the Bankruptcy Code or under any other state or federal bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief.

(v) “ Intellectual Property ” means any and all Patents, Copyrights, Trademarks, trade secrets, know-how, inventions (whether or not patentable), algorithms, software programs (including source code and object code), processes, product designs, industrial designs, blueprints, drawings, data, customer lists, URLs and domain names, specifications, documentations, reports, catalogs, literature, and any other forms of technology or proprietary information of any kind, including all rights therein and all applications for registration or registrations thereof.

(w) “ Intellectual Property Licenses ” means, with respect to any Person (the “ Specified Party ”), (i) any licenses or other similar rights provided to the Specified Party in or with respect to Intellectual Property owned or controlled by any other Person, and (ii) any licenses or other similar rights provided to any other Person in or with respect to Intellectual Property owned or controlled by the Specified Party, in each case, including (A) any software license agreements (other than license agreements for commercially available off-the-shelf software that is generally available to the public which have been licensed to a Grantor pursuant to end-user licenses) and (B) the right to use any of the licenses or other similar rights described in this definition in connection with the enforcement of the Secured Creditors’ rights under the Credit Documents.

(x) “ Inventory ” means inventory (as that term is defined in the Code).

(y) “ Investment Related Property ” means (i) any and all investment property (as that term is defined in the Code), and (ii) any and all of the following (regardless of whether classified as investment property under the Code): all Pledged Interests, Pledged Operating Agreements, and Pledged Partnership Agreements.

(z) “ Joinder ” means each Joinder to this Agreement executed and delivered by Agent and each of the other parties listed on the signature pages thereto, in substantially the form of Annex 1 .

(aa) “ Lender ” and “ Lenders ” have the respective meanings specified therefor in the recitals to this Agreement.

(bb) “ Negotiable Collateral ” means letters of credit, letter-of-credit rights, instruments, promissory notes, drafts and documents (as each such term is defined in the Code).

(cc) “ Patents ” means patents and patent applications, including (i) the patents and patent applications listed on Schedule 11(a) of the Perfection Certificate or the most recent Perfection Certificate Supplement, (ii) all continuations, divisionals, continuations-in-part, re-examinations, reissues, and renewals thereof and improvements thereon, (iii) all income, royalties, damages and payments now and hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and payments for past, present, or future infringements thereof, (iv) the right to sue for past, present, and future infringements thereof, and (v) all of each Grantor’s rights corresponding thereto throughout the world.

 

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(dd) “ Patent Security Agreement ” means each Patent Security Agreement executed and delivered by Grantors, or any of them, and Agent, in substantially the form of Exhibit B .

(ee) “ Permitted Discretion ” means a determination made in the exercise of reasonable (from the perspective of a secured lender) business judgment.

(ff) “ Pledged Companies ” means each Person listed on Schedule 9 of the Perfection Certificate as a “Pledged Company”, together with each other Person, all or a portion of whose Equity Interests is acquired or otherwise owned by a Grantor after the Closing Date.

(gg) “ Pledged Interests ” means, subject to the last paragraph of Section 2 hereof, all of each Grantor’s right, title and interest in and to all of the Equity Interests now owned or hereafter acquired by such Grantor, regardless of class or designation, including in each of the Pledged Companies, and all substitutions therefor and replacements thereof, all proceeds thereof and all rights relating thereto, also including any certificates representing the Equity Interests, the right to receive any certificates representing any of the Equity Interests, all warrants, options, share appreciation rights and other rights, contractual or otherwise, in respect thereof and the right to receive all dividends, distributions of income, profits, surplus, or other compensation by way of income or liquidating distributions, in cash or in kind, and all cash, instruments, and other property from time to time received, receivable, or otherwise distributed in respect of or in addition to, in substitution of, on account of, or in exchange for any or all of the foregoing.

(hh) “ Pledged Interests Addendum ” means a Pledged Interests Addendum substantially in the form of Exhibit C .

(ii) “ Pledged Notes ” has the meaning specified therefor in Section 5(i) .

(jj) “ Pledged Operating Agreements ” means all of each Grantor’s rights, powers, and remedies under the limited liability company operating agreements of each of the Pledged Companies that are limited liability companies.

(kk) “ Pledged Partnership Agreements ” means all of each Grantor’s rights, powers, and remedies under the partnership agreements of each of the Pledged Companies that are partnerships.

(ll) “ Proceeds ” has the meaning specified therefor in Section 2 .

(mm) “ PTO ” means the United States Patent and Trademark Office.

(nn) “ Real Property ” means any estates or interests in real property now owned or hereafter acquired by any Grantor and the improvements thereto.

(oo) “ Records ” means information that is inscribed on a tangible medium or which is stored in an electronic or other medium and is retrievable in perceivable form.

(pp) “ Rescission ” has the meaning specified therefor in Section 6(k) .

(qq) “ Secured Creditors ” means “Guaranteed Creditors” as such term is defined in the Credit Agreement.

(rr) “ Secured Obligations ” means the “Obligations” as such term is defined in the Credit Agreement.

 

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(ss) “ Securities Account ” means a securities account (as that term is defined in the Code).

(tt) “ Security Interest ” has the meaning specified therefor in Section 2 .

(uu) “ Supporting Obligations ” means supporting obligations (as such term is defined in the Code), and includes letters of credit and guaranties issued in support of Accounts, Chattel Paper, documents, General Intangibles, instruments or Investment Related Property.

(vv) “ Trademarks ” means any and all trademarks, trade names, registered trademarks, trademark applications, service marks, registered service marks and service mark applications, including (i) the trade names, registered trademarks, trademark applications, registered service marks and service mark applications listed on Schedule 11(a) of the Perfection Certificate or the most recent Perfection Certificate Supplement, (ii) all renewals thereof, (iii) all income, royalties, damages and payments now and hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and payments for past or future infringements or dilutions thereof, (iv) the right to sue for past, present and future infringements and dilutions thereof, (v) the goodwill of each Grantor’s business symbolized by the foregoing or connected therewith, and (vi) all of each Grantor’s rights corresponding thereto throughout the world.

(ww) “ Trademark Security Agreement ” means each Trademark Security Agreement executed and delivered by Grantors, or any of them, and Agent, in substantially the form of Exhibit D .

(xx) “ URL ” means “uniform resource locator,” an internet web address.

2. Grant of Security . Each Grantor hereby grants, collaterally assigns, and pledges to Agent, for the benefit of each of the Secured Creditors, to secure the Secured Obligations, a continuing security interest (hereinafter referred to as the “ Security Interest ”) in all of such Grantor’s right, title, and interest in and to the following, whether now owned or hereafter acquired or arising and wherever located (the “ Collateral ”):

(a) all of such Grantor’s Accounts;

(b) all of such Grantor’s Books;

(c) all of such Grantor’s Chattel Paper;

(d) all of such Grantor’s Deposit Accounts;

(e) all of such Grantor’s Equipment and Fixtures;

(f) all of such Grantor’s General Intangibles;

(g) all of such Grantor’s Inventory;

(h) all of such Grantor’s Investment Related Property;

(i) all of such Grantor’s Negotiable Collateral;

(j) all of such Grantor’s Supporting Obligations;

(k) all of such Grantor’s Commercial Tort Claims;

(l) all of such Grantor’s money, Cash Equivalents, or other assets of such Grantor that now or hereafter come into the possession, custody, or control of Agent (or its agent or designee) or any of the Secured Creditors; and

 

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(m) all of the proceeds (as such term is defined in the Code) and products, whether tangible or intangible, of any of the foregoing, including proceeds of insurance or Commercial Tort Claims covering or relating to any or all of the foregoing, and any and all Accounts, Books, Chattel Paper, Deposit Accounts, Equipment, Fixtures, General Intangibles, Inventory, Investment Related Property, Negotiable Collateral, Supporting Obligations, money, or other tangible or intangible property resulting from the sale, lease, license, exchange, collection, or other disposition of any of the foregoing, the proceeds of any award in condemnation with respect to any of the foregoing, any rebates or refunds, whether for taxes or otherwise, and all proceeds of any such proceeds, or any portion thereof or interest therein, and the proceeds thereof, and all proceeds of any loss of, damage to, or destruction of the above, whether insured or not insured, and, to the extent not otherwise included, any indemnity, warranty, or guaranty payable by reason of loss or damage to, or otherwise with respect to any of the foregoing (the “ Proceeds ”). Without limiting the generality of the foregoing, the term “Proceeds” includes whatever is receivable or received when Investment Related Property or proceeds are sold, exchanged, collected, or otherwise disposed of, whether such disposition is voluntary or involuntary, and includes proceeds of any indemnity or guaranty payable to any Grantor or Agent from time to time with respect to any of the Investment Related Property.

Notwithstanding anything contained in this Agreement to the contrary, the term “Collateral” shall not include: (i) voting Equity Interests of any CFC or FSHCO, solely to the extent that such Equity Interests represent more than 65% of the outstanding voting Equity Interests of such CFC or FSHCO; (ii) any rights or interest in any contract, lease, permit, license, or license agreement covering real or personal property, or any other agreement of any Grantor if under the terms of such contract, lease, permit, license, or license agreement, or applicable law with respect thereto, the grant of a security interest or lien therein is prohibited as a matter of law or under the terms of such contract, lease, permit, license, or license agreement and such prohibition or restriction has not been waived or the consent of the other party to such contract, lease, permit, license, or license agreement has not been obtained (provided, that, (A) the foregoing exclusions of this clause (ii) shall in no way be construed (1) to apply to the extent that any described prohibition or restriction is unenforceable under Section 9-406, 9-407, 9-408, or 9-409 of the Code or other applicable law, or (2) to apply to the extent that any consent or waiver (x) is required by Holdings, Borrower or any other Grantor or (y) has been obtained that would permit Agent’s security interest or lien notwithstanding the prohibition or restriction on the pledge of such contract, lease, permit, license, or license agreement and (B) the foregoing exclusions of clauses (i) and (ii) shall in no way be construed to limit, impair, or otherwise affect any of Agent’s or any Secured Creditor’s continuing security interests in and Liens upon any rights or interests of any Grantor in or to (1) monies due or to become due under or in connection with any described contract, lease, permit, license, license agreement, or Equity Interests (including any Accounts or Equity Interests), or (2) any proceeds from the sale, license, lease, or other dispositions of any such contract, lease, permit, license, license agreement, or Equity Interests); (iii) any United States intent-to-use trademark or service mark applications to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark applications under applicable federal law, provided that upon submission and acceptance by the PTO of an amendment to allege use pursuant to 15 U.S.C. Section 1060(a) (or any successor provision), such intent-to-use trademark application shall be considered Collateral; (iv) Equipment or other assets owned by any Grantor on the date hereof or hereafter acquired that is subject to a Lien securing indebtedness in respect of purchase money financing or similar arrangement or Capitalized Lease Obligations permitted to be incurred pursuant to the provisions of the Credit Agreement if the contract or other agreement in which such Lien is granted (or the documentation providing for such indebtedness in respect of purchase money financing) prohibits the creation of any other Lien on such Equipment or other assets (after giving effect to the applicable anti-assignment provisions of the Code or other applicable law and other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Code or other applicable law notwithstanding such prohibition); (v) any governmental licenses or state or local franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby after giving effect to the applicable anti-assignment provisions of the Code; (vi) interests in any joint venture to the extent and for so long as the documents

 

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governing such joint venture interests prohibit the granting of a security interest therein; (vii) any property of a Person existing at the time such Person is acquired or merged with and into or consolidated with a Grantor in a transaction permitted by the Credit Agreement and to the extent such property is subject to a Permitted Lien (and any refinancing thereof permitted by the Credit Agreement) to the extent and for so long as the contract or other agreement in which such Lien is granted prohibits the creation of any other Lien on such property; (viii) any property to the extent that such grant of a security interest therein is prohibited by any Requirements of Law of a Governmental Authority or requires a consent not obtained of any Governmental Authority pursuant to such Requirement of Law by, except to the extent that such Requirement of Law providing for such prohibition or requiring such consent is ineffective under applicable law, (ix) any Collateral that constitutes motor vehicles or other assets subject to a certificate of title statute, (x) any leasehold interest in Real Property but not any Collateral located on such Real Property; (xi) any fee interest in Real Property with a fair market value in excess of $500,000 and (xii) any Collateral as to which the Agent and the Borrower reasonably agree in writing that the cost or other consequences of obtaining a security interest or perfection thereof is excessive when compared to the benefit to the Secured Creditors of the security afforded thereby (as confirmed by written notice to the Borrower). It is hereby understood and agreed that any property described in the preceding proviso, and any property that is otherwise expressly excluded from clauses (i) through (xii) above, shall be excluded from the definition of “Collateral” and shall constitute “Excluded Property”; provided , however , “Excluded Property” shall not include (i) any fee or leasehold parcel of Real Property which, notwithstanding its value, is, as determined by the Borrower in good faith, necessary or integral to the operation of the Plant or to the business of the Credit Parties or to the utility or value of other Mortgaged Property and (ii) any Proceeds, products, substitutions or replacements of Excluded Property (unless such Proceeds, products, substitutions or replacements would otherwise constitute Excluded Property). In addition, in no event shall (a) control agreements or control or similar arrangements be required with respect to deposit accounts or securities accounts, or (b) notices be required to be sent to account debtors or other contractual third-parties prior to the occurrence and during the continuance of an Event of Default.

3. Security for Secured Obligations . The Security Interest created hereby secures the payment and performance of the Secured Obligations, whether now existing or arising hereafter. Without limiting the generality of the foregoing, this Agreement secures the payment of all amounts which constitute part of the Secured Obligations and would be owed by Grantors, or any of them, to Agent, the Secured Creditors or any of them, but for the fact that they are unenforceable or not allowable (in whole or in part) as a claim in an Insolvency Proceeding involving any Grantor due to the existence of such Insolvency Proceeding.

4. Grantors Remain Liable . Anything herein to the contrary notwithstanding, (a) each of the Grantors shall remain liable under the contracts and agreements included in the Collateral, including the Pledged Operating Agreements and the Pledged Partnership Agreements, to perform all of the duties and obligations thereunder to the same extent as if this Agreement had not been executed, (b) the exercise by Agent or any Secured Creditor of any of the rights hereunder shall not release any Grantor from any of its duties or obligations under such contracts and agreements included in the Collateral, and (c) none of the Secured Creditors shall have any obligation or liability under such contracts and agreements included in the Collateral by reason of this Agreement, nor shall any of the Secured Creditors be obligated to perform any of the obligations or duties of any Grantors thereunder or to take any action to collect or enforce any claim for payment assigned hereunder. Until an Event of Default shall occur and be continuing, except as otherwise provided in this Agreement, the Credit Agreement, or any other Credit Document, Grantors shall have the right to possession and enjoyment of the Collateral, subject to and upon the terms hereof and of the Credit Agreement and the other Credit Documents. Without limiting the generality of the foregoing, it is the intention of the parties hereto that record and beneficial ownership of the Pledged Interests, including all voting, consensual, dividend, and distribution rights, shall remain in the applicable Grantor until both (i) the occurrence and continuance of an Event of Default and (ii) Agent has notified the applicable Grantor of Agent’s election to exercise such rights with respect to the Pledged Interests pursuant to Section 15 .

5. Representations and Warranties . Each Grantor hereby represents and warrants as of the Closing Date to Agent, for the benefit of the Secured Creditors, which representations and warranties shall be

 

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true and correct, in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof), and such representations and warranties shall survive the execution and delivery of this Agreement:

(a) The exact legal name of each of the Grantors as of the Closing Date is set forth on the signature pages of this Agreement.

(b) Schedule 7 of the Perfection Certificate sets forth all Real Property owned by any of the Grantors as of the Closing Date.

(c) As of the Closing Date: (i)  Schedule 11(b) of the Perfection Certificate provides a complete and correct list of all registered Copyrights owned by any Grantor and all applications for registration of Copyrights owned by any Grantor and, in each case, material to the conduct of the business of any Grantor; and (ii)  Schedule 11(a) of the Perfection Certificate provides a complete and correct list of all registered Patents and Trademarks owned by any Grantor and all applications for Patents owned by any Grantor; and (iv)  Schedule 11(a) of the Perfection Certificate provides a complete and correct list of all registered Trademarks owned by any Grantor and all applications for registration of Trademarks owned by any Grantor and, in each case, material to the conduct of the business of any Grantor.

(d) (i) each Grantor owns exclusively or holds licenses in all Intellectual Property that is necessary to the conduct of its business except as would not reasonably be expected individually or in the aggregate to result in a Material Adverse Effect; and

(ii) to each Grantor’s knowledge, no Person has infringed or misappropriated or is currently infringing or misappropriating any Intellectual Property rights owned by such Grantor, in each case, that either individually or in the aggregate could reasonably be expected to result in a Material Adverse Effect.

(e) This Agreement creates a valid security interest in the Collateral of each Grantor, to the extent a security interest therein can be created under the Code, securing the payment of the Secured Obligations. Except to the extent a security interest in the Collateral cannot be perfected by the filing of a financing statement under the Code, all filings and other actions necessary to perfect such security interest have been duly taken or will have been taken upon the filing of financing statements listing each applicable Grantor, as a debtor, and Agent, as secured party, in the jurisdictions listed next to such Grantor’s name on Schedule 6 of the Perfection Certificate as of the Closing Date. Upon the making of such filings, Agent shall have a perfected security interest in the Collateral of each Grantor (subject only to Permitted Liens) to the extent such security interest can be perfected by the filing of a financing statement in such jurisdiction. Upon filing of the Copyright Security Agreement, if any, with the United States Copyright Office, filing of the Patent Security Agreement, if any, and the Trademark Security Agreement with the PTO, and the filing of appropriate financing statements in the jurisdictions listed on Schedule 6 of the Perfection Certificate, all actions necessary to perfect the Security Interest in and to each Grantor’s Copyrights, Patents, or Trademarks, respectively, have been taken and such perfected Security Interest is enforceable as such as against any and all creditors of and purchasers from any Grantor, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally. All action by any Grantor necessary to perfect such security interest on each item of Collateral (to the extent perfection is required hereby) has been duly taken or will be taken substantially contemporaneously with the Closing Date.

(f) (i) Except for the Security Interest created hereby, each Grantor is and will at all times be the sole holder of record and the legal and beneficial owner, free and clear of all Liens other than Liens permitted under Section 10.02(xiv) of the Credit Agreement and non-consensual Permitted Liens arising as a matter of law, of the Pledged Interests indicated on Schedule 9 of the Perfection Certificate as being owned by such Grantor as of the date hereof and, when acquired by such Grantor, any Pledged Interests

 

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acquired after the Closing Date; (ii) all of the Pledged Interests owned by such Grantor are duly authorized, validly issued, fully paid and nonassessable (to the extent such concepts are applicable), and the Pledged Interests constitute or will constitute the percentage of the issued and outstanding Equity Interests of the Pledged Companies of such Grantor identified on Schedule 9 of the Perfection Certificate as supplemented or modified by any Pledged Interests Addendum or any Joinder to this Agreement; (iii) such Grantor has the right and requisite authority to pledge the Investment Related Property pledged by such Grantor to Agent as provided herein; (iv) all actions necessary to perfect the Agent’s Liens in the Investment Related Property under the Code, and the proceeds thereof, have been duly taken, upon (A) the execution and delivery of this Agreement; (B) the taking of possession by Agent (or its agent, bailee or designee) of any certificates representing the Pledged Interests, together with undated powers (or other documents of transfer reasonably acceptable to Agent) endorsed in blank by the applicable Grantor; and (C) the filing of financing statements in the applicable jurisdiction set forth on Schedule 6 of the Perfection Certificate as of the date hereof for such Grantor with respect to the Pledged Interests of such Grantor that are not represented by certificates; and (v) each Grantor has delivered to and deposited with Agent (or its agent, bailee or designee) all certificates representing the Pledged Interests owned by such Grantor to the extent such Pledged Interests are represented by certificates, and undated powers (or other documents of transfer reasonably acceptable to Agent (or its agent, bailee or designee)) endorsed in blank with respect to such certificates.

(g) No consent, approval, authorization, or other order or other action by, and no notice to or filing with, any Governmental Authority or, in the case of clause (ii), any other Person is required (i) for the grant of a Security Interest by such Grantor in and to the Collateral pursuant to this Agreement or for the execution, delivery, or performance of this Agreement by such Grantor, or (ii) for the exercise by Agent of the voting or other rights provided for in this Agreement with respect to the Investment Related Property or the remedies in respect of the Collateral pursuant to this Agreement, except (x) for those that have otherwise been obtained or made on or prior to the Closing Date and which remain in full force and effect on the Closing Date, (y) for filings which are necessary to perfect the security interests created under the Security Documents and (z) as may be required in connection with such disposition of Investment Related Property by laws affecting the offering and sale of securities generally. No Intellectual Property License described in clause (i) of the definition thereof of any Grantor that is necessary to the conduct of such Grantor’s business requires any consent of any other Person in order for such Grantor to grant the security interest granted hereunder in such Grantor’s right, title or interest in or to such Intellectual Property License except as would not reasonably be expected individually or in the aggregate to result in a Material Adverse Effect.

(h) [Intentionally Omitted]

(i) Except as would not reasonably be expected individually or in the aggregate to have a Material Adverse Effect, there is no default, breach, violation, or event of acceleration existing under any promissory note (as defined in the Code) constituting Collateral and pledged hereunder (each a “ Pledged Note ”) and no event has occurred or circumstance exists which, with the passage of time or the giving of notice, or both, would constitute a default, breach, violation, or event of acceleration under any Pledged Note.

6. Covenants . Each Grantor, jointly and severally, covenants and agrees with Agent that from and after the date of this Agreement and until the date of termination of this Agreement in accordance with Section 22 :

(a) Possession of Collateral . In the event that any Collateral, including Proceeds, is evidenced by or consists of Negotiable Collateral, Investment Related Property, or Chattel Paper, in each case, having an aggregate value or face amount of $2,500,000 or more for all such Negotiable Collateral, Investment Related Property, or Chattel Paper, the Grantors shall promptly (and in any event within thirty (30) days after receipt thereof (or such longer period as Agent in its Permitted Discretion may agree)), notify Agent thereof, and if and to the extent that perfection or priority of Agent’s Security Interest is dependent on or enhanced by possession, the applicable Grantor, promptly (and in any event within thirty (30) days (or such longer period as Agent in its Permitted Discretion may agree)) after written request by Agent, shall execute such other

 

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documents and instruments as shall be reasonably requested by Agent and, if requested by the Agent, endorse and deliver physical possession of such Negotiable Collateral, Investment Related Property, or Chattel Paper to Agent (or its agent, bailee or designee), together with such undated powers (or other relevant document of transfer reasonably acceptable to Agent) endorsed in blank, and shall do such other acts or things deemed reasonably necessary by Agent to protect Agent’s Security Interest therein;

(b) Chattel Paper .

(i) Promptly (and in any event within thirty (30) days (or such longer period as Agent in its Permitted Discretion may agree)) after written request by Agent, each Grantor shall take all steps reasonably necessary to grant Agent control of all electronic Chattel Paper in accordance with the Code and all “transferable records” as that term is defined in Section 16 of the Uniform Electronic Transaction Act and Section 201 of the federal Electronic Signatures in Global and National Commerce Act as in effect in any relevant jurisdiction, to the extent that the aggregate value or face amount of such electronic Chattel Paper equals or exceeds $2,500,000;

(ii) If any Grantor retains possession of any Chattel Paper or instruments (which retention of possession shall be subject to the extent permitted hereby and by the Credit Agreement), promptly (and in any event within thirty (30) days (or such longer period as Agent in its Permitted Discretion may agree)) upon the occurrence of an Event of Default and at the reasonable request of Agent (provided that such request shall be deemed to have been automatically given in connection with an Event of Default under Section 11.05 of the Credit Agreement), such Chattel Paper and instruments shall be marked with the following legend: “This writing and the obligations evidenced or secured hereby are subject to the Security Interest of Bank of America, N.A., as Agent for the benefit of the Secured Creditors”;

(c) Letter-of-Credit Rights . If the Grantors (or any of them) are or become the beneficiary of letters of credit having a face amount or value of $2,500,000 or more in the aggregate, then the applicable Grantor or Grantors shall promptly (and in any event within thirty (30) days (or such longer period as Agent in its Permitted Discretion may agree) after becoming a beneficiary), notify Agent thereof and, promptly after written request by Agent, use commercially reasonable efforts to enter into a tri-party agreement with Agent and the issuer or confirming bank with respect to letter-of-credit rights assigning such letter-of-credit rights to Agent and directing all payments thereunder to Agent’s account, all in form and substance reasonably satisfactory to Agent;

(d) Commercial Tort Claims . If the Grantors (or any of them) obtain Commercial Tort Claims having a value, or involving an asserted claim, for which the Grantors (or any of them) has an interest therein in the amount of $2,500,000 or more in the aggregate for all Commercial Tort Claims, then the applicable Grantor or Grantors shall promptly (and in any event within thirty (30) days (or such longer period as Agent in its Permitted Discretion may agree) of obtaining such Commercial Tort Claim)), notify Agent upon incurring or otherwise obtaining such Commercial Tort Claims and, promptly and in any event within thirty (30) days (or such longer period as Agent in its Permitted Discretion may agree) after request by Agent, amend Schedule 12 of the Perfection Certificate to describe such Commercial Tort Claims in a manner that reasonably identifies such Commercial Tort Claims and which is otherwise reasonably satisfactory to Agent, and hereby authorizes the filing of additional financing statements or amendments to existing financing statements describing such Commercial Tort Claims, and agrees to do such other acts or things deemed necessary by Agent to give Agent a perfected security interest in any such Commercial Tort Claim (subject only to Permitted Liens);

(e) [Intentionally omitted] .

 

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(f) Intellectual Property .

(i) Upon the request of Agent, in order to facilitate filings with the PTO and the United States Copyright Office, each Grantor shall execute and deliver to Agent one or more Copyright Security Agreements, Trademark Security Agreements, or Patent Security Agreements to further evidence Agent’s Liens on such Grantor’s Patents, Trademarks, or Copyrights, and the General Intangibles of such Grantor relating thereto or represented thereby;

(ii) If any Grantor shall at any time after the date hereof (i) obtain any rights to any additional Intellectual Property or (ii) become entitled to the benefit of any additional Intellectual Property or any renewal or extension thereof, including any reissue, division, continuation, or continuation-in-part of any Intellectual Property, or any improvement on any Intellectual Property, or if any intent-to use trademark application is no longer subject to clause (c) of the definition of Excluded Property, the provisions hereof shall automatically apply thereto and any such item enumerated in the preceding clause (i) or (ii) shall automatically constitute Intellectual Property as if such would have constituted Intellectual Property at the time of execution hereof and be subject to the Lien and security interest created by this Agreement without further action by any party. Each Grantor shall promptly (and in any event within 30 days or such longer period as the Agent may agree) provide to the Agent written notice of any of the foregoing and, upon the request of the Agent, confirm the attachment of the Lien and security interest created by this Agreement to any rights described in clauses (i) and (ii) above by execution of an instrument in form reasonably acceptable to the Agent and the filing of any instruments or statements as shall be reasonably necessary to create, preserve, protect or perfect the Agent’s security interest in such Intellectual Property. Further, each Grantor authorizes the Agent to modify this Agreement by amending Schedules 11(a) and 11(b) to the Perfection Certificate to include any Intellectual Property of such Grantor acquired or arising after the date hereof.

(iii) Except as would not reasonably be expected individually or in the aggregate to result in a Material Adverse Effect, each Grantor shall have the duty, with respect to Intellectual Property that is necessary in the conduct of such Grantor’s business, to protect and diligently enforce and defend at such Grantor’s expense its Intellectual Property, including (A) to diligently enforce and defend, including promptly suing for infringement, misappropriation, or dilution and to recover any and all damages for such infringement, misappropriation, or dilution, and filing for opposition, interference, and cancellation against conflicting Intellectual Property rights of any Person, (B) to prosecute diligently any trademark application or service mark application that is part of the Trademarks pending as of the date hereof or hereafter until the termination of this Agreement, (C) to prosecute diligently any patent application that is part of the Patents pending as of the date hereof or hereafter until the termination of this Agreement, and (D) to take all reasonable and necessary action to preserve and maintain all of such Grantor’s Trademarks, Patents, Copyrights, Intellectual Property Licenses, and its rights therein, including paying all maintenance fees and filing of applications for renewal, affidavits of use, and affidavits of noncontestability. Each Grantor further agrees not to abandon any Intellectual Property or Intellectual Property License that is necessary in the conduct of such Grantor’s business except as would not reasonably be expected individually or in the aggregate to result in a Material Adverse Effect. Each Grantor hereby agrees to take the steps described in this Section 6(f)(iii) with respect to all new or acquired Intellectual Property to which it is now or later becomes entitled that is necessary in the conduct of such Grantor’s business except as would not reasonably be expected individually or in the aggregate to result in a Material Adverse Effect;

(iv) Grantors acknowledge and agree that the Secured Creditors shall have no duties with respect to any Intellectual Property or Intellectual Property Licenses of any Grantor. Without limiting the generality of this Section 6(f)(iv) , Grantors acknowledge and agree that the Secured Creditors shall not be under any obligation to take any steps necessary to preserve rights in the Collateral consisting of Intellectual Property or Intellectual Property Licenses against any other Person, but any of the Secured Creditors may do so at its option from and after the occurrence and during the continuance of an Event of Default, and all expenses incurred in connection therewith (including reasonable fees and expenses of attorneys and other professionals) shall be for the sole account of Borrower; and

(v) Except as would not reasonably be expected to result individually or in the aggregate in a Material Adverse Effect, each Grantor shall take reasonable steps to maintain the confidentiality of, and otherwise protect and enforce its rights in, the Intellectual Property that is necessary in the conduct of such Grantor’s business.

 

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(g) Investment Related Property .

(i) If any Grantor shall acquire, obtain, receive or become entitled to receive any Pledged Interests after the Closing Date, it shall promptly (and in any event within thirty (30) days (or such longer period as Agent in its Permitted Discretion may agree) of acquiring or obtaining such Collateral) deliver to Agent a duly executed Pledged Interests Addendum identifying such Pledged Interests;

(ii) Upon the occurrence and during the continuance of an Event of Default, following the request of Agent (provided that such request shall be deemed to have been automatically given in connection with an Event of Default under Section 11.05 of the Credit Agreement), all sums of money and property paid or distributed in respect of the Investment Related Property that are received by any Grantor shall be held by the Grantors in trust for the benefit of Agent segregated from such Grantor’s other property, and such Grantor shall deliver it forthwith to Agent in the exact form received;

(iii) No Grantor shall make or consent to any amendment or other modification or waiver with respect to any Pledged Interests, Pledged Operating Agreement, or Pledged Partnership Agreement, or enter into any agreement or permit to exist any restriction with respect to any Pledged Interests if the same would be prohibited by the Credit Agreement;

(iv) Each Grantor agrees that it will cooperate with Agent in obtaining all reasonably necessary approvals and making all reasonably necessary filings under federal, state, or local law of the United States to effect the perfection of the Security Interest on the Investment Related Property or to effect any sale or transfer thereof;

(v) As to all limited liability company or partnership interests, issued under any Pledged Operating Agreement or Pledged Partnership Agreement and held by any Grantor, each Grantor hereby covenants that the Pledged Interests issued pursuant to such agreement (A) are not and shall not be dealt in or traded on securities exchanges or in securities markets, (B) do not and will not constitute investment company securities, and (C) are not and will not be held by such Grantor in a securities account, in each case, unless the Grantors take such steps as shall be reasonably requested by Agent to provide a perfected security interest therein.

(h) Real Property; Fixtures. Each Grantor covenants and agrees that upon the acquisition of any interest in Real Property (other than Excluded Property), it will promptly notify Agent of the acquisition of such Real Property and will grant to Agent, for the benefit of the Secured Creditors, a Mortgage on each interest in Real Property (other than Excluded Property) now or hereafter owned by such Grantor and shall deliver such other documentation and opinions as are consistent with those required to be delivered pursuant to Section 9.12 of the Credit Agreement, in form and substance reasonably satisfactory to Agent, in connection with the grant of such Mortgage as Agent shall reasonably request in its Permitted Discretion and such Grantor shall pay all recording costs, intangible taxes and other fees and costs (including reasonable attorneys fees and expenses) incurred in connection therewith. Each Grantor acknowledges and agrees that, to the extent permitted by applicable law, all of the Collateral shall remain personal property regardless of the manner of its attachment or affixation to real property;

(i) Transfers and Other Liens . Grantors shall not (i) sell, assign (by operation of law or otherwise) or otherwise dispose of, or grant any option with respect to, any of the Collateral, except as expressly permitted by the Credit Agreement, or (ii) create or permit to exist any Lien upon or with respect to any of the Collateral of any Grantor, except for Permitted Liens. The inclusion of Proceeds in the Collateral shall not be deemed to constitute Agent’s consent to any sale or other disposition of any of the Collateral except as expressly permitted in this Agreement or the other Credit Documents;

 

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(k) Pledged Notes . Except as would not reasonably be expected individually or in the aggregate to result in a Material Adverse Effect, Grantors without the prior written consent of Agent, will not, other than Permitted Dispositions or other transactions permitted under the Credit Agreement, assign or surrender their rights and interests under any of the Pledged Notes or terminate, cancel, modify, change, supplement or amend the Pledged Notes.

7. Relation to Other Security Documents . The provisions of this Agreement shall be read and construed with the other Credit Documents referred to below in the manner so indicated.

(a) Credit Agreement . In the event of any conflict between any provision in this Agreement and a provision in the Credit Agreement, such provision of the Credit Agreement shall control.

(b) Patent, Trademark, Copyright Security Agreements . The provisions of the Copyright Security Agreements, Trademark Security Agreements, and Patent Security Agreements are supplemental to the provisions of this Agreement, and nothing contained in the Copyright Security Agreements, Trademark Security Agreements, or the Patent Security Agreements shall limit any of the rights or remedies of Agent hereunder. In the event of any conflict between any provision in this Agreement and a provision in a Copyright Security Agreement, Trademark Security Agreement or Patent Security Agreement, such provision of this Agreement shall control.

8. Further Assurances .

(a) Each Grantor agrees that from time to time, at its own expense, such Grantor will promptly execute and deliver all further instruments and documents, and take all further action, that Agent may reasonably request, in order to perfect and protect the Security Interest granted hereby, to create, perfect or protect the Security Interest purported to be granted hereby or to enable Agent to exercise and enforce its rights and remedies hereunder with respect to any of the Collateral.

(b) Each Grantor authorizes the filing by Agent of financing or continuation statements, or amendments thereto, and such Grantor will execute and deliver to Agent such other instruments or notices, as Agent may reasonably request, in order to perfect and preserve the Security Interest granted or purported to be granted hereby.

(c) Each Grantor authorizes Agent at any time and from time to time to file, transmit, or communicate, as applicable, financing statements and amendments (i) describing the Collateral as “all personal property of debtor” or “all assets of debtor” or words of similar effect, (ii) describing the Collateral as being of equal or lesser scope or with greater detail, or (iii) that contain any information required by part 5 of Article 9 of the Code for the sufficiency or filing office acceptance.

(d) Each Grantor acknowledges that it is not authorized to file any financing statement or amendment or termination statement with respect to any financing statement filed in connection with this Agreement without the prior written consent of Agent, subject to such Grantor’s rights under Section 9-509(d)(2) of the Code and under Section 22 of this Agreement.

9. Agent’s Right to Perform Contracts, Exercise Rights, etc . Upon the occurrence and during the continuance of an Event of Default, Agent (or its designee) (a) may proceed to perform any and all of the obligations of any Grantor contained in any contract, lease, or other agreement and exercise any and all rights of any Grantor therein contained as fully as such Grantor itself could, (b) shall have the right to use any Grantor’s rights under Intellectual Property Licenses in connection with the enforcement of Agent’s rights hereunder, including the right to prepare for sale and sell any and all Inventory and Equipment now or hereafter owned by any Grantor and now or hereafter covered by such licenses, and (c) shall have the right to request that any Equity Interests that are pledged hereunder be registered in the name of Agent or any of its nominees.

 

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10. Agent Appointed Attorney-in-Fact . Each Grantor hereby irrevocably appoints Agent its attorney-in-fact, with full authority in the place and stead of such Grantor and in the name of such Grantor or otherwise, at such time as an Event of Default has occurred and is continuing under the Credit Agreement to take any action and to execute any instrument which Agent may reasonably deem necessary or advisable to accomplish the purposes of this Agreement, including the following:

(a) to ask, demand, collect, sue for, recover, compromise, receive and give acquittance and receipts for moneys due and to become due under or in connection with the Accounts or any other Collateral of such Grantor;

(b) to receive and open all mail addressed to such Grantor and to notify postal authorities to change the address for the delivery of mail to such Grantor to that of Agent;

(c) to receive, indorse, and collect any drafts or other instruments, documents, Negotiable Collateral or Chattel Paper;

(d) to file any claims or take any action or institute any proceedings which Agent may deem necessary or desirable for the collection of any of the Collateral of such Grantor or otherwise to enforce the rights of Agent with respect to any of the Collateral;

(e) to repair, alter, or supply goods, if any, necessary to fulfill in whole or in part the purchase order of any Person obligated to such Grantor in respect of any Account of such Grantor;

(f) to use any Intellectual Property or Intellectual Property Licenses of such Grantor, including but not limited to any labels, Patents, Trademarks, trade names, URLs, domain names, industrial designs, Copyrights, or advertising matter, in preparing for sale, advertising for sale, or selling Inventory or other Collateral and to collect any amounts due under Accounts, contracts or Negotiable Collateral of such Grantor; and

(g) Agent, on behalf of the Secured Creditors, shall have the right, but shall not be obligated, to bring suit in its own name to enforce the Intellectual Property and Intellectual Property Licenses and, if Agent shall commence any such suit, the appropriate Grantor shall, at the request of Agent, do any and all lawful acts and execute any and all proper documents reasonably required by Agent in aid of such enforcement.

To the extent permitted by law, each Grantor hereby ratifies all that such attorney-in-fact shall lawfully do or cause to be done by virtue hereof. This power of attorney is coupled with an interest and shall be irrevocable until this Agreement is terminated.

11. Agent May Perform . If any Grantor fails to perform any agreement contained herein resulting in an Event of Default, Agent may itself perform, or cause performance of, such agreement, and the reasonable expenses of Agent incurred in connection therewith shall be payable, jointly and severally, by Grantors.

12. Agent’s Duties . The powers conferred on Agent hereunder are solely to protect Agent’s interest in the Collateral, for the benefit of the Secured Creditors, and shall not impose any duty upon Agent to exercise any such powers. Except for the safe custody of any Collateral in its actual possession and the accounting for moneys actually received by it hereunder, Agent shall have no duty as to any Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral. Agent shall be deemed to have exercised reasonable care in the custody and preservation of any Collateral in its actual possession if such Collateral is accorded treatment equal to that which Agent accords its own property.

 

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13. Collection of Accounts, General Intangibles and Negotiable Collateral . At any time upon the occurrence and during the continuance of an Event of Default, Agent or Agent’s designee may (a) notify Account Debtors of any Grantor that the Accounts, General Intangibles, Chattel Paper or Negotiable Collateral of such Grantor have been assigned to Agent, for the benefit of the Secured Creditors, or that Agent has a security interest therein, and (b) collect the Accounts, General Intangibles and Negotiable Collateral of any Grantor directly, and any collection costs and expenses shall constitute part of such Grantor’s Secured Obligations under the Credit Documents.

14. Disposition of Pledged Interests by Agent . None of the Pledged Interests existing as of the date of this Agreement are, and none of the Pledged Interests hereafter acquired on the date of acquisition thereof will be, registered or qualified under the various federal or state securities laws of the United States and disposition thereof after an Event of Default may be restricted to one or more private (instead of public) sales in view of the lack of such registration. Each Grantor understands that in connection with such disposition, Agent may approach only a restricted number of potential purchasers and further understands that a sale under such circumstances may yield a lower price for the Pledged Interests than if the Pledged Interests were registered and qualified pursuant to federal and state securities laws and sold on the open market. Each Grantor, therefore, agrees that: (a) if Agent shall, pursuant to the terms of this Agreement, sell or cause the Pledged Interests or any portion thereof to be sold at a private sale, Agent shall have the right to rely upon the advice and opinion of any nationally recognized brokerage or investment firm (but shall not be obligated to seek such advice and the failure to do so shall not be considered in determining the commercial reasonableness of such action) as to the best manner in which to offer the Pledged Interests or any portion thereof for sale and as to the best price reasonably obtainable at the private sale thereof; and (b) such reliance shall be conclusive evidence that Agent has handled the disposition in a commercially reasonable manner.

15. Voting and Other Rights in Respect of Pledged Interests .

(a) Upon the occurrence and during the continuation of an Event of Default, (i) Agent may, at its option, and with two (2) Business Days prior notice to any Grantor (provided that such notice shall be deemed to have been automatically given in connection with an Event of Default pursuant to Section 11.05 of the Credit Agreement), and in addition to all rights and remedies available to Agent under any other agreement, at law, in equity, or otherwise, exercise all voting rights, or any other ownership or consensual rights (including any dividend or distribution rights) in respect of the Pledged Interests owned by such Grantor, but under no circumstances is Agent obligated by the terms of this Agreement to exercise such rights, and (ii) if Agent duly exercises its right to vote any of such Pledged Interests, each Grantor hereby appoints Agent, such Grantor’s true and lawful attorney-in-fact and IRREVOCABLE PROXY to vote such Pledged Interests in any manner Agent deems advisable for or against all matters submitted or which may be submitted to a vote of shareholders, partners or members, as the case may be. The power-of-attorney and proxy granted hereby is coupled with an interest and shall be irrevocable.

(b) For so long as any Grantor shall have the right to vote the Pledged Interests owned by it, such Grantor covenants and agrees that it will not, without the prior written consent of Agent, vote or take any consensual action with respect to such Pledged Interests which would materially adversely affect the value of the Pledged Interests.

16. Remedies . Upon the occurrence and during the continuance of an Event of Default:

(a) Agent may, and, at the instruction of the Required Lenders, shall exercise in respect of the Collateral, in addition to other rights and remedies provided for herein, in the other Credit Documents, or otherwise available to it, all the rights and remedies of a secured party on default under the Code or any other applicable law. Without limiting the generality of the foregoing, each Grantor expressly agrees that, in any such event, Agent without demand of performance or other demand, advertisement or notice of any kind (except a notice specified below of time and place of public or private sale) to or upon any Grantor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived to the

 

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maximum extent permitted by the Code or any other applicable law), may take immediate possession of all or any portion of the Collateral and (i) require Grantors to, and each Grantor hereby agrees that it will at its own expense and upon request of Agent forthwith, assemble all or part of the Collateral as directed by Agent and make it available to Agent at one or more locations where such Grantor regularly maintains Inventory, and (ii) without notice except as specified below, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any of Agent’s offices or elsewhere, for cash, on credit, and upon such other terms as Agent may deem commercially reasonable. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days’ notice to the applicable Grantor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification and specifically such notice shall constitute a reasonable “authenticated notification of disposition” within the meaning of Section 9-611 of the Code. Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Each Grantor agrees that the internet shall constitute a “place” for purposes of Section 9-610(b) of the Code. Each Grantor agrees that any sale of Collateral to a licensor pursuant to the terms of a license agreement between such licensor and a Grantor is sufficient to constitute a commercially reasonable sale (including as to method, terms, manner, and time) within the meaning of Section 9-610 of the Code.

(b) Agent is hereby granted a license or other right to use, without liability for royalties or any other charge, each Grantor’s Intellectual Property, including but not limited to, any labels, Patents, Trademarks, trade names, URLs, domain names, industrial designs, Copyrights, and advertising matter, whether owned by any Grantor or with respect to which any Grantor has rights under license, sublicense, or other agreements (including any Intellectual Property License), as it pertains to the Collateral, in preparing for sale, advertising for sale and selling any Collateral, and each Grantor’s rights under all licenses and all franchise agreements shall inure to the benefit of Agent.

(c) Any cash held by Agent as Collateral and all cash proceeds received by Agent in respect of any sale of, collection from, or other realization upon all or any part of the Collateral shall be applied against the Secured Obligations in the order set forth in the Credit Agreement. In the event the proceeds of Collateral are insufficient to satisfy all of the Secured Obligations in full, each Grantor shall remain jointly and severally liable for any such deficiency.

(d) Each Grantor hereby acknowledges that the Secured Obligations arise out of a commercial transaction, and agrees that if an Event of Default shall occur and be continuing, Agent shall have the right to an immediate writ of possession without notice of a hearing.

17. Remedies Cumulative . Each right, power, and remedy of Agent, any of the Secured Creditors as provided for in this Agreement, the other Credit Documents or any Designated Interest Rate Protection Agreement or Designated Treasury Services Agreement now or hereafter existing at law or in equity or by statute or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power, or remedy provided for in this Agreement, the other Credit Documents and the Designated Interest Rate Protection Agreements and Designated Treasury Services Agreements now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by Agent or any of the Secured Creditors of any one or more of such rights, powers, or remedies shall not preclude the simultaneous or later exercise by Agent or any of the Secured Creditors of any or all such other rights, powers, or remedies.

18. Marshaling . Agent shall not be required to marshal any present or future collateral security (including but not limited to the Collateral) for, or other assurances of payment of, the Secured Obligations or any of them or to resort to such collateral security or other assurances of payment in any particular order, and all of its rights and remedies hereunder and in respect of such collateral security and other assurances of payment shall be cumulative and in addition to all other rights and remedies, however existing or arising. To the extent that it lawfully may, each Grantor hereby agrees that it will not invoke any law relating to the marshaling of collateral which might cause delay in or impede the enforcement of Agent’s rights and remedies

 

16


under this Agreement or under any other instrument creating or evidencing any of the Secured Obligations or under which any of the Secured Obligations is outstanding or by which any of the Secured Obligations is secured or payment thereof is otherwise assured, and, to the extent that it lawfully may, each Grantor hereby irrevocably waives the benefits of all such laws.

19. Indemnity and Expenses .

(a) Each Grantor agrees to indemnify Agent and any of the Secured Creditors from and against all claims, lawsuits and liabilities (including reasonable and documented attorneys fees) growing out of or resulting from this Agreement (including enforcement of this Agreement) or any other Credit Document to which such Grantor is a party to the same extent contemplated by Section 13.01 of the Credit Agreement. This provision shall survive the termination of this Agreement and the Credit Agreement and the repayment of the Secured Obligations.

(b) Grantors, jointly and severally, shall pay to Agent all the costs and expenses required by Section 13.01 of the Credit Agreement which Agent may incur in connection with (i) the administration of this Agreement, (ii) the custody, preservation, use or operation of, or, upon an Event of Default, the sale of, collection from, or other realization upon, any of the Collateral in accordance with this Agreement and the other Credit Documents, (iii) the exercise or enforcement of any of the rights of Agent hereunder or (iv) the failure by any Grantor to perform or observe any of the provisions hereof at the times contemplated by Section 13.01 of the Credit Agreement.

20. Merger, Amendments; Etc. THIS AGREEMENT, TOGETHER WITH THE OTHER CREDIT DOCUMENTS, REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN AGREEMENTS BETWEEN THE PARTIES. No waiver of any provision of this Agreement, and no consent to any departure by any Grantor herefrom, shall in any event be effective unless the same shall be in writing and signed by Agent, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No amendment of any provision of this Agreement shall be effective unless the same shall be in writing and signed by Agent and each Grantor to which such amendment applies.

21. Addresses for Notices . All notices and other communications provided for hereunder shall be given in the form and manner and delivered to Agent at its address specified in the Credit Agreement, and to any of the Grantors at their respective addresses specified in the Credit Agreement or Subsidiaries Guaranty, as applicable, or, as to any party, at such other address as shall be designated by such party in a written notice to the other party.

22. Continuing Security Interest: Assignments under Credit Agreement. This Agreement shall create a continuing security interest in the Collateral and shall (a) remain in full force and effect until the Secured Obligations have been paid in full in accordance with the provisions of the Credit Agreement, (b) be binding upon each Grantor, and their respective successors and assigns, and (c) inure to the benefit of, and be enforceable by, Agent, and its successors, permitted transferees and permitted assigns. Without limiting the generality of the foregoing clause (c), any Lender may, in accordance with the provisions of the Credit Agreement, assign or otherwise transfer all or any portion of its rights and obligations under the Credit Agreement to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to such Lender herein or otherwise. Upon payment in full of the Secured Obligations in accordance with the provisions of the Credit Agreement (other than (x) contingent indemnification obligations not then due and (y) obligations and liabilities under Designated Interest Rate Protection Agreements and Designated Treasury Services Agreements), the Security Interest granted hereby shall terminate, any Liens arising therefrom shall be automatically released, and all rights to the Collateral shall revert to Grantors or any other Person entitled thereto. At such time, the Grantors will be authorized to file any termination statements to terminate such Security Interests. Upon the consummation of any transaction

 

17


permitted by the Credit Agreement as a result of which a Guarantor is no longer is no longer required to be a Guarantor under the Credit Agreement, such Guarantor shall automatically be released from its obligations hereunder and the Security Interest in the Collateral of such Guarantor shall automatically be released. Upon any sale or transfer by any Grantor of any Collateral that is permitted under the Credit Agreement (other than a sale or transfer to another Credit Party), or upon the effectiveness of any written consent to the release of the security interest granted hereby in any Collateral pursuant to Section 13.12 of the Credit Agreement, the Security Interest in such Collateral shall be automatically released. In connection with any termination or release pursuant to this Section 22 , Agent shall promptly execute and deliver to Grantor, at such Grantor’s expense, all documents that such Grantor shall reasonably request to evidence such termination or release and shall perform such other actions reasonably requested by such Grantor to effect such release, including delivery of certificates, securities, instruments and written releases, terminations and similar documents. No transfer or renewal, extension, assignment, or termination of this Agreement or of the Credit Agreement, any other Credit Document, or any other instrument or document executed and delivered by any Grantor to Agent nor any other loans made by any Lender to the Borrower, nor the taking of further security, nor the retaking or re-delivery of the Collateral to Grantors, or any of them, by Agent, nor any other act of the Secured Creditors, or any of them, shall release any Grantor from any obligation, except a release or discharge executed in writing by Agent in accordance with the provisions of the Credit Agreement. Agent shall not by any act, delay, omission or otherwise, be deemed to have waived any of its rights or remedies hereunder, unless such waiver is in writing and signed by Agent and then only to the extent therein set forth. A waiver by Agent of any right or remedy on any occasion shall not be construed as a bar to the exercise of any such right or remedy which Agent would otherwise have had on any other occasion.

23. Governing Law .

(a) THE VALIDITY OF THIS AGREEMENT, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

(b) THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN, STATE OF NEW YORK; PROVIDED , HOWEVER , THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. AGENT AND EACH GRANTOR WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 23(b) .

(c) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AGENT AND EACH GRANTOR HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. AGENT AND EACH GRANTOR REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

 

18


24. New Grantor . The execution and delivery in favor of Agent of a Joinder to this Agreement in substantially the form of Annex 1 by any Person that may be required pursuant to the Credit Agreement or that has otherwise agreed to become a party to this Agreement as a Grantor, along with any related instrument, adding such Person as an additional Grantor as a party to this Agreement shall not require the consent of any Grantor hereunder, and such additional Grantor shall become a Grantor hereunder with the same force and effect as if originally named as a Grantor herein. The rights and obligations of each Grantor hereunder shall remain in full force and effect notwithstanding the addition of any new Grantor hereunder.

25. Agent . Each reference herein to any right granted to, benefit conferred upon or power exercisable by the “Agent” shall be a reference to Agent, for the benefit of each of the Secured Creditors.

26. Miscellaneous .

(a) This Agreement is a Credit Document. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Agreement. Delivery of an executed counterpart of this Agreement by facsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Agreement.

(b) Any provision of this Agreement which is prohibited or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof in that jurisdiction or affecting the validity or enforceability of such provision in any other jurisdiction. Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision.

(c) Headings and numbers have been set forth herein for convenience only. Unless the contrary is compelled by the context, everything contained in each Section applies equally to this entire Agreement.

(d) Neither this Agreement nor any uncertainty or ambiguity herein shall be construed against any of the Secured Creditors or any Grantor, whether under any rule of construction or otherwise. This Agreement has been reviewed by all parties and shall be construed and interpreted according to the ordinary meaning of the words used so as to accomplish fairly the purposes and intentions of all parties hereto.

(e) The pronouns used herein shall include, when appropriate, either gender and both singular and plural, and the grammatical construction of sentences shall conform thereto.

(f) Unless the context of this Agreement clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the terms “includes” and “including” are not limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or”. The words “hereof”, “herein”, “hereby”, “hereunder”, and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. Section, subsection, clause, schedule, and exhibit references herein are to this Agreement unless otherwise specified. Any reference in this Agreement to any agreement, instrument, or document shall include all alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements, thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein). The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts, and contract rights. Any reference herein to the satisfaction, repayment, or payment in full of the Secured Obligations shall mean the repayment in full of all of the Secured Obligations other than (x) contingent indemnification obligations not then due and (y) obligations and liabilities under Designated Interest Rate Protection

 

19


Agreements and Designated Treasury Services Agreements. Any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns. Any requirement of a writing contained herein shall be satisfied by the transmission of a Record.

(g) All of the annexes, schedules and exhibits attached to this Agreement shall be deemed incorporated herein by reference.

(h) Notwithstanding anything to the contrary in this Agreement or any other Credit Document, nothing herein or therein shall prohibit the MLP Set-Up Transactions.

[ Signature Pages Follow ]

 

20


IN WITNESS WHEREOF, the undersigned parties hereto have caused this Agreement to be executed and delivered as of the day and year first above written.

 

GRANTORS:  

OCI USA INC.,

a Delaware corporation

  By:  

 

    Name:
    Title:
 

OCI BEAUMONT LLC,

a Texas limited liability corporation

  By:  

 

    Name:
    Title:

[SIGNATURE PAGE TO SECURITY AGREEMENT]


AGENT:   BANK OF AMERICA, N.A.,
  By:  

 

    Name:
    Title:

[SIGNATURE PAGE TO SECURITY AGREEMENT]


ANNEX 1 TO SECURITY AGREEMENT

FORM OF JOINDER

Joinder No.      (this “ Joinder ”), dated as of                     , to the Security Agreement, dated as of May 21, 2013 (as amended, restated, supplemented, or otherwise modified from time to time, the “ Security Agreement ”), by and among each of the parties listed on the signature pages thereto and those additional entities that thereafter become parties thereto (collectively, jointly and severally, “ Grantors ” and each, individually, a “ Grantor ”) and BANK OF AMERICA, N.A. (“ Bank of America ”), in its capacity as agent for the Secured Creditors (in such capacity, together with its successors and permitted assigns in such capacity, “ Agent ”).

W I T N E S S E T H:

WHEREAS , pursuant to that certain Credit Agreement dated as of May 21, 2013 (as amended, restated, supplemented, or otherwise modified from time to time, the “ Credit Agreement ”) by and among OCI USA Inc., a Delaware corporation (“ Holdings ”) and OCI Beaumont LLC, a Texas limited liability company (the “ Borrower ”), the lenders party thereto as “Lenders” (such Lenders, together with their respective successors and permitted assigns in such capacity, each, individually, a “ Lender ” and, collectively, the “ Lenders ”) and Agent, the Secured Creditors have agreed to make certain financial accommodations available to the Borrower from time to time pursuant to the terms and conditions thereof; and

WHEREAS, initially capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Security Agreement or, if not defined therein, in the Credit Agreement; and

WHEREAS, Grantors have entered into the Security Agreement in order to induce the Secured Creditors to make certain financial accommodations to the Borrower; and

WHEREAS, pursuant to Section 24 of the Security Agreement, certain Persons may become party to the Security Agreement as a Grantor by the execution of this Joinder in favor of Agent, for the benefit of the Secured Creditors; and

WHEREAS, each of the undersigned new Grantors (collectively, “New Grantors”) (a) will benefit by virtue of the financial accommodations extended to the Borrower by the Secured Creditors and (b) by becoming a Credit Party will benefit from certain rights granted to the Credit Parties pursuant to the terms of the Credit Documents;

NOW, THEREFORE, for and in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each New Grantor hereby agrees as follows:

1. In accordance with Section 24 of the Security Agreement, each New Grantor, by its signature below, becomes a “Grantor” under the Security Agreement with the same force and effect as if originally named therein as a “Grantor” and each New Grantor hereby (a) agrees to all of the terms and provisions of the Security Agreement applicable to it as a “Grantor” thereunder and (b) represents and warrants that the representations and warranties made by it as a “Grantor” thereunder are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that are already qualified or modified by materiality in the text thereof) on and as of the date hereof (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be deemed to be made as of such earlier date). In furtherance of the foregoing, each New Grantor does hereby grant, collaterally assign, and pledge to Agent, for the benefit of the Secured Creditors, to secure the Secured Obligations, a continuing security interest in and to all of such New Grantor’s right, title and interest in and to the Collateral. Schedule 12 , “Commercial Tort Claims”, Schedule 11(b) , “Copyrights”, Schedule 11(a) , “Patents”, Schedule 11(a) , “Trademarks”, Schedule 9 , “Pledged Companies”, Schedule 7 , “Owned Real Property”, and Schedule 6 , “List of Uniform Commercial Code Filing Jurisdictions” attached hereto supplement Schedule 12, Schedule 11(b), Schedule 11(a),


Schedule 9, Schedule 7 and Schedule 6, respectively, to the Perfection Certificate and shall be deemed a part thereof for all purposes of the Security Agreement and the exact legal name of each New Grantor is set forth in the signature pages of this Joinder. Each reference to a “Grantor” in the Security Agreement shall be deemed to include each New Grantor. The Security Agreement is incorporated herein by reference. Each New Grantor authorizes Agent at any time and from time to time to file, transmit, or communicate, as applicable, financing statements and amendments thereto (i) describing the Collateral as “all personal property of debtor” or “all assets of debtor” or words of similar effect, (ii) describing the Collateral as being of equal or lesser scope or with greater detail, or (iii) that contain any information required by part 5 of Article 9 of the Code for the sufficiency or filing office acceptance. Each New Grantor also hereby ratifies any and all financing statements or amendments previously filed by Agent in any jurisdiction in connection with the Credit Documents.

2. Each New Grantor represents and warrants to Agent and the Secured Creditors that this Joinder has been duly executed and delivered by such New Grantor and constitutes its legal, valid, and binding obligation, enforceable against it in accordance with its terms, except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium, or other similar laws affecting creditors’ rights generally and general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).

3. This Joinder is a Credit Document. This Joinder may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Joinder. Delivery of an executed counterpart of this Joinder by facsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Joinder.

4. The Security Agreement, as supplemented hereby, shall remain in full force and effect.

5. THE VALIDITY OF THIS JOINDER, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

6. THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS JOINDER SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN, STATE OF NEW YORK; PROVIDED , HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. AGENT AND EACH NEW GRANTOR WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 6.

7. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AGENT AND EACH NEW GRANTOR HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS JOINDER OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. AGENT AND EACH NEW GRANTOR REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS JOINDER MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

 

Annex 1-2


IN WITNESS WHEREOF, the parties hereto have caused this Joinder to the Security Agreement to be executed and delivered as of the day and year first above written.

 

NEW GRANTORS:   [NAME OF NEW GRANTOR]
  By:  

 

    Name:
    Title:
  [NAME OF NEW GRANTOR]
  By:  

 

    Name:
    Title:
AGENT:   BANK OF AMERICA, N.A.
  By:  

 

    Name:
    Title:

[SIGNATURE PAGE TO JOINDER NO.      TO SECURITY AGREEMENT]


EXHIBIT A

COPYRIGHT SECURITY AGREEMENT

This COPYRIGHT SECURITY AGREEMENT (this “ Copyright Security Agreement ”) is made this      day of             , 20    , by and among Grantors listed on the signature pages hereof (collectively, jointly and severally, “ Grantors ” and each individually “ Grantor ”), and BANK OF AMERICA, N.A. (“ Bank of America ”), in its capacity as agent for the Secured Creditors (in such capacity, together with its successors and permitted assigns in such capacity, “ Agent ”).

W I T N E S S E T H :

WHEREAS , pursuant to that certain Credit Agreement dated as of May 21, 2013 (as amended, restated, supplemented, or otherwise modified from time to time, the “ Credit Agreement ”) by and among OCI USA Inc., a Delaware corporation (“ Holdings ”) and OCI Beaumont LLC, a Texas limited liability company (the “ Borrower ”), the lenders party thereto as “Lenders” (such Lenders, together with their respective successors and permitted assigns in such capacity, each, individually, a “ Lender ” and, collectively, the “ Lenders ”), and Agent, the Secured Creditors have agreed to make certain financial accommodations available to the Borrower from time to time pursuant to the terms and conditions thereof; and

WHEREAS, the Secured Creditors are willing to make the financial accommodations to Borrower as provided for in the Credit Agreement, but only upon the condition, among others, that Grantors shall have executed and delivered to Agent, for the benefit of the Secured Creditors, that certain Security Agreement, dated as of May 21, 2013 (including all annexes, exhibits or schedules thereto, as from time to time amended, restated, supplemented or otherwise modified, the “ Security Agreement ”); and

WHEREAS, pursuant to the Security Agreement, Grantors are required to execute and deliver to Agent, for the benefit of the Secured Creditors, this Copyright Security Agreement;

NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantors hereby agree as follows:

1. DEFINED TERMS . All initially capitalized terms used but not otherwise defined herein have the meanings given to them in the Security Agreement or, if not defined therein, in the Credit Agreement.

2. GRANT OF SECURITY INTEREST IN COPYRIGHT COLLATERAL . Each Grantor hereby grants, collaterally assigns, and pledges to Agent, for the benefit of each of the Secured Creditors, to secure the Secured Obligations, a continuing security interest (referred to in this Copyright Security Agreement as the “ Security Interest ”) in all of such Grantor’s right, title and interest in and to the following, whether now owned or hereafter acquired or arising (collectively, the “ Copyright Collateral ”):

(a) all of such Grantor’s Copyrights and Copyright Intellectual Property Licenses to which it is a party including those referred to on Schedule I ;

(b) all renewals or extensions of the foregoing; and

(c) all products and proceeds (as that term is defined in the Code) of the foregoing, including any claim by such Grantor against third parties for past, present or future infringement of any Copyright or any Copyright exclusively licensed under any Intellectual Property License, including the right to receive damages, or the right to receive license fees, royalties, and other compensation under any Copyright Intellectual Property License.


3. SECURITY FOR SECURED OBLIGATIONS . This Copyright Security Agreement and the Security Interest created hereby secures the payment and performance of the Secured Obligations, whether now existing or arising hereafter. Without limiting the generality of the foregoing, this Copyright Security Agreement secures the payment of all amounts which constitute part of the Secured Obligations and would be owed by Grantors, or any of them, to Agent, the Secured Creditors or any of them, whether or not they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any Grantor.

4. SECURITY AGREEMENT . The Security Interest granted pursuant to this Copyright Security Agreement is granted in conjunction with the security interests granted to Agent, for the benefit of the Secured Creditors, pursuant to the Security Agreement. Each Grantor hereby acknowledges and affirms that the rights and remedies of Agent with respect to the Security Interest in the Copyright Collateral made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. To the extent there is any inconsistency between this Copyright Security Agreement and the Security Agreement, the Security Agreement shall control.

5. AUTHORIZATION TO SUPPLEMENT . If any Grantor shall obtain rights to any new copyrights, the provisions of this Copyright Security Agreement shall automatically apply thereto. Grantors shall give prompt notice in writing to Agent with respect to any such new copyrights or renewal or extension of any copyright registration. Without limiting Grantors’ obligations under this Section, Grantors hereby authorize Agent unilaterally to modify this Copyright Security Agreement by amending Schedule I to include any future United States registered copyrights or applications therefor of each Grantor. Notwithstanding the foregoing, no failure to so modify this Copyright Security Agreement or amend Schedule I shall in any way affect, invalidate or detract from Agent’s continuing security interest in all Collateral, whether or not listed on Schedule I.

6. COUNTERPARTS . This Copyright Security Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Copyright Security Agreement. Delivery of an executed counterpart of this Copyright Security Agreement by facsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Copyright Security Agreement.

7. CONSTRUCTION . This Copyright Security Agreement is a Credit Document. Unless the context of this Copyright Security Agreement clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the terms “includes” and “including” are not limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or”. The words “hereof”, “herein”, “hereby”, “hereunder”, and similar terms in this Copyright Security Agreement refer to this Copyright Security Agreement as a whole and not to any particular provision of this Copyright Security Agreement. Section, subsection, clause, schedule, and exhibit references herein are to this Copyright Security Agreement unless otherwise specified. Any reference in this Copyright Security Agreement to any agreement, instrument, or document shall include all alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements, thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein). The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts, and contract rights. Any reference herein to the satisfaction, repayment, or payment in full of the Secured Obligations shall mean the repayment in full of all of the Secured Obligations other than (x) contingent indemnification obligations not then due and (y) obligations and liabilities under Designated Interest Rate Protection Agreements and Designated Treasury Services Agreements. Any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns. Any requirement of a writing contained herein shall be satisfied by the transmission of a Record.

 

A-2


8. THE VALIDITY OF THIS COPYRIGHT SECURITY AGREEMENT, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

9. THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS COPYRIGHT SECURITY AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN, STATE OF NEW YORK; PROVIDED , HOWEVER , THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. AGENT AND EACH GRANTOR WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 9 .

10. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AGENT AND EACH GRANTOR HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS COPYRIGHT SECURITY AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. AGENT AND EACH GRANTOR REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS COPYRIGHT SECURITY AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

[ SIGNATURE PAGE FOLLOWS ]

 

A-3


IN WITNESS WHEREOF, the parties hereto have caused this Copyright Security Agreement to be executed and delivered as of the day and year first above written.

 

GRANTORS:    

 

    By:  

 

      Name:  
      Title:  
   

 

    By:  

 

      Name:  
      Title:  

 

    ACCEPTED AND ACKNOWLEDGED BY :
AGENT:     BANK OF AMERICA, N.A.,
    By:  

 

      Name:  
      Title:  

[SIGNATURE PAGE TO COPYRIGHT SECURITY AGREEMENT]


SCHEDULE I

TO

COPYRIGHT SECURITY AGREEMENT

C OPYRIGHT R EGISTRATIONS

 

Grantor

  

Country

  

Copyright

  

Registration No.

  

Registration Date

           
           
           
           
           
           
           
           

1.

2. Copyright Licenses

COPYRIGHT SECURITY AGREEMENT


EXHIBIT B

PATENT SECURITY AGREEMENT

This PATENT SECURITY AGREEMENT (this “ Patent Security Agreement ”) is made this     day of             , 20    , by and among the Grantors listed on the signature pages hereof (collectively, jointly and severally, “ Grantors ” and each individually “ Grantor ”), and BANK OF AMERICA, N.A. (“ Bank of America ”), in its capacity as agent for the Secured Creditors (in such capacity, together with its successors and permitted assigns in such capacity, “ Agent ”).

W I T N E S S E T H :

WHEREAS, pursuant to that certain Credit Agreement dated as of May 21, 2013 (as amended, restated, supplemented, or otherwise modified from time to time, the “ Credit Agreement ”) by and among OCI USA Inc., a Delaware corporation (“ Holdings ”) and OCI Beaumont LLC, a Texas limited liability company (the “ Borrower ”), the lenders party thereto as “Lenders” (such Lenders, together with their respective successors and permitted assigns in such capacity, each, individually, a “ Lender ” and, collectively, the “ Lenders ”), and Agent, the Secured Creditors have agreed to make certain financial accommodations available to the Borrower from time to time pursuant to the terms and conditions thereof; and

WHEREAS, the Secured Creditors are willing to make the financial accommodations to Borrower as provided for in the Credit Agreement, but only upon the condition, among others, that the Grantors shall have executed and delivered to Agent, for the benefit of the Secured Creditors, that certain Security Agreement, dated as of May 21, 2013 (including all annexes, exhibits or schedules thereto, as from time to time amended, restated, supplemented or otherwise modified, the “ Security Agreement ”); and

WHEREAS, pursuant to the Security Agreement, Grantors are required to execute and deliver to Agent, for the benefit of the Secured Creditors, this Patent Security Agreement;

NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Grantor hereby agrees as follows:

1. DEFINED TERMS . All initially capitalized terms used but not otherwise defined herein have the meanings given to them in the Security Agreement or, if not defined therein, in the Credit Agreement.

2. GRANT OF SECURITY INTEREST IN PATENT COLLATERAL . Each Grantor hereby grants, collaterally assigns, and pledges to Agent, for the benefit of each of the Secured Creditors, to secure the Secured Obligations, a continuing security interest (referred to in this Patent Security Agreement as the “ Security Interest ”) in all of such Grantor’s right, title and interest in and to the following, whether now owned or hereafter acquired or arising (collectively, the “ Patent Collateral ”):

(a) all of its Patents and Patent Intellectual Property Licenses to which it is a party including those referred to on Schedule I ;

(b) all divisionals, continuations, continuations-in-part, reissues, reexaminations, or extensions of the foregoing; and

(c) all products and proceeds (as that term is defined in the Code) of the foregoing, including any claim by such Grantor against third parties for past, present or future infringement of any Patent or any Patent exclusively licensed under any Intellectual Property License, including the right to receive damages, or right to receive license fees, royalties, and other compensation under any Patent Intellectual Property License.


3. SECURITY FOR SECURED OBLIGATIONS . This Patent Security Agreement and the Security Interest created hereby secures the payment and performance of the Secured Obligations, whether now existing or arising hereafter. Without limiting the generality of the foregoing, this Patent Security Agreement secures the payment of all amounts which constitute part of the Secured Obligations and would be owed by Grantors, or any of them, to Agent, the Secured Creditors or any of them, whether or not they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any Grantor.

4. SECURITY AGREEMENT . The Security Interest granted pursuant to this Patent Security Agreement is granted in conjunction with the security interests granted to Agent, for the benefit of the Secured Creditors, pursuant to the Security Agreement. Each Grantor hereby acknowledges and affirms that the rights and remedies of Agent with respect to the Security Interest in the Patent Collateral made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. To the extent there is any inconsistency between this Patent Security Agreement and the Security Agreement, the Security Agreement shall control.

5. AUTHORIZATION TO SUPPLEMENT . If any Grantor shall obtain rights to any new patent application or issued patent or become entitled to the benefit of any patent application or patent for any divisional, continuation, continuation-in-part, reissue, or reexamination of any existing patent or patent application, the provisions of this Patent Security Agreement shall automatically apply thereto. Grantors shall give prompt notice in writing to Agent with respect to any such new patent rights. Without limiting Grantors’ obligations under this Section, Grantors hereby authorize Agent unilaterally to modify this Patent Security Agreement by amending Schedule I to include any such new patent rights of each Grantor. Notwithstanding the foregoing, no failure to so modify this Patent Security Agreement or amend Schedule I shall in any way affect, invalidate or detract from Agent’s continuing security interest in all Collateral, whether or not listed on Schedule I .

6. COUNTERPARTS . This Patent Security Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Patent Security Agreement. Delivery of an executed counterpart of this Patent Security Agreement by facsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Patent Security Agreement.

7. CONSTRUCTION . This Patent Security Agreement is a Credit Document. Unless the context of this Patent Security Agreement clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the terms “includes” and “including” are not limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or”. The words “hereof”, “herein”, “hereby”, “hereunder”, and similar terms in this Patent Security Agreement refer to this Patent Security Agreement as a whole and not to any particular provision of this Patent Security Agreement. Section, subsection, clause, schedule, and exhibit references herein are to this Patent Security Agreement unless otherwise specified. Any reference in this Patent Security Agreement to any agreement, instrument, or document shall include all alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements, thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein). The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts, and contract rights. Any reference herein to the satisfaction, repayment, or payment in full of the Secured Obligations shall mean the repayment in full of all of the Secured Obligations other than (x) contingent indemnification obligations not then due and (y) obligations and liabilities under Designated Interest Rate Protection Agreements and Designated Treasury

 

B-2


Services Agreements. Any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns. Any requirement of a writing contained herein shall be satisfied by the transmission of a Record.

8. THE VALIDITY OF THIS PATENT SECURITY AGREEMENT, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

9. THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS PATENT SECURITY AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN, STATE OF NEW YORK; PROVIDED , HOWEVER , THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. AGENT AND EACH GRANTOR WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 9 .

10. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AGENT AND EACH GRANTOR HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS PATENT SECURITY AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. AGENT AND EACH GRANTOR REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS PATENT SECURITY AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

[ SIGNATURE PAGE FOLLOWS ]

 

B-3


IN WITNESS WHEREOF, the parties hereto have caused this Patent Security Agreement to be executed and delivered as of the day and year first above written.

 

GRANTORS:    

 

    By:  

 

      Name:
      Title:
   

 

    By:  

 

      Name:
      Title:
AGENT:     ACCEPTED AND ACKNOWLEDGED BY :
    BANK OF AMERICA, N.A. ,
    By:  

 

      Name:
      Title:

[SIGNATURE PAGE TO PATENT SECURITY AGREEMENT]


SCHEDULE I

to

PATENT SECURITY AGREEMENT

Patents

 

Grantor

 

Country

 

Patent

  

Application/

Patent No.

  

Filing Date

         
         
         
         
         
         
         

Patent Licenses

PATENT SECURITY AGREEMENT


EXHIBIT C

PLEDGED INTERESTS ADDENDUM

This Pledged Interests Addendum, dated as of                  , 20    (this “ Pledged Interests Addendum ”), is delivered pursuant to Section 6(g) of the Security Agreement referred to below. The undersigned hereby agrees that this Pledged Interests Addendum may be attached to that certain Security Agreement, dated as of May 21, 2013 (as amended, restated, supplemented, or otherwise modified from time to time, the “ Security Agreement ”), made by the undersigned, together with the other Grantors named therein, to BANK OF AMERICA, N.A. , as Agent. Initially capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the Security Agreement or, if not defined therein, in the Credit Agreement. The undersigned hereby agrees that the additional interests listed on Schedule I shall be and become part of the Pledged Interests pledged by the undersigned to Agent in the Security Agreement and any pledged company set forth on Schedule I shall be and become a “Pledged Company” under the Security Agreement, each with the same force and effect as if originally named therein.

This Pledged Interests Addendum is a Credit Document. Delivery of an executed counterpart of this Pledged Interests Addendum by facsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Pledged Interests Addendum.

The undersigned hereby certifies that the representations and warranties set forth in Section 5 of the Security Agreement of the undersigned are true and correct as to the Pledged Interests listed herein on and as of the date hereof.

THE VALIDITY OF THIS PLEDGED INTERESTS ADDENDUM, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS PLEDGED INTERESTS ADDENDUM SHALL BE TRIED AND LITIGATED ONLY IN THE STATE, AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN, STATE OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. AGENT AND EACH GRANTOR WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS PARAGRAPH.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AGENT AND EACH GRANTOR HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS PLEDGED INTERESTS ADDENDUM OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. AGENT AND EACH GRANTOR REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS PLEDGED INTERESTS ADDENDUM MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.


[ SIGNATURE PAGE FOLLOWS ]

 

C-2


IN WITNESS WHEREOF, the undersigned has caused this Pledged Interests Addendum to be executed and delivered as of the day and year first above written.

 

[                    ]
By:  

 

  Name:
  Title:

[SIGNATURE PAGE TO PLEDGE INTERESTS ADDENDUM]


SCHEDULE I

TO

PLEDGED INTERESTS ADDENDUM

Pledged Interests

 

Name of Grantor

 

Name of Pledged Company

 

Number of

Shares/Units

   Class of
Interests
   Percentage of
Class Owned
   Certificate
Nos.
            
            

PLEDGE INTERESTS ADDENDUM


EXHIBIT D

TRADEMARK SECURITY AGREEMENT

This TRADEMARK SECURITY AGREEMENT (this “ Trademark Security Agreement ”) is made this      day of             , 20    , by and among Grantors listed on the signature pages hereof (collectively, jointly and severally, “ Grantors ” and each individually “ Grantor ”), and BANK OF AMERICA, N.A. (“ Bank of America ”), in its capacity as agent for the Secured Creditors (in such capacity, together with its successors and permitted assigns in such capacity, “ Agent ”).

W I T N E S S E T H:

WHEREAS, pursuant to that certain Credit Agreement dated as of May 21, 2013 (as amended, restated, supplemented, or otherwise modified from time to time, the “ Credit Agreement ”) by and among OCI USA Inc., a Delaware corporation (“ Holdings ”) and OCI Beaumont LLC, a Texas limited liability company (the “ Borrower ”), the lenders party thereto as “Lenders” (such Lenders, together with their respective successors and permitted assigns in such capacity, each, individually, a “ Lender ” and, collectively, the “ Lenders ”), and Agent, the Secured Creditors have agreed to make certain financial accommodations available to the Borrower from time to time pursuant to the terms and conditions thereof; and

WHEREAS, the Secured Creditors are willing to make the financial accommodations to Borrower as provided for in the Credit Agreement, but only upon the condition, among others, that Grantors shall have executed and delivered to Agent, for the benefit of the Secured Creditors, that certain Security Agreement, dated as of May 21, 2013 (including all annexes, exhibits or schedules thereto, as from time to time amended, restated, supplemented or otherwise modified, the “ Security Agreement ”); and

WHEREAS, pursuant to the Security Agreement, Grantors are required to execute and deliver to Agent, for the benefit of the Secured Creditors, this Trademark Security Agreement;

NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Grantor hereby agrees as follows:

1. DEFINED TERMS . All initially capitalized terms used but not otherwise defined herein have the meanings given to them in the Security Agreement or, if not defined therein, in the Credit Agreement.

2. GRANT OF SECURITY INTEREST IN TRADEMARK COLLATERAL . Each Grantor hereby grants, collaterally assigns, and pledges to Agent, for the benefit of each of the Secured Creditors, to secure the Secured Obligations, a continuing security interest (referred to in this Trademark Security Agreement as the “ Security Interest ”) in all of such Grantor’s right, title and interest in and to the following, whether now owned or hereafter acquired or arising (collectively, the “ Trademark Collateral ”):

(a) all of its Trademarks and Trademark Intellectual Property Licenses to which it is a party including those referred to on Schedule I;

(b) all goodwill of the business connected with the use of, and symbolized by, each Trademark and each Trademark Intellectual Property License; and

(c) all products and proceeds (as that term is defined in the Code) of the foregoing, including any claim by such Grantor against third parties for past, present or future (i) infringement or dilution of any Trademark or any Trademarks exclusively licensed under any Intellectual Property License, including right to receive any damages, (ii) injury to the goodwill associated with any Trademark, or (iii) right to receive license fees, royalties, and other compensation under any Trademark Intellectual Property License.


3. SECURITY FOR SECURED OBLIGATIONS . This Trademark Security Agreement and the Security Interest created hereby secures the payment and performance of the Secured Obligations, whether now existing or arising hereafter. Without limiting the generality of the foregoing, this Trademark Security Agreement secures the payment of all amounts which constitute part of the Secured Obligations and would be owed by Grantors, or any of them, to Agent, the Secured Creditors or any of them, whether or not they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any Grantor.

4. SECURITY AGREEMENT . The Security Interest granted pursuant to this Trademark Security Agreement is granted in conjunction with the security interests granted to Agent, for the benefit of the Secured Creditors, pursuant to the Security Agreement. Each Grantor hereby acknowledges and affirms that the rights and remedies of Agent with respect to the Security Interest in the Trademark Collateral made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. To the extent there is any inconsistency between this Trademark Security Agreement and the Security Agreement, the Security Agreement shall control.

5. AUTHORIZATION TO SUPPLEMENT . If any Grantor shall obtain rights to any new trademarks, the provisions of this Trademark Security Agreement shall automatically apply thereto. Grantors shall give prompt notice in writing to Agent with respect to any such new trademarks or renewal or extension of any trademark registration. Without limiting Grantors’ obligations under this Section, Grantors hereby authorize Agent unilaterally to modify this Trademark Security Agreement by amending Schedule I to include any such new trademark rights of each Grantor. Notwithstanding the foregoing, no failure to so modify this Trademark Security Agreement or amend Schedule I shall in any way affect, invalidate or detract from Agent’s continuing security interest in all Collateral, whether or not listed on Schedule I .

6. COUNTERPARTS . This Trademark Security Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Trademark Security Agreement. Delivery of an executed counterpart of this Trademark Security Agreement by facsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Trademark Security Agreement.

7. CONSTRUCTION . This Trademark Security Agreement is a Credit Document. Unless the context of this Trademark Security Agreement clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the terms “includes” and “including” are not limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or”. The words “hereof”, “herein”, “hereby”, “hereunder”, and similar terms in this Trademark Security Agreement refer to this Trademark Security Agreement as a whole and not to any particular provision of this Trademark Security Agreement. Section, subsection, clause, schedule, and exhibit references herein are to this Agreement unless otherwise specified. Any reference in this Trademark Security Agreement to any agreement, instrument, or document shall include all alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements, thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein). The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts, and contract rights. Any reference herein to the satisfaction, repayment, or payment in full of the Secured Obligations shall mean the repayment in full of all of the Secured Obligations other than (x) contingent indemnification obligations not then due and (y) obligations and liabilities under Designated Interest Rate Protection Agreements and Designated Treasury Services Agreements. Any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns. Any requirement of a writing contained herein shall be satisfied by the transmission of a Record.

 

D-2


8. THE VALIDITY OF THIS TRADEMARK SECURITY AGREEMENT, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

9. THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS TRADEMARK SECURITY AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN, STATE OF NEW YORK; PROVIDED , HOWEVER , THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. AGENT AND EACH GRANTOR WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 9 .

10. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AGENT AND EACH GRANTOR HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS TRADEMARK SECURITY AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. AGENT AND EACH GRANTOR REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS TRADEMARK SECURITY AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

[ SIGNATURE PAGE FOLLOWS ]

 

D-3


IN WITNESS WHEREOF, the parties hereto have caused this Trademark Security Agreement to be executed and delivered as of the day and year first above written.

 

GRANTORS:    

 

    By:  

 

      Name:
      Title:
   

 

    By:  

 

      Name:
      Title:
AGENT:     ACCEPTED AND ACKNOWLEDGED BY :
   

BANK OF AMERICA, N.A. ,

a Delaware limited liability company

    By:  

 

      Name:
      Title:

[SIGNATURE PAGE TO TRADEMARK SECURITY AGREEMENT]


SCHEDULE I

to

TRADEMARK SECURITY AGREEMENT

Trademark Registrations/Applications

 

Grantor

 

Country

 

Mark

 

Application/

Registration No.

 

App/Reg Date

       
       
       
       
       
       
       
       

 

3.

Trade Names

Common Law Trademarks

Trademarks Not Currently In Use

Trademark Licenses

TRADEMARK SECURITY AGREEMENT


EXHIBIT F

FORM OF

SOLVENCY CERTIFICATE

May [     ], 2013

This Solvency Certificate is being executed and delivered pursuant to Section 6.14 of that certain Term Loan Credit Agreement dated as of May 21, 2013 (as amended, restated, supplemented or modified from time to time, the “ Credit Agreement ”), among OCI Beaumont LLC, a Texas limited liability company (the “ Borrower ”), OCI USA Inc., a Delaware corporation (“ Holdings ”), the lenders party thereto from time to time (the “ Lenders ”), Barclays Bank PLC, as Syndication Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as administrative agent (together with any successor administrative agent, the “ Administrative Agent ”). Unless otherwise defined herein, capitalized terms used in this Certificate shall have the meanings set forth in the Credit Agreement.

I, [            ], the [Chief Financial Officer/equivalent officer] of Holdings, in such capacity and not in an individual capacity, hereby certify as follows:

I am generally familiar with the businesses and assets of Holdings and the Borrower, taken as a whole, and am duly authorized to execute this Solvency Certificate on behalf of Holdings pursuant to the Credit Agreement; and

As of the date hereof and after giving effect to the Transaction and the incurrence of the indebtedness and obligations being incurred in connection with the Credit Agreement and the Transaction, that, (i) the sum of the debt (including contingent liabilities) of Holdings and the Borrower, taken as a whole, does not exceed the fair value of the present assets of Holdings and the Borrower, taken as a whole; (ii) the capital of Holdings and the Borrower, taken as a whole, is not unreasonably small in relation to the business of Holdings and the Borrower, taken as a whole, contemplated as of the date hereof; and (iii) Holdings and the Borrower, taken as a whole, do not intend to incur, or believe that they will incur, debts (including current obligations and contingent liabilities) beyond their ability to pay such debt as they mature in the ordinary course of business. For the purposes hereof, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

*    *    *

 

Exhibit F-1


IN WITNESS WHEREOF, I have executed this certificate as of the date first written above.

 

OCI USA INC.
By:    
  Name:
  Title:

 

Exhibit F-2


EXHIBIT G

FORM OF COMPLIANCE CERTIFICATE

This Compliance Certificate is delivered to you pursuant to Section 9.01(e) of the Term Loan Credit Agreement, dated as of May 21, 2013 (as further amended, restated, supplemented or modified from time to time, the “ Credit Agreement ”), among OCI Beaumont LLC, a Texas limited liability company (the “ Borrower ”), OCI USA Inc., a Delaware corporation (“ Holdings ”), the lenders party thereto from time to time (the “ Lenders ”), Barclays Bank PLC, as Syndication Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as administrative agent (together with any successor administrative agent, the “ Administrative Agent ”). Terms defined in the Credit Agreement and not otherwise defined herein are used herein as therein defined.

1. I am the duly elected, qualified and acting Chief Financial Officer of the Borrower.

2. I have reviewed and am familiar with the contents of this Compliance Certificate. I am providing this Compliance Certificate solely in my capacity as the Chief Financial Officer of the Borrower. The matters set forth herein are true to the best of my knowledge after due inquiry.

3. I have reviewed the terms of the Credit Agreement and the other Credit Documents and have made or caused to be made under my supervision a review in reasonable detail of the transactions and condition of the Borrower during the accounting period covered by the financial statements attached hereto as ANNEX 1 (the “ Financial Statements ”). Such review did not disclose the existence during or at the end of the accounting period covered by the Financial Statements, and I have no knowledge of the existence, as of the date of this Compliance Certificate, of any condition or event which constitutes a Default or an Event of Default[, except as set forth below and described in detail, the nature and extent thereof and what actions the Borrower has taken and proposes to take with respect thereto].

4. Attached hereto as ANNEX 2 are detailed calculations demonstrating compliance by the Borrower with Sections 10.11 and 10.12 of the Credit Agreement. The Borrower is in compliance with such Sections as of the date hereof.

*    *    *

 

Exhibit G-1


IN WITNESS WHEREOF, I have executed this Compliance Certificate this              day of                     , 2013.

 

OCI BEAUMONT LLC
By:    
  Name:
  Title:    Chief Financial Officer

 

Exhibit G-2


ANNEX 1

TO EXHIBIT G

Financial Statements to be Attached

 

Annex 1 to Exhibit G


ANNEX 2

TO EXHIBIT G

 

(A)   Minimum EBITDA

  
Section 10.11—Minimum EBITDA.   

(i)     Consolidated EBITDA for the calendar month ending [             ], 2013:

   $                     

(ii)    Consolidated EBITDA for the calendar month ending [            ], 2013:

  

 

(iii)   Consolidated EBITDA for the calendar month ending [            ], 2013:

  

 

(iv)   Consolidated EBITDA for the three consecutive calendar months ending [            ], 2013 ((i) + (ii) + (iii)):

   $                     
Consolidated EBITDA is in compliance with Section 10.11? Yes/No   

(B)   Maximum Capital Expenditures

  
Section 10.12—Capital Expenditures.   
Capital Expenditures made since the Closing Date:    $                     
Capital Expenditures are in compliance with Section 10.12? Yes/No   

 

 

Annex 2 to Exhibit G


EXHIBIT H

FORM OF ASSIGNMENT AND ASSUMPTION

This Assignment and Assumption (the “ Assignment and Assumption ”) is dated as of the Effective Date set forth below and is entered into by and between [the][each] 1 Assignor identified in item 1 below ([the][each, an] “ Assignor ”) and [the][each] 2 Assignee identified in item 2 below ([the][each, an] “ Assignee ”). [It is understood and agreed that the rights and obligations of the [Assignors][Assignees] 3 hereunder are several and not joint.] 4 Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “ Credit Agreement ”), receipt of a copy of which is hereby acknowledged by [the][each] Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto (the “ Standard Terms and Conditions ”) are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.

For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to the [Assignee][respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from the [Assignor][ respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the [Assignor’s][respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the [Assignor][respective Assignors] under the respective Tranches identified below, and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the [Assignor (in its capacity as a Lender)][respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and

 

1   For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language.
2   For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language.
3   Select as appropriate.
4  

Include bracketed language if there are either multiple Assignors or multiple Assignees.

 

Exhibit H-1


obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “ Assigned Interest ”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.

 

1.       Assignor[s]:   

                                                  

  
    

 

  
2.   Assignee[s]:   

 

  
    

 

  
  [for each Assignee, indicate if an Affiliate of [ identify Lender ]]
  [for each Assignee, indicate if an Affiliate of the Borrower]
3.   Borrower:    OCI Beaumont LLC   
4.   Administrative Agent:        Bank of America, N.A., as the administrative agent under the Credit Agreement
5.   Credit Agreement:    The $360,000,000 Term Loan Credit Agreement dated as of May 21, 2013 among OCI Beaumont LLC, OCI USA Inc., the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and the other agents party thereto

 

Exhibit H-2


6. Assigned Interest[s]:

 

Assignor[s] 5

   Assignee[s] 6    Tranche
Assigned 7
   Aggregate
Amount of
Commitment/
Term Loans
for all Lenders 8
     Amount of
Commitment/
Term Loans
Assigned 8
     Percentage
Assigned of
Commitment/
Term Loans 9
    CUSIP
Number
         $         $              
         $         $              
         $         $              

 

[7. Trade Date:                                                          ] 10

 

5   List each Assignor, as appropriate.
6   List each Assignee, as appropriate.
7   Fill in the appropriate terminology for the Tranches that are being assigned under this Assignment (e.g., “Term B-1 Loan Commitment” or “Term Loan B-2 Commitment”).
8   Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.
9   Set forth, to at least 9 decimals, as a percentage of the Commitment/Term Loans of all Lenders thereunder.
10   To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to be determined as of the Trade Date.

 

Exhibit H-3


Effective Date:                     , 20     [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]

The terms set forth in this Assignment and Assumption are hereby agreed to:

 

ASSIGNOR[S] 11
[NAME OF ASSIGNOR]
By:  

 

  Title:
[NAME OF ASSIGNOR]
By:  

 

  Title:
ASSIGNEE[S] 12
[NAME OF ASSIGNEE]
By:  

 

  Title:
[NAME OF ASSIGNEE]
By:  

 

  Title:

 

11   Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if applicable).
12   Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if applicable).

 

Exhibit H-4


Consented to and Accepted:

BANK OF AMERICA, N.A.,

as Administrative Agent

By:  

 

  Title:
[Consented to: 13
OCI BEAUMONT LLC
By:  

 

  Title:         ]

 

13   To be added only if the consent of the Borrower is required by the Credit Agreement.

 

Exhibit H-5


ANNEX 1

TO EXHIBIT H

TERM LOAN B CREDIT AGREEMENT

STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION

1. Representations and Warranties .

1.1 Assignor[s] . [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Credit Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Affiliates or any other Person obligated in respect of any Credit Document, or (iv) the performance or observance by the Borrower, any of its Affiliates or any other Person of any of their respective obligations under any Credit Document.

1.2. Assignee[s] . [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an Eligible Transferee under the Credit Agreement (subject to such consents, if any, as may be required under Section 13.04(b)(iii) of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 9.01 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Credit Documents are required to be performed by it as a Lender.

 

Annex 1 to Exhibit H-1


2. Payments . From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date. Notwithstanding the foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable from and after the Effective Date to [the][the relevant] Assignee.

3. General Provisions . This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.

 

Annex 1 to Exhibit H-2


FORM I

FORM OF

PERFECTION CERTIFICATE

 


PERFECTION CERTIFICATE

Reference is hereby made to (i) that certain Security Agreement dated as of May 21, 2013 (the “ Security Agreement ”), between OCI Beaumont LLC, a Texas limited liability company (“ Borrower ”), OCI USA Inc., a Delaware corporation (“ Holdings ”), and the Collateral Agent (as hereinafter defined) and (ii) that certain Term Loan Credit Agreement dated as of May 21, 2013 (the “ Credit Agreement ”) among the Borrower, Holdings, certain other parties thereto and Bank of America, N.A., as Collateral Agent (in such capacity, the “ Collateral Agent ”). Capitalized terms used but not defined herein have the meanings assigned to them in the Credit Agreement.

As used herein, the term “ Companies ” means Holdings and Borrower.

The undersigned hereby certify to the Collateral Agent as follows:

1. Names .

(a) The exact legal name of each Company, as such name appears in its respective certificate of incorporation or any other organizational document, is set forth in Schedule 1(a) . Each Company is (i) the type of entity disclosed next to its name in Schedule 1(a) and (ii) a registered organization except to the extent disclosed in Schedule 1(a) . Also set forth in Schedule 1(a) is the organizational identification number, if any, of each Company that is a registered organization, the Federal Taxpayer Identification Number of each Company and the jurisdiction of formation of each Company.

(b) Set forth in Schedule 1(b) hereto is a list of any other corporate or organizational names each Company has had in the past five years, together with the date of the relevant change.

(c) Set forth in Schedule 1(c) is a list of all other names used by each Company, or any other business or organization to which each Company became the successor by merger, consolidation, acquisition, change in form, nature or jurisdiction of organization or otherwise, on any filings with the Internal Revenue Service at any time within the five years preceding the date hereof. Except as set forth in Schedule 1(c) , no Company has changed its jurisdiction of organization at any time during the past four months.

2. Current Locations . The chief executive office of each Company is located at the address set forth in Schedule 2 hereto.

3. Extraordinary Transactions . Except for those purchases, acquisitions and other transactions described in Schedule 3 attached hereto, all of the Collateral has been originated by each Company in the ordinary course of business or consists of goods which have been acquired by such Company in the ordinary course of business from a person in the business of selling goods of that kind.

4. File Search Reports . Attached hereto as Schedule 4 is a true and accurate summary of file search reports from (A) the Uniform Commercial Code filing offices (i) in each jurisdiction identified in Section 1(a) or Section 2 with respect to each legal name set forth in Section 1 and (ii) in each jurisdiction described in Schedule 1(c) or Schedule 3 relating to any of the transactions described in Schedule (1)(c)  or Schedule 3 with respect to each legal name of the person or entity from which each Company purchased or otherwise acquired any of the Collateral and (B) each real estate recording office identified in Schedule 7 with respect to real estate on which Collateral consisting of fixtures is or is to be located. A true copy of each financing statement, including judgment and tax liens, bankruptcy and pending lawsuits or other filing identified in such file search reports has been delivered to the Collateral Agent.


5. UCC Filings . The financing statements (duly authorized by each Company constituting the debtor therein), including the indications of the collateral, attached as Schedule 5 relating to the Security Agreement, are in the appropriate forms for filing in the filing offices in the jurisdictions identified in Schedule 6 hereof.

6. Schedule of Filings . Attached hereto as Schedule 6 is a schedule of (i) the appropriate filing offices for the financing statements attached hereto as Schedule 5 , (ii) the appropriate filing offices for the filings described in Schedule 11(c) , (iii) the appropriate filing offices for the Mortgages and fixture filings relating to the Mortgaged Property set forth in Schedule 7(a) and (iv) any other actions required to create, preserve, protect and perfect the security interests in the Collateral granted to the Collateral Agent pursuant to the Collateral Documents. No other filings or actions are required to create, preserve, protect and perfect the security interests in the Collateral granted to the Collateral Agent pursuant to the Collateral Documents (to the extent perfection is so required).

7. Real Property . (a) Attached hereto as Schedule 7(a) is a list of all (i) real property owned, leased or otherwise held by each Company located in the United States as of the Closing Date, (ii) real property to be encumbered by a Mortgage and fixture filing (such real property, the “Mortgaged Property”), (iii) common names, addresses and uses of each Mortgaged Property (stating improvements located thereon) and (iv) other information relating thereto required by such Schedule. Except as described in Schedule 7(b) attached hereto: no Company has entered into any leases, subleases, tenancies, franchise agreements, licenses or other occupancy arrangements as owner, lessor, sublessor, licensor, franchisor or grantor with respect to any of the real property described in Schedule 7(a) .

(b) Attached hereto as Schedule 7(c) is a list of all water rights owned or used by the Companies in connection with the operation of any Mortgaged Property.

8. Termination Statements . Attached hereto as Schedule 8(a) are the duly authorized termination statements in the appropriate form for filing in each applicable jurisdiction identified in Schedule 8(b) hereto with respect to each Lien described therein.

9. Stock Ownership and Other Equity Interests . Attached hereto as Schedule 9(a) is a true and correct list of each of all of the authorized, and the issued and outstanding, stock, partnership interests, limited liability company membership interests or other equity interest of the Borrower and the record and beneficial owners of such stock, partnership interests, membership interests or other equity interests setting forth the percentage of such equity interests pledged under the Security Agreement. Also set forth in Schedule 9(b) is each equity investment of each Company that represents 50% or less of the equity of the entity in which such investment was made setting forth the percentage of such equity interests pledged under the Pledge Agreement.

10. Instruments and Tangible Chattel Paper . Attached hereto as Schedule 10 is a true and correct list of all promissory notes, instruments (other than checks to be deposited in the ordinary course of business), tangible chattel paper, electronic chattel paper and other evidence of indebtedness held by each Company as of the date hereof with a value in excess of $500,000, including all intercompany notes between or among any two or more Companies or any of their Subsidiaries, stating if such instruments, chattel paper or other evidence of indebtedness is pledged under the Security Agreement.

11. Intellectual Property . (a) Attached hereto as Schedule 11(a ) is a schedule setting forth all of each Company’s Patents and Trademarks (each as defined in the Security Agreement) applied for or

 

-2-


registered with the United States Patent and Trademark Office, and all other Patents and Trademarks (each as defined in the Security Agreement), including the name of the registered owner or applicant and the registration, application, or publication number, as applicable, of each Patent or Trademark owned by each Company.

(b) Attached hereto as Schedule 11(b) is a schedule setting forth all of each Company’s United States Copyrights (each as defined in the Security Agreement), and all other Copyrights, including the name of the registered owner and the registration number of each Copyright owned by each Company.

(d) Attached hereto as Schedule 11(c) in proper form for filing with the United States Patent and Trademark Office (the “ USPTO ”) and United States Copyright Office (the “ USCO ”) are the filings necessary to preserve, protect and perfect the security interests in the United States Trademarks, Patents, and Copyrights set forth in Schedule 11(a) and Schedule 11(b), including duly signed copies of each of the Patent Security Agreement, Trademark Security Agreement and the Copyright Security Agreement, as applicable.

12. Commercial Tort Claims . Attached hereto as Schedule 12 is a true and correct list of all Commercial Tort Claims (as defined in the Security Agreement) held by each Company with a value in excess of $500,000, including a brief description thereof and stating if such commercial tort claims are required to be pledged under the Security Agreement.

13. [Reserved] .

14. Letter-of-Credit Rights . Attached hereto as Schedule 14 is a true and correct list of all Letters of Credit issued in favor of each Company, as beneficiary thereunder, with a value in excess of $500,000, stating if letter-of-credit rights with respect to such Letters of Credit are required to be subject to a control arrangement pursuant to the Security Agreement.

15. [Reserved] .

16. Insurance . Attached hereto as Schedule 16 is a copy of the insurance certificate with a true and correct list of all insurance policies of the Companies. 1

[The Remainder of this Page has been intentionally left blank]

 

 

1   Evidence of flood insurance must be included with respect to each improved Mortgaged Property located in a Special Flood Hazard Area if flood insurance has been made available through the National Flood Insurance Program.

 

-3-


IN WITNESS WHEREOF , we have hereunto signed this Perfection Certificate as of the date first written above.

 

OCI BEAUMONT LLC
By:  

 

Name:   Frank Bakker
Title:   Vice President
OCI USA INC.
By:  

 

Name:   Kevin Struve
Title:   President and Secretary

[ Signature Page to Perfection Certificate ]


Schedule 1(a)

Legal Names, Etc .

 

Legal Name

   Type of Entity    Registered  Organization
(Yes/No)
   Organizational
Number 2
   Federal Taxpayer
Identification  Number
  State of Formation
OCI Beaumont LLC    Limited liability
company
   Yes    801353857    99-0373857
(OCI Beaumont LLC is a
disregarded entity for tax
purposes)
  Texas
OCI USA Inc.    Corporation    Yes    4940164    99-0373857   Delaware

 

2   If none, so state.

 

-2-


Schedule 1(b)

Prior Organizational Names

 

Company/Subsidiary                    Prior Name                            Date of Change         
OCI Beaumont LLC    Pandora Methanol LLC    September 4, 2012
OCI USA Inc.    Albiorix Inc.    March 29, 2013

 

-3-


Schedule 1(c)

Changes in Corporate Identity; Other Names

None.

 

-4-


Schedule 2

Chief Executive Offices

 

Company/Subsidiary

  

Address

    

County

    

State

OCI Beaumont LLC   

5470 N. Twin City Highway

Nederland, TX 77627

     Jefferson County      Texas
OCI USA Inc.   

660 Madison Ave., 19th Floor,

New York, NY 10065

     New York County      New York

 

-5-


Schedule 3

Transactions Other Than in the Ordinary Course of Business

None.

 

-6-


Schedule 4

Summary of File Search Reports

Index of Lien Search Results

Scope of search: indicate thru-date and the following codes:

 

  A =    UCC Filings (may include fixture filings)
  B =    Federal Tax Liens
  C =    State Tax Liens
  D =    Federal and Local Judgments
  E =    Federal Local Litigation Search(Pending Suits)/Defendant Suits
  F =    Fixture Filings
  G =    Bankruptcy

Note: UCC terminated or expired are not charted.

 

Debtor

 

Jurisdiction

 

Scope of

Search

 

Type of

filing found

  

Secured

Party

  

Collateral

  Original
File Date
  Original
File Number
  Amdt.
File Date
  Amdt. File
Number

OCI Beaumont LLC

  Texas SOS   B thru 05/06/2013   Clear              

OCI Beaumont LLC

  Texas SOS   A thru 05/06/2013   UCC See Below              

OCI Beaumont LLC

  Texas SOS     UCC-1    Ascentium Capital LLC    Equipment   11/29/2012   12-0037201298    

OCI Beaumont LLC

  US District Court, Texas Eastern Court   E thru 05/03/2013   Clear              

OCI Beaumont LLC

  Jefferson County, Texas   B, C, D, E thru 05/03/2013   Clear              

Pandora Methanol LLC

  Texas SOS   B thru 05/06/2013   Clear              

Pandora Methanol LLC

  Texas SOS   A thru 05/06/2013   UCC See Below              

Pandora Methanol LLC

  Texas SOS     UCC-1    Air Liquide Large Industries US LP    Equipment   05/13/2011   11-0014380139    

 

-7-


Debtor

 

Jurisdiction

 

Scope of

Search

 

Type of

filing found

 

Secured

Party

  Collateral   Original
File Date
  Original
File Number
  Amdt.
File Date
  Amdt. File
Number

Pandora Methanol LLC

  Jefferson County, Texas   Title Search   UCC-1 Fixture Filing   Air Liquide Large Industries U.S. LP   Fixtures   05/13/2011   2011 015924    

OCI USA Inc.

  Delaware SOS   A,B thru 04/30/2013   Clear            

OCI USA Inc.

  Texas SOS   A, B thru 05/06/2013   Clear            

OCI USA Inc.

  US District Court, Texas Eastern Court   E thru 05/03/2013   Clear            

OCI USA Inc.

  Jefferson County, Texas   B, C, D, E thru 05/03/2013   Clear            

Albiorix Inc.

  Delaware SOS   B thru 04/30/2013   Clear            

Albiorix Inc.

  Delaware SOS   A thru 04/30/2013   UCC See Below            

Albiorix Inc.

  Delaware SOS     UCC-1   Credit Agricole Corporate and Investment Bank, as Security agent   Pledge
Agreement
  04/27/2012   2012 1641424    

 

-8-


Schedule 5

Copy of Financing Statements To Be Filed

See attached.

 

-9-


Schedule 6

Filings/Filing Offices

 

Type of Filing 3

 

Entity

 

Applicable Collateral

Document

[Mortgage, Security

Agreement or Other]

 

Jurisdictions

UCC-1 Financing Statement

  Holdings   Security Agreement   Delaware

UCC-1 Financing Statement

  Borrower   Security Agreement   Texas

UCC – Fixture Filing

  Borrower   Mortgage   Jefferson County, Texas

 

3   UCC-1 financing statement, fixture filing, mortgage, intellectual property filing or other necessary filing.

 

-10-


Schedule 7(a)

Real Property

 

I. Owned Real Property

 

Entity of

Record

  

Common

Name and
Address

  

Purpose/

Use

  

Improvements Located on Real
Property

  

Approximate

Square

Footage

  

Legal Description (if
Encumbered by
Mortgage and/or

Fixture Filing)

   To be
Encumbered
by Mortgage
and Fixture
Filing
   Option to
Purchase/

Right of
First
Refusal
Pandora Methanol LLC (n/k/a OCI Beaumont LLC)   

OCI Beaumont

5474 Twin City Highway

Nederland, Jefferson County, TX 77627

   Methanol/Ammonia Plant   

Methanol Plant

Ammonia Plant

Methanol Storage Tanks

Wharf/Slip

Pipelines

Ammonia Storage Tank

Improvements

Maintenance Offices and Shop

Spare Parts Warehouse

  

Tract 1 (a/k/a Storage Tank Parcel) 12.826 acres

 

Tract 2 (a/k/a Methanol Parcel) 13.523 acres

 

Tract 3 (a/k/a Shore Tank Parcel) 1.544 acres

   Tracts 1, 2 & 3 see Owner’s Title Commitment issued May 7, 2013    YES    NO

 

-11-


II. Leased or Other Interests in Real Property

 

Entity of
Record

   Common
Name and
Address
   Landlord /
Owner
  

Description of
Lease or Other
Documents
Evidencing
Interest

   Purpose/Use    Improvements
Located on

Real Property
   Approximate
Square
Footage
   Legal
Description (if
Encumbered
by Mortgage
and/or Fixture
Filing)
 

To be
Encumbered
by Mortgage

  

To be
Encumbered
by Fixture
Filing

  

Option
to
Purchase
/Right of
First
Refusal

Pandora Methanol LLC (n/k/a OCI Beaumont LLC)    OCI
Beaumont

5474 Twin
City
Highway

Nederland,
TX 77627

   E.I.
DuPont de
Nemours
and
Company
   Various easements appurtenant pursuant to Special Warranty Deed dated June 29, 2011 from E.I. DuPont de Nemours and Company to Pandora Methanol LLC and Deed Without Warranty dated June 29, 2011 from E.I. DuPont de Nemours and Company to Pandora Methanol LLC and Declaration of Easements and Covenants dated December 12, 1991 by E.I. DuPont de Nemours and Company.    Easements    Pipelines and
other
miscellaneous
improvements
   N/A    Appurtenant
easements
(see Tract
     of
Owner’s
Title
Commitment
issued May
    , 2013);
Declaration
of
Easements
and
Covenants
(See Tract
     of
Owner’s
Title
Commitment
issued May
    , 2013)
  YES    YES    NO
OCI Beaumont LLC    State
Highway
347,
Jefferson
County,
TX
   QuanTexas
Energy
LLC
   Option Agreement dated March 20, 2013    Option
tract
   N/A    19
acres
   See Option
Agreement
  YES – after acquired    YES – after acquired    YES

 

-12-


Schedule 7(b)

Company Held Landlord’s/ Grantor’s Interests

Leases, Subleases, Tenancies, Franchise Agreements, Licenses or Other Occupancy Agreements Pursuant to which any Company holds Landlord’s / Grantor’s Interest

None.

 

-13-


Schedule 7(c)

Water Rights

Lucite International (“Lucite”) provides the following water rights services to OCI Beaumont LLC: Process Wastewater, Demineralized or Reverse Osmosis Water, Wharf Services, Storm Water, Filtered Water, Potable Water, Dehydrator Column Bottoms Wastewater, and Raw Water pursuant to (and each such service further defined in) that certain Leasehold Services Agreement dated December 12, 1991 by E.I. DuPont de Nemours and Company (“DuPont”) to OCI Beaumont LLC (as successor in interest to Beaumont Methanol Corporation), as further assigned (DuPont’s rights assigned to Lucite) and amended pursuant to that certain letter amendment from DuPont dated March 14, 2007, as further amended pursuant to those additional letter amendments from Lucite dated December 15, 2008 and December 16, 2008.

 

-14-


Schedule 8(a)

Attached hereto is a true copy of each termination statement filing duly acknowledged or otherwise identified by the filing officer.

 

-15-


Schedule 8(b)

Termination Statement Filings

 

Debtor

  

Jurisdiction

  

Secured Party

  

Type of Collateral

  

UCC-1 File

Date

  

UCC-1 File

Number

OCI USA Inc. (f/k/a Albiorix Inc.)    Delaware    Credit Agricole Corporate and Investment Bank    Limited liability company interest of OCI USA Inc. in OCi Beaumont LLC (f/k/a Pandora Methanol LLC)    4/27/2012    2012 1641424

 

-16-


Schedule 9

(a) Equity Interests of Companies and Subsidiaries

 

Current Legal

Entities Owned

  

Record Owner

  

Certificate No.

  

Percentage Shares/Interest

  

Percent Pledged

OCI Beaumont LLC    OCI USA Inc.    1    100%    100%
OCI GP LLC*    OCI USA Inc.    N/A    100% membership interest    0%
OCI LP*    OCI USA Inc.    N/A    100% limited partner interest    0%
OCI LP*    OCI GP LLC    N/A    0% general partner interest    0%

 

* If such entities become direct or indirect parents of the Borrower, 100% of their equity interests shall be pledged.

(b) Other Equity Interests

None.

 

-17-


Schedule 10

Instruments and Tangible Chattel Paper

Intercompany Notes

 

Lender

  

Borrower

  

Principal

Amount

  

Date of Loan
Agreement

  

Interest Rate

  

Maturity Date

OCI Fertilizer International B.V.    Pandora Methanol LLC    USD 30,482,800 of up to USD 50,000,000    5/18/2012    One-month Libor plus 9.25%    12/31/2014
OCI Fertilizer International B.V.    Pandora Methanol LLC    USD 40,000,000    11/23/2011; amendment effective as of 6/22/2012    One-month Libor plus 9.25%    8/1/2014
OCI Fertilizer International B.V.    Pandora Methanol LLC    USD 100,000,000    1/19/2012; amendment effective as of 6/22/2012    One-month Libor plus 9.25%    8/1/2014

Letters of Credit

 

Holding Bank

  

Applicant

  

Beneficiary

  

Effective Date

  

Expiration

Date

  

Amount

(USD)

Citibank - USA    OCI Beaumont LLC    Etoile 660 Madison LLC – NY, USA    8/17/2012    4/16/2020    282,300.00

 

-18-


Schedule 11(a)

Patents and Trademarks

None.

 

-19-


Schedule 11(b)

Copyrights

None.

 

-20-


Schedule 11(c)

Intellectual Property Filings

None.

 

-21-


Schedule 12

Commercial Tort Claims

None.

 

-22-


Schedule 14

Letter of Credit Rights

None.

 

-23-


Schedule 16

Insurance

OCI Beaumont Insurance Program Overview

OCI Beaumont program is placed with “A” rated Insurance company and in accordance with the international Industry practice.

AON Risk Solution is acting as OCI Beaumont Broker and Advisor in placing the insurance program. The insurance program can be summarized in the following coverages and limits:-

All Risk Property Damage including Machinery Breakdown and Business Interruption Insurance :

“All Risks” of loss of or damage to the Property Insured including machinery breakdown occurring during the period of insurance by any cause not otherwise excluded. This coverage includes Business Interruption resulting from physical loss or damage covered under the material damage section of the policy with a 24 month Indemnity Period.

 

   

Policy General Limit: Euro 400M per occurrence and in aggregate. Policy inner sub-limits:- (in millions of EUR) – (p/o = per occurrence) and ( a/a = annual aggregate)

 

   

An Excess Policy for Named windstorm is in place for USD 60M to be triggered once the Euro 48.5M of the primary policy above are consumed.

General Liability Insurance :

Insurance coverage against all liability exposures of the business unless specifically excluded. Coverage includes the liability arising out of accidental pollution.

 

   

Local Policy Limits: $1M/occurrence $2M/aggregate

 

   

Global Coverage Limit: EUR 100M (the liability program is a layered placement program)

Directors and Officers Liability Insurance :

Insurance Coverage when a director or officer of the company commits a negligent act or omission, or misstatement or misleading statement, and a successful libel suit is brought against the company as a result.

 

   

Local Policy Limit: USD 1.24M

 

   

Global Policy Limit: Euro 25M

 

-24-


Construction All Risk Insurance :

Under this policy are insured all activities, none excluded, of the insured companies regarding to or in connection with construction, erection, building, demolition, mounting, testing, trials and initial operation, commissioning, dismounting, extensions, revisions, assembling, maintenance, testing and all other additional works carried out by contractors and/or by own employees of the insured at the Insured sites.

Commercial Auto Liability :

A commercial auto policy that includes auto liability and auto physical damage coverages.

 

   

Limits: $1,000,000 Liability

Railroad Protective Liability Insurance :

Insurance coverage protecting a railroad from liability it incurs because of the work of contractors on or near the railroad right-of-way.

 

   

Limits: $2M/$6M

Employer Practice Liability Insurance :

A liability insurance covering wrongful acts arising from the employment process. The policy covers claims such as: wrongful termination, discrimination, and sexual harassment.

 

   

Policy Limits: EPL: $1,000,000; Fiduciary: $1,000,000

Worker’s Compensation Insurance :

As per the applicable law.

Current Claims Status :

There is no claims property damage or business interruption claims since the acquisition of the plant.

 

-25-

Exhibit 10.4

BEAUMONT FERTILIZER PLANT

CONTRACT AGREEMENT

FOR

METHANOL AND AMMONIA DEBOTTLENECKING

AND

PLANT TURNAROUND

BETWEEN

OCI BEAUMONT LLC (OCIB)

AND

ORASCOM E&C USA INC. (OCI)


GENERAL CONDITIONS BETWEEN OWNER AND CONSTRUCTOR

(Cost Reimbursable)

TABLE OF ARTICLES

 

1. AGREEMENT

     Page 2   

2. GENERAL PROVISIONS

     Page 2   

3. CONSTRUCTOR’S RESPONSIBILITIES

     Page 5   

4. OWNER’S RESPONSIBILITIES

     Page 14   

5. SUBCONTRACTS

     Page 16   

6. TIME

     Page 17   

7. COST OF THE WORK

     Page 18   

8. CHANGES

     Page 20   

9. PAYMENT

     Page 21   

10. INDEMNITY, INSURANCE, AND BONDS

     Page 23   

11. SUSPENSION, NOTICE TO CURE, AND TERMINATION

     Page 29   

12. DISPUTE MITIGATION AND RESOLUTION

     Page 31   

13. MISCELLANEOUS

     Page 33   

14. CONTRACT DOCUMENTS

     Page 34   

 

1


ARTICLE 1 AGREEMENT

This Agreement is made this 5 th day of June in the year 2013,

by and between the

OWNER, OCI Beaumont LLC, 5470 N Twin City Highway, Nederland, Texas

and the

CONSTRUCTOR, Orascom E&C USA Inc.

Tax identification number (TIN): 68-0682885

Contractor License No., if applicable                     

for construction and services in connection with the following:

PROJECT: Beaumont Fertilizer Plant. Generally, the Constructor will perform the debottlenecking of the methanol production unit, the debottlenecking of the ammonia production unit, and the maintenance turnaround, all as directed by the Owner l on a completely cost reimbursable basis.

Notice to the Parties shall be given at the above addresses.

ARTICLE 2 GENERAL PROVISIONS

2.1 PARTIES’ RELATIONSHIP AND ETHICS The Parties each agree to proceed with the Project on the basis of mutual trust, good faith, and fair dealing.

2.1.1 The Constructor shall furnish construction administration and management services and use the Constructor’s diligent efforts to perform the Work in an expeditious manner consistent with the Contract Documents. The Parties shall each endeavor to promote harmony and cooperation among all Project participants.

2.1.2 The Constructor represents that it is an independent Constructor and that in its performance of the Work it shall act as an independent Constructor.

2.1.3 Neither the Constructor nor any of its agents or employees shall act on behalf of or in the name of the Owner except as provided in this Agreement or unless authorized in writing by the Owner’s Representative.

2.2 ETHICS The Parties shall perform their obligations with integrity, ensuring at a minimum that each: (a) avoids conflicts of interest and promptly discloses any to the other Party; and (b) warrants that it has not and shall not pay or receive any contingent fees or gratuities to or from the other Party, including its agents, officers, and employees, Subcontractors or others for whom they may be liable, to secure preferential treatment.

2.3 DEFINITIONS

2.3.1 “Agreement” means this ConsensusDocs 200 Standard Agreement and General Conditions between Owner and Constructor, as modified, and exhibits and attachments made part of this agreement upon its execution.

 

2


a) The following Exhibits are part of this Agreement:

Exhibit A: Schedule of the Work

Exhibit B: Description of Work

Exhibit C: Schedule of Rates

2.3.2 “Business Day” means all Days, except weekends and official federal or state holidays in the State of Texas.

2.3.3 A “Change Order” is a written order signed by the Owner and the Constructor after execution of this Agreement, indicating changes in the scope of the Work, or Contract Time, including substitutions proposed by the Constructor and accepted by the Owner. Constructor shall be paid on a cost reimbursable basis plus Constructor’s Fee for all Change Orders.

2.3.4 The “Contract Documents” consist of this Agreement, the existing Contract Documents listed in section ARTICLE 14, drawings, specifications, addenda issued and acknowledged prior to execution of this Agreement, information furnished by the Owner pursuant to subsection 3.13.4, and modifications issued in accordance with this Agreement.

2.3.5 “Contract Time” is the period between the Date of Commencement and Final Completion.

2.3.6 The “Constructor” is the person or entity identified in ARTICLE 1 and includes the Constructor’s Representative.

2.3.7 The “Constructor’s Fee” will be 9% of the Cost of the Work and consists of 4% for profit and 5% for overhead.

2.3.8 “Cost of the Work” means the costs and discounts specified in Article 7.

2.3.9 “Date of Commencement” is as set forth in section 6.1.

2.3.10 “Day” means a calendar day.

2.3.11 “Defective Work” is any portion of the Work that does not conform to the Requirements of the Contract Documents.

2.3.12 “Final Completion” occurs on the date when the Constructor’s obligations under this Agreement are complete and accepted by the Owner and final payment becomes due and payable. This date shall be confirmed by a Certificate of Final Completion signed by the Owner and the Constructor.

2.3.13 “Laws” mean federal, state, and local laws, ordinances, codes, rules, and regulations applicable to the Work with which the Constructor must comply that are enacted as of the Agreement date.

2.3.14 “Interim Directed Change” is a change to the Work directed by the Owner pursuant to Section 8.2.

2.3.15 “Materials” includes all equipment, systems, supplies, materials and spare parts used on the Project and/or incorporated into the Work.

2.3.16 A “Material Supplier” is a person or entity retained by the Constructor to provide material or equipment for the Work.

2.3.17 “Others” means other Constructors/constructors, material suppliers, and persons authorized to be present at the Worksite and who are not employed by the Constructor or Subcontractors.

 

3


2.3.18 “Overhead” means (a) payroll costs and other compensation of Constructor employees in the Constructor’s principal and branch offices, except for those payroll costs for Constructor’s employees in the Constructor’s principal or branch offices which will be directly charged to the Project, and those payroll cost will be included in the Cost of Work; (b) general and administrative expenses of the Constructor’s principal and branch offices including charges against the Constructor for delinquent payments; and (c) the Constructor’s capital expenses, including interest on capital used for the Work.

2.3.19 “Owner” is the person or entity identified in ARTICLE 1, and includes the Owner’s Representative.

2.3.20 The “Parties” are collectively the Owner and the Constructor. “ Party ” means Owner or Constructor, individually, as the case may be.

2.3.21 “The Project,” as identified in ARTICLE 1, is the building, facility, or other improvements for which the Constructor is to perform Work under this Agreement. It may also include construction by the Owner or Others.

2.3.22 The “Schedule of the Work” is the document prepared by the Constructor that specifies the dates on which the Constructor plans to begin and complete various parts of the Work, including dates on which information and approvals are required from the Owner.

2.3.23 A “Subcontractor” is a person or entity retained by the Constructor as an independent Constructor to provide the labor, materials, equipment, or services necessary to complete a specific portion of the Work.

2.3.24 “Substantial Completion” of the Work, or of a designated portion, occurs on the date when the Work is sufficiently complete in accordance with the Contract Documents so that the Owner may occupy or utilize the Project as indicated, or a designated portion, for the use for which it is intended, without unscheduled disruption. The issuance of a certificate of occupancy is not a prerequisite for Substantial Completion if the certificate of occupancy cannot be obtained due to factors beyond the Constructor’s control. This date shall be confirmed by a Certificate of Substantial Completion signed by the Owner and Constructor.

2.3.25 A “Subsubcontractor” is a person or entity who has an agreement with a Subcontractor or another Subsubcontractor to perform a portion of the Subcontractor’s Work. Also referred to as “Lower Tier Subcontractor”

2.3.26 “Terrorism” means a violent act, or an act that is dangerous to human life, property, or infrastructure, that is committed by an individual or individuals and that appears to be part of an effort to coerce a civilian population or to influence the policy or affect the conduct of any government by coercion. Terrorism includes, but is not limited to, any act certified by the United States government as an act of terrorism pursuant to the Terrorism Risk Insurance Act, as amended.

2.3.27 “Work” means the construction and services necessary or incidental to fulfill the Constructor’s obligations for the Project in conformance with this Agreement and the other Contract Documents. The Work may refer to the whole Project or only a part of the Project if work is also being performed by the Owner or Others.

2.3.28 “Worksite” means the geographical area of the Project location as identified in ARTICLE 1 where the Work is to be performed.

2.3.29 “Work Order” means a written document signed and accepted by Owner and Constructor to perform certain activities pursuant to the terms of the Agreement and the Description of Work (as modified from time to time) on a cost reimbursable basis, plus Constructor’s Fee and subject to an appropriate adjustment in the Contract Time. The Work Order process will be defined in the final Description of Work document.

 

4


ARTICLE 3 CONSTRUCTOR’S RESPONSIBILITIES

3.1 GENERAL RESPONSIBILITIES

3.1.1 The Constructor shall provide all labor, materials, equipment, and services necessary to complete the Work, all of which shall be provided in full accord with the Contract Documents. Constructor is not required to perform any Work or to provide any Materials not specified by the Owner.

3.1.2 The Constructor shall be responsible for the supervision and coordination of the Work, including the construction means, methods, techniques, sequences, and procedures utilized, unless the Contract Documents give other specific instructions. In such case, the Constructor shall not be liable to the Owner for damages resulting from compliance with such instructions unless the Constructor recognized and failed to timely report to the Owner any error, inconsistency, omission, or unsafe practice that it discovered in the specified construction means, methods, techniques, sequences, or procedures.

3.1.3 The Constructor shall perform Work only within locations allowed by the Contract Documents, Laws, and applicable permits.

3.1.4 Debottlenecking Project Methanol: including SCR, Pre-reformer, Saturator, Reformer tubes, Flare, Syngas Compressor, Turbine and Heat Exchangers, and other related items identified in the engineering and procurement packages provided by the Owner.

3.1.5 Debottlenecking Project Ammonia: including Syngas Compressor, Ammonia Compressor, Heat Exchangers, Vessels, Cooling Tower modifications, and other related items identified in the engineering and procurement packages provided by Owner.

3.1.6 Maintenance Turnaround: Replace BCP pumps, inspection and repair of equipment identified by Owner.

3.1.7 The Constructor shall procure all Materials, including long-lead items that are specified by Owner in the Contract Documents. Constructor shall begin procurement of long-lead items promptly upon award of this Contract.

3.1.8 Constructor shall perform all of the erection and installation of Materials as required by the Owner. Constructor shall provide skilled personnel and staff, specialized Subcontractors, service agencies and other entities appropriate for the performance of the Work.

3.1.9 Constructor shall be responsible for project controls including scheduling and schedule updating, progress measurement, cost control, document control and other monitoring and control activities incidental thereto in order to manage the project in accordance with industry standards and OSHA-PSM standard.

3.2 COOPERATION WITH WORK OF OWNER AND OTHERS

3.2.1 The Owner may perform work at the Worksite directly or by Others. Any agreements with Others to perform construction or operations related to the Project shall include provisions pertaining to insurance, indemnification, waiver of subrogation, consequential damages, coordination, interference, cleanup, and safety that are substantively the same as the corresponding provisions of this Agreement.

 

5


3.2.2 If the Owner elects to perform work at the Worksite directly or by Others, the Constructor and the Owner shall coordinate the activities of all forces at the Worksite and agree upon fair and reasonable schedules and operational procedures for Worksite activities. The Owner shall require each separate Constructor to cooperate with the Constructor and assist with the coordination of activities and the review of construction schedules and operations. The Contract Time shall be equitably adjusted, as mutually agreed by the Parties, for changes made necessary by the coordination of construction activities, and the Schedule of the Work shall be revised accordingly. The Constructor, the Owner, and Others shall adhere to the revised construction schedule.

3.2.3 With regard to the work of the Owner and Others, the Constructor shall (a) proceed with the Work in a manner that does not hinder, delay, or interfere with the work of the Owner or Others or cause the work of the Owner or Others to become defective, (b) afford the Owner or Others reasonable access for introduction and storage of their materials and equipment and performance of their activities, and (c) coordinate the Constructor’s Work with theirs.

3.2.4 Before proceeding with any portion of the Work affected by the construction or operations of the Owner or Others, the Constructor shall give the Owner prompt written notification of any defects the Constructor discovers in their work which will prevent the proper execution of the Work. The Constructor’s obligations in this subsection do not create a responsibility for the work of the Owner or Others, but are for the purpose of facilitating the Work. Following receipt of written notice from the Constructor of defects, the Owner shall promptly inform the Constructor what action, if any, the Constructor shall take with regard to the defects. The Constructor is entitled to be paid on a cost reimbursable basis plus the Constructor’s Fee on any Work that it must correct or modify because of defects in the work of Owner or Others, or because of corrections or modifications resulting from changes in scope of the Work by Owner.

3.3 RESPONSIBILITY FOR PERFORMANCE

3.3.1 Prior to commencing the Work, the Constructor shall examine and compare the drawings and specifications with information furnished by the Owner that are Contract Documents, relevant field measurements made by the Constructor, and any visible conditions at the Worksite affecting the Work.

3.3.2 Should the Constructor discover any errors, omissions, or inconsistencies in the Contract Documents, the Constructor shall promptly report them to the Owner. It is recognized, however, that the Constructor is not acting in the capacity of a licensed design professional, and that the Constructor’s examination is to facilitate construction and does not create an affirmative responsibility to detect errors, omissions, or inconsistencies or to ascertain compliance with applicable laws, building codes, or regulations. Following receipt of written notice from the Constructor of defects, the Owner shall promptly inform the Constructor what action, if any, the Constructor shall take with regard to the defects.

3.3.3 The Constructor shall have no liability for errors, omissions, or inconsistencies discovered under this section unless the Constructor knowingly fails to report a recognized problem to the Owner.

3.3.4 The Constructor shall be entitled to additional costs or time because of clarifications or instructions arising out of the Constructor’s reports described in this section.

3.3.5 Nothing in this section shall relieve the Constructor of responsibility for its own errors, inconsistencies, and omissions; provided however, that Constructor’s liability shall be limited to the liability of the respective Subcontractors for errors, inconsistencies and omissions.

 

6


3.4 CONSTRUCTION PERSONNEL AND SUPERVISION

3.4.1 The Constructor shall provide competent supervision for the performance of the Work. Before commencing the Work, the Constructor shall notify the Owner in writing of the name and qualifications of its proposed superintendent(s) and project manager so the Owner may review the individual’s qualifications. If, for reasonable cause, the Owner refuses to approve the individual, or withdraws its approval after once giving it, the Constructor shall name a different superintendent or project manager for the Owner’s review. Any disapproved superintendent shall not perform in that capacity thereafter at the Worksite.

3.4.2 The Constructor shall be responsible to the Owner for acts or omissions of parties or entities performing portions of the Work for or on behalf of the Constructor or any of its Subcontractors; provided however, Constructor’s liability shall be limited to the remedies provided by the Subcontractors in the applicable Subcontracts.

3.4.3 The Constructor shall permit only qualified persons to perform the Work. The Constructor shall enforce safety procedures, strict discipline, and good order among persons performing the Work. If the Owner determines that a particular person does not follow safety procedures, or is unfit or unskilled for the assigned Work, the Constructor shall immediately reassign the person upon receipt of the Owner’s written notice to do so.

3.4.4 CONSTRUCTOR’S REPRESENTATIVE The Constructor’s authorized representative is Mr. Ihab Demian. The Constructor’s Representative shall possess full authority to receive instructions from the Owner and to act on those instructions. If the Constructor changes its representative or their authority, the Constructor shall immediately notify the Owner in writing.

3.5 WORKMANSHIP The Work shall be executed in accordance with the Contract Documents in a workmanlike manner. All Materials used in the Work shall be furnished in sufficient quantities to facilitate the proper and expeditious execution of the Work and shall be new except such materials as may be expressly provided in the Contract Documents to be otherwise.

3.6 MATERIALS FURNISHED BY THE OWNER OR OTHERS If the Work includes installation of materials or equipment furnished by the Owner or Others, it shall be the responsibility of the Constructor to examine the items so provided and thereupon handle, store, and install the items, unless otherwise provided in the Contract Documents, with such skill and care as to provide a satisfactory and proper installation. Loss or damage due to acts or omissions of the Constructor shall be the responsibility of the Constructor; provided however, the Constructor’s liability is limited to the recovery from and remedies provided by the applicable Subcontractor or Material Supplier. Any defects discovered in such materials or equipment shall be reported promptly to the Owner. Following receipt of written notice from the Constructor of defects, the Owner shall promptly inform the Constructor what action, if any, the Constructor shall take with regard to the defects.

3.7 TESTS AND INSPECTIONS

3.7.1 The Constructor shall schedule all required tests, approvals, and inspections of the Work or portions thereof at appropriate times so as not to delay the progress of the Work or other work related to the Project. The Constructor shall give proper notice to all required parties of such tests, approvals, and inspections. If feasible, the Owner and Others may timely observe the tests at the normal place of testing. Except as provided in subsection , the Owner shall bear all expenses associated with tests, inspections, and approvals required by the Contract Documents, which, unless otherwise agreed to, shall be conducted by an independent testing laboratory or entity retained by the Owner. Unless otherwise required by the Contract Documents, required certificates of testing, approval, or inspection shall be secured by the Constructor and promptly delivered to the Owner.

 

7


3.7.2 If the Owner or appropriate authorities determine that tests, inspections, or approvals in addition to those required by the Contract Documents will be necessary, the Constructor shall arrange for the procedures and give timely notice to the Owner and Others who may observe the procedures. Costs of the additional tests, inspections, or approvals are at the Owner’s expense except as provided in the subsection below.

3.7.3 If the procedures described in two subsections above indicate that portions of the Work fail to comply with the Contract Documents, the Constructor shall be responsible for costs of correction and retesting; provided however, the Constructor’s liability is limited to the recovery from and remedies provided by the applicable Subcontractor or Material Supplier.

3.8 WARRANTY

3.8.1 The Constructor warrants that all Materials shall be new unless otherwise specified, of good quality, in conformance with the Contract Documents, and free from defective workmanship and materials. At the Owner’s request, the Constructor shall furnish satisfactory evidence of the quality and type of materials and equipment furnished. The Constructor further warrants that the Work shall be free from material defects not intrinsic in the design or materials required in the Contract Documents. The Constructor’s warranty does not include remedies for defects or damages caused by normal wear and tear during normal usage, use for a purpose for which the Project was not intended, improper or insufficient maintenance, modifications performed by the Owner or Others, or abuse. The Constructor’s warranty shall commence on the Date of Substantial Completion of the Work, or of a designated portion.

3.8.2 All Materials incorporated in the Work are specified by the Owner and purchased as directed by the Owner. As a result, the products, equipment, systems and materials incorporated in the Work shall be covered exclusively by the warranty of the manufacturer. There are no warranties which extend beyond the description on the face of any such warranty.

3.8.3 The Constructor shall obtain from its Subcontractors and Material Suppliers any special or extended warranties required by the Contract Documents. All such warranties when known shall be listed in an attached exhibit to this Agreement. The Constructor’s liability for such warranties shall be limited as provided in Section 3.9 below.

3.9 CORRECTION OF WORK WITHIN ONE YEAR

3.9.1 If, prior to Substantial Completion and within one year after the date of Substantial Completion of the Work, any Defective Work is found, the Owner shall promptly notify the Constructor in writing. Unless the Owner provides written acceptance of the condition, the Constructor shall promptly correct the Defective Work ; provided however, that the corrective work shall be performed by Subcontractors at Constructor’s direction and Constructor’s responsibility and liability shall be limited to coordinating appropriate Subcontractors and Material Suppliers, exercising remedies under the relevant subcontracts and supply agreements to enforce defects liability provisions and warranties and directing them to perform the required corrective work. Constructor shall be paid its costs and Constructor’s Fee for managing the Subcontractors’ corrective work. If within the one-year correction period the Owner discovers and does not promptly notify the Constructor or give the Constructor an opportunity to test or correct Defective Work as reasonably requested by the Constructor, the Owner waives the Constructor’s obligation to correct that Defective Work as well as the Owner’s right to claim a breach of the warranty with respect to that Defective Work. In the event that the relevant Subcontractors and Material Suppliers are in default of their obligations (and taking into account Owner’s rights to approve all such Subcontractors and Material Suppliers as set forth herein), Constructor shall at Owner’s reasonable instruction mobilize alternative arrangements to mitigate the Defective Work at Owner’s cost and expenses, plus Constructor’s Fee to be agreed by Owner and Constructor.

 

8


3.9.2 With respect to any portion of Work first performed after Substantial Completion, the one-year correction period shall be extended by the period of time between Substantial Completion and the actual performance of the later Work. Correction periods shall not be extended by corrective work performed by the Constructor.

3.9.3 If the Constructor fails to correct Defective Work within a reasonable time after receipt of written notice from the Owner prior to final payment, the Owner may correct it in accordance with the Owner’s right to carry out the Work. In such case, Constructor shall seek recovery of such costs from the applicable Subcontractors and Material Suppliers. Constructor shall provide reasonable assistance to Owner in pursuing such remedies and claims.

3.9.4 Subject to the limitations of liability and remedies set forth in the Agreement, the Constructor’s obligations and liability, if any, with respect to any Defective Work discovered after the one-year correction period (latent defects) shall be determined by the Law. If, after the one-year correction period but before the applicable limitation period has expired, the Owner discovers any Work which the Owner considers Defective Work, the Owner shall, unless the Defective Work requires emergency correction, promptly notify the Constructor and allow the Constructor an opportunity to correct the Work if the Constructor elects to do so. If the Constructor elects to correct the Work, it shall provide written notice of such intent within fourteen (14) Days of its receipt of notice from the Owner and shall complete the correction of Work within a mutually agreed timeframe, and the costs of such correction and Constructor’s fees shall be paid by the Owner. If the Constructor (or its Subcontractors or Material Suppliers) does not elect to correct the Work, the Owner may have the Work corrected by itself or Others. In such case, Owner shall seek recovery of such costs only from the applicable Subcontractors and Material Suppliers.

3.9.5 If the Constructor’s correction or removal of Defective Work causes damage to or destroys other completed or partially completed Work or existing buildings, the Constructor shall be responsible for the cost of correcting the destroyed or damaged property; provided however, the Constructor’s liability is limited to the recovery from and remedies provided by the applicable Subcontractor or Material Supplier.

3.9.6 The one-year period for correction of Defective Work does not constitute a limitation period with respect to the enforcement of the Constructor’s other obligations under the Contract Documents.

3.9.7 Prior to final payment, at the Owner’s option and with the Constructor’s agreement, the Owner may elect to accept Defective Work rather than require its removal and correction. In such case, monies due to Constructor shall be equitably adjusted for any diminution in the value of the Project caused by such Defective Work only if it was proven that such Defective Work was not requested for inspection by the Constructor per the requirements of Section 3.7 above.

3.9.8 he Owner selected and approved all Subcontractors and Material Suppliers, and specified all Work and Materials. In no event shall Constructor’s liability for defects in the Work and Materials be greater than the warranties and corrective work provided and performed by the applicable Subcontractors and Material Suppliers. For the avoidance of doubt, Owner shall look solely to the Subcontractors and Material Suppliers for all defective or otherwise nonconforming Work and Materials and any recovery of costs incurred by the Owner for performing corrective work.

3.10 CORRECTION OF COVERED WORK

3.10.1 On request of the Owner, Work that has been covered without a requirement that it be inspected prior to being covered may be uncovered for the Owner’s inspection. The Owner shall pay for the costs of uncovering and replacement if the Work proves to be in conformance with the Contract Documents, or if the defective condition was caused by the Owner or Others. If the uncovered Work proves to be defective, the Constructor shall pay the costs of uncovering and replacement; provided however, the Constructor’s liability is limited to the recovery from and remedies provided by the applicable Subcontractor or Material Supplier.

 

9


3.10.2 If, contrary to specific requirements in the Contract Documents or contrary to a specific request from the Owner, a portion of the Work is covered, the Owner, by written request, may require the Constructor to uncover the Work for the Owner’s observation. In this circumstance, the Work shall be replaced with no adjustment to the Contract Time.

3.11 SAFETY OF PERSONS AND PROPERTY

3.11.1 SAFETY PRECAUTIONS AND PROGRAMS The Constructor shall have overall responsibility for safety precautions and programs in the performance of the Work. However, such obligation does not relieve Subcontractors of their responsibility for the safety of persons or property in the performance of their work or for compliance with Laws.

3.11.2 The Constructor shall seek to avoid injury, loss, or damage to persons or property by taking reasonable steps to protect:

a) its employees and other persons at the Worksite;

b) materials and equipment stored at onsite or offsite locations for use in the Work; and

c) property located at the Worksite and adjacent to Work areas, whether or not the property is part of the Worksite.

3.11.3 CONSTRUCTOR’S SAFETY REPRESENTATIVE The Constructor’s Worksite safety representative is (TBA), who shall act as the Constructor’s Worksite safety representative with a duty to prevent accidents. If no individual is identified in this subsection, the Constructor’s safety representative shall be the Constructor’s Representative. The Constructor shall report promptly in writing to the Owner all recordable accidents and injuries occurring at the Worksite. When the Constructor is required to file an accident report with a public authority, the Constructor shall furnish a copy of the report to the Owner.

3.11.4 The Constructor shall provide the Owner with copies of all notices required of the Constructor by law or regulation. The Constructor’s safety program shall comply with the requirements of governmental and quasi-governmental authorities having jurisdiction.

3.11.5 Damage or loss not insured under property insurance which may arise from the Work, to the extent caused by the negligent acts or omissions of the Constructor, or anyone for whose acts the Constructor may be liable, shall be promptly remedied by the Constructor; provided however, the Constructor’s liability is limited to the recovery from and remedies provided by the applicable Subcontractor or Material Supplier.

3.11.6 If the Owner deems any part of the Work or Worksite unsafe, the Owner, without assuming responsibility for the Constructor’s safety program, may require the Constructor to stop performance of the Work or take corrective measures satisfactory to the Owner, or both. If the Constructor does not adopt corrective measures, the Owner may perform them . The Constructor agrees to make no claim for a change in the Contract Time based on the Constructor’s compliance with the Owner’s reasonable request.

3.12 EMERGENCIES

13.12.1 In an emergency affecting the safety of persons or property, the Constructor shall act in a reasonable manner to prevent threatened damage, injury, or loss. Any change in the Contract Time or increase in the Constructor’s costs resulting from the actions of the Constructor in an emergency situation shall be determined as provided for in ARTICLE 8.

 

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3.13 HAZARDOUS MATERIALS

3.13.1 A Hazardous Material is any substance or material identified now or in the future as hazardous under Laws, or any other substance or material that may be considered hazardous or otherwise subject to statutory or regulatory requirement governing handling, disposal, or cleanup. The Constructor shall not be obligated to commence or continue work until any Hazardous Material discovered at the Worksite has been removed, rendered, or determined to be harmless by the Owner as certified by an independent testing laboratory and approved by the appropriate governmental agency.

3.13.2 If after commencing the Work, Hazardous Material is discovered at the Worksite, the Constructor shall be entitled to immediately stop Work in the affected area. The Constructor shall promptly report the condition to the Owner, and, if required, the governmental agency with jurisdiction.

3.13.3 The Constructor shall not be required to perform any Work relating to or in the area of Hazardous Material without written mutual agreement.

3.13.4 The Owner shall be responsible for retaining an independent testing laboratory to determine the nature of the material encountered and whether the material requires corrective measures or remedial action. Such measures shall be the sole responsibility of the Owner, and shall be performed in a manner minimizing any adverse effect upon the Work. The Constructor shall resume Work in the area affected by any Hazardous Material only upon written agreement between the Parties after the Hazardous Material has been removed or rendered harmless and only after approval, if necessary, of the governmental agency with jurisdiction.

3.13.5 If the Constructor incurs additional costs or is delayed due to the presence or remediation of Hazardous Material, the Constructor shall be entitled to an equitable adjustment in the Contract Time and to payment of Constructor’s additional costs plus Constructor’s Fee.

3.13.6 To the extent permitted by section 6.5 and to the extent not caused by the negligent acts or omissions of the Constructor, its Subcontractors and Subsubcontractors, and the agents, officers, directors, and employees of each of them, the Owner shall defend, indemnify, and hold harmless the Constructor, its Subcontractors and Subsubcontractors, and the agents, officers, directors, and employees of each of them, from and against all claims, damages, losses, costs, and expenses, including but not limited to reasonable attorneys’ fees, costs, and expenses incurred in connection with any dispute resolution process, arising out of or relating to the performance of the Work in any area affected by Hazardous Material.

3.13.7 MATERIALS BROUGHT TO THE WORKSITE

a) Material Safety Data (MSD) sheets as required by law and pertaining to materials or substances used or consumed in the performance of the Work, whether obtained by the Constructor, Subcontractors, the Owner, or Others, shall be maintained at the Worksite by the Constructor and made available to the Owner, Subcontractors, and Others.

b) The Constructor shall be responsible for the proper delivery, handling, application, storage, removal, and disposal of all materials and substances brought to the Worksite by the Constructor in accordance with the Contract Documents and used or consumed in the performance of the Work.

c) Subject to Section 6.5 and to the extent caused by the negligent acts or omissions of the Constructor, its agents, officers, directors, and employees, the Constructor shall indemnify and hold harmless the Owner, its agents, officers, directors, and employees, from and against any and all claims, damages, losses, costs, and expenses, including but not limited

 

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to attorneys’ fees, costs, and expenses incurred in connection with any dispute resolution procedure, arising out of or relating to the delivery, handling, application, storage, removal, and disposal of all materials and substances brought to the Worksite by the Constructor in accordance with the Contract Documents; provided however, the Constructor’s liability is limited to the recovery from and remedies provided by the applicable Subcontractor or Material Supplier.

3.13.8 Section 3.13 shall survive the completion of the Work or any termination of this Agreement.

3.14 SUBMITTALS

3.14.1 The Constructor shall submit to the Owner all shop drawings, samples, product data, and similar submittals required by the Contract Documents for review and approval. Submittals shall be submitted in electronic form if required in accordance with a protocol agreed between Owner and Constructor during the kickoff meeting. The Constructor shall be responsible for the accuracy and conformity of its submittals to the Contract Documents. The Constructor shall prepare and deliver its submittals in a manner consistent with the Schedule of the Work and in such time and sequence so as not to delay the performance of the Work or the work of the Owner and Others. Constructor submittals shall identify in writing for each submittal all changes, deviations, or substitutions from the requirements of the Contract Documents. The approval of any Constructor submittal shall not be deemed to authorize changes, deviations or substitutions from the requirements of the Contract Documents unless express written approval is obtained from the Owner specifically authorizing such deviation, substitution or change. To the extent a change, deviation or substitution causes an impact to the Contract Time, such approval shall be promptly memorialized in a Change Order. The Owner shall not make any change, deviation or substitution through the submittal process without specifically identifying and authorizing such deviation to the Constructor. If the Contract Documents do not contain submittal requirements pertaining to the Work, the Constructor agrees upon request to submit in a timely fashion to the Owner for review any shop drawings, samples, product data, manufacturers’ literature or similar submittals as may reasonably be required by the Owner.

3.14.2 The Owner shall be responsible for review and approval of submittals with reasonable promptness to avoid causing delay.

3.14.3 The Constructor shall perform all Work strictly in accordance with approved submittals. Approval of shop drawings is not an authorization to perform changed work, unless the procedures of ARTICLE 8 are followed. Approval does not relieve the Constructor from responsibility for Defective Work resulting from errors or omissions on the approved shop drawings.

3.14.4 Record copies of the following, incorporating field changes and selections made during construction, shall be maintained at the Worksite and available to the Owner upon request: drawings, specifications, addenda, Change Order and other modifications, and required submittals including product data, samples and shop drawings.

3.14.5 No substitutions shall be made in the Work unless permitted in the Contract Documents and then only after the Constructor obtains approvals required under the Contract Documents for substitutions. All such substitutions shall be promptly memorialized in a Change Order no later than seven (7) Days following approval by the Owner and provide for an adjustment in the Contract Time. Constructor shall be paid for its costs and Constructor’s Fee for any substitutions.

3.14.6 The Constructor shall prepare and submit to the Owner:

                     final marked-up as-built drawings; or

                     updated electronic data, in accordance with ConsensusDocs 200.2 and subsection 4.6.1; or

 

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                     such documentation as defined by the Parties by attachment to this Agreement, in general documenting how the various elements of the Work were actually constructed or installed; or

                     all OSHA/PSM mechanical integrity related documents.

3.15 DESIGN DELEGATION If the Contract Documents specifically require the Constructor to procure design services, the Owner shall specify all required performance and design criteria. The Constructor shall not be responsible for the adequacy of such performance and design criteria. As permitted by the laws, rules, and regulations in the jurisdiction where the Project is located, the Constructor shall procure such services and any certifications necessary to satisfactorily complete the Work from a licensed design professional. The signature and seal of the Constructor’s design professional shall appear on all drawings, calculations, specifications, certifications, shop drawings, and other submittals related to the Work designed or certified by Constructor’s design professional.

3.16 WORKSITE CONDITIONS

3.16.1 WORKSITE VISIT The Constructor acknowledges that it has visited, or has had the opportunity to visit, the Worksite to visually inspect the general and local conditions which could affect the Work.

3.16.2 CONCEALED OR UNKNOWN SITE CONDITIONS If the conditions encountered at the Worksite are (a) subsurface or other physical conditions materially different from those indicated in the Contract Documents, or (b) unusual and unknown physical conditions materially different from conditions ordinarily encountered and generally recognized as inherent in Work provided for in the Contract Documents, the Constructor shall stop affected Work after the condition is first observed and give prompt written notice of the condition to the Owner. The Constructor shall not be required to perform any Work relating to the unknown condition without the written mutual agreement of the Parties. Any change in the Contract Time as a result of the unknown condition shall be determined as provided in ARTICLE 8. Constructor shall be paid for its costs and Constructor’s Fee incurred as a result of any Worksite conditions.

3.17 PERMITS AND TAXES

3.17.1 The Constructor shall give public authorities all notices required by law and, except for permits and fees that are the responsibility of the Owner, shall obtain and pay for all necessary permits, licenses, and renewals pertaining to the Work. Such costs shall be reimbursed as a Cost of the Work. The Constructor shall provide to the Owner copies of all notices, permits, licenses, and renewals required under this Agreement.

3.17.2 The Constructor shall pay all applicable taxes enacted when bids are received or negotiations concluded for the Work provided by the Constructor.

3.17.3 If, in accordance with the Owner’s direction, the Constructor claims an exemption for taxes, the Owner shall indemnify and hold the Constructor harmless from any liability, penalty, interest, fine, tax assessment, attorneys’ fees, or other expense or cost incurred by the Constructor as a result of any such action.

3.18 CUTTING, FITTING, AND PATCHING

3.18.1 The Constructor shall perform cutting, fitting and patching necessary to coordinate the various parts of the Work and to prepare its Work for the work of the Owner or Others.

3.18.2 Cutting, patching or altering the work of the Owner or Others shall be done with the prior written approval of the Owner. Such approval shall not be unreasonably withheld.

 

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3.19 CLEANING UP

3.19.1 The Constructor shall regularly remove debris and waste materials at the Worksite resulting from the Work. Prior to discontinuing Work in an area, the Constructor shall clean the area and remove all rubbish and its construction equipment, tools, machinery, waste, and surplus materials. The Constructor shall minimize and confine dust and debris resulting from construction activities. At the completion of the Work, the Constructor shall remove from the Worksite all construction equipment, tools, surplus materials, waste materials, and debris.

3.19.2 If the Constructor fails to commence compliance with cleanup duties within two (2) Business Days after written notification from the Owner of non-compliance, the Owner may implement appropriate cleanup measures without further notice.

3.20 ACCESS TO WORK The Constructor shall facilitate the access of the Owner, and Others to Work in progress.

3.21 COMPLIANCE WITH LAWS The Constructor shall comply with all Laws. The Constructor shall be liable to the Owner for all loss, cost, or expense attributable to any acts or omissions by the Constructor, its employees, subcontractors, and agents for failure to comply with Laws, including fines, penalties, or corrective measures; provided however, the Constructor’s liability is limited to the recovery from and remedies provided by the applicable Subcontractor or Material Supplier. However, liability under this subsection shall not apply if notice to the Owner was given, and advance approval by appropriate authorities, including the Owner, is received.

3.21.1 The Contract Time shall be equitably adjusted by Change Order and Constructor shall be paid its additional costs plus the Constructor’s Fee resulting from any changes in Laws, including increased taxes, enacted after the date of this Agreement.

3.22 CONFIDENTIALITY Unless compelled by law, a governmental agency or authority, an order of a court of competent jurisdiction, or a validly issued subpoena, the Constructor shall treat as confidential and not disclose to third-persons, except Subcontractors, Sub-subcontractors, and Material Suppliers as is necessary for the performance of the Work, or use for its own benefit, any of the Owner’s confidential information, know-how, discoveries, production methods, and the like that may be disclosed to the Constructor or which the Constructor may acquire in connection with the Work. The Owner shall treat as confidential information all of the Constructor’s estimating systems and historical and parameter cost data that may be disclosed to the Owner in connection with the performance of this Agreement. The Owner and the Constructor shall each specify those items to be treated as confidential and shall mark them as “Confidential.” In the event of a legal compulsion or other order seeking disclosure of any Confidential Information, the Constructor or Owner, as the case may be, shall promptly notify the other party to permit that party’s legal objection, if necessary.

ARTICLE 4 OWNER’S RESPONSIBILITIES

4.1 INFORMATION AND SERVICES Owner’s responsibilities under this article shall be fulfilled with reasonable detail and in a timely manner.

4.2 FINANCIAL INFORMATION Before commencing the Work and thereafter, at the written request of the Constructor, the Owner shall provide the Constructor with evidence of Project financing. Evidence of such financing shall be a condition precedent to the Constructor’s commencing or continuing the Work. The Constructor shall be notified prior to any material change in Project financing.

4.3 WORKSITE INFORMATION To the extent the Owner has obtained, or is required elsewhere in the Contract Documents to obtain, the following Worksite information, the Owner shall provide at the Owner’s expense and with reasonable promptness.

 

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4.3.1 information describing the physical characteristics of the Worksite, including surveys, Worksite evaluations, legal descriptions, data or drawings depicting existing conditions, subsurface conditions, and environmental studies, reports, and investigations. Legal descriptions shall include easements, title restrictions, boundaries, and zoning restrictions. Worksite descriptions shall include existing buildings and other construction and all other pertinent Worksite conditions. Adjacent property descriptions shall include structures, streets, sidewalks, alleys, and other features relevant to the Work. Utility details shall include available services, lines at the Worksite and adjacent thereto, and connection points. The information shall include public and private information, subsurface information, grades, contours, and elevations, drainage data, exact locations and dimensions, and benchmarks that can be used by the Constructor in laying out the Work.;

4.3.2 tests, inspections, and other reports dealing with environmental matters, Hazardous Material and other existing conditions, including structural, mechanical, and chemical tests, required by the Contract Documents or by Law; and

4.3.3 any other information or services requested in writing by the Constructor which are required for the Constructor’s performance of the Work and under the Owner’s control.

4.4 BUILDING PERMIT, FEES, AND APPROVALS Except for those permits and fees related to the Work which are the responsibility of the Constructor, the Owner shall secure and pay for all other permits, approvals, easements, assessments, and fees required for the development, construction, use or occupancy of permanent structures or for permanent changes in existing facilities, including the building permit.

4.5 MECHANICS AND CONSTRUCTION LIEN INFORMATION Within seven (7) Days after receiving the Constructor’s written request, the Owner shall provide the Constructor with the information necessary to give notice of or enforce mechanics lien rights and, where applicable, stop notices. This information shall include the Owner’s real property interests in the Worksite and the record legal title.

4.6 CONTRACT DOCUMENTS Unless otherwise specified, the Owner shall provide 3 hard copies of the Contract Documents to the Constructor without cost.

4.6.1 DOCUMENTS IN ELECTRONIC FORM If the Owner requires that the Owner and Constructor exchange documents and data in electronic or digital form, prior to any such exchange, the Owner and Constructor shall agree on a written protocol governing all exchanges in ConsensusDocs 200.2 or a separate addenda, which, at a minimum, shall specify: (a) the definition of documents and data to be accepted in electronic or digital form or to be transmitted electronically or digitally; (b) management and coordination responsibilities; (c) necessary equipment, software and services; (d) acceptable formats, transmission methods and verification procedures; (e) methods for maintaining version control; (f) privacy and security requirements; and (g) storage and retrieval requirements. In the absence of a written protocol, use of documents and data in electronic or digital form shall be at the sole risk of the recipient.

4.7 OWNER’S REPRESENTATIVE The Owner’s Representative is Mr. Frank Bakker. The Owner’s Representative shall be fully acquainted with the Project, and shall have authority to bind the Owner in all matters requiring the Owner’s approval, authorization or written notice. If the Owner changes its Representative or its Representative’s authority, the Owner shall immediately notify the Constructor in writing.

4.8 OWNER’S CUTTING AND PATCHING Cutting, patching, or altering the Work by the Owner or Others shall be done with the prior written approval of the Constructor, which approval shall not be unreasonably withheld.

 

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4.9 OWNER’S RIGHT TO CLEAN UP In case of a dispute between the Constructor and Others with regard to respective responsibilities for cleaning up at the Worksite, the Owner may implement appropriate cleanup measures after two (2) Business Days’ notice.

4.10 COST OF CORRECTING DAMAGED OR DESTROYED WORK With regard to damage or loss attributable to the acts or omissions of the Owner or Others and not to the Constructor, the Owner may either (1) promptly remedy the damage or loss or (2) accept the damage or loss. If the Constructor incurs additional costs or is delayed due to such loss or damage, the Constructor shall be entitled to an equitable adjustment in the Contract Time and reimbursement of all of the costs it incurs plus Constructor’s Fee.

4.11 Notwithstanding the provisions of Section 3.7, Owner shall retain the services of an independent quality control entity and/or testing laboratory that will have authority to inspect and accept the Work and that will have the responsibility of handing over such Work to the Owner along with the Constructor. Owner shall have safety personnel integrated with the Constructor’s safety organization led by Constructor’s Safety Representative who will collectively perform the duties required under Section 3.11 above.

ARTICLE 5 SUBCONTRACTS

5.1 SUBCONTRACTORS The Work not performed by the Constructor with its own forces shall be performed by Subcontractors.

5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK

5.2.1 Promptly after the award of this Agreement, the Constructor shall provide the Owner with a written list of the proposed Subcontractors and significant Material Suppliers. The Owner shall decide on which Subcontractors and Material Suppliers can work on Site. If Owner has a reasonable objection to any of the Constructor’s proposed Subcontractor(s0 or Material Suppliers, if applicable, and based on objective criteria to object to any proposed Subcontractor or Material Supplier, Owner shall promptly notify Constructor in writing, and in any case within three (7) business days. Failure to promptly object shall be deemed to constitute acceptance of Constructor’s proposed Subcontractors and Material Suppliers. Subcontractors may engage Lower Tier Subcontractors to perform portions of their scope of work. Such Lower Tier Subcontractors shall be subject to the Owner’s approval. Such approval shall be promptly given and not unreasonably withheld so as not to delay the progress of the Project.

5.3 BINDING OF SUBCONTRACTORS AND MATERIAL SUPPLIERS The Constructor agrees to bind every Subcontractor and Material Supplier (and require every Subcontractor to so bind its subcontractors and material suppliers) to all the provisions of this Agreement and the Contract Documents as they apply to the Subcontractor’s or Material Supplier’s portions of the Work.

5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS

5.4.1 If this Agreement is terminated, each subcontract and supply agreement shall be assigned by the Constructor to the Owner, subject to the prior rights of any surety, provided that:

a) this Agreement is terminated by the Owner pursuant to sections 11.3 or 11.4; and

b) the Owner accepts such assignment after termination by notifying the Subcontractor and Constructor in writing, and assumes all rights and obligations of the Constructor pursuant to each subcontract agreement.

5.4.2 If the Owner accepts such an assignment, and the Work has been suspended for more than thirty (30) consecutive Days, following termination, if appropriate, the Subcontractor’s compensation shall be equitably adjusted as a result of the suspension in accordance with the terms of the applicable Subcontract.

 

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5.5 The Owner selected and approved all Subcontractors and Material Suppliers, and specified all Work and Materials. In no event shall Constructor’s liability for defects in the Work and Materials or failure to perform by any Subcontractor or Material Supplier be greater than the warranties and corrective work provided and performed by the applicable Subcontractors and Material Suppliers. For the avoidance of doubt, Owner shall look solely to the Subcontractors and Material Suppliers for all defective or otherwise nonconforming Work and Materials or other failure to perform by any Subcontractor or Material Supplier.

ARTICLE 6 TIME

6.1 DATE OF COMMENCEMENT The Date of Commencement is the Agreement date in ARTICLE 1 unless otherwise set forth below:

6.1.1 SUBSTANTIAL/FINAL COMPLETION Number of Days for achievement of Substantial Completion of the Work from the Date of Commencement shall be agreed upon between both Parties. Unless otherwise specified in the Certificate of Substantial Completion, both Parties shall agree upon the date of Final Completion. The deadlines for Substantial and Final Completion are subject to adjustments as provided for in the Contract Documents or as further agreed upon between both Parties.

6.1.2 Time is an important consideration for this Agreement and the Contract Documents.

6.1.3 Unless instructed by the Owner in writing, the Constructor shall not knowingly commence the Work before the effective date of insurance to be provided by the Constructor or the Owner as required by the Contract Documents.

6.2 SCHEDULE OF THE WORK

6.2.1 Before submitting the first application for payment, the Constructor shall submit to the Owner a Schedule of the Work showing the dates on which the Constructor plans to commence and complete various parts of the Work, including dates on which information and approvals are required from the Owner. The Constructor shall comply with the approved Schedule of the Work, unless directed by the Owner to do otherwise or the Constructor is otherwise entitled to an adjustment in the Contract Time. The Constructor shall update the Schedule of the Work on a monthly basis or at appropriate intervals as required by the conditions of the Work and the Project.

6.2.2 The Owner may determine the sequence in which the Work shall be performed, provided it does not unreasonably interfere with the Schedule of the Work. The Owner may require the Constructor to make reasonable changes in the sequence at any time during the performance of the Work in order to facilitate the performance of work by the Owner or Others. To the extent such changes increase the Constructor’s costs or time, the Contract Time shall be equitably adjusted, and the Constructor shall be paid its additional costs plus Constructor’s Fee.

6.3 DELAYS AND EXTENSIONS OF TIME

6.3.1 If the Constructor is delayed at any time in the commencement or progress of the Work by any cause beyond the control of the Constructor, the Constructor shall be entitled to an equitable extension of the Contract Time. Examples of causes beyond the control of the Constructor include, but are not limited to, the following: (a) acts or omissions of the Owner or Others; (b) changes in the Work or the sequencing of the Work ordered by the Owner, or arising from decisions of the Owner that impact the time of performance of the Work; (c) encountering Hazardous Materials, or concealed or unknown conditions; (d) delay authorized by the Owner pending dispute resolution or

 

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suspension by the Owner under Section 11; (e) transportation delays not reasonably foreseeable; (f) labor disputes not involving the Constructor; (g) general labor disputes impacting the Project but not specifically related to the Worksite; (h) fire; (i) Terrorism; (j) epidemics; (k) adverse governmental actions; (l) unavoidable accidents or circumstances; (m) adverse weather conditions not reasonably anticipated. The Constructor shall submit any requests for equitable extensions of Contract Time in accordance with ARTICLE 8.

6.3.2 In addition, if the Constructor incurs additional costs as a result of a delay that is caused by any of the items described in Section 6.3.1 above or any similar cause, the Constructor shall be entitled to be paid all costs incurred plus Constructor’s Fee.

6.3.3 NOTICE OF DELAYS If delays to the Work are encountered for any reason, the Constructor shall provide prompt written notice to the Owner of the cause of such delays after the Constructor first recognizes the delay. The Owner and the Constructor agree to take reasonable steps to mitigate the effect of such delays.

6.4 If the Constructor requests an equitable extension of the Contract Time and payment of additional costs plus Constructor’s Fee as a result of a delay described in the section above, the Constructor shall give the Owner written notice of the claim in accordance with section 8.4. If the Constructor causes delay in the completion of the Work, the Owner shall be entitled to recover its additional costs subject to section.

6.5 The Owner shall process any such claim against the Constructor in accordance with ARTICLE 8.

6.6 LIQUIDATED DAMAGES

6.6.1 SUBSTANTIAL COMPLETION The Owner and the Constructor agree that this Agreement shall not provide for the imposition of liquidated damages based on the Date of Substantial Completion.

6.6.2 FINAL COMPLETION The Owner and the Constructor agree that this Agreement shall not provide for the imposition of liquidated damages based on the Date of Final Completion.

6.7 LIMITED MUTUAL WAIVER OF CONSEQUENTIAL DAMAGES Excluding losses covered by insurance required by the Contract Documents, the Owner and the Constructor agree to waive all claims against each other for any consequential damages that may arise out of or relate to this Agreement. The Owner agrees to waive damages, including but not limited to the Owner’s loss of use of the Project, any rental expenses incurred, loss of income, profit, or financing related to the Project, as well as the loss of business, loss of financing, loss of profits not related to this Project, loss of reputation, or insolvency. The Constructor agrees to waive damages, including but not limited to loss of business, loss of financing, loss of profits not related to this Project, loss of bonding capacity, loss of reputation, or insolvency. The provisions of this section shall also apply to the termination of this Agreement and shall survive such termination.

6.7.1 The Owner and the Constructor shall require similar waivers in contracts with Subcontractors and Others retained for the Project.

ARTICLE 7 COST OF THE WORK

The Owner agrees to pay the Constructor for the Cost of the Work as defined in this Article. This payment shall be in addition to the Constructor’s Fee. The Constructor’s Fee consists of 4% for profit and 5% for Overhead. The Cost of the Work includes:

7.1 wages paid for labor in the direct employ of the Constructor in the performance of the Work;

 

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7.2 salaries of the Constructor’s employees when stationed at the field office, in whatever capacity employed, employees engaged on the road expediting the production or transportation of material and equipment, and supervisory employees from the principal or branch office performing the functions listed below on the attached Exhibit C;

7.3 cost of all employee benefits and taxes including but not limited to workers’ compensation, unemployment compensation, social security, health, welfare, retirement, and other fringe benefits as required by law, labor agreements, or paid under the Constructor’s standard personnel policy, insofar as such costs are paid to employees of the Constructor who are included in the Cost of the Work in the two subsections immediately above shall be included in the rates schedule approved by the Owner (Exhibit C);

7.4 reasonable transportation, accommodation, travel, hotel, and moving expenses of the Constructor’s personnel incurred in connection with the Work; alternatively, the Constructor’s personnel shall be paid a per diem amount as indicated in the rates schedule approved by the Owner (Exhibit C);

7.5 cost of all materials, supplies, and equipment incorporated in the Work, including costs of inspection and testing if not provided by the Owner, transportation, storage, and handling;

7.6 payments made by the Constructor to subcontractors for Work performed under this Agreement;

7.7 cost, including transportation and maintenance of all materials, supplies, equipment, temporary facilities, and hand tools not owned by the workers that are used or consumed in the performance of the Work, less salvage value or residual value; and cost less salvage value on such items used, but not consumed, that remain the property of the Constructor;

7.8 rental charges of all necessary machinery and equipment, exclusive of hand tools owned by workers, used at the Worksite, whether rented from the Constructor or Others, including installation, repair and replacement, dismantling, removal, maintenance, transportation, and delivery costs. Rental from unrelated third parties shall be reimbursed at actual cost. Rentals from the Constructor or its affiliates, subsidiaries, or related parties shall be reimbursed at the prevailing rates in the locality of the Worksite up to eighty-five percent (85%) of the value of the piece of equipment;

7.9 cost of the premiums for all insurance and surety bonds which the Constructor is required to procure or deems necessary, and approved by the Owner, including any additional premium incurred as a result of any increase in the Cost of the Work;

7.10 sales, use, gross receipts, or other taxes, tariffs, or duties related to the Work for which the Constructor is liable;

7.11 permits, fees, licenses, tests, and royalties;

7.12 reproduction costs, photographs, facsimile transmissions, long-distance telephone calls, data processing services, postage, express delivery charges, data transmission, telephone service, and computer-related costs at the Worksite, to the extent such items are used and consumed in the performance of the Work or are not capable of use after completion of the Work;

7.13 all water, power, and fuel costs necessary for the Work;

7.14 cost of removal of all hazardous and non-hazardous substances, debris, and waste materials;

7.15 costs incurred due to an emergency affecting the safety of persons or property;

7.16 legal, mediation, and arbitration fees and costs, other than those arising from disputes between the Owner and the Constructor, reasonably and properly resulting from the Constructor’s performance of the Work;

 

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7.17 all costs directly incurred in the performance of the Work or in connection with the Project, and not included in the Constructor’s Fee as set forth in Article 2, which are reasonably inferable from the Contract Documents.

7.18 Costs of onsite meals that Constructor determines to be reasonably necessary related to onsite meetings attended by any of management representatives of Constructor, Owner, Subcontractors and Material Suppliers. Only the overhead portion of Constructor’s Fee shall apply to these costs;

7.19 DISCOUNTS All discounts for prompt payment shall accrue to the Owner to the extent such payments are made directly by the Owner. To the extent payments are made with funds of the Constructor, all cash discounts shall accrue to the Constructor. All trade discounts, rebates, and refunds, and all returns from sale of surplus materials and equipment, shall be credited to the Cost of the Work.

7.20 FINANCIAL RECORDS Constructor shall keep such full and detailed accounts as are necessary for proper financial management under this Agreement. Constructor shall maintain a complete set of all books and records prepared or used by Constructor with respect to the Project. Owner shall be afforded access to all Constructor’s records, books, correspondence, instructions, drawings, receipts, vouchers, memoranda, and similar data relating to this Agreement. Constructor shall preserve all such records for a period of three years after the final payment. Constructor agrees to use reasonable skill and judgment in the preparation of cost estimates, but does not warrant or guarantee them.

ARTICLE 8 CHANGES

Changes in the Work that are within the general scope of this Agreement shall be accomplished, without invalidating this Agreement, by Change Order, and Interim Directed Change.

8.1 CHANGE ORDER

8.1.1 The Constructor may request or the Owner may order changes in the Work or the timing or sequencing of the Work that impacts the Constructor’s costs or the Contract Time. All such changes in the Work that affect Contract Time or Constructor’s costs shall be formalized in a Change Order and processed in accordance with this article.

8.1.2 For changes in the Work, the Owner and the Constructor shall negotiate an appropriate adjustment to the Contract Time and payment of the Constructor’s additional costs in good faith and conclude negotiations as expeditiously as possible. Acceptance of the Change Order and any adjustment in the Contract Time and payment of additional costs shall not be unreasonably withheld. Constructor shall be entitled to Constructor’s Fee on all additional costs.

8.1.3 NO OBLIGATION TO PERFORM The Constructor shall not be obligated to perform changes in the Work that impact its costs or Contract Time until a Change Order has been executed or a written Interim Directed Change has been issued.

8.2 INTERIM DIRECTED CHANGE

8.2.1 The Owner may issue a written Interim Directed Change directing a change in the Work prior to reaching agreement with the Constructor on the adjustment, if any, in the Contract Time and payment of additional costs and Constructor’s Fee.

8.2.2 The Owner and the Constructor shall negotiate expeditiously and in good faith for appropriate adjustments, as applicable, to the Contract Time and payment of additional costs and Constructor’s Fee arising out of an Interim Directed Change. As the changed Work is performed, the Constructor shall submit its costs on the same basis as the Costs of the Work described in Article 7 with its application for payment beginning with the next application for payment within thirty (30) Days of the issuance of the Interim Directed Change. If there is a dispute as to the cost to the Owner, the Owner shall pay the Constructor fifty percent (50%) of its estimated cost to perform such Work. In such event, the Parties reserve their rights as to the disputed amount, subject to the requirements of ARTICLE 12.

 

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8.2.3 When the Owner and the Constructor agree upon the adjustment in the payments of additional costs and Constructor’s Fee or the Contract Time, for a change in the Work directed by an Interim Directed Change, such agreement shall be the subject of a Change Order. The Change Order shall include all outstanding Interim Directed Changes on which the Owner and Constructor have reached agreement on Contract Time and Constructor’s additional costs and Constructor’s Fee issued since the last Change Order.

8.3 DETERMINATION OF COST

8.3.1 Owner shall pay Constructor for all of Constructor’s additional costs resulting from a change in the Work based on the Costs of the Work defined in Article 7 plus Constructor’s Fee.

8.4 CLAIMS FOR ADDITIONAL COST OR TIME Except as provided in subsection 6.3.2 for any claim for an increase in the Contract Time and for additional costs and Constructor’s Fee, the Constructor shall give the Owner written notice of the claim within fourteen (14) Days after the occurrence giving rise to the claim or within fourteen (14) Days after the Constructor first recognizes the condition giving rise to the claim, whichever is later. Except in an emergency, notice shall be given before proceeding with the Work. Thereafter, the Constructor shall submit written documentation of its claim, including appropriate supporting documentation, within twenty-one (21) Days after giving notice, unless the Parties mutually agree upon a longer period of time. The Owner shall respond in writing denying or approving the Constructor’s claim no later than fourteen (14) Days after receipt of the Constructor’s claim. Owner’s failure to so respond shall be deemed a denial of the claim. Any change in the Contract Time and payment of additional costs resulting from such claim shall be authorized by Change Order.

ARTICLE 9 PAYMENT

9.1 PROGRESS PAYMENTS The Constructor shall submit to Owner a monthly application for payment no later than the 10 th day of the calendar month for the preceding thirty (30) days. The application for payment shall consist of the Cost of the Work performed up to the 30 th day of the month, including payments to Subcontractors and Material Suppliers, and including the cost of material brought to the Worksite or at other locations approved by Owner, along with a proportionate share of the Constructor’s Fee. Approval of payment applications for such stored materials stored off-site shall be conditioned upon submission by Constructor of bills of sale and applicable insurance or such other procedures satisfactory to Owner to establish Owner’s title to such materials, or otherwise to protect Owner’s interest, including transportation to the Worksite. Before submitting the next application for payment, Constructor shall furnish to Owner a statement accounting for the disbursement of funds received under the previous application. The extent of such statement shall be as agreed upon between the Parties.

9.2 Within seven (7) Days after receipt of each monthly application for payment, Owner shall give written notice to Constructor of Owner’s acceptance or rejection, in whole or in part, of such application for payment. Within seven (7) Days after accepting such application, Owner shall pay directly to Constructor the appropriate amount for which application for payment is made, less amounts previously paid by Owner. If such application is rejected in whole or in part, Owner shall indicate the reasons for its rejection. If the Parties cannot agree on a revised amount, then, within fifteen (15) Days after its initial rejection in part of such application, Owner shall pay directly to Constructor the appropriate amount for those items not rejected by Owner, for which application for payment is made, less amounts previously paid by Owner. Those items rejected by Owner shall be due and payable when the reasons for the rejection have been removed. Owner shall not retain any funds from an approved Application for Payment.

 

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9.3 ADJUSTMENT OF CONSTRUCTOR’S PAYMENT APPLICATION The Owner may adjust or reject a payment application or nullify a previously approved payment application, in whole or in part, as may reasonably be necessary to protect Owner from loss or damage based upon the following, to the extent that Constructor is responsible for such under this Agreement:

9.3.1 the Constructor’s repeated failure to perform the Work as required by the Contract Documents;

9.3.2 the Constructor’s failure to properly pay subcontractors or materials suppliers in connection with the Work following receipt of such payment from the Owner;

9.3.3 reasonable evidence of delay in performance of the Work such that the Work will not be completed within the Contract Time; and

9.3.4 unless arising from Owner’s non-payment for the performance of the Work, uninsured third-party claims involving the Constructor or reasonable evidence demonstrating that third-party claims are likely to be filed unless and until the Constructor furnishes the Owner with adequate security in the form of a surety bond, letter of credit, or other collateral or commitment which is sufficient to discharge such claims if established.

9.3.5 No later than seven (7) Days after receipt of an application for payment, the Owner shall give written notice to the Constructor disapproving or nullifying it or a portion of it, specifying the reasons for the disapproval or nullification. When the above reasons for disapproving or nullifying an application for payment are removed, payment shall be made for the amounts previously withheld.

9.4 PAYMENT DELAY If for any reason not the fault of the Constructor, the Constructor does not receive a progress payment from the Owner within seven (7) Days after the time such payment is due, the Constructor, upon giving seven (7) Days’ written notice to the Owner, and without prejudice to and in addition to any other legal remedies, may stop Work until payment of the full amount owing to the Constructor has been received.

9.5 SUBSTANTIAL COMPLETION When Substantial Completion of the Work or a designated portion thereof is achieved, the Constructor shall prepare a Certificate of Substantial Completion that shall establish the date of Substantial Completion, and the respective responsibilities of the Owner and Constructor for interim items such as security, maintenance, utilities, insurance, and damage to the Work, and fixing the time for completion of all items on the list accompanying the Certificate. The Certificate of Substantial Completion shall be submitted by the Constructor to the Owner for written acceptance of responsibilities assigned in the Certificate. Unless otherwise provided in the Certificate of Substantial Completion, warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work or a designated portion.

9.6 FINAL COMPLETION When final completion has been achieved, the Constructor shall prepare for the Owner’s acceptance a final application for payment stating that to the best of Constructor’s knowledge, and based on the Owner’s inspections, the Work has reached final completion in accordance with the Contract Documents.

9.7 Final payment shall be made to the Constructor within twenty (20) Days after the Constructor has submitted a complete and accurate application for final payment and the following submissions:

9.7.1 an affidavit declaring any indebtedness connected with the Work, e.g. payrolls or invoices for materials or equipment, to have been paid, satisfied, or to be paid with the proceeds of final payment, so as not to encumber the Owner’s property;

9.7.2 as-built drawings, manuals, copies of warranties, and all other close-out documents required by the Contract Documents;

9.7.3 release of any liens, conditioned on final payment being received;

 

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9.7.4 consent of any surety, if applicable; and

9.7.5 a report of any accidents or injuries experienced by the Constructor or its subcontractors at the Worksite.

9.8 Claims not reserved by the Owner in writing with the making of final payment shall be waived except for claims relating to liens or similar encumbrances, warranties, Defective Work, and latent defects. Unless the Constructor provides written identification of unsettled claims known to the Constructor at the time of making application for final payment, acceptance of final payment constitutes a waiver of such claims.

9.9 LATE PAYMENT Payments due but unpaid shall bear interest of 1.5% per month from the date payment is due.

9.10 OPTIONAL MOBILIZATION AND INITIAL PROCUREMENT PAYMENT Owner may in its sole discretion, including in the interest of accelerating the implementation of the Work, elect to make an initial mobilization payment to Constructor of up to twenty-five percent (25%) of the projected Cost of the Work (the “Mobilization Advance”), accompanied by a notice specifying the Work to be initiated and the Materials to be procured by Constructor utilizing the Mobilization Advance. Constructor shall amortize and credit the Mobilization Advance against subsequent invoices in a manner to be agreed by Owner.

ARTICLE 10 INDEMNITY, INSURANCE, AND BONDS

10.1 INDEMNITY

10.1.1 To the fullest extent permitted by law, the Constructor shall indemnify and hold harmless the Owner, the Owner’s officers, directors, members, consultants, agents, and employees, and Others (the Indemnitees) from all claims for bodily injury and property damage, other than to the Work itself and other property insured, including reasonable attorneys’ fees, costs and expenses, that may arise from the performance of the Work, but only to the extent caused by the negligent acts or omissions of the Constructor, Subcontractors, or anyone employed directly or indirectly by any of them or by anyone for whose acts any of them may be liable; provided however, that Constructor’s indemnity obligation for negligent acts and omissions of the Constructor and its Subcontractors Material Suppliers or anyone directly or indirectly employed by those Subcontractors and Material Suppliers shall be limited to the amounts actually recovered from those Subcontractors and Material Suppliers. The Constructor shall be entitled to reimbursement of any defense costs paid above the Constructor’s percentage of liability for the underlying claim to the extent provided for by the subsection below.

10.1.2 To the fullest extent permitted by law, the Owner shall indemnify and hold harmless the Constructor, its officers, directors, members, consultants, agents, and employees, Subcontractors, or anyone employed directly or indirectly by any of them or anyone for whose acts any of them may be liable from all claims for bodily injury and property damage, other than property insured, including reasonable attorneys’ fees, costs and expenses, that may arise from the performance of work by the Owner or Others but only to the extent caused by the negligent acts or omissions of the Owner or Others. The Owner shall be entitled to reimbursement of any defense costs paid above the Owner’s percentage of liability for the underlying claim to the extent provided for by the subsection above.

10.1.3 NO LIMITATION ON LIABILITY In any and all claims against the Indemnitees by any employee of any indemnitor, anyone directly or indirectly employed by the indemnitor or anyone for whose acts the indemntor may be liable, the indemnification obligation shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the indemnitor under workers’ compensation acts, disability benefit acts, or other employment benefit acts; provided however, the Constructor’s liability for such indemnities is limited to the actual recovery from and remedies provided by the applicable Subcontractor or Material Supplier.

 

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10.2 INSURANCE

10.2.1 Insurance : Constructor shall procure and maintain in full force and effect, and shall require its subcontractors to procure and maintain, at all times during the term of this contract, the minimum coverages and minimum limits as set forth in this Contract. In the event that Constructor voluntarily obtains additional insurance, OCI Beaumont LLC shall be entitled to the benefits thereof (except to the extent mandated by applicable law). The insurance purchased by Constructor, and required of subcontractors by Constructor, for coverage of Constructor and OCI Beaumont LLC is the consolidated insurance program for the Work. The Parties intend that this consolidated insurance program be both Constructor controlled and Constructor sponsored, subject only to Constructor’s obligation to assure the purchase of insurance to comply with the coverages and limits specified in this Contract. Upon request Constructor shall immediately provide certified copies of policies.

In addition to any other insurance obligations or requirements set forth in this Contract, and without limiting the indemnity and insurance obligations of Constructor or and its insurers, at any and all times during the term of this Contract, Constructor shall, at Constructor’s sole cost and expense, procure and maintain in full force and effect, and shall require its subcontractors to procure and maintain, at all times during the term of this contract, sufficient insurance or OCI Beaumont LLC-approved self-insurance (i) as may be required by law, and (ii) to protect Constructor and OCI Beaumont LLC from third-party claims arising out of or connected with the performance of Work hereunder.

Constructor shall be paid on a cost reimbursable basis plus Constructor’s Fee as set forth in Section 7.9 for all Cost of the insurance coverages and minimum limits required in this Contract.

10.2.2 Insurers and Underwriters . Insurers and underwriters shall be satisfactory to Company, authorized to do business in the jurisdiction where the Services are to be performed, and have A.M. Best rating of at least A- and financial rating of at least VII. All policies shall have adequate territorial and navigation limits for the location of the Work, including operations over water, if applicable.

10.2.3 Primary and Noncontributory . Whether required or not required by this Contract, all insurance policies and coverage acquired by Constructor shall extend to and protect OCI Beaumont LLC to the fullest extent. The amount of such coverage, including excess and umbrella insurance, shall be primary to, and receive no contribution from, any other insurance or self-insurance programs maintained by or on behalf of or benefiting OCI Beaumont LLC. THE LIMITS AND COVERAGE OF THE INSURANCE OBTAINED BY Constructor SHALL IN NO WAY LIMIT THE LIABILITIES OR OBLIGATIONS ASSUMED BY Constructor.

10.2.4 Additional Insured . All of Constructor’s insurance policies, whether or not coverage is required by this Contract, and excluding Worker’s Compensation, shall be endorsed to name OCI Beaumont LLC as additional insureds. Endorsement shall be on a form substantially equivalent to ISO Form “20 10 11 85” covering both ongoing operations and products/completed operations and covering the sole, joint, concurrent, or contributory negligence of OCI Beaumont LLC.

10.2.5 Waiver of Subrogation . All of Constructor’s insurance policies, whether or not coverage is required by this Contract, shall be endorsed to contain a waiver on the part of the insurer, by subrogation or otherwise, of all rights against OCI Beaumont LLC. Endorsement shall be on a broad form basis substantially equivalent to ISO Form ‘CG 24 04 11 85”, covering with no limitations.

10.2.6 Cancellation or Alteration . All of Constructor’s insurance policies, whether or not coverage is required by this Contract, shall be endorsed to provide that they may not be materially altered or cancelled without at least thirty (30) days prior written notice to OCI Beaumont LLC.

10.2.7 Premiums, Deductibles and Self Insured Retentions . The cost for any and all premiums, deductibles and self-insured retentions shall be solely for the account of Constructor. Deductibles and self-insured retention amounts shall be disclosed on the certificate of insurance and subject to OCI Beaumont LLC’s approval.

 

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10.2.8 Declarations Pages and Endorsements . Prior to the commencement of Services, Constructor shall furnish OCI Beaumont LLC with current Declarations Pages and Endorsements, on forms provided by or acceptable to OCI Beaumont LLC, evidencing the coverage and conditions required herein.

 

  i) In the event that Constructor fails to provide OCI Beaumont LLC with such documents, OCI Beaumont LLC has the right, but not the obligation, after five (5) days written notice to Constructor, to obtain insurance on behalf of Constructor, and to charge the cost to Constructor or deduct the cost from payments to Constructor.

 

  ii) Failure by Constructor to acquire and/or maintain the insurance coverage and limits set forth in this Contract shall not act, nor shall it be construed, as relieving Constructor from its obligations and responsibilities under this Contract, including without limitation, Constructor’s indemnification obligations hereunder. In the event Constructor fails to obtain any of the required insurance, Constructor shall itself be liable to OCI Beaumont LLC as an insurer to the same extent as if such insurance had been obtained.

 

  iii) OCI Beaumont LLC shall not be obligated to make any payments to Constructor until properly and fully executed Declarations Pages and Endorsements have been provided to OCI Beaumont LLC; however, commencement of Services by Constructor or payment by OCI Beaumont LLC shall not constitute a waiver by OCI Beaumont LLC of any rights in this Contract.

10.2.9 Commercial General Liability Insurance . Occurrence form with minimum limits of liability for bodily injury, death, and property damage of $1,000,000 combined single limit per occurrence, and an aggregate annual minimum limit of $2,000,000. Coverage shall include:

 

  i) Sudden and Accidental Pollution Liability, including cleanup costs;

 

  ii) Broad Form Blanket Contractual Liability specifically covering all liabilities and indemnifications assumed under this Contract;

 

  iii) Independent Constructors Coverage for work let or sublet, with no exclusions, restrictions or limitations;

 

  iv) Premises/Operations;

 

  v) “Action Over/Indemnity Buyback” and deletion of any provisions that limit or exclude coverage of claims made by Constructor’s employees against OCI Beaumont LLC on the basis of their employment relationship.

 

  vi) Products/Completed Operations;

 

  vii) Removal of any exclusions, restrictions, or limitation relating to explosion, collapse, or underground hazards;

 

  viii) If Services performed are on, over, or in close proximity to navigable waters or vessels or in any way involves maritime workers,

 

  a) In Rem Endorsement;

 

  b) Deletion of the watercraft exclusion under both the General Liability and Contractual Liability coverage parts.

 

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10.2.10 Commercial Automobile Liability Insurance . Minimum limits of liability for injury, death or property damage of $1,000,000 combined single limit per occurrence; Coverage shall include:

 

  i) Owned, hired and non-owned vehicles;

 

  ii) Contractor’s employees as Insureds.

10.2.11 Workers’ Compensation and Employer’s Liability Insurance . In accordance with statutory requirements of the states in which Services are being performed and complying with federal laws and requirements, with minimum Employer’s Liability limits of $1,000,000 per accident. No substitute policies shall be permitted. At minimum, Coverage shall include;

 

  i) Occupational Disease;

 

  ii) Other States Insurance;

 

  iii) Voluntary Compensation;

 

  iv) Alternate Employer and Borrowed Servant Endorsements in favor of OCI Beaumont LLC;

 

  v) If Services performed are on, over, or in close proximity to navigable waters or vessels or in any way involve maritime workers:

 

  a) In Rem Endorsement

 

  b) Protection for liabilities under the United States Longshore and Harbor Worker’s Compensation Act, as amended, 1984, and extended by the Outer Continental Shelf Lands Act; protection for liability under the Jones Act, including transportation, wages, maintenance and cure. Admiralty Act, and Death on the High Seas Act; Gulf of Mexico Territorial Extension.

10.2.12 Watercraft Insurance . If the performance of this Agreement requires the use of watercraft, Constructor shall, at minimum, carry the following insurance:

 

  i) Full Form Hull & Machinery Insurance (including Collision Liability) with the sistership clause unamended, and minimum limits of not less than the full value of vessels used in performing operations and with navigational limits adequate for Constructor to perform the work and services hereunder. Where the vessel(s) shall engage in towing operations, said insurance shall carry full Tower’s liability with the sistership clause unamended, Said policy shall be endorsed to provide that additional assureds may, but not be obligated to sue and labor. Such insurance shall apply to all watercraft owned, operated, leased or chartered by Constructor (or its subcontractors, if any).

 

  ii) Full Form Protection & Indemnity Insurance (including Collision Liability and Tower’s Liability) with a limit of not less than $1,000,000 each accident or occurrence for all watercraft, owned, operated, leased or chartered by Constructor (or its subcontractors, if any). The Protection & Indemnity policy shall be endorsed as follows:

 

  a) to Include voluntary removal of wreck/removal of debris coverage (with a minimum limit of liability of not less than $1,000,000);

 

  b) to delete any language in any policy which reduces or limits coverage for OCI Beaumont LLC (as herein defined) in the event of the Limitation of Liability statute; and

 

  c) to provide full coverage for OCI Beaumont LLC without regard to liability “as owner” of the vessel and to delete any “as owner” clause and any other language which limits, or purports to limit, the coverage afforded to an insured or an additional insured who is not a ship owner, and to include coverage for all additional insureds in any capacity in which they may be held liable.

 

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10.2.13 Umbrella / Excess Liability Insurance . Umbrella/Excess Liability Insurance with minimum combined single limits of $10,000,000.00. Coverage shall include:

 

  i) Coverage at least as broad and on a following form basis in excess of the underlying minimum coverages required in Section I, J, K, L, M, N, and O of this Agreement;

 

  ii) Specifically include Constructor’s contractual liability;

 

  iii) Aggregate limits, if any, shall apply separately to each annual policy period.

10.2.14 Equipment/Property Insurance . Limits shall be in an amount of not less than the full replacement cost thereof. Coverage shall be on an “All Risk” form and replacement cost basis. Coverage shall include:

 

  i) ‘All-risks’ of physical loss of or damage to property and equipment owned, leased or rented by, or otherwise in the care, custody or control of, Constructor or its subcontractors, including employees of either, including but not limited to equipment, rigs, specialty tools and property used in the course of construction, including transit;

 

  ii) Where applicable, such insurance shall be amended to include coverage for the perils of flood, earthquake (including subsidence) and exceeding the lifting capacity of machinery in operation;

 

  iii) Any co-insurance requirements shall be waived.

10.2.15 Professional Liability Insurance . If Work shall ever involve design, engineering, consulting or other professional services, Professional Liability Insurance with minimum limits of $2,000,000 combined single limit.

10.3 PROPERTY INSURANCE

10.3.1 Before commencing the Work, the Owner shall obtain and maintain a Builder’s Risk Policy upon the entire Project for the full cost of replacement at the time of loss. This insurance shall also name the Constructor, Subcontractors, Sub-subcontractors, and Material Suppliers as insureds. This insurance shall be written as a Builder’s Risk Policy or equivalent form to cover all risks of physical loss except those specifically excluded by the policy, and shall insure (a) at least against the perils of fire, lightning, explosion, windstorm, hail, smoke, aircraft (except aircraft, including helicopter, operated by or on behalf of the Constructor) and vehicles, riot and civil commotion, theft, vandalism, malicious mischief, debris removal, flood, earthquake, earth movement, water damage, wind damage, testing if applicable, collapse however caused, and (b) damage resulting from defective design, workmanship, or material. The Owner shall be solely responsible for any deductible amounts or coinsurance penalties. This policy shall provide for a waiver of subrogation in favor of the Constructor, Subcontractors, Lower Tier Subcontractors, and Material Suppliers. This insurance shall remain in effect until final payment has been made or until no person or entity other than the Owner has an insurable interest in the property to be covered by this insurance, whichever is sooner. Partial occupancy or use of the Work shall not commence until the Owner has secured the consent of the insurance company or companies providing the coverage required in this subsection. Before commencing the Work, the Owner shall provide a copy of the property policy or policies obtained in compliance with this subsection.

10.3.2 If the Owner does not intend to purchase the property insurance required by this Agreement, including all of the coverages and deductibles described herein, the Owner shall give written notice to the Constructor before the Work is commenced. The Constructor may then provide insurance to protect its interests and the interests of the Subcontractors and Lower Tier Subcontractors, including the coverage of deductibles. The cost of this insurance shall be charged to the Owner in a Change Order. The Owner shall be responsible for all of Constructor’s costs reasonably attributed to the Owner’s failure or neglect in purchasing or maintaining the coverage described above.

 

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10.3.2.1 If the Owner does not obtain insurance to cover the risk of physical loss resulting from Terrorism, the Owner shall give written notice to the Constructor before the Work commences. The Constructor may then provide insurance to protect its interests and the interests of the Subcontractors and Lower Tier Subcontractors against such risk of loss, including the coverage of deductibles. The cost of this insurance shall be charged to the Owner in a Change Order.

10.3.3 The Owner and the Constructor waive all rights against each other and their respective employees, agents, Constructors, subcontractors and subsubcontractors, and design professionals for damages caused by risks covered by the property insurance except such rights as they may have to the proceeds of the insurance and such rights as the Constructor may have for the failure of the Owner to obtain and maintain property insurance in compliance with subsection 10.3.

10.3.4 To the extent of the limits of the Constructor’s CGL specified in subsection 10.2.9 or 10 million dollars (whichever is more, the Constructor shall indemnify and hold harmless the Owner against any and all liability, claims, demands, damages, losses, and expenses, including attorneys’ fees, in connection with or arising out of any damage or alleged damage to any of the Owner’s existing adjacent property that may arise from the performance of the Work, to the extent caused by the negligent acts or omissions of the Constructor, Subcontractor, or anyone employed directly or indirectly by any of them or by anyone for whose acts any of them may be liable.

10.3.5 RISK OF LOSS Except to the extent a loss is covered by applicable insurance, risk of loss or damage to the Work shall be upon the Constructor until the Date of Substantial Completion, unless otherwise agreed to by the Parties.

10.4 OWNER’S INSURANCE

10.4.1 BUSINESS INCOME INSURANCE The Owner may procure and maintain insurance against loss of use of the Owner’s property caused by fire or other casualty loss.

10.4.2 OWNER’S LIABILITY INSURANCE The Owner shall either self-insure or obtain and maintain its own liability insurance for protection against claims arising out of the performance of this Agreement, including, without limitation, loss of use and claims, losses, and expenses arising out of the Owner’s acts or omissions.

10.5 ADDITIONAL GENERAL LIABILITY COVERAGE

10.5.1 The Owner shall not require the Constructor to purchase and maintain additional liability coverage, primary to the Owner’s coverage under subsection 10.5.

10.5.2 If required by the above subsection, the additional liability coverage required of the Constructor shall be:

 

  i) Additional Insured. The Owner shall be named as an additional insured on the Constructor’s CGL specified for operations and completed operations, but only with respect to liability for bodily injury, property damage, or personal and advertising injury to the extent caused by the negligent acts or omissions of the Constructor, or those acting on the Constructor’s behalf, in the performance of the Constructor’s Work for the Owner at the Worksite.

 

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Any documented additional cost in the form of a surcharge associated with procuring the additional general liability coverage in accordance with this subsection shall be paid by the Owner directly or the costs may be reimbursed by the Owner to the Constructor by increasing the Contract Price to correspond to the actual cost required to purchase and maintain the coverage. Before commencing the Work, the Constructor shall provide a certificate and endorsement evidencing that the Owner has been named as an additional insured, as applicable.

10.6 ROYALTIES, PATENTS, AND COPYRIGHTS The Owner shall pay all royalties and license fees which may be due on the inclusion of any patented or copyrighted materials, methods, or systems incorporated in the Work. The Owner agrees to defend, indemnify, and hold the Constructor harmless from any suits or claims of infringement of any patent rights or copyrights arising out of any patented or copyrighted materials, methods, or systems specified by the Owner.

10.7 BONDS

10.7.1 Performance and Payment Bonds shall not be required of the Constructor.

ARTICLE 11 SUSPENSION, NOTICE TO CURE, AND TERMINATION

11.1 SUSPENSION BY OWNER FOR CONVENIENCE

11.1.1 OWNER SUSPENSION Should the Owner order the Constructor in writing to suspend, delay, or interrupt the performance of the Work for the convenience of the Owner and not due to any act or omission of the Constructor or any person or entity for whose acts or omissions the Constructor may be liable, then the Constructor shall immediately suspend, delay or interrupt that portion of the Work for the time period ordered by the Owner. The Contract Time shall be equitably adjusted by Change Order for the delay resulting from any such suspension, and Constructor shall be paid all of its costs related to the suspension and plus Constructor’s Fee.

11.1.2 Any action taken by the Owner that is permitted by any other provision of the Contract Documents and that result in a suspension of part or all of the Work does not constitute a suspension of Work under this section.

11.2 NOTICE TO CURE A DEFAULT If the Constructor persistently fails to supply enough qualified workers, proper Materials to maintain the approved Schedule of the Work, or fails to make prompt payment to its workers, Subcontractors, or Material Suppliers, disregards Laws or orders of any public authority having jurisdiction, or is otherwise guilty of a material breach of a provision of this Agreement, the Constructor may be deemed in default. If the Constructor fails within twenty one (21) Days after receipt of written notice to commence and continue satisfactory correction of such default with diligence and promptness, then the Owner shall give the Constructor a second notice to correct the default within a three (3) Day period.

11.2.1 If the Constructor fails to promptly commence and continue satisfactory correction of the default following receipt of such second notice, the Owner without prejudice to any other rights or remedies may: (a) take possession of the Worksite; (b) complete the Work utilizing reasonable means. Constructor shall not be responsible for the Owner’s costs to complete the Work.

11.2.2 In the event of an emergency affecting the safety of persons or property, the Owner may immediately commence and continue satisfactory correction of such default without first giving written notice to the Constructor, but shall give prompt written notice of such action to the Constructor following commencement of the action.

11.3 OWNER’S RIGHT TO TERMINATE FOR DEFAULT

11.3.1 TERMINATION BY OWNER FOR DEFAULT If, within fourteen (14) Days of receipt of a notice to cure pursuant to Section 11.2, the Constructor fails to commence and satisfactorily continue correction of the default set forth in the notice to cure, the Owner may notify the

 

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Constructor and, if applicable, the surety, that it intends to terminate this Agreement for default absent appropriate corrective action within twenty-eight (28) additional Days. After the expiration of the additional twenty-eight (28) Day period, the Owner may terminate this Agreement by written notice absent appropriate corrective action. Termination for default is in addition to any other remedies available to the Owner under Section 11.2. The Owner shall pay Constructor all of its costs incurred to date plus Constructor’s Fee. Constructor shall not be liable to Owner for the costs to complete the Work.

11.3.2 USE OF CONSTRUCTOR’S MATERIALS, SUPPLIES, AND EQUIPMENT If the Owner or Others perform work under this section, the Owner shall have the right to take and use any Materials belonging to the Constructor or Subcontractors and located at the Worksite for the purpose of completing any remaining Work. Immediately upon completion of the Work, any remaining materials, supplies, or equipment not consumed or incorporated in the Work shall be returned to the Constructor in substantially the same condition as when they were taken, reasonable wear and tear excepted. Owner shall pay Constructor’s costs plus Constructor’s Fee for all Materials, supplies or equipment belonging to the Constructor or Subcontractors and used to complete the Work.

11.3.3 If the Constructor files a petition under the Bankruptcy Code, this Agreement shall terminate if the Constructor or the Constructor’s trustee rejects the Agreement, or if there has been a default and the Constructor is unable to give adequate assurance that the Constructor will perform as required by this Agreement or otherwise is unable to comply with the requirements for assuming this Agreement under the applicable provisions of the Bankruptcy Code.

11.3.4 The Owner shall make reasonable efforts to mitigate damages arising from Constructor default.

11.3.5 If the Owner terminates this Agreement for default, and it is later determined that the Constructor was not in default, or that the default was excusable under the terms of the Contract Documents, then, in such event, the termination shall be deemed a termination for convenience, and the rights of the Parties shall be as set forth in Section 11.4.

11.4 TERMINATION BY OWNER FOR CONVENIENCE

11.4.1 Upon written notice to the Constructor, the Owner may, without cause, terminate this Agreement. The Constructor shall immediately stop the Work, follow the Owner’s instructions regarding shutdown and termination procedures, and strive to minimize any further costs.

11.4.2 If the Owner terminates this Agreement for Convenience, the Constructor shall be paid: (a) for the costs of the Work performed to date including Constructor’s Fee; (b) for all demobilization costs and costs incurred as a result of the termination and Constructor’s Fee, but not including Constructor’s Fee on Work not performed; and (c) a premium set forth in
Exhibit         .

11.4.3 If the Owner terminates this Agreement, the Constructor shall:

(a) execute and deliver to the Owner all papers and take all action required to assign, transfer, and vest in the Owner the rights of the Constructor to all materials, supplies and equipment for which payment has been or will be made in accordance with the Contract Documents and all subcontracts, orders and commitments which have been made in accordance with the Contract Documents;

(b) exert reasonable effort to reduce to a minimum the Owner’s liability for subcontracts, orders, and commitments that have not been fulfilled at the time of the termination;

(c) cancel any subcontracts, orders, and commitments as the Owner directs; and

 

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(d) sell at prices approved by the Owner any materials, supplies, and equipment as the Owner directs, with all proceeds paid or credited to the Owner.

11.5 CONSTRUCTOR’S RIGHT TO TERMINATE

11.5.1 Upon seven (7) Days’ written notice to the Owner, the Constructor may terminate this Agreement if the Work has been stopped for a thirty (30) Day period through no fault of the Constructor for any of the following reasons:

 

  a) under court order or order of other governmental authorities having jurisdiction;

 

  b) as a result of the declaration of a national emergency or other governmental act during which, through no act or fault of the Constructor, materials are not available; or

 

  c) suspension by the Owner for convenience pursuant to Section 11.1.

 

  11.5.2 In addition, upon seven (7) Days’ written notice to the Owner, the Constructor may terminate this Agreement if the Owner:

 

  a) fails to furnish reasonable evidence pursuant to section 4.2 that sufficient funds are available and committed for Project financing; or

 

  b) assigns this Agreement over the Constructor’s reasonable objection; or

 

  c) fails to pay the Constructor in accordance with this Agreement and the Constructor has complied with Section 11.5.1; or

 

  d) otherwise materially breaches this Agreement.

 

  11.5.3 Upon termination by the Constructor in accordance with Section 11.5, the Constructor shall be entitled to recover from the Owner payment of all of the costs of the Work incurred plus Constructor’s Fee for all Work executed and for any proven loss, cost, or expense in connection with the Work, including all demobilization costs plus reasonable Overhead and profit on Work not performed.

11.6 OBLIGATIONS ARISING BEFORE TERMINATION Even after termination, the provisions of this Agreement still apply to any Work performed, payments made, events occurring, costs charged or incurred or obligations arising before the termination date.

ARTICLE 12 DISPUTE MITIGATION AND RESOLUTION

12.1 WORK CONTINUANCE AND PAYMENT Unless otherwise agreed in writing, the Constructor shall continue the Work and maintain the Schedule of the Work during any dispute mitigation or resolution proceedings. If the Constructor continues to perform, the Owner shall continue to make payments in accordance with this Agreement.

12.2 DIRECT DISCUSSIONS If the Parties cannot reach resolution on a matter relating to or arising out of this Agreement, the Parties shall endeavor to reach resolution through good faith direct discussions between the Parties’ representatives, who shall possess the necessary authority to resolve such matter and who shall record the date of first discussions. If the Parties’ representatives are not able to resolve such matter within five (5) Business Days from the date of first discussion, the Parties’ representatives shall immediately inform senior executives of the Parties in writing that resolution was not affected. Upon receipt of such notice, the senior executives of the Parties shall meet within five (5) Business Days to endeavor to reach resolution. If the dispute remains unresolved after fifteen (15) Days from the date of first discussion, the Parties shall submit such matter to the dispute mitigation and dispute resolution procedures selected herein.

 

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12.3 MITIGATION If the Parties select one of the dispute mitigation procedures below, disputes remaining unresolved after direct discussions shall be directed to the selected mitigation procedure. The dispute mitigation procedure shall result in a nonbinding finding on the matter, which may be introduced as evidence at a subsequent binding adjudication of the matter, as designated in section 12.5. The Parties agree that the dispute mitigation procedure shall be:

                   Project Neutral;

Or,

                   Dispute Review Board.

 

  12.3.1 MITIGATION PROCEDURES The Project Neutral/Dispute Review Board (“Neutral/Board”) shall be mutually selected and appointed by the Parties and shall execute a retainer agreement with the Parties establishing the scope of the Neutral/Board’s responsibilities. The costs and expenses of the Neutral/Board shall be shared equally by the Parties. The Neutral/Board shall be available to either Party, upon request, throughout the course of the Project, and shall make regular visits to the Project so as to maintain an up-to-date understanding of the Project progress and issues and to enable the Neutral/Board to address matters in dispute between the Parties promptly and knowledgeably. The Neutral/Board shall issue nonbinding findings within five (5) Business Days of referral of the matter to the Neutral/Board, unless good cause is shown.

 

  12.3.2 If the matter remains unresolved following the issuance of the nonbinding finding by the mitigation procedure or if the Neutral/Board fails to issue nonbinding findings within five (5) Business Days of the referral, the Parties shall submit the matter to the binding dispute resolution procedure designated in section 12.5.

12.4 MEDIATION If direct discussions pursuant to section 12.2 do not result in resolution of the matter and no dispute mitigation procedure is selected under section 12.3, the Parties shall endeavor to resolve the matter by mediation through the current Construction Industry Mediation Rules of the American Arbitration Association (AAA), or the Parties may mutually agree to select another set of mediation rules. The administration of the mediation shall be as mutually agreed by the Parties. The mediation shall be convened within thirty (30) Business Days of the matter first being discussed and shall conclude within forty-five (45) Business Days of the matter first being discussed. Either Party may terminate the mediation at any time after the first session by written notice to the non-terminating Party and mediator. The costs of the mediation shall be shared equally by the Parties.

12.5 BINDING DISPUTE RESOLUTION If the matter is unresolved after submission of the matter to a mitigation procedure or to mediation, the Parties shall submit the matter to the binding dispute resolution procedure selected below:

12.5.1 Arbitration using the current Construction Industry Arbitration Rules of the AAA with a panel of three arbitrators. Each party shall select one arbitrator and the two appointed arbitrators shall select a third.

12.5.2 The costs of any binding dispute resolution procedures and reasonable attorneys’ fees shall be borne by the non-prevailing Party, as determined by the adjudicator of the dispute.

12.5.3 VENUE The venue of any binding dispute resolution procedure shall be Houston, Texas.

 

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12.6 MULTIPARTY PROCEEDING All parties necessary to resolve a matter agree to be parties to the same dispute resolution proceeding. Appropriate provisions shall be included in all other contracts relating to the Work to provide for the joinder or consolidation of such dispute resolution procedures.

12.7 LIEN RIGHTS Nothing in this article shall limit any rights or remedies not expressly waived by the Constructor that the Constructor may have under lien laws.

ARTICLE 13 MISCELLANEOUS

13.1 EXTENT OF AGREEMENT Except as expressly provided, this Agreement is for the exclusive benefit of the Parties, and not for the benefit of any third party. This Agreement represents the entire and integrated agreement between the Parties, and supersedes all prior negotiations, representations, or agreements, either written or oral.

13.2 ASSIGNMENT Except as to the assignment of proceeds, the Parties shall not assign their interest in this Agreement without the written consent of the other. The terms and conditions of this Agreement shall be binding upon both Parties, their partners, successors, assigns, and legal representatives. Neither Party shall assign the Agreement as a whole without written consent of the other except that the Owner may assign the Agreement to a wholly owned subsidiary of the Owner when the Owner has fully indemnified the Constructor or to an institutional lender providing construction financing for the Project as long as the assignment is no less favorable to the Constructor than this Agreement. If such assignment occurs, the Constructor shall execute any consent reasonably required. In such event, the wholly owned subsidiary or lender shall assume the Owner’s rights and obligations under the Contract Documents. If either Party attempts to make such an assignment, that Party shall nevertheless remain legally responsible for all obligations under this Agreement, unless otherwise agreed by the other Party.

13.3 GOVERNING LAW This Agreement shall be governed by the laws in effect in the State of Texas.

13.4 SEVERABILITY The partial or complete invalidity of any one or more provisions of this Agreement shall not affect the validity or continuing force and effect of any other provision.

13.5 NO WAIVER OF PERFORMANCE The failure of either Party to insist, in any one or more instances, on the performance of any of the terms, covenants, or conditions of this Agreement, or to exercise any of its rights, shall not be construed as a waiver or relinquishment of such term, covenant, condition, or right with respect to further performance or any other term, covenant, condition, or right.

13.6 TITLES The titles given to the articles are for ease of reference only and shall not be relied upon or cited for any other purpose.

13.7 JOINT DRAFTING The Parties expressly agree that this Agreement was jointly drafted, and that both had opportunity to negotiate its terms and to obtain the assistance of counsel in reviewing its terms prior to execution. Therefore, this Agreement shall be construed neither against nor in favor of either Party, but shall be construed in a neutral manner.

13.8 RIGHTS AND REMEDIES The Parties’ rights, liabilities, responsibilities and remedies with respect to this Agreement, whether in contract, tort, negligence or otherwise, shall be exclusively those expressly set forth in this Agreement. The Owner’s exclusive remedy and Constructor’s sole liability for any breach of this Contract, or any other cause of action arising in contract, tort, negligence, indemnity or otherwise in any way related to or arising out of the performance of the Work and this Contract shall be strictly limited to the remedies stated in the Subcontracts with the Subcontractors and Material Suppliers.

 

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ARTICLE 14 CONTRACT DOCUMENTS

14.1 EXISTING CONTRACT DOCUMENTS

14.2 The Contract Documents in existence at the time of execution of this Agreement are as follows:

 

(a)  

 

   Drawings:
(b)  

 

   Specifications:
(c)  

 

   Addenda:
(d)  

 

   Owner Provided information:
(e)  

 

   Other:

14.3 INTERPRETATION OF CONTRACT DOCUMENTS

14.4 The drawings and specifications are complementary. If Work is shown only on one but not on the other, the Constructor shall perform the Work as though fully described on both, consistent with the Contract Documents and reasonably inferable from them.

14.5 In case of conflicts between the drawings and specifications, the specifications shall govern. In any case of omissions or errors in figures, drawings, or specifications, the Constructor shall immediately submit the matter to the Owner for clarification. The Owner’s clarifications are final and binding on all Parties, subject to an equitable adjustment in Contract Time and payment of Constructor’s cost and Constructor’s Fee or dispute mitigation and resolution.

14.6 Where figures are given, they shall be preferred to scaled dimensions.

14.7 Unless otherwise specifically defined in this Agreement, any terms that have well-known technical or trade meanings shall be interpreted in accordance with their well-known meanings.

14.8 ORDER OF PRECEDENCE In case of any inconsistency, conflict, or ambiguity among the Contract Documents, the documents shall govern in the following order: (a) Change Orders and written amendments to this Agreement; (b) this Agreement; (c) subject to subsection 14.5 the drawings (large scale governing over small scale), specifications and addenda issued prior to the execution of this Agreement or signed by both Parties; (d) information furnished by the Owner pursuant to subsection 3.13.4 or designated as a Contract Document in ARTICLE 14 (e) other documents listed in this Agreement. Among categories of documents having the same order of precedence, the term or provision that includes the latest date shall control. Information identified in one Contract Document and not identified in another shall not be considered a conflict or inconsistency.

 

OWNER:   /s/ Frank Bakker
BY: Frank Bakker – President

WITNESS: /s/ Monique Shepherd                         NAME: Monique Shepherd     TITLE: Contracts Manager

CONSTRUCTOR: Orascom E&C USA Inc.

 

BY: /s/ Ihab Demian    NAME: Ihab Demian    TITLE: Project Director

END OF DOCUMENT

 

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Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

The Board of Directors and Member

OCI Beaumont LLC:

We consent to the use of our report dated May 16, 2013, with respect to the balance sheets of OCI Beaumont LLC (formerly, Pandora Methanol LLC) as of December 31, 2012 and 2011, and the related statements of operations, member’s equity, and cash flows for the years then ended, included herein and to the reference to our firm under the headings “Experts,” “Summary Historical and Pro Forma Financial and Operating Data,” and “Selected Historical and Pro Forma Financial and Operating Data” in the preliminary prospectus.

 

/s/ KPMG LLP

Houston, Texas

July 22, 2013